Opinion
February 11, 1955 —
April 5, 1955.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellants there were briefs by Stroud, Stebbins, Wingert Stroud of Madison, and oral argument by Byron H. Stebbins.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent Albert Pauline there was oral argument by Robert E. Gratz of Milwaukee.
This is an action commenced on April 14, 1953, by Wisconsin Appleton Company, an employer, and Travelers Insurance Company, its insurer, to reverse and set aside an interlocutory order of Wisconsin Industrial Commission awarding workmen's compensation to Albert Pauline for injury to his back caused by his employment, and reserving jurisdiction to make a further award for permanent disability. By its judgment the trial court confirmed the findings and award of the Industrial Commission. The appeal is from this judgment.
Albert Pauline commenced his employment with Wisconsin Appleton Company, in December, 1939. He remained in such employment until he entered military service in September, 1942. His military service extended until December, 1945. He resumed his employment with Wisconsin Appleton Company, in October, 1948. Throughout his employment with this company he was engaged in doing heavy work, — for a time, as a laborer; thereafter, in loading castings; and from December, 1948, as a molder. On October 22, 1951, he was engaged in constructing iron molds on a "squeezer machine" and in carrying the molds for a distance of 40 feet, and setting them down. The molds were of varied weight, from 40 to 85 or 90 pounds. He had put down 73 molds and had two more to process and set down. After completing the 74th mold and having set it down on the floor, he suffered a sharp pain in his back and could not straighten out. His testimony with reference to his experience is as follows:
" Q. . . . Now would you tell us what happened that morning. A. Well, I went to work, nothing wrong with me, I was going along pretty good until almost pouring time, I had 73 molds out and I wanted to make 75. When I made the 74th one, I went out, set the mold down, bent down, set it on the floor, I couldn't straighten out. My back gave way.
" Q. Now, when you noticed something wrong with your back that morning, you were in the process of taking this let's say 85-pound mold and putting it on the floor? A. Yes.
" Q. Would you show us how you ordinarily put that mold on the floor? How would you carry it, first of all? A. You pull it off the machine like this. (Indicating.) You carry it close to your body, rest it on your body, well, as close as you can. You can't squeeze it you will break it, but you run out and set it down on the floor.
" Q. On the floor. Now, you had carried it close to your body, or on your body, actually, because that won't misshape the mold? A. That is correct.
" Q. So you carry it slightly away from your body? A. Very slightly, yes. . . .
" Q. Describe your physical feelings at the time you put down this 74th mold. A. Well, I had it down on the floor, I was ready to straighten out, I got very sharp pains in my back. I couldn't straighten out."
Thereafter Pauline made another mold, reported to his foreman, and went home. He saw Dr. Harold Oberfeld on the same day. He returned to work two and one-half days later, but still had sharp pains in his back. He received treatment from Dr. Oberfeld thereafter, but continued to work. On January 11, 1952, because of pain in his leg he entered Veterans Administration Hospital at Wood. On March 11, 1952, he underwent an operation at which time a herniated disc was removed.
Pauline first experienced pain in his back in 1944 while he was in the army. It lasted two or three days. In 1946 he had a similar experience. In 1948 after a fall he noticed a back pain which lasted possibly a week. In 1950 he had a slight back in jury which lasted "a couple of days." In 1951 he had a common backache "that didn't amount to anything." Six months to a year before October 22, 1951, he had trouble with his back. He testified that he never lost a day's work, nor ever had any treatment for his back, until he was hurt.
The examiner for the Industrial Commission who heard Pauline's application for compensation, found that he did not sustain accidental injury within the meaning of the compensation act while performing services growing out of and incidental to his employment.
Upon review, the commission set aside the findings of the examiner, and entered an interlocutory order based upon findings of fact that "on October 22, 1951, applicant sustained injury to his back; that said injury was caused by his work for respondent; that at the time of his injury he was performing service for respondent in the course of his employment as a molder." The commission determined that Pauline had sustained partial disability and reserved jurisdiction to make further award.
A verified medical report of Dr. Oberfeld was filed with the commission. Therein the physician stated that in his opinion upon his findings, Pauline had sustained accidental injury; and that treatment was given to Pauline by him for the condition which he described as "left sacroiliac strain." The date of last examination was stated as December 24, 1951. He stated that the accident caused the disability sustained, and that the employee did not have permanent disability previous to this injury. A report of the Veterans Hospital was filed. It indicated the operation for herniated intervertebral disc and result thereof.
Dr. Howard Johnson, orthopedic physician and surgeon, testified as an expert witness on behalf of the employer. He stated that in his opinion Pauline had a degenerating disc lesion which developed over a period of time and reached the point where it became acute with sciatic-nerve radiation into the right leg. Specifically, Dr. Johnson also testified in part, as follows:
"Direct Examination
" Q. Doctor, where there is a degenerating disc in existence, what is necessary to make it acute? A. Not very much, that is, degenerating disc lesions can become acutely painful by very minor things, just bending over, bending over to pick up a razor blade, tie your shoelace, cough or sneeze. In other words, it doesn't take anything unusual. These lesions become so advanced that they give away.
" Q. Well, doctor, based on what you have seen here in the medical reports and testimony today, do you have any opinion as to whether or not anything happened on October 22, 1951, that may have made this complaint of Mr. Pauline particularly acute? A. Well, I didn't hear anything unusual in the history other than that he was doing his usual work which required bending and sitting down and lifting, for that matter, of weights, but it was, as I understand it, being done in the usual way.
" Q. When there is a degenerated condition and just occasional bending over at some stage may cause it to pop out is that it? A. Yes.
"Cross Examination
" Q. Now, doctor, in your opinion, you heard, I assume from your testimony that Mr. Pauline did heavy work on the squeezer and stack, particularly on the squeezer machine, and you gave in your opinion that there would be — Mr. Coleman when he asked a question that there would be nothing in his work that would have made his condition acute, now, I'll rephrase that question, ask it this way doctor: Isn't it a fact that if a man does heavy work such as the work that was being done by Mr. Pauline on October 22 when he took molds from a machine weighing some 85 to 90 pounds, would carry them running about forty feet, bend over, and place those gently on the floor, would that in any way aggravate any type of herniated disc condition, that type of work? A. Well, let me answer that this way: An individual that doesn't do hard work, office worker, and so on, isn't apt to have a degenerated or herniated disc, and the fact that he did strenuous work would seem to be a factor in the type of back lesion he has. Now, if he had been sitting still or resting in bed, he probably wouldn't have developed acute back symptoms. At that time he was doing work that required maneuvering about and the acute symptoms, if they occurred in that manner, may have been related momentarily to what he was doing.
" Q. Well, your answer doesn't quite satisfy me, doctor. My question relates to aggravation by the nature of his work. Now, you have given an opinion here this morning that said in your opinion that the man suffered from a gradually degenerating disc? A. Huh huh.
" Q. Now, assuming that he were an office worker from 1950 to October of 1951, would his degeneration have been as quick or was the nature of his work in any way responsible for the condition that occurred on October 22? A. Well, I think I answered that. I believe that the nature of his work was responsible for this degenerated condition that he has developed.
" Q. And the heavy nature of his work aggravated the otherwise what you term degenerative disc, is that correct? A. Well, I wouldn't be willing to say it aggravated it.
" Q. How would you phrase it? A. I think that he had a slowly but progressive degenerative change in this lower disc lesion. That has been proven by surgery and that sooner or later he was going to develop radicular pain and a disabling backache and on this particular occasion he was doing his usual work, as I understand it, when it finally became acute. Now, I don't consider that an aggravation. It is the development of a condition that has been slowly progressing and finally reached a point where it became disabling.
" Q. My question relates to the heavy nature of his work, and would the very heavy nature of his work do you think it aggravated and accelerated the point at which his condition became acute? Understand that question? A. Well, I do. He had an acute episode on that day.
" Q. I beg your pardon. A. He had an acute episode on that day. On that day he couldn't straighten out but that, as I say, I don't consider an aggravation. I consider it would be the end result of repeated strains and stresses on his back and that sometime he was bending over to set down a weight, or bending over to put on his shoe, the same thing might have happened to him, and that was the time when it happened and he was then disabled.
" Q. Well, doctor, I would like to refresh your recollection as far as Mr. Pauline's testimony was concerned. You heard of the nature of the work he did from 1950 through October or November of 1951? A. Yes.
" Q. Now, of course, a herniated disc, doctor, you get by a cough or a sneeze, is that correct? A. You do; you may.
" Q. However, after hearing the work done by Mr. Pauline, wouldn't you say that that accelerated this otherwise degenerated condition? A. I think the type of work he was doing was a factor in his back difficulty.
" Q. I see. Let's assume after 1949 he had gone to work as an office worker, do you think for a period perhaps of ten years he may not have had an acute attack like he did? A. Well, I wouldn't know. I don't know. We do see disc lesions in office workers but the chances of them becoming symptomatic are less. I wouldn't be able to answer that question.
" Q. Well, there would be less by reason of the fact he was not doing heavy work? A. The likelihood of him developing an acute disc syndrome if he were doing such type of work would be less.
" Q. So that contrariwise wouldn't it be fair to say that if he were doing heavy work the chance of acceleration of the acute condition of aggravation of a degenerative disc would be greater? You said it negatively, doctor, now I am stating it affirmatively. A. Well, you are putting that term `aggravation' in there. That I don't like. I know we got aggravated arthritis and aggravated discs, one thing and another. That indicates to me there is some immediate acute thing that happens, and that is the thing I am trying to get away from. Here in this he was doing his usual work, he had this thing going on.
" Q. Aggravation is a continuing process, doctor, he would meet with his normal heavy work, that is all I am trying to say. A. Continuing. Just the stress and strain then I will go along with that. The fact the man had pain in his back. He had leg pain before indicates he had some nerve-root compression and it finally became acute and that was from various stresses and strains, no one individual incident as I could see it."
Appellants' first contention is that the award must be set aside for the reason that the Industrial Commission failed to make a finding that Albert Pauline's injury was caused by either accident or disease. It is appellants' position that the commission's finding that Pauline's injury "was caused by his work" is not a finding that his injury was caused by either "accident or disease" as required by statute.
The particular findings of fact challenged for their sufficiency here, read: "That on October 22, 1951, applicant sustained injury to his back; that said injury was caused by his work for respondent; that at the time of his injury he was performing service for the respondent in the course of his employment as a molder." In the commission's written order which contains the "Findings of Fact" and the "Interlocutory Order," appears a prefatory statement which reads in part: "The principal question in issue is whether or not applicant sustained accidental [emphasis supplied] injury while performing service growing out of and incidental to his employment with the respondent, and if the condition resulting in his disability arose out of said employment."
Sec. 102.03 (1), Stats., reads in part:
"(1) Liability under this chapter shall exist against an employer only where the following conditions concur:
"(a) Where the employee sustains an injury.
"(b) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.
"(c) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment. . . .
"(d) Where the injury is not intentionally self-inflicted.
"(e) Where the accident or disease causing injury arises out of his employment."
Sec. 102.01 (2), Stats., provides in part:
". . . `injury' is mental or physical harm to an employee caused by accident or disease."
Manifestly, a finding by the commission that there was an injury to an employee, means, under the definition expressed in sec. 102.01 (2), Stats., that mental or physical harm caused by accident or disease had come to the employee. Sec. 102.03 (1) indicates, that in order that liability attach, there must be evidence that the mental or physical harm caused by accident or disease arose out of the employment. We are of the opinion that a finding that injury was caused by work is the equivalent of a finding that accident or disease causing injury arose out of the employment. The commission is required to make findings only as to ultimate facts. Van Pool v. Industrial Comm. (1954), 267 Wis. 292, 64 N.W.2d 813. It is our view that in the instant matter the prefatory statement immediately preceding the findings of fact in the commission's order must be considered as a part of the ultimate facts found. When including that reference in a consideration of the ultimate facts, it is clear that the commission determined that the injury was caused by accident in the course of employment. We can find no merit to appellants' contention in this regard.
Appellants next contend that in the commission's determination of the issues here, it had no right to consider the written report of Dr. Oberfeld. They maintain that sec. 102.17 (1)(as), Stats., is discriminatory and denies due process and the equal protection of the laws in that it fails to afford to employers the same right accorded to employees in having reports of their physicians treated as prima facie evidence.
Sec. 102.17 (1)(as), Stats., in so far as applicable, provides:
"The contents of verified medical and surgical reports, by physicians and surgeons licensed in, and practicing in, Wisconsin, presented by claimants for compensation shall constitute prima facie evidence as to the matter contained therein, subject to such rules and such limitations as the commission may prescribe."
While a grave constitutional question, — one that gives much concern, — is raised, it is considered that we need not determine it in this cause for the reason that its determination is not essential for a disposition of the case. It appears that exclusive of the report of Dr. Oberfeld, there is ample credible evidence in the record to sustain the findings of the commission. The medical evidence offered by the employer, coupled with the testimony of the applicant, supports the findings.
It is undisputed that Pauline suffered pain and became disabled on October 22, 1951, when he was engaged in hard, physical labor for his employer. According to Dr. Johnson's testimony Pauline had a degenerating disc lesion which had been developing over a period of time and which had reached a point where it became acute with sciatic nerve-root radiation into the right leg. The nature of Pauline's work was responsible for the degenerating condition. The type of work that he was doing was a factor in his back difficulty. The likelihood of his developing an acute disc syndrome, if he had not been doing heavy work, would have been less. On October 22, 1951, when Pauline could not straighten out he sustained an "acute episode." This was an end result of repeated strains and stresses on his back. His bending and his lifting of weights in the usual way brought on the "acute episode." A herniated disc was removed at the hospital.
This testimony, together with that of Pauline relative to his experience, was sufficient to sustain the finding that the disability was the result of an accident. The commission was warranted in determining that Pauline's condition arose from his work with this employer, notwithstanding that the incident of October 22, 1951, was but a manifestation of a situation which had occurred previously. Prior to the injurious physical result of the incident of October 22, 1951, there had been no disability. The herniated disc resulted from repeated stress and strain caused by Pauline's work. The "acute episode" of October 22, 1951, was the end result. The fact that the pains appeared after setting the mold on the floor, was not inconsistent with a causal relationship between the work and the injury.
Appellants contend that no accident occurred because the disabling pain was experienced while the applicant was doing his usual work. Pauline's work on October 22, 1951, was the kind that he had been engaged in for over a rather extended period for this employer, and was of a heavy type. It it not essential that the exertion producing the disability be out of line with the ordinary duties of the job in order that the disability be compensable. In Wisconsin Power Light Co. v. Industrial Comm. (1955), 268 Wis. 513, 68 N.W.2d 44, the deceased experienced a severe headache while assisting fellow employees in erecting a telephone pole. He left his work and went home and rested until the headache went away. On the next day he worked without incident, but on the following day again sustained a headache followed by nausea. He died about three weeks later. His condition was diagnosed as a ruptured aneurysm. The employer contended that the manner of the occurrence did not constitute an industrial accident. This court held that a physical strain which produces an injurious physical result constitutes an "accident" in the sense that such term is used in the Workmen's Compensation Act. In part, it was said (p. 517):
"That such an occurrence is an accident within the meaning of the Workmen's Compensation Act seems to us to have been settled by Bystrom Brothers v. Jacobson (1916), 162 Wis. 180, 155 N.W. 919, which established the principle that a physical strain which produces an injurious physical result constitutes an accident in the sense that that term is used in the act. In Malleable Iron Range Co. v. Industrial Comm. (1934), 215 Wis. 560, 255 N.W. 123, the employee had an advanced case of arteriosclerosis which predisposed him to the rupture of an artery. An artery did burst while he was assisting others to pull a loaded truck and a resulting blood clot reached his lung and caused his death. We held this to be an accident as the word is used in the Workmen's Compensation Act. That case, medically and legally is so similar to the one now before us that we feel obliged now to reach a similar conclusion. According to the most recent text to which we have been referred, we are not alone in this view:
"`A clear majority of jurisdictions now hold that when usual exertion [italics supplied] leads to something actually breaking, herniating, or letting go, with an obvious sudden mechanical or structural change in the body, the injury is accidental. So we find an overwhelming majority compensating for hernia, and a substantial majority compensating for cerebral hemorrhage, arterial or blood-vessel rupture, ruptured aneurysm, apoplexy, ruptured appendix, herniated intervertebral disc, stomach rupture, dislocated kidney, dislocated cervical cord, and detached retina, even when the exertion or conditions producing the change were not out of line with the ordinary duties of the job.' 1 Larson, Law of Workmen's Compensation (1952), p. 519, sec. 38.20."
It appearing conclusively from Dr. Johnson's testimony that Pauline's herniated disc was the result of exertion in his work; and further, since there is ample evidence of record to connect the condition with the work performed by him on behalf of this employer; and further, since the disability which arose on October 22, 1951, resulted from exertion while performing heavy work for the employer and was the end result of a condition which sprang from his employment, we are obliged to determine that the evidence supports the findings of the commission, and that the judgment of the lower court must be affirmed.
By the Court. — Judgment affirmed.