International Harvester Co. v. Industrial Commission

Babhes, J.

The appellant makes the following contentions: (1) That unless the earning capacity of the claimant in the employment in which he was engaged at the time he was injured has been impaired, there can be no recovery for permanent disability; (2) that the undisputed evidence in the case affirmatively shows that there was no such impairment; and (3) that there is no support in the testimony for the finding of the Industrial Commission that there was.

1. The correctness of appellant’s first contention cannot be gainsaid. The statute, sec. 2394 — 10, Stats. 1911, provides that the loss in wages for which compensation may be made shall consist of such percentage of the average weekly earnings of the injured employee as shall fairly represent “the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident.” This court has held that this statute *170 was plain and meant just what it said, and recovery was allowed for total disability because the employee was unfitted by Ms injury to follow the occupation in which he was engaged when injured, although it was shown without dispute that he was capable of earning substantial wages in other occupations. Mellen L. Co. v. Industrial Comm. 154 Wis. 114, 142 N. W. 187. This statute does not mean one thing when it is to the advantage of one employee to so maintain, and at the same time mean something directly contrary when it is to the advantage of some other employee to make a different claim.

2. The claimant had been operating a drill-press in the plaintiff’s factory for about a year before he was injured, and before that time had worked for another company at the same occupation. He was laid up for over ten weeks and incurred considerable expense for doctors’ services. These items were taken care of by the plaintiff as provided in the Compensation Act. The claimant did piece work, the amount of work turned out determining the amount of his compensation. Before the accident his average daily earnings during.the time he had worked for the plaintiff amounted to $2.50. Ten weeks and four days after the accident he went back to work. When the claim for compensation was heard before the Industrial Commission he had worked forty-four and one-half days at his former employment, doing piece work, and had earned a little over $3 per day. The Industrial Commission in its decision said that it was “satisfied from its investigation of injuries of this character and from the testimony that a man injured as applicant was injured can perform the labor that applicant was doing prior to his injury without difficulty.” It further said: “The Commission is also convinced that in most employments a one-eyed man is physically able to earn substantially the same wage as a man with two eyes.”

The Commission fully sustains the contention of the plaintiff that the claimant is capable of earning as much as before *171 lie was injured in the employment in which he was then engaged, but awarded compensation on the theory that employers would he less likely to hire him because of the partial loss of sight in one eye. There was no claim that the injury had affected or would affect the sight of the other eye. The plaintiff urges that the injured employee was taken back as soon as he was able to work, and continued in his employment, and that it therefore conclusively appears that he was not discriminated against because of his injury. This argument is inconclusive. The plaintiff may at any time dispense with the claimant’s services and the claimant may become dissatisfied with his employer. If it is a fact that manufacturers who operate drill-presses discriminate against employees who have lost part of the use of one eye, then the claimant may find himself' out of employment a part of the time when he could otherwise secure work, particularly at times when labor is plentiful and jobs are scarce. The fact that the applicant is entirely fit to perform a full day’s work, while it may be some consolation to him, does not replenish the dinner pail if the work cannot be had. It may be difficult to ascertain the amount of the loss, but if the claimant must submit to enforced idleness because of his injury, then he certainly suffers loss, the extent of which must be measured largely by the probable extent of the loss of time that is likely to be suffered on account of the injury. The highest court of England has decided that an injury or disfigurement which destroys or impairs the injured workman’s capacity to get work is an element to be taken into consideration in the assessment of compensation. Ball v. Hunt & Sons, 81 L. J. K. B. 782, 787. It is not difficult to imagine employments where mere disfigurement would preclude a person from being employed altogether, although physically capable of doing the work in a satisfactory manner.

3. The contention that there is no evidence whatever to support the award made raises an important question which *172 has been given a good deal of consideration and which necessitates a discussion of some of the provisions of the Workmen’s Compensation Act. ■

/This statute, while providing for a review by the courts of the award of the Industrial Commission, unlike the Railroad Commission Law does not permit a trial de novo in the circuit court. That court may set the. award aside on three grounds only: (1) That the Commission acted in excess of its powers; (2) that the award was procured by fraud; and (3) that the findings of fact do not support the award. Sec. 2394 — 19, Stats. 1911. Where an award is attacked as having been procured by fraud, it is probable that the statute contemplates that evidence may be taken on this issue in the circuit court. Whether this be correct or not, it is certain that this is the only ground on which the circuit court can consider any facts not found in the record as returned. Both parties must offer any testimony they wish to adduce before the Commission except on the issue of fraud. If they fail to do so, they are precluded from offering it at all.

Sec. 2394 — 16, Stats. 1911, carefully prescribes the powers and duties of the Commission in regard to taking testimony, in the following words:

“Either party shall have the right to be present at' any hearing, in person or by attornéy, or any other agent, and to present such testimony as may be pertinent to the controversy before the board; but the board may, with or without notice to either party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be had, or the time books and pay roll of the employer to be examined by any member of the board or any examiner appointed by it, and may from time to time direct any employee claiming compensation to be examined by a regular physician; the testimony so taken and the results of any such inspection or examination, to be reported to the board for its consideration upon final hearing.”

'Under this statute either party has the right to present any testimony pertinent to the controversy. The Commission *173 may take testimony on its own motion without notice to either party. It may also inspect the time hooks and pay rolls of the employer, as well as the premises where the accident occurred. It may direct the claimant to submit to a medical examination. The testimony and the results of the inspection must be reported to the Commission, to the end that the Commission may consider them and that either party may have the right to rebut the same at the final hearing.

The hearing before the Commission is the only one either party ordinarily ever gets on the merits. Once the award is made, except in cases of fraud, relief can be had only because of jurisdictional errors or errors of law. The statute carefully provided for one full and fair hearing on the merits. This necessarily included the right on the part of both parties to know what the testimony taken without notice tended to prove. Otherwise it could not be met, no matter how successfully the party against whom it operated might meet it if he knew what it was. To dispel any doubt about the matter,' the statute required all the evidence not taken at the original hearing to be laid before the Commission before the final hearing ended. This necessarily implies that the testimony taken ex parte is laid before the parties. Once filed with the Commission it becomes a public record which either party may examine and the law clearly contemplates that the parties shall have the right to'meet any new matter. Had the statute been less explicit the proceeding would be the same, under the rule in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, and in State ex rel. Arnold v. Common Council of Milwaukee, post, p. 505, 147. N. W. 50. If it was' a fatal jurisdictional error, as is held in the Arnold Case, to refuse to hear argument on the part of the relator because it denied a common-law hearing, it would be a much more serious and prejudicial error to decide an important controversy on evidence which the defeated party did not and could not know of.

It will be further noticed that the section quoted specifies *174 just wbat the Commission may consider in tbe way of evidence. It may take into account (1) testimony offered, whether taken ex parte or not, where the parties are afforded an opportunity for rebuttal; (2) such inspection as it may make of the time books and pay roll of the employer; (3) the result of any medical examination that may be ordered.

As further bearing on the duty of the Commission to preserve and place before the parties all testimony on which it acted, sec. 2394 — 19 might be referred to. This section requires the Commission, when suit is brought to set aside an award made by it, to return to the circuit court all ‘documents and papers on file in the matter and all testimony which may have been taken therein. Obviously, this is essential if the court is required to examine the record to ascertain whether there is any evidence to sustain the findings made. The court cannot pass upon such a question unless it knows what evidence the Commission had before it.

This same section (2394 — 19) provides that the findings of fact made by the Commission within its powers shall in the absence of fraud be conclusive. This leads to the query: Is it within the power of the Commission as set forth in the law to make a finding of fact not supported by any evidence whatever ? This feature of the law was attacked in the original suit brought to test its constitutionality and was considered by the court, and it was there decided that if the Commission acted outside of its powers its decision was open for review to the extent that decisions of various other bodies are reviewable on certiorariJ Continuing, the court said:

“In such cases it is considered that clear violations of law in reaching the result reached by the board, such as acting without evidence when evidence is required, or making a decision contrary to all the evidence, constitute jurisdictional error and will justify reversal of the board’s action, as well as the failure to take the proper steps to acquire jurisdiction at the beginning of the proceeding. State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188.” Borgnis v. Falk Co. 147 Wis. 327, 358, 359, 360, 133 N. W. 209.

*175 The statute contemplates and provides for a full and fair bearing and that the decision of tbe Commission shall be. based on evidence and not arbitrarily made. It would seem to be clearly outside of its powers to find essential facts that had no support in the evidence. This is one of the grounds specified in sec. 2394 — 19 on which the courts may review the award made by the Commission.y

In a number of cases following the decision in Borgnis v. Falk Co., supra, the interpretation there given to the law has been followed. Northwestern I. Co. v. Industrial Comm. 154 Wis. 97, 103, 142 N. W. 271; Nekoosa-Edwards P. Co. v. Industrial Comm. 154 Wis. 105, 108, 141 N. W. 1013; Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188,

The rule in certiorari cases is that, if in any reasonable' view of the evidence it will support the conclusion arrived at, such conclusion will not be disturbed for want of support in the evidence. If, however, the finding has no support in the testimony, there was no jurisdiction to make it. State ex rel. Miller v. Thompson, 151 Wis. 184, 187, 188, 138 N. W. 628; State ex rel. M. A. Hanna D. Co. v. Willcuts, 143 Wis. 449, 453, 128 N. W. 97; State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. Edward Hines L. Co. v. Fisher, 129 Wis. 57, 108 N. W. 206. From what has been said it is obvious that there must be some support in the evidence for findings of fact made by the Industrial Commission and that such evidence must be made a part of the record that is returned to the circuit court for review.

This brings us to a consideration of the evidence taken on the hearing which is before us and which consists of sworn testimony taken before the Commission and a statistical report compiled and published by the Commission. Sec. 2394 — 52, sub. 10, authorizes the Commission to collect, collate, and publish statistical and other information relating to the work under its jurisdiction and to make such public reports thereof as it deems necessary. This report was laid before the parties, and might be considered as evidence by the Commission. *176 Chicago & N. W. R. Co. v. Railroad Comm. 156 Wis. 47, 145 N. W. 216.

There was no testimony given by any witness to the effect-that drill-press operators who had the sight of one eye impaired were discriminated against by employers. Whatever evidence is contained in the record' to support the finding of the Commission is found in pages 152 to 162 inclusive of a bulletin issued by the Commission under date of March 30, 1913 (vol. 2, No. 6).

This bulletin contains statements made by forty-nine different persons who at some time in their lives had lost the sight of one eye. The inquiries were directed to two subjects: (1) The ability to do wort after the accident, and (2) the ability to secure employment. Only thirteen of the persons interrogated were interviewed on this specific point. Less than one fourth of the persons interviewed stated that they thought they might have done better had it not been for their injury. The remaining three fourths said their injury had no effect on their earning capacity. No one stated that such an injury would affect the earning power of a drill-press operator. On this report, in part at least, the, Commission reached the conclusion, as before stated, that the claimant’s ability to do a full day’s work in the occupation in which he had been engaged was not impaired. Of the persons specifically asked as to whether they had been discriminated against in the matter of securing work because of the loss of an eye, but one gave an affirmative answer. He said he had been “refused employment, as his ambition was to become a railroad man, but the loss of the eye proved to be a handicap.” The others all stated that the injury did not prove to be a handicap in the matter of securing work. This evidence, instead of tending to support the finding of the Commission, if it .is of any value, strongly tends to support an opposite conclusion. It cannot be that because one person lost an eye when he was a boy and was thereby *177 disabled from entering tbe railroad service, it follows that tbe claimant would be refused employment as a drill-press operator because of tbe partial loss of tbe sight of one eye.

Tbe Commission did not base its finding on evidence laid before tbe parties or on anything that can be considered evidence under tbe statutes referred to. In its memorandum decision filed with tbe award it states what it considered in tbe following language:

“It has caused an investigation to be made of a great many cases where one-eyqd men are actually at work in various employments. The result of this investigation is in print and is made tbe subject of public report: Tbe Commission has given consideration to various compensation acts in this and other countries, and has considered tbe legislative and administrative rules with reference to compensation in such cases. It has considered tbe conclusions and results of tbe United States Pension Board in making pension allowances in cases of similar injuries. Tbe Commission also has before it an award made by the California Industrial Accident Board under a provision in tbe California Compensation Act, identical with tbe provisions in this act.

“From all of the information that tbe Commission has at band, it concludes that under our act tbe loss of earning capacity because of tbe loss of tbe sight of one eye is equal to fifteen per cent, of tbe employee’s earning capacity at tbe time of tbe injury. '

“Therefore an award will go in favor of the applicant based on a loss of fifteen per cent, of bis earning capacity as determined by tbe evidence.”

This award was made about eight months after tbe final bearing took place. What compensation acts were considered and what provisions they contained, we do not know, and tbe parties did not know. Tbe same is true of tbe legislative and administrative rules referred to, as well as tbe conclusions of tbe United States Pension Board which are mentioned. We have no means of knowing whether tbe statutes referred to are similar to our own or otherwise. It is difficult to see *178 wherein any of these things could constitute evidence on which the finding of fact made could rest. The decision of the California commission was not returned with the record and presumably was not put in evidence. We have examined it and cannot see how it even tends to prove any fact upon which the award here made might be sustained, even if we could consider it. The narrow question here is: Was there any evidence tending to show that the claimant could get steadier work as a drill-press oq>erator with two good eyes than he could with the sight of one impaired ? How statutes of other states or rules for their enforcement or rulings of the pension board or of the California commission could affect this question is not apparent.' But if they do, the parties were entitled, to know what statutes and rules were relied on, to the end that they might present evidence to the contrary, or at least argue to the Commission that they did not tend to, establish liability. Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595; State ex rel. Arnold v. Common Council of Milwaukee, post, p. 505, 147 N. W. 50.

The circuit court was evidently unable to find any evidence in the record to support the finding of the Commission. The learned judge in his decision said:

“In determining whether such findings are supported by the evidence, the court must consider all matters of which-judicial notice will be taken. The evidence establishes the fact that the loss of one eye affects the ability of the applicant to judge distances. It is a matter of such common knowledge that judicial notice will be taken of it, that preference-will generally be given to men with two eyes, who can correctly judge distances, when they are to be employed upon such machines as that upon which the applicant is working.”

We entertain a high regard for the opinion of the circuit judge in this as well as in other matters. But we are obliged to disagree with him. The persons interviewed by the Industrial Commission seem to do likewise, and they ought to know what the fact is. If it be true that persons injured as *179 was tbe applicant are discriminated against in the matter of employment in any considerable number of callings, including that of drill-press operator, the majority of this court does not know it and never heard of it, and we venture to say that not one person in five hundred has any advantage over us in this respect. We are referred to no source from which this knowledge can he obtained. It is perhaps quite generally known that soldiers, and seamen on war vessels, must pass a physical examination before they will he received into the army or navy, and that railroad companies require their trainmen to pass a like examination. But to say that the ordinary farm or factory hand is refused employment because the sight of one eye is impaired, not only passes the domain of common knowledge, hut in so far as our observation has extended it is untrue as a matter of fact.

It may he that the Compensation Act will have a tendency in the direction indicated in the opinion of the trial court, although it is not apparent why this should he so. However, accidents of this class are too infrequent and the Compensation Act has heen in force too short a time to enable a court to say that it is a matter of common knowledge' that the discrimination exists. A fact must be pretty well known and pretty obvious besides before it can be taken judicial notice of.

It is urged in the brief of counsel for the claimant that working at a drill-press is not an employment, that the claimant’s ability to earn in some callings is impaired, that the law contemplates that he shall have compensation for the injury received, and that there was no intention to have this compensation “doled out with an apothecary’s scales.” The argument is plausible, but not convincing. Courts are no more above the law than are individuals. If judges are to perform the duties they have sworn to. perform, they must leave the duty of enacting statutes to the legislature. In case of doubt as to the meaning of a statute they must construe it, but never, intentionally at least, amend it. The aim *180 in all cases should be to find out what the legislature really meant, and not to stretch or distort language so as to make the law as the court thinks it should be for the purposes of the individual case under consideration. It would be an easy matter to say in this case that there is some evidence to sustain the finding of the Commission. But unless we were able to point it out, it would reflect no credit on the court to say so.

By the Court. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with directions to set aside the award of the Industrial Commission and to either remand the record to said Commission for further hearing or enter final judgment in plaintiff’s favor, as the court may deem just.