Opinion
October 17, 1947. —
November 18, 1947.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellants there was a brief by L.A. Tarrell of Milwaukee, attorney for Carse Daniels, joined in by the Attorney General and Mortimer Levitan, assistant attorney general, attorneys for the Industrial Commission, and oral argument by Mr. Tarrell and Mr. Levitan.
For the respondents there was a brief by Quarles Spence Quarles, attorneys, and Kenneth P. Grubb of counsel, all of Milwaukee, and oral argument by Mr. Grubb.
This is an action to review an award of the Industrial Commission directing the payment of compensation to the defendant Carse Daniels for injuries sustained in the employment of the plaintiff Globe Steel Tubes Company.
Daniels was injured during the course of his employment by the company on March 18, 1943. He sustained a severe compound fracture and lacerations of the lower left leg. A cast was applied to the leg and when it was removed approximately four months later it was found the fracture had not completely healed. The leg was then fixed in another cast for a period of six or seven weeks. Daniels reported for work in October of 1943. — He kept his leg bandaged, however, and continued to complain of weakness and swelling. In May, 1944, an ulceration developed at the place of the injury and he lost three weeks' work. In the following August or September his leg buckled when he was descending from a streetcar. On November 12, 1944, he was preparing his breakfast and when he turned to shut off a gas burner on the kitchen stove his left leg gave way. He fell to the floor, sustaining a fracture about four inches above the knee joint.
Following the original injury of March 18, 1943, compensation was paid to Daniels for temporary total disability and for ten per cent permanent partial disability. After the injury of November 12, 1944, proceedings were had before the Industrial Commission, and upon a finding that the second injury was occasioned by the weakening of the defendant's leg through the first injury, the commission entered an award of additional compensation to defendant. The circuit court vacated the award and the defendants appeal.
The case turns upon the question of whether there is credible evidence to support the finding that Daniels fell because of the injury to his leg suffered on March 18, 1943, during the course of his employment by the Globe Steel Tubes Company.
There can be no doubt that he suffered a severe fracture of the lower left leg at that time; that thereafter he experienced considerable discomfort and suffering; that he complained of swelling and weakness in the left ankle; and that he was under a physician's care periodically from the time of the first injury to the time of the second. It is not thus established, however, that the fall was occasioned by the prior injury.
Daniels is unable to account for the fall except as he said that he was cooking breakfast; the coffee started to boil over; he turned to his left to shut off the gas; and his left leg doubled up. Dr. Nimz treated Daniels on the occasion of both injuries. He testified that he found no evidence that the knee was affected at the time of the first injury. He did find that prior to the second one there was a ten per cent permanent disability in the ankle by reason of loss of motion, swelling, and lack of endurance, but he stated that he could not, with any degree of medical certainty, identify any disability that Daniels suffered as the result of his first injury as the cause of his second one.
Whether Daniels' leg gave way as the result of a condition occasioned by the first injury is purely speculative, so far as the evidence discloses. There was not even a remote connection shown! between the fall and the prior disability. Where we are dealing, as here, with a subject matter which is not within common knowledge, there must be some basis in medical testimony for an award. F. A. McDonald Co. v. Industrial Comm. (1947) 250 Wis. 134, 26 N.W.2d 165.
By the Court. — Judgment affirmed.