Opinion
April 8, 1959 —
May 5, 1959.
APPEAL from an order of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Affirmed.
For the appellants there was a brief by La France, Thompson, Greenquist, Evans Dye, attorneys, and Alfred E. La France of counsel, all of Racine, and oral argument by Alfred E. La France.
For the respondent there was a brief and oral argument by Lucien J. Piery of Kenosha.
Action to review an order of the Industrial Commission dismissing the application of the plaintiff-claimant for Workmen's compensation. In his application for compensation the claimant alleged that he was injured while working for the employer-defendant on November 15, 1954, with resulting disability. In its answer before the commission the employer admitted that the relationship of employer and employee existed at the time of the alleged injury; that the parties were subject to the Workmen's Compensation Act at that time; that at the time of the alleged injury the employee was performing services growing out of and incidental to his employment; that the rate of wages as set forth in the application was correct; and that the employer was insured under the Workmen's Compensation Act. The employer denied the other allegations in the application. At the foot of the answer the employer alleged that the issues are: (1) Whether the applicant sustained an injury; (2) the nature and extent of disability, if any; and (3) whether the applicant is entitled to reimbursement for any medical expenses incurred and, if so, the amount of the expense.
Among the findings of fact by the examiner were the following: That no injury occurred to the applicant; that several days later the applicant consulted a doctor and there was no objective evidence of any injury observed by the doctor; and that if the applicant had any disability at the time of the hearing, or if he suffered any disability subsequent to leaving the employment of the employer on December 24, 1954, the cause for such complaints is something other than the alleged injury suffered in the course of his employment on or about November 14, 1954. The examiner then ordered the application for compensation be dismissed.
The claimant filed a petition for review of the examiner's findings of fact and order before the commission as a body. The commission concluded that the findings of fact made by the examiner should be stricken and the following findings substituted therefor:
"That on November 15, 1954, the truck which applicant was driving required a push, which was given by a coemployee; that if injury occurred to the applicant because of this incident it resulted in no disability; that applicant continued with his regular employment with respondent until December 24, 1954, following which he has not worked for the respondent; that any disability from which the applicant has suffered since December 24, 1954, was not caused by injury in the course of employment, as alleged, on or about November 14, 1954."
Upon its substituted findings the commission then affirmed the order of the examiner. The circuit court for Dane county, by order dated November 3, 1958, set aside the order of the commission and remanded the record to the commission for further proceedings, with directions to review the entire record and to make specific findings upon the contested issues. The defendants appealed from said order.
Sec. 102.18, Stats., provides that after the hearing upon an application for workmen's compensation the commission shall make and file its findings upon all the facts involved in the controversy. The issues upon which findings of fact should have been made were as set up in the employer's answer. The examiner found that no injury occurred to the applicant. This was clearly in error. The applicant testified to an injury, a coemployee called as a witness by the employer testified to an injury, and the applicant's personal physician testified to the injury. In addition thereto the employer, in its first report, stated that the claimant received a bump on the side of the head while getting out of a truck and described the character of the injury as a slight concussion.
The commission struck the above finding by the examiner but made no finding as to whether or not the claimant sustained an injury. The commission made no direct finding as to the nature and extent of the disability caused by the injury, and made no finding as to whether the applicant is entitled to reimbursement for any medical expense. It is clear that specific findings should be made upon each controverted issue. Tesch v. Industrial Comm. 200 Wis. 616, 229 N.W. 194; Kolman v. Industrial Comm. 219 Wis. 139, 262 N.W. 622; California Packing Co. v. Industrial Comm. 270 Wis. 72, 70 N.W.2d 200.
Ordinarily in reviewing the findings and order of an examiner a complete transcript of the hearing is not available to the commission. Shortly after the hearing the examiner customarily dictates a synopsis of the proceedings at the hearing. We assume that this synopsis was the basis of the commission's review. Since the entire transcript is now available it is suggested that the commission review the entire record and make its findings and order based thereon.
By the Court. — Order affirmed.