Summary
In Volunteers of America of Madison, Inc v Industrial Commission, 30 Wis.2d 607; 141 N.W.2d 890 (1966), the worker, an epileptic, indicated on an employment form that he did not have a history of seizures or fainting spells.
Summary of this case from Dressler v. G R Die CastingOpinion
April 11, 1966. —
May 10, 1966.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellants the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.
For the respondents there was a brief by Aberg, Bell, Blake Metzner, and Gerald J. Bloch, all of Madison, and oral argument by Mr. Bloch.
Action by plaintiffs Volunteers of America of Madison, Inc. (hereinafter "Volunteers"), and its insurance carrier against defendants Industrial Commission and state of Wisconsin to review an order of the commission which directed plaintiffs to pay the sum of $11,000 to the state treasurer as a death benefit arising under sec. 102.49 (5) (c), Stats.
Michael Cusic, aged twenty-four, was employed by Volunteers as a camp counselor at its Turtle Island Camp near Pardeeville, in Columbia county, for the summer season of 1961. Before so being hired, Cusic was required to complete a health examination form. Among other things this form contained a printed list of ailments under the heading "Health History" and the directions called for Cusic to check those on the list that he had had. He checked only hay fever and eczema. Although Cusic had a long history of epileptic seizures, he did not check "Convulsive Seizures or Fainting Spells" on the form. Cusic subscribed his signature to the blank on June 8, 1961, and then took it to his family physician, Dr. McCarthy of Riverside, Illinois, who completed the physician's portion thereof after he had examined Cusic. Cusic did not inform Dr. McCarthy of his epilepsy.
On July 18, 1961, Cusic was in a canoe offshore from the camp marina overseeing a group of boys attending the camp who were in small boats. He was an excellent swimmer and canoeist. While no one saw Cusic fall into the water from the canoe, his disappearance from the canoe was noted within minutes and an alarm was sounded. Fred Lengfeld, the camp director, and another counselor found Cusic in five to six feet of water, with his face in the soft mud bottom and his feet floating above his head. He was taken to the hospital in Portage a few miles away but died four hours later. The cause of death was diagnosed as drowning.
Because Cusic left no one wholly dependent on him, the state filed a claim with the Industrial Commission against Volunteers and its workmen's compensation insurance carrier for the $11,000 death benefit due under sec. 102.49 (5) (c), Stats.
Several hearings were held before commission examiners in order to determine what caused the deceased to fall from his canoe. The report of the autopsy conducted shortly after his death indicated the absence of any trauma or injury which might have rendered him unconscious. Since no one actually saw the deceased fall, the only evidence concerning what caused his fall was provided by expert medical testimony. This testimony was in conflict. Two physicians testified that in their opinion Cusic did not fall into the water because of an epileptic seizure, while a third physician voiced the opinion that an epileptic seizure was the cause of the fall. The weight to be accorded the testimony of the first two physicians who testified for the state is weakened because they assumed that prior to the date of accident Cusic had never experienced a grand mal seizure whereby he lost consciousness. However, after they testified, Lawrence College and certain hospital records were introduced into evidence which conclusively establish that Cusic had previously been subject to grand mal seizures.
On February 7, 1963, two of the commission examiners who had conducted hearings entered these findings of fact:
"That the parties are subject to the workmen's compensation act; that Michael Cusic was a camp counselor at a camp operated by the respondent; that he was assigned to supervise a group of boys in boating and swimming; that applicant has a history of petit and grand mal epilepsy for which he took medication with some degree of success in controlling the attacks; that on July 18, 1961, Michael D. Cusic was in a canoe doing his assigned work; that either he fell into the water by accident or because of an epileptic seizure, resulting fatally that day; that it would be speculative to say that the fall was because of an epileptic seizure; that his work in the canoe placed him in a hazardous position and substantially increased the hazard over the exposure of the general public; that it is actually immaterial what caused him to fall from the canoe; that Michael D. Cusic sustained accidental injury on July 18, 1961, while performing services in the course of and incidental to his employment; that the accident causing injury arose out of the employment; that the deceased left no person wholly dependent upon him for support, but did leave surviving his mother, Mary Cusic; that the respondent and insurance carrier are liable for payment of $11,000.00 to the state treasury of the State of Wisconsin and to the fund established by 102.49."
Attached to the findings was an order requiring Volunteers and its insurance carrier to pay the $11,000 death benefit. They petitioned the commission for review of the examiners' findings and order. By order dated April 3, 1963, the commission affirmed the examiners' findings and order. Plaintiffs thereafter instituted the instant action for review in the circuit court for Dane county and the hearing there took place before Judge BARDWELL.
Judge BARDWELL filed a memorandum opinion in which he determined the following: The commission had made an erroneous conclusion of law when it found that "It is actually immaterial what caused him (the deceased) to fall from the canoe;" sec. 102.08, Stats. (the nonelection statute by epileptics) required Cusic to inform Volunteers at the time of his hiring that he was subject to convulsive seizures or fainting spells and his failure to do so on his health examination blank was a material misrepresentation; it was also a material misrepresentation for Cusic not to have informed his family physician at the time of his health examination that he was an epileptic; a false representation knowingly made by one suffering from epilepsy will preclude the benefits of the Workmen's Compensation Act if the actual injury or death thereafter directly results from an attack of epilepsy; the positional-risk doctrine does not apply where the accident or death was precipitated by an epileptic seizure and the employee suffering such seizure had knowingly made a false representation to his employer as to his epileptic condition at the time he applied for the job; the commission had exceeded its powers in imposing liability without determining whether or not Cusic's falling from the canoe and drowning was due to an epileptic seizure.
Judgment was entered July 22, 1964, setting aside the commission's order and remanding the matter to the commission for further proceedings consistent with the court's opinion. The commission and the state have appealed.
This appeal presents an interesting question of statutory interpretation. The statute in question is sec. 102.08, Stats., which provides:
"Epileptics and persons who are totally blind may elect not to be subject to the provisions of this chapter for injuries resulting because of such epilepsy or blindness and still remain subject to its provisions for all other injuries. . . . Such elections shall be made by giving notice to the' employer in writing on a form to be furnished by the industrial commission, and filing a copy of such notice with the industrial commission. An election may be revoked by giving written notice to the employer of revocation, and such revocation shall be effective upon filing a copy of such notice with the industrial commission."
The issue is whether this statute bars an epileptic, or those claiming through him, from recovery of workmen's compensation for accidental injury or death benefits when he knowingly has misrepresented to his employer that he is not subject to epileptic seizures, and his epilepsy is a material factor in causing the accident. The circuit court held that under such circumstances the statute does bar recovery.
Our court is committed to the "positional risk" or "increased hazard" doctrine in determining whether an accidental injury to an employee "arises out of his employment" within the meaning of the Wisconsin Workmen's Compensation Act. Therefore, absent sec. 102.08, Stats, the fact that an epileptic seizure may have caused the employee Cusic to have fallen out of the canoe in an unconscious state which resulted in his drowning would not have barred the workmen's compensation death benefit. This result follows because Cusic's employment placed him in a hazardous position over water and his resultant death by drowning arose out of this hazardous position. Therefore, only by the application of sec. 102.08 can appellants avoid payment of the death benefit.
Cutler-Hammer, Inc., v. Industrial Comm. (1958), 5 Wis.2d 247, 252, 254, 92 N.W.2d 824; American Motors Corp. v. Industrial Comm. (1957), 1 Wis.2d 261, 272, 273, 83 N.W.2d 714; Nash-Kelvinator Corp. v. Industrial Comm. (1954), 266 Wis. 81, 86, 62 N.W.2d 567. Cf. Newman v. Industrial Comm. (1931), 203 Wis. 358, 234 N.W. 495.
There appears to be no past decision of this or any other court which is directly in point on the effect such statute has where there has been a knowing false representation by the employee that he is free of an ailment or physical defect described in sec. 102.08, Stats.
The two decisions of other courts which are probably closest in point where reasoning by analogy is resorted to are Martin Co. v. Carpenter and Air Mod Corp. v. Newton. Both these cases involved "second injury fund" statutes. These statutes, although by different procedures, provided that where an employee had sustained a previous permanent injury and then during the course of employment sustained a subsequent injury, the employer would only be liable for that amount of workmen's compensation as would have been due for such subsequent injury, without regard to the effect of the prior injury. The statutes further provided that, if the combination of the prior injury and the subsequent injury resulted in total disability, the fund would pay all compensation for total disability in excess of that allowed for the subsequent injury when considered by itself.
(Fla. 1961), 132 So.2d 400.
(Del. 1965), 215 A.2d 434.
Sec. 440.15 (5), Florida Stats. (1959), and 19 Del. Code Anno., sec. 2327.
In Martin Co. v. Carpenter a female employee filed a claim for workmen's compensation for a back injury alleged to have occurred while at work for her employer, the Martin Company. When she had been hired by this employer the year before, she signed a document entitled "Physical Examination Record" which contained questions she had answered. One of these questions asked if she had ever been subject to various diseases and infirmities including "Back Injuries." She had answered this question "No." The Florida court denied recovery on the grounds (1) that no "accident" had occurred at work causing the injury, and (2) that when claimant procured employment she had fraudulently failed to note a twenty-year history of back trouble. The court based its decision with respect to ground (2) on the bases that such a misrepresentation (a) robs the employer of the choice of whether he will hire the employee with the disability and (b) probably prevents the employer from resorting to the special "second injury fund" statute. As noted by the court, that statute encourages employers to hire those afflicted or disabled in some way. It thus manifests the same legislative intent as sec. 102.08, Wis. Stats. The Florida court concluded by adopting the rule that:
Supra, footnote 2.
". . . a false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the Workmen's Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation and (3) such reliance resulted in consequent injury to the employer."
Id. at page 406.
The claimant in Air Mod Corp. v. Newton sought workmen's compensation benefits for a back injury when he slipped at work. The evidence disclosed that claimant had undergone surgery for back trouble in the year prior to his employment, yet when procuring employment he answered in the negative a questionnaire inquiring whether he had any "physical defect" or had been confined by illness in the past year. In its opinion the Delaware court noted the Delaware "second injury fund" statute and pointed out that claimant's misrepresentation would prevent the employer from resorting to that statute. The court then concluded that an employee would forfeit his rights to workmen's compensation benefits if:
Supra, footnote 3.
". . . in applying for employment, the employee (1) knowingly and wilfully made a false representation as to his physical condition; and (2) the employer relied upon the false representation and such reliance was a substantial factor in the hiring; and (3) there was a causal connection between the false representation and the injury."
Supra, footnote 3, at page 440.
The United States supreme court has recently held in Still v. Norfolk W.R. Co. that false representations by an employee with respect to his physical condition at time of hiring will not bar recovery under the Federal Employers' Liability Act (F.E.L.A.) from the employer railroad for accidental injury, even though the very physical defects fraudulently concealed contributed to the injury and the employer would not have hired him if it had known of their existence. The rationale of this holding is that the legislative policy embodied in the F.E.L.A. is that "a railroad should pay damages to its workers and their families for personal injuries inflicted by the railroad's negligence upon those who perform its duties. . . ." (Emphasis supplied.)
(1961), 368 U.S. 35, 82 Sup. Ct. 148, 7 L.Ed.2d 103.
Id. at page 44. The Still decision overruled a number of F.E.L.A. cases rendered by the federal courts subsequent to Minneapolis, St. P. S. S. M. R. Co. v. Rock (1929), 279 U.S. 410, 49 Sup. Ct. 363, 73 L.Ed. 766, in which recovery had been denied where the employee fraudulently substituted another to take his physical examination at time of hiring. For these cases see footnote 11, pages 43, 44 of the Still Case.
We do not consider the holding in the Still Case persuasive in the instant case. Here we have an entirely different legislative policy present in sec. 102.08, Stats. This policy is to aid epileptics in obtaining employment by permitting them to elect not to be subject to the Workmen's Compensation Act with respect to injuries resulting because of the epilepsy. Implicit in this statute is the requirement that the employee will not fraudulently conceal his epileptic condition from his employer.
Suppose the situation of an epileptic who discloses his condition to his prospective employer and as a consequence the employer requests and is provided with a waiver pursuant to sec. 102.08, Stats. If this employee, during course of his employment, should fall into the water because of an epileptic seizure and drown, neither his dependents nor the state would recover a workmen's compensation death benefit. It would indeed be an absurd result if a death benefit would be payable in a situation where the employee's epileptic condition was fraudulently concealed from the employer and the same type of accident occurred. Such an interpretation of the statute would tend to put a premium on dishonesty. This court has many times held that in construing a statute, unreasonableness or absurdity is to be avoided if the statute is open to a reasonable alternative interpretation.
State v. Fisher (1962), 17 Wis.2d 141, 146, 115 N.W.2d 553; Wisconsin Valley Improvement Co. v. Public Service Comm. (1960), 9 Wis.2d 606, 615, 101 N.W.2d 798; State v. Surma (1953), 263 Wis. 388, 394, 57 N.W.2d 370.
WILKIE, J., took no part.
We, therefore, determine that the circuit court rightly concluded that in the light of sec. 102.08, Stats., the false representation knowingly made by Cusic to Volunteers at time of hiring that he had not been subject to epileptic seizures would preclude the benefits of the Workmen's Compensation Act if his fall resulted from an attack of epilepsy. Thus the commission improperly found that it was immaterial what caused Cusic to fall from the canoe.
This conclusion requires affirming the judgment which remanded the cause to the commission to make a finding with respect to the cause of Cusic's fall into the water.
By the Court. — Judgment affirmed.
In sec. 102.08, Stats., the legislature has acted to alleviate the problem of the epileptic or totally blind person who is refused employment because the employer desires to avoid workmen's compensation claims for injuries resulting from such handicap. The only employer it expressly protects is an employer who knew of the handicap and insisted on a waiver as a condition of employment.
The legislature has not provided generally for denial of compensation to an injured employee whose injuries arise out of a disability or handicap which he has misrepresented or concealed, and I would not read such provision for denial in the case of concealed epilepsy into sec. 102.08, Stats. I would reverse.