January 13, 1955 —
February 8, 1955.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit judge. Affirmed.
For the appellant there was a brief and oral argument by M. W. Hillis of Milwaukee.
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 A. O. Smith Corporation there was a brief and oral argument by L. A. Tarrell of Milwaukee.
On April 3, 1952, plaintiff Edward Gallenberg, sustained an injury while in the employ of the defendant A. O. Smith Corporation. On May 12, 1952, on a form prepared for him in the Milwaukee office of the Industrial Commission he made application for hearing on his claim for compensation on account of temporary disability. Hearing was had on September 3, 1952. Claimant appeared personally and by attorney.
Dr. McCabe testified on claimant's behalf but did not state that he was permanently disabled. Dr. Brewer called on behalf of the employer testified that he examined applicant on August 26, 1952. He stated that applicant's disability should be characterized as "temporary;" that he will probably never need any radical treatment but will recover with approximately five per cent permanent disability because of persistent pain at the lumbosacral region; upon cross-examination he qualified the statement by finding that "there may be" a five per cent disability to the lower back, that only time will establish that.
The commission's examiner found that applicant had sustained temporary total disability and five per cent permanent disability. He reserved jurisdiction to make further findings if necessary on the reasonableness of the bill of Dr. McCabe which at the time of the hearing the doctor had not submitted. Plaintiff-applicant states in his brief that "because he did not submit any evidence as to the extent of permanent disability" he filed a petition for a review by the commission of the examiner's findings. The commission set aside the findings and order of the examiner and on November 5, 1952, made its findings and issued an order providing for compensation benefits for temporary disability. The order made no reservation for the determination of the reasonableness of the bill of Dr. Goodman, plaintiff's first attending physician. There is no reference in the commission's order to compensation benefits for permanent disability.
This action was brought for a review of the commission's order. On May 4, 1954, the court entered an order confirming the findings and award. Plaintiff appeals.
Plaintiff contends that the hearing before the examiner was not intended to determine the extent of permanent disability; that the examiner should have determined only the amount of compensation to which he was entitled to the date of hearing and the employer's liability for medical services; that the trial court erred in refusing to remand the record to the commission for further proceedings.
The commission's order was a final determination of the rights of the parties. It is interlocutory only in the sense that jurisdiction was retained to determine the amount of Dr. McCabe's bill. When plaintiff filed his application with the commission there was presented the entire claim, that for both temporary and permanent disability. State ex rel. Watter v. Industrial Comm. 233 Wis. 48, 287 N.W. 692; Christnovich v. Industrial Comm. 257 Wis. 235, 43 N.W.2d 21. The finding that there was temporary disability and the failure or refusal to find the extent of permanent disability must be construed as a finding that there was no permanent disability. Christnovich v. Industrial Comm., supra; Tadin v. Industrial Comm. 265 Wis. 375, 61 N.W.2d 309. The finding having been made, the court is without jurisdiction to remand the record to the commission for further proceedings if the record contains evidence to sustain the finding. Tadin v. Industrial Comm., supra; Albion v. Industrial Comm. 202 Wis. 15, 231 N.W. 249. The extent of disability, temporary and permanent, was a question of fact and the commission's finding thereon, if supported by any evidence, is conclusive. Brouwer Realty Co. v. Industrial Comm. 266 Wis. 73, 62 N.W.2d 577; M. M. Realty Co. v. Industrial Comm. 267 Wis. 52, 64 N.W.2d 413. There is such evidence. Dr. Goodman who treated plaintiff on the day of the accident, in a report authorized by sec. 102.17 (1) (as), Stats., to be considered by the commission, stated that Gallenberg had a "sacroiliac strain with muscle spasm." In answer to the question, "Has accident or industrial disease resulted in any permanent disability?" he said "No." He added "complete recovery is expected," and that on May 15, 1952, he was able to return to full-time work at his former occupation.
Plaintiff cites William Rahr Sons Co. v. Industrial Comm. 166 Wis. 28, 163 N.W. 169; Karges v. Industrial Comm. 166 Wis. 69, 162 N.W. 482; Interlake Pulp Paper Co. v. Industrial Comm. 186 Wis. 228, 202 N.W. 175; Schaefer Co. v. Industrial Comm. 220 Wis. 384, 265 N.W. 393; and Hills Dry Goods Co. v. Industrial Comm. 222 Wis. 439, 267 N.W. 905, as authority for his contention that the court has authority to and should remand the record. In each of these cases the commission had failed to make an essential finding and it was for that reason that the record was ordered remanded. That is not the case here. He also cites Wisconsin Granite Co. v. Industrial Comm. 208 Wis. 270, 242 N.W. 191, where the record was remanded because an essential issue had not been litigated. As we have pointed out, plaintiff's entire claim was before the commission and all of the issues made by his petition were determined. Wisconsin Granite Co. v. Industrial Comm., supra, is not authority for plaintiff's contention.
By the Court. — Judgment affirmed.