Oldenberg v. Industrial Commission

TimliN, J. The appellant, while engaged in the performance of his duties as employee of respondent Milwaukee Electric Railway & Light Company, was injured on June 20, 1912. Both the appellant and his said employer were then subject to the provisions of ch. 50, Laws of 1911. The employer furnished the medical attendance required at the time of the accident and paid the appellant sixty-five per cent, of his average weekly wages from the time of the accident until September 9, 1912. On the day last mentioned the appellant executed a release and returned to work for his said employer as night watchman for wages equal to those he was earning at the time of his injury, and continued at such work until some time in November, 1912, when he was discharged for cause. After the lapse of a few days he was reinstated as night watchman and worked at this until about January 1, 1913, when work of that kind was discontinued. Appellant attempted other work, shoveling snow, which he was unable to perform, and he remained idle until the latter part of March, 1913. At the time last mentioned the work requiring a night watchman was resumed and appellant went back to work and continued until July 8, 1913, when he was again discharged for incompetence. On August 22, 1913, he made application to the Industrial Commission for the benefit to be obtained under the Employers’ Liability Act, and after a hearing his application was dismissed by that board. The [335] reason for dismissing tbe application is tbus given in tbe order of the board: “That tbe respondent has fully compensated the applicant for all loss of wage resulting from tbe injuries sustained on June 20, 1912, and that on September 8, 1912, tbe applicant bad recovered from tbe effects of tbe injuries so that be was able to return to work without further loss of wages because of injuries sustained on June 20th.” Tbe ruling of the circuit court sustained that of tbe Industrial Commission, and tbe appellant seeks a reversal on the ground that tbe order of the Commission, being made without any evidence to sustain it, was therefore an order made without jurisdiction. Sec. 2394 — -19, Stats. (Laws of 1913,. cb. 599). Manifestly a very clear case must be made to call for a ruling such as that sought by appellant from this court. All evidence which tends to render probable or improbable tbe existence of tbe facts which are the subject of inquiry is relevant, and conversely all relevant facts have this tendency. In order to support an argument to tbe effect that an ultimate conclusion of fact has no evidence to support it there must be shown an absence of all evidence or an absence of any such relevant evidence. There is much evidence to the effect that the appellant after September 8, 1912, and during the early part of 1913 was nervous and hysterical in a high degree, and also evidence that prior to the injury on June 20th he was in a state of health. This would have furnished a basis for a finding by the board that he was entitled to compensation. But it is quite a different thing to say that the board was compelled to so find. The release executed by the appellant was an item of countervailing evidence in the nature of an admission. The fact of his going to work and continuing to work as night watchman as above stated was another item; plaintiff’s admission that he got along all right at such work another; while the testimony of Drs. Lemon and Me336 Govern, as we read sucb testimony, furnishes still another item. We cannot say that the decision of the Commission is without any evidence to support it, and therefore the judgment of the circuit court is affirmed. By the Court. — Judgment affirmed.