Frank Martin-Laskin Co. v. Industrial Commission

Vinje, C. J. While in the employ of the plaintiff the defendant Frank Goetsch received a blow on his head resulting in a venous hemorrhage of the brain. No written notice of the injury was served upon the employer, and upon the former appeal (172 Wis. 548, 179 N. W. 740) this court held that actual knowledge of the injury by a foreman of the employer, but not communicated to the employer, was not equivalent to the statutory notice. In the Commission’s memorandum of December 17, 1921, this ruling is vigorously assailed, resulting in a conclusion that by reason of the actual knowledge of the injury by the foreman not communicated to the employer the latter is estopped from claiming that he has been misled. This conclusion is in direct conflict with our former, decision, to which we adhere, because we held the foreman’s knowledge did not take the place of the statutory written notice, and the case was sent back with directions to the Commission to find as a fact whether or not the employer was misled by reason of a failure to give the statutory notice, but not to find or to conclude that the equivalent of a statutory notice was given. The only ground upon which the plaintiff claims it was misled by failure to get the written notice is that it was prevented from offering competent medical aid at an early stage, which, it is claimed, if given, would either entirely [337] have cured-the injury or materially relieved it, and it was denied the right to examine the employee given by sec. 2394 — 12, Stats. 1921. As to this claim the Commission says: “It is perhaps possible that respondent might have given some surgical attendance that would have reduced the disability materially. Applicant, however, had the advice and attendance of his family physician and might, within his right, have denied to respondent’s physicians the opportunity to treat him either medically or surgically, or to do other than examine him.” In another part of the memorandum it is stated that “there was no misleading of the employer because of the lack of written notice unless it be predicated on the loss of opportunity to observe the case and have treatment rendered by surgeons alleged to- be more skilled. This we do not think constitutes a misleading within the purview of the statutes.” It seems rather strange that the Commission should have reached the conclusion that an employer could not be misled by a lack of opportunity to examine and observe the employee when the statute, sec. 2394 — 12, provides, that a refusal by the employee to submit to examination or in any way obstruct the same shall suspend his right to begin or maintain any proceedings for the collection of compensation. Here is by the plainest inference a direct legislative declaration that the right to examine is of such value that a refusal shall suspend the right to compensation. It is also obvious that the right to examine has a direct bearing upon the nature, extent, and curability of the injury — matters usually in dispute in such cases. But it is enough for us to say thatthe legislature has considered such right of examination of value, and it does not come within the power of the Commission to declare otherwise. '• It was inferentially held in Vasey v. Industrial Comm. 167 Wis. 479, 167 N. W. 823, that a failure to give notice might mislead the employer because of lack of opportunity to offer medical aid. It will be seen, therefore, that the Commission reached its [338] conclusion that the employer was not misled by the application of two erroneous views of law, namely, that the employer was estopped to claim that it was misled because its foreman had notice, and because the violated right to examine and offer medical services could not constitute a defense. Findings based upon erroneous views of the law are not the findings of fact contemplated by the statute. It will be noted that the last findings have no more potency than the former, for it is expressly declared that they are reached “for the reasons set forth in its several memorandums.” The finding that there was no intention to mislead is founded upon a correct view of the law and upon sufficient evidence to sustain it. We are asked by the appellants, in case the award is set aside, not to send the record back to the Commission for a finding, but to make the finding ourselves. This we cannot do. Secs. 2394 — 19 and 2394 — 20 contemplate that all find'ngs of fact must be made by the Commission, and if findings are lacking the record must be sent back to it for such further findings as the court directs to be made. By the Court. — Judgment reversed, and cause remanded to the circuit court with directions to set aside the' award and to remand the record to the Industrial Commission with directions to make a finding upon the question whether or not the employer was misled by the failure to give the written notice. No costs to be taxed by either party, b ■