Action instituted June 28, 1955, by Willard James Moore against the Industrial Commission and the state of Wisconsin to review an order of the Industrial Commission denying workmen's compensation to Moore. Moore died April 16, 1956, during the pendency of such action, and Edith Arlouine Moore, his widow, who had been appointed special administratrix of his estate, was substituted as party plaintiff.

Moore, who was born July 19, 1918, was employed by the state as a plumbing and electrical maintenance employee at Southern Wisconsin Colony and Training School (hereinafter referred to as "Southern Colony") from June 23, 1954, through October 5, 1954. Before entering such employment he was required by the state to undergo a physical examination by a physician, and the state also had an X ray taken of his chest. These precautions were taken in order to be sure that he was free from disease at the time of entering state employment at such institution.

At the time of Moore's employment at Southern Colony a separate segregated tuberculosis ward was maintained in which were confined about 30 mentally incompetent inmates who were afflicted with such disease. Approximately 12 times during Moore's employment at this institution he performed work in such tuberculosis ward. On such occasions the inmates, because their curiosity was aroused, would crowd around him to watch Moore work. While in close proximity to Moore these tuberculosis-afflicted inmates would cough without covering their months with their hands or a handkerchief.

There is no dispute in the record that as of October 5, 1954, the last day worked by Moore, he was afflicted with tuberculosis. He thereafter filed an application with the Industrial Commission for workmen's compensation benefits. The answer to the application filed by the state denied liability but contained no direct allegation to the effect that Moore was already afflicted with tuberculosis at the time he entered his employment at Southern Colony. After Moore became ill he requested the X ray of his chest taken by the state as a condition to his being employed at Southern Colony and was told that such X ray had been lost.

A hearing on Moore's application for benefits was held before an examiner of the Industrial Commission on May 5, 1955. Moore was a veteran of World War II and was then a patient at the Veterans Administration Hospital at Wood, Wisconsin. At such hearing the personnel officer at Southern Colony testified that Moore would not have been employed there if, at the time he was given the medical physical examination, Moore was then suffering from tuberculosis. However, such personnel officer stated that the physician's report of such examination contained no reference to the X ray which had been taken at the same time. From this, the witness concluded that the X ray must have been "bad," apparently meaning thereby that it was not sufficiently clear to enable a reading to be made thereof. However, a short time thereafter a mobile unit for taking chest X rays came to Southern Colony, but no request was made of Moore that he have a further chest X ray taken by such unit.

Dr. Schulz, Moore's attending physician who treated him from October 1, 1954, until Moore went to the Veterans Administration Hospital, testified in behalf of Moore. He related his unsuccessful attempt to procure from the state the X ray taken of Moore by the state, preliminary to his being employed at Southern Colony. Dr. Schulz produced X rays he had taken of Moore in October, 1954, which clearly disclosed the presence of tuberculosis. However, Dr. Schulz was unable to give an opinion as to the date of inception of the disease.

The state called Dr. Enzer as its medical witness. He testified that he had viewed an X ray of Moore's chest taken at Fort Riley, Kansas, on September 20, 1943, while Moore was in service, which was in the possession of the Veterans Administration Hospital at Wood. With respect to such X ray, Dr. Enzer testified:

"The film of 9-20-43 in my judgment shows evidence of a primary type of tuberculosis, as indicated by the abnormal shadows at the hilar areas and some firm nodules in the first interspace of the left chest. That film would indicate, of course, an inactive type of lesion, but I think it indicates that he was undoubtedly infected at that time or prior to that time."

Dr. Enzer also was of the opinion that Moore's tuberculosis had advanced too far, as shown by X rays taken by Dr. Schulz, to have had its inception during his exposure at Southern Colony.

As commented on by the trial court, in its memorandum opinion, the testimony of Dr. Enzer with respect to the September 20, 1943, X ray, taken while Moore was in service, came as a complete surprise to Moore.

On May 11, 1955, or only six days after the hearing, the examiner entered an order dismissing Moore's application. The reasons stated in the order for such result were "that it would be speculative and conjectural to associate applicant's condition with his employment or with his exposure at the respondent; that applicant did not sustain injury in the nature of tuberculosis or an aggravation of such condition arising out of employment with respondent."

Moore under date of May 20, 1955, timely petitioned the commission for review, and also that the order of the examiner be set aside because of newly discovered evidence and further testimony be taken. In his petition, Moore stated that at the hearing he relied upon the testimony given by Dr. Enzer until Moore returned to Wood and made a further investigation and found that Dr. Enzer's testimony as to what the September 20, 1943, X ray disclosed was not true. Other material facts set forth in the petition are as follows:

(1) That Moore did not seek to obtain any information from the Veterans Administration Hospital for the hearing because he had never been advised that he previously had tuberculosis.

(2) That Moore had now obtained a letter addressed to him from Dr. Hemphill, chief of the tuberculosis service of such hospital dated May 12, 1955, and such original letter was attached to the petition, and reads as follows:

"You ask for a specific statement as to the findings on the chest X-ray films made on you while you were in service.

"We have reviewed the films of July 16, 1943, and September 20, 1943, neither of which reveal evidence of present or past tuberculous infection."

(3) That on February 5, 1944, one Dr. O. A. Sander had filed a report with the Veterans Administration stating that he had examined Moore's lungs on that day and found no defects and no evidence of tuberculosis.

Thereafter, on May 31, 1955, the commission entered a printed form of order which affirmed the examiner's findings and order. Such order made no reference to the application to take further testimony because of the newly discovered evidence.

Moore then commenced the action for review in the circuit court for Dane county. The trial judge, by his memorandum decision, held that the commission had exceeded its powers in failing to pass on the motion to take further testimony because of newly discovered evidence. Judgment was entered October 18, 1957, setting aside the commission's order and remanding the case to the commission for further proceedings. From such judgment the commission and the state have appealed.

CURRIE, J.

The controlling statute on this appeal is sec. 102.18 (4), Stats. The material part of such statute reads as follows:

". . . It [the commission] may also on its own motion, set aside, modify, or change any order, findings, or award (whether made by an individual commissioner, an examiner, or by the commission as a body) at any time within twenty days from the date thereof if it shall discover any mistake therein, or upon the grounds of newly discovered evidence. . . ."

The above statute confers upon the commission the power "on its own motion" to set aside an order or award upon the ground of newly discovered evidence. We deem it to be implicit in such statute that a party may make such motion. This was done in Seaman Body Corp. v. Industrial Comm. (1934), 214 Wis. 279, 252 N.W. 718, and such right to make the motion was not questioned in that case.

The first question which confronts us on this appeal is whether we should invoke the presumption of regularity that attends the actions of public boards and officers and hold that the commission did deny the applicant's motion to open tip the case to take further testimony because of newly discovered evidence, and, in so doing, that it acted in the proper exercise of its discretion. We are convinced that this is not a proper case in which to invoke such presumption of regularity for reasons which we will explain.

In the first place, we do not believe it would be in keeping with the spirit and objectives of the Workmen's Compensation Act to resort to such a presumption here. Situations can be envisaged, where the denial of an application to open up the case to take further testimony because of newly discovered evidence, would to all intents and purposes deny to an applicant the right to present a meritorious application to the commission to which there was no defense. Such a situation might occur where the applicant, through no fault of his, was unable to adduce evidence at the hearing before the examiner on one link in the chain of proof necessary to entitle him to an award. However, a few days after the entry of the examiner's order dismissing the application the applicant, through some fortuitous happening, became possessed of the evidence to prove such missing link, and petitions for an opening up of the case to take testimony. The commission then enters an order affirming the order of the examiner. Under such circumstances, for a reviewing court to invoke the presumption of regularity and hold that the commission properly exercised its discretion, would render the Workmen's Compensation Act a mockery.

Secondly, the holding of this court in Seaman Body Corp. v. Industrial Comm., supra, discloses that the commission does not have unlimited discretion in acting upon an application to set aside the examiner's order because of newly discovered evidence. The action of the commission in granting the application was reversed on the ground that the alleged "newly discovered evidence" did not qualify as such within the well-defined and well-understood meaning of such phrase. Therefore, if a practice were approved of permitting the commission's bare affirmance of the examiner's order dismissing the application to stand as a valid denial of the application to open tip the case because of newly discovered evidence, there would be no way of reviewing a denial which had been based upon some invalid but undisclosed basis that would not qualify as a sound exercise of discretion by the commission.

In the absence of any presumption, there is no affirmative showing in this record that the commission ever passed upon applicant's petition to open up the case because of the newly discovered evidence. The learned trial judge in his able memorandum decision expresses doubt that the commission ever did consider such petition and we share in such doubt. In the first place, the order affirming the examiner's order was a printed form which was not designed to cover situations where an application to open up the case because of newly discovered evidence was before the commission. Secondly, the newly discovered evidence, especially Dr. Hemphill's letter, so completely changed the fact situation as presented before the examiner that it is hard for us to conceive that the commissioners would not have been as greatly impressed by it as were the trial judge and the members of this court.

The brief of the attorney general, in support of his contention that the action of the commission on ruling on an application to open up the case because of newly discovered evidence, cites Schneider Fuel Supply Co. v. Industrial Comm. (1937), 224 Wis. 298, 301, 302, 272 N.W. 25, and Harrison v. Industrial Comm. (1944), 246 Wis. 106, 107, 108, 16 N.W.2d 303. These cases merely hold that court proceedings may not be instituted under sec. 102.23 (1), Stats., to review any order of the commission except one denying or granting compensation. In the Schneider Fuel Supply Co. Case the court held that the action by the employer and its insurance carrier to review an intermediate order of the commission was premature, thus clearly implying that the plaintiffs could attack such intermediate order if they waited until an award of compensation was entered, and then brought a circuit court action to review such final order. The action in the instant case is one to review an order denying compensation entered after the applicant had moved to open up the case on the ground of newly discovered evidence.

In Seaman Body Corp. v. Industrial Comm., supra, court review was sought by an employer of an order granting compensation. The commission first had entered an order denying compensation. Then within twenty days thereafter the applicant moved that such order be set aside because of newly discovered evidence. The commission granted such motion and after taking further testimony entered an order awarding compensation. The employer then instituted review in the circuit court of such order allowing compensation and attacked the commission's action in setting aside its first order. This court on appeal held that the alleged newly discovered evidence did not qualify as such and reversed. We consider that the Seaman Body Corp. Case clearly establishes that the commission's action with respect to an application to open up the case because of newly discovered evidence is reviewable if followed by an order either granting or denying compensation and the court action for review is grounded on such final order.

We recognize that the legislature has limited the scope of court review of orders of the commission. Mere error is not reviewable but only an action which is in excess of the commission's powers. Sec. 102.23 (1), Stats. However, for reasons already stated herein, we hold that the commission does act in excess of its powers when it fails to pass upon a timely application to open up the case on the ground of newly discovered evidence.

The attorney general further urges that the effect of the judgment of the circuit court is to interfere with the exercise of discretion by the commission in a field where the commission is the absolute arbiter. We have been careful not to ground this opinion on any theory of reversing an abuse of discretion by the commission. However, we do not concede that the commission's failure to grant a timely application to open up a case because of newly discovered evidence may never be reversed on court review.

The brief of the attorney general sets forth the following quotation from Christnovich v. Industrial Comm. (1950), 257 Wis. 235, 237, 43 N.W.2d 21:

"Applicant contends that the commission should not have entered a final award but should have ordered the taking of additional testimony. The taking of additional testimony on petition for a review of an examiner's findings and order is a matter for the sole discretion of the commission."

In the light of the further analysis of the problem we have now been required to make in passing on the instant appeal, we deem that the last sentence of the above quotation from the Christnovich Case may be open to misinterpretation. Suffice it to say, it would need be a flagrant abuse of discretion by the commission, in denying an application to open up a case on the ground of newly discovered evidence, in order to permit a reviewing court to determine that the commission acted in excess of its powers.

The chief objective of the Workmen's Compensation Act is to provide workmen's compensation benefits to an employee, or his dependents, where the employee has incurred disability or death due to accidental injury or occupational disease under the conditions specified in sec. 102.03, Stats. The commission is the agency which the legislature has clothed with the power and duty to administer the act. The power to set aside an order of an examiner denying compensation and open up the case for the purpose of taking further testimony because of newly discovered evidence carries with it the correlative duty so to do in a situation where such objective of the act would be completely thwarted by the nature of the original hearing conducted before the examiner. The chance of such a situation presenting itself may be extremely rare, but if the commission in such a case fails to perform its duty, a reviewing court has the undoubted jurisdiction to hold that the commission acted in excess of its powers. A failure to perform a delegated duty may be an act in excess of the commission's powers as well as a positive act.

By the Court. — Judgment affirmed.

HALLOWS, J., took no part.