Opinion
April 7, 1961 —
May 2, 1961.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by A. L. Tilton of Milwaukee.
For the respondent Industrial Commission the cause was argued by Mortimer Levitan, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general.
For the respondent American Motors Corporation there was a brief by La France, Thompson, Greenquist, Evans Dye of Racine, attorneys, and Alfred E. La France, of counsel, and oral argument by Alfred E. La France and by Harlow P. Bielefeldt, Jr., of Kenosha.
Appellant Borum applied to the Industrial Commission for an award of compensation alleged to be due him for a personal injury received in an industrial accident. The commission found that it had no jurisdiction to entertain the application and therefore dismissed it. Upon review by the circuit court the court affirmed the commission's order of dismissal and Borum has appealed.
The accident causing the injury occurred on March 31, 1955, while Borum was at work for American Motors Corporation, a respondent here. He applied promptly for workmen's compensation. The Industrial Commission heard his claim and on November 30, 1955, determined that he had suffered a temporary disability caused by the accident and "the applicant suffered no permanent disability because of the injury in question." The commission awarded Borum compensation for the temporary disability so found and concluded its order: "Upon compliance with this order, the respondent [the employer] is discharged of further liability."
The employer complied.
Borum was dissatisfied with the award, contending that on the evidence the commission should have found a permanent disability. He had a review by the circuit court for Dane county and the court sustained the order of the commission. Borum then appealed to the supreme court where the judgment of the circuit court was affirmed January 2, 1959, Borum v. Industrial Comm. 6 Wis.2d 168, 93 N.W.2d 860. He did not move for rehearing but on March 10, 1959, he filed a new claim for injuries arising out of the accident and injury of March 31, 1955, alleging that the accident resulted in a traumatic neurosis which has permanently disabled him.
The commission and the employer oppose Borum's present application. They submit that the commission's order of November 30, 1955, was a final order and when it was sustained by the circuit court and affirmed by the supreme court the commission had no jurisdiction to entertain further proceedings respecting the results of the accident to Borum.
Additional facts will be given in the opinion.
Appellant's 1955 application sought compensation for whatever injuries he received in the accident. The commission made an award for a temporary disability and specifically determined that the injury caused him no permanent disability. He challenged the latter finding and the order based upon it but upon review and appeal, as permitted him by statute, the commission's determination was upheld. The commission's order was unquestionably a final order; appellant does not contend otherwise, but he submits that, although the order of November 30, 1955, is a final one, under the circumstances the final order does not exhaust the commission's jurisdiction. Borum argues that if he is permitted to present his case again to the commission he would offer medical evidence concerning traumatic neurosis which was formerly unavailable to him and unknown to science when his application was heard in November of 1955, and such new evidence could produce a different conclusion respecting the permanence of Borum's disability. He concedes that heretofore Wisconsin gives the injured employee a single cause of action for compensation for all injuries and disabilities arising out of and as a result of an industrial accident. Appellant's concession correctly states the law. We have held that an injured employee's right to recover workmen's compensation is based on ch. 102, Stats. ;he has but one cause of action for compensation for all injury and disability sustained as a result thereof, and his claim therefor is not severable. When the commission makes findings and a final award it is not passing upon merely the employee's right to compensation for certain claimed or then-known injuries. It is passing upon all compensation payable for all injuries caused by that accident. State ex rel. Watter v. Industrial Comm. (1939), 233 Wis. 48, 52, 53, 287 N.W. 692; Delta Oil Co. v. Industrial Comm. (1956), 273 Wis. 285, 289, 77 N.W.2d 749. Having entered a final order on the subject and the statutory time for review having expired, the commission lacks jurisdiction to proceed on a subsequent application for injuries allegedly sustained in the same accident. (Idem.) We have applied this principle to deny relitigation of compensation claims after disposition of them has been made by the commission's final orders and the time for review has expired. For example, see Gergen v. Industrial Comm. (1946), 249 Wis. 140, 142, 143, 23 N.W.2d 473. The commission thereafter has no further jurisdiction to resume consideration of the consequences of the same accident. Gergen Case, supra; Sheehan v. Industrial Comm. (1956), 272 Wis. 595, 602, 76 N.W.2d 343.
Appellant commends the New York court for permitting belated reconsideration of disability notwithstanding prior final orders dismissing applications for compensation. Stimburis v. Leviton Mfg. Co. (1959), 5 N.Y.2d 360, 157 N.E.2d 621, and Roder v. Northern Maytag Co. (1948), 297 N.Y. 196, 78 N.E.2d 470. He urges us to emulate the example set by the courts of our sister state. The New York Compensation Act under which this relief was granted gave to the compensation board a continuing jurisdiction. With no similar provision in the Wisconsin Compensation Act, ch. 102, Stats., the jurisdiction of the Industrial Commission is exhausted by a final order for compensation when the statutory time for review has expired or the last review permitted by statute has confirmed that final order.
By the Court. — Judgment affirmed.