Opinion
May 4, 1950 —
June 6, 1950.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
Stephen J. Hajduch of Milwaukee, for the appellant.
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.
This is an appeal from a judgment dated January 10, 1950, confirming an order of the Industrial Commission, dated October 13, 1948, in an action commenced on November 12, 1948, by James Jack Christnovich, plaintiff, against Ladish Drop Forge Company, Employers Mutual Liability Insurance Company, and Industrial Commission of Wisconsin, defendants.
The petitioner-appellant, James Jack Christnovich, was injured on October 19, 1945, while in the employ of the Ladish Drop Forge Company. On July 23, 1947, he filed an application for compensation under the Workmen's Compensation Act in which he stated his injury to be "Stiffness and pain in right hip and back. Right side of back and hip." On May 3, 1948, after hearing, an examiner of the Industrial Commission found that the applicant "sustained permanent partial disability equivalent to six per cent loss of use of the right leg at the hip . . . . "There was no reference in the examiner's findings to applicant's claimed back injury.
On May 18, 1948, applicant filed a petition for a review of the findings and order of the examiner, reciting that applicant "desires commission to retain jurisdiction for purposes of inquiry into disability for back injuries. . . ." The commission ordered that the findings be set aside and applicant's petition for review by the full commission be granted. On October 13, 1948, without further testimony the commission affirmed the findings and order of the examiner.
Appellant contends that upon his petition for a review by the whole commission it should have made an express finding with respect to his claimed back injury, that it should have retained jurisdiction to determine whether there was a back injury, and that it should have taken additional testimony.
It will be observed that the applicant made a claim for an injury both to his right hip and his back; that he thereby presented to the commission a claim based upon an alleged injury to his back. His entire claim was presented to the commission as it is required to be.
"When the employee suffers an accident he has but one cause of action for compensation for all injury and disability sustained as the result thereof, and his claim therefor is not severable. R. J. Wilson Co. v. Industrial Comm. 219 Wis. 463, 263 N.W. 204; A. D. Thomson Co. v. Industrial Comm. 222 Wis. 445, 450, 268 N.W. 113, 269 N.W. 253. 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. 233 Wis. 48, 52, 287 N.W. 692.
The mere fact that the applicant in his original petition stated that his claim was based in part upon his back injury presented that feature of his claim to the commission and it was considered by the commission in making its award. The commission having determined that there was an injury only to the right hip it was not necessary that it make a specific finding as to the back injury.
From the finding that the permanent partial disability sustained by the applicant was at the hip, the inference necessarily follows that it was determined that he sustained no disability to any other portion of his body.
There was ample testimony to support the implied finding of the commission that applicant had suffered no compensable disability to his back.
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. Spenle v. Industrial Comm. 232 Wis. 506, 287 N.W. 690; Woodside School Dist. v. Industrial Comm. 241 Wis. 469, 475, 476, 6 N.W.2d 182.
Applicant's petition has been fully considered, and under the rule of State ex rel. Watter v. Industrial Comm. supra, the judgment must be affirmed.
By the Court. — Judgment affirmed.