Opinion
March 6, 1953 — September 11, 1953 —
March 31, 1953. October 6, 1953.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the briefs of Otjen Otjen of Milwaukee, and for the respondent Industrial Commission on the brief of the Attorney General and Mortimer Levitan, assistant attorney general.
For the appellant there was a brief by Otjen Otjen of Milwaukee, and oral argument by Henry H. Otjen.
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.
A brief was also filed by Quarles, Spence Quarles and Kenneth P. Grubb, all of Milwaukee, as amici curiae.
On October 2, 1942, the respondent Clarence Swinton (hereinafter referred to as the "employee") was injured in the course of his employment by the plaintiff corporation (hereinafter referred to as the "employer"), fracturing the femur of his left leg. The employee engaged Attorney L. A. Tarrell of Milwaukee to represent him in his claim for workmen's compensation against the employer. On date of August 6, 1943, Dr. Herman C. Schumm, an orthopedic surgeon of Milwaukee, who had operated on the leg on January 5, 1943, made a written report dated August 6, 1943, in which he stated, "I think that this case could probably be closed at this time," and estimated the employee's disability as from 20 per cent to 25 per cent of loss of use of his left leg at the hip, copy of which report was filed with the Industrial Commission.
Under date of September 30, 1943, a stipulation of facts was entered into and signed by the employer and the employee. As to permanent disability, the stipulation stated that the employee "has a permanent disability equivalent to 25 per cent loss of use of his left leg at the hip." This stipulation of facts was forwarded to the Industrial Commission by Attorney Tarrell with the request that an award be entered thereon. Pursuant to such stipulation of facts and request for an award the commission, under date of December 1, 1943, entered an order which specified the amount the employer was to pay for temporary total disability from October 2, 1942, to June 14, 1943, and for permanent partial disability consisting of 25 per cent loss of the left leg at the hip, such latter amount to be paid in monthly instalments. Thereafter, at the request of the employee, such order was amended under date of March 27, 1944, to provide for a lump-sum payment.
Thereafter, the employee filed an "application for review of compromise" dated August 23, 1944, which stated that he had previously entered into "a compromise agreement for settlement" of his claim; that such settlement was unjust to the employee because when made his leg was one and one-half inches short while at present it is over two inches short and he could not do work which required lifting, and prayed "for a review of the compromise agreement" and that an order or award be made granting him such relief as he might be entitled to in the premises. The employer answered and such answer contained this paragraph:
"Employer alleges that the order of the commission, dated December 1, 1943, has become final and is not subject to modification or change. Employer further alleges that the stipulation entered into related to facts alone, the liability not being contested, and therefore should determine that the order of December 1, 1943, was not a compromise settlement but a decision based upon undisputed facts."
Under date of November 15, 1944, the employee was again examined by Dr. Schumm who made a further written report under date of December 1, 1944, in which he increased the estimate of permanent partial disability from 25 per cent to 35 per cent of the loss of the left leg at the hip. Upon this further report of Dr. Schumm, the employer and employee entered into a further stipulation dated December 13, 1944, reading in part as follows:
"That the parties hereto stipulate that the applicant has a permanent disability equivalent to 35 per cent at the hip joint or 10 per cent in excess of the percentage of permanent partial disability stipulated to at the time of the previous compromise and order determining permanent partial disability;
"That the employer agrees to pay all medical expenses incidental to two additional examinations by Dr. Herman C. Schumm of Milwaukee, Wisconsin;
"Now, therefore, the parties hereto respectfully request the Industrial Commission to enter its order directing the payment of such additional compensation as may be due to Clarence Swinton, based on the foregoing stipulation of facts."
Thereupon the commission entered an "additional order" dated January 5, 1945, based upon this second stipulation, which ordered the employer to pay an additional $819 of compensation in instalments of $91 per month to cover the additional amount due based on a disability equivalent to 35 per cent of loss of the left leg at the hip, "or 10 per cent in excess of the permanent partial disability stipulated to at the time of the previous compromise," which order reserved no further jurisdiction by the commission, except to provide a different method of payment.
Both the original order and this second order were signed in behalf of the commission by "Harry A. Nelson, Director, Workmen's Compensation (as examiner)."
On April 24, 1950, or some five years four months after the date of the "additional" order, the employee filed with the commission an application for adjustment of claim seeking further compensation. The employer in its answer to this application again alleged that the original order of the commission dated December 1, 1943, had become final and was not subject to modification or change and that the alleged stipulation upon which such original order had been entered "was not a compromise settlement but a decision based upon undisputed facts." A hearing was held, and under date of August 16, 1950, the examiner of the commission entered findings of fact and an order in which it was found that the employee's permanent disability from the accident was 12 per cent as compared with loss of the left leg at the knee, and 41 per cent as compared with loss of the left leg at the hip, and ordered the employer to pay the $1,476.09 of further compensation, and, unlike the two previous orders, reserved jurisdiction to order further benefits in case of future developments which would increase the disability. The employer timely moved for review by the commission and the findings and order of the examiner were affirmed by the commission under date of September 15, 1950.
The employer thereafter instituted an action for review in the circuit court and under date of April 24, 1952, judgment was entered by the trial court affirming the award of the commission. The employer has appealed from said judgment.
The brief of the attorney general in behalf of the commission contends that the original stipulation was based on a "stipulation of settlement" and inasmuch as the word "compromise" did not appear therein, therefore, under the provisions of sec. 102.16 (1), Stats., the six-year limitation in sec. 102.17 (4) applies; and that the so-called "additional" order of January 5, 1945, had the effect of starting a new six-year period of limitation in operation, so that the application of the employee filed April 24, 1950, for further benefits fell within such new six-year period. It is the position of employer, on the other hand, that the original stipulation upon which the original order of December 1, 1943, constituted a stipulation of facts, and not a stipulation of settlement, and therefore the twenty-day limitation provided in sec. 102.18 (3) applies, and that the further stipulation entered into by the employer upon which the "additional" order of January 5, 1945, was made was a voluntary act on the part of the employer which had no legal effect.
Rule 10 of the Workmen's Compensation Rules of Practice of the Industrial Commission provides that parties to a controversy may stipulate the facts in writing and the commission may thereupon make its finding or award, and requires that such a stipulation be accompanied by a report from the physician stating the extent of the disability. The obvious purpose of such a rule is to expedite procedure and make it unnecessary to hold a formal hearing and take testimony, the stipulated facts being intended as a substitute for testimony taken at a formal hearing. On the other hand, a "stipulation of settlement" as such term is used in sec. 102.16 (1), Stats., embraces within its meaning a compromise of liability as is made clear from the context of such statute which provides in part as follows:
"Every compromise of any claim for compensation may be reviewed and set aside, modified, or confirmed by the commission within one year from the date such compromise is filed with the commission, or from the date an award has been entered, based thereon, or the commission may take such action upon application made within such year. Unless the word `compromise' appears in a stipulation of settlement, the settlement shall not be deemed a compromise, and further claim shall not be barred except as provided in section 102.17 (4) irrespective of whether award is made."
This court held in Metropolitan Casualty Ins. Co. v. Industrial Comm. (1951), 260 Wis. 298, 50 N.W.2d 399, that where there are no opposing claims between the employer and the employee, and the employer assumes full liability for the amount of compensation claimed by the employee, there is no "compromise" within the meaning of the statute. At the time the employer and the employee entered into the stipulation of facts dated September 30, 1943, the medical report of Dr. Schumm stated that the permanent disability of the employee was 20 per cent to 25 per cent loss of the left leg at the hip, and the employee then made no claim that he was entitled to more than the top estimate of 25 per cent loss of the leg at the hip by Dr. Schumm. The employer, by stipulating that the percentage of disability at the hip was 25 per cent, assumed full liability for all the disability claimed by the employee as shown by the medical report and therefore in no sense did such stipulation constitute a "compromise," and, not being a compromise it could not be a "stipulation of settlement" within the meaning of sec. 102.16 (1), Stats.
In our consideration of the case of Metropolitan Casualty Ins. Co. v. Industrial Comm., supra, the case of J. I. Case Co. v. Industrial Comm. (1933), 210 Wis. 574, 246 N.W. 591, was cited in the briefs of counsel on the question of whether or not the stipulation upon which the award was entered in such latter case constituted a "compromise." The brief of the attorney general in behalf of the commission contended that the stipulation therein was not a compromise but a stipulation of facts (being exactly the opposite position now taken by the attorney general in the case at bar), while the brief in behalf of the appellant insurance carrier contended that the stipulation was a "compromise." In our consideration of the J. I. Case Co. v. Industrial Comm. Case in Metropolitan Casualty Ins. Co. v. Industrial Comm., supra, we agreed with the contention of the attorney general and stated (p. 305):
"This court in its opinion [in J. I. Case Co. v. Industrial Comm., supra,] did not give any consideration to the question of whether or not there had been a compromise made, but held that the element of dispute is not essential to constitute a justiciable controversy, and that there may be a justiciable controversy sufficient to give jurisdiction to the commission to make a statutory award where all the facts and the law are admitted by the parties. The court also held that the award in this instance was authorized by Rule 10 of the commission, which provided that the parties might stipulate the facts in writing and the commission might thereupon make its order of award. . . .
"The court having found that an award had been made in a case where a justiciable controversy existed, it should have found that the commission lost jurisdiction after the expiration of the twenty-day, period specified in sec. 102.18, Stats. 1927, for modifying or changing, or setting aside of the award, . . ." (Emphasis supplied.)
If an award upon a stipulation of facts embodying no element of compromise were not to be accorded the same finality as is accorded to an award made upon hearing, there would be no inducement for employers to ever stipulate facts, in lieu of holding a formal hearing, and the tendency would be for all employers to insist on a formal hearing, even though there were no facts in dispute and the employer was willing to pay the exact amount claimed by the employee. This would defeat the objective sought to be attained by Rule 10 of the commission.
The attorney general cites our recent decision in C. F. Trantow Co. v. Industrial Comm. (1952), 262 Wis. 586, 55 N.W.2d 884, as authority for the proposition that the original stipulation of facts in the instant case constituted a "stipulation of settlement." However, in the C. F. Trantow Co. v. Industrial Comm. Case the stipulation provided for compromising a 100 per cent dependency imposed by the statute at 50 per cent so that the employer did not assume to pay upon the basis of the full liability imposed by statute, which clearly distinguishes that case from the instant one.
There remains the further question of the legal effect of the stipulation of the parties in the instant case, dated December 13, 1944, and the "additional" order, dated January 5, 1945. This second stipulation, in stating the disability of the leg to be 35 per cent, was entirely lacking in an element of compromise but merely stipulated the percentage of disability as disclosed in the last report of Dr. Schumm. It, therefore, was not a "stipulation of settlement" any more than was the first stipulation. The fact that the parties in the stipulation of December 13, 1944, and the commission in its additional order of January 5, 1945, mistakenly referred to the first stipulation of facts as "the previous compromise" would not have the legal effect of converting that which was only a stipulation of facts into a compromise or "stipulation of settlement." If the employee had been induced to act to his prejudice in reliance on the stipulation of December 13, 1944, referring to the first stipulation as "the previous compromise" the employer might well be held to be estopped now to deny that such original stipulation was a compromise or a "stipulation of settlement;" but the employee did not change his position in reliance thereon so that necessary element of estoppel is lacking.
By the Court. — Judgment reversed and cause remanded with directions to set aside the award.
A motion for rehearing was granted on June 2, 1953, and oral argument was heard September 11, 1953.
The following opinion was filed October 6, 1953:
( On rehearing). In our original opinion herein we held that a stipulation of facts for the purpose of enabling the Industrial Commission to enter an award thereon, in lieu of testimony taken at a formal hearing, which stipulation embodied no element of compromise, was not a "stipulation of settlement" within the meaning of sec. 102.16 (1), Stats. Therefore, an award made thereon became final and conclusive under sec. 102.18 (3), Stats., upon twenty days having elapsed thereafter, in the absence of the filing of a petition for review within such period.
In reaching such result, we interpreted the words "stipulation of settlement" of the statute to mean one wherein there was present some element of compromise. The attorney general strenuously objects to this interpretation and stresses the fact that the commission for many years, by practical interpretation, has held that an award upon a stipulation of facts could be opened up any time within six years from the date of the last payment of compensation. In other words, the commission interpreted the words "stipulation of settlement" to be broad enough to embrace a stipulation of facts which embodied no element of compromise as well as stipulations of settlement which did embody an element of compromise.
The present wording of sec. 102.16 (1), Stats., is the result of an amendment made by the legislature to the Workmen's Compensation Act in 1943. Continuously since the adoption of such amendment the commission has made use of a form letter to accompany the mailing by it of all awards for compensation entered upon stipulations of facts. Such form letter has been mailed to the employee, the employer, and the insurance carrier (in those cases in which the employer is not a self-insurer). One paragraph of such letter contained the following statement:
"A stipulation of facts leaves a case open for further claim if additional liability can be shown, provided application is filed in the office of the Industrial Commission within six years from the date of the last payment of compensation."
This court has held that where there is any obscurity in the meaning of a statute, practical construction given by the administrative agency charged with administering such law is entitled to great weight. State ex rel. State Asso. of Y.M.C.A. v. Richardson (1928), 197 Wis. 390, 222 N.W. 222; A. D. Thomson Co. v. Industrial Comm. (1936), 222 Wis. 445, 451, 452, 268 N.W. 113, 269 N.W. 253; and Smith v. Department of Taxation (1953), 264 Wis. 389, 392, 59 N.W.2d 479.
While we are still of the opinion that the more commonly accepted meaning of "stipulation of settlement" is one which embodies a compromise, there is sufficient obscurity in the meaning of such phrase to justify resort to the practical interpretation of such phrase made by the Industrial Commission. We are fearful that, if we do not resort to such practical interpretation, a grave injustice might be done to many injured employees who have acted in reliance upon such interpretation by the commission.
The mandate of the previous opinion is vacated, and the judgment is affirmed.