Trustees, Middle River Sanatorium v. Industrial Commission

272 N.W. 483, 224 Wis. 536, 1937 Wisc. LEXIS 141
CourtWisconsin Supreme Court
DecidedApril 7, 1937
StatusPublished
Cited by6 cases

This text of 272 N.W. 483 (Trustees, Middle River Sanatorium v. Industrial Commission) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trustees, Middle River Sanatorium v. Industrial Commission, 272 N.W. 483, 224 Wis. 536, 1937 Wisc. LEXIS 141 (Wis. 1937).

Opinion

Nelson, J.

The sole question argued on this appeal is whether the applicant filed her application for compensation [538]*538within two years from the date when she knew or ought to have known the nature of her disability and its relation to her employment. Sec. 102.12, Stats. 1933, provides:

“. . . Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the injury or death, or from the date the employee or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred.”

The question presented requires a statement of the relevant facts. In 1930, the applicant entered the employ of the sanatorium as a floor maid. At that time she was eighteen years of age 'and well and healthy. Her duties as floor maid consisted among other things of serving meals to twenty-two to twenty-five bedridden tubercular patients. She carried trays from the food elevator to the patients, and often assisted some of the patients in eating, who were too ill to feed themselves. After serving breakfast to the patients on the third floor she swept and mopped the floors of the patients’ rooms and the hall on that floor. She picked up the sputum bags and carried them to the incinerator. She dusted the beds, cleaned the bathrooms, and performed other work not necessary to describe. While thus working she was concededly exposed to tuberculosis. She continued at that work until August, 1931, when she started to work in the kitchen as a kitchen maid. Her duties as a kitchen maid required her to start work at about 6 o’clock in the morning. She set up the patients’ trays and put food on them. She alternated with other maids in taking the trays upstairs on the thermotainer. When she got upstairs she served the food and delivered the trays to the floor maids who carried them to the patients. While so employed, she now and then went into the patients’ rooms and occasionally assisted them in eating. She per[539]*539formed similar services in preparing the dinners and suppers. She continued her work as a kitchen maid until May, 1933, when she was transferred to the girls’ dormitory, where she was employed as a cleaning maid. She quit her employment in June, 1933, because she was not well enough to carry on, and because of certain complaints regarding her work which she knew were justified. She went to live with a sister whom she assisted in taking care of her children and in doing the housework. She was examined by Dr. Wall early in July, 1934, who found that she was suffering from tuberculosis. Shortly thereafter, on August 17, 1934, she filed her application for compensation.

The plaintiffs earnestly contend that in March or April, 1932, the applicant knew the nature of her disability and its relation to her employment, and that her claim for compensation when filed on August 17, 1934, was barred. Sec. 102.12, supra. The examiner found that the applicant filed her application within two years from the date she knew the nature of her disability and its relation to her employment. That finding is particularly assailed as not supported by the evidence.

The applicant testified that, commencing about Christmas time in 1931, or shortly thereafter, she suffered considerable pain in her right chest; that she consulted Dr. Johnson, the medical director in charge of the sanatorium; that he diagnosed her ailment as pleurisy and so advised her; that he recommended that she rub her chest with analgesic balm; that she continued to work; that in March or April, her condition became more acute, and she again consulted Dr. Johnson who examined her again and told her that she was suffering from pleurisy; that she did not again consult Dr. Johnson or any other doctor connected with the sanatorium; that some time in 1932, her chest was X-rayed, and she was told by Mrs. McCartney, a trained nurse and the superintendent of the [540]*540sanatorium, that the X-ray picture showed a pleurisy shadow; that on June 15, 1933, the day she left the sanatorium her chest was again X-rayed; that about two weeks thereafter she had a coughing spell and at that time raised blood; that she thereupon went to the sanatorium and asked Mrs. McCartney how the X ray had turned out, and that at that time Mrs. McCartney told her it was just fine, that the pleurisy shadow had cleared up and that the X ray was all right; that she did not know that she was suffering from tuberculosis until Dr. Wall examined her and so informed her early in July, 1934.

It seems very clear from this testimony that she did not suspect, much less know, before 1934, the nature of her disability and its relation to her employment, that is to say, that she was afflicted with an occupational disease.

The plaintiffs, however, contend that the following questions and answers clearly reveal that she did know, or ought to have known, in March or April, 1932, the nature of her disability and its relation to her employment:

“Q. When you were suffering from what you call pleurisy at the time Dr. Johnson treated you and at the time you were disabled for a week in March or April, 1932, did you think at that time that that condition might have come from your employment? ... A. Yes, I did.
“Q. You thought at that time that the pleurisy from which you were suffering was due to the contact you had with patients here at the sanatorium ? A. I thought it was dúe to the work in the kitchen.
“Q. What part of your work did you think it was due to ? A. Well, being in the icebox, dishing up ice cream on warm ' days, and then being in the steam room washing dishes and wiping them.
“Q. You thought it was from your exposure to heat and cold? A. Yes and the steam.
“Q. Did you think your contact with patients had anything to do with that pleurisy? A. Yes, I think it had something to do with it,
[541]*541“Q. What did you think that had to do with that condition of pleurisy? A. Well, I think it weakened my lungs.
“Q. In what way was that brought about? A. Just from the general contact with patients.
“Q. How would contact with patients weaken your lungs ? A. Well, I couldn’t definitely say that coming in contact with the patients had anything to do with my pleurisy. I couldn’t say just what did cause my pleurisy.
“Q. Well, outside of this exposure to heat and cold that you have told us about, you said you thought your employment had something to do with that pleurisy, and you mentioned being exposed to heat and cold, and you thought it might have had something to do with it, and then you also mentioned something about your contact with patients that may have had something to do with it. A. Well, I thought coming in contact with positive patients may have a tendency in weakening a person’s lungs in time.”

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Bluebook (online)
272 N.W. 483, 224 Wis. 536, 1937 Wisc. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trustees-middle-river-sanatorium-v-industrial-commission-wis-1937.