Balczewski v. Department Industry

The judgment of the circuit court sustained the order of the Department of Industry, Labor and Human Relations dated October 19, 1973, which adopted the findings and order of the examiner, which established permanent partial disability for the claimant, Berniece Balczewski, at 55 percent. Berniece Balczewski has appealed from the circuit court's judgment. Her principal contention is that the testimony presented on her behalf at the hearing demonstrated prima facie that, by reason of her industrial injury, she was permanently precluded from being able to obtain or pursue any income-yielding occupation with reasonable continuity and, therefore, under existing law and the undisputed facts adduced at the hearing, she was entitled to a finding that she was totally disabled for industrial purposes. We conclude that such prima facie proof of total disability was adduced at the hearing and that such proof was not rebutted by her employer. Because we conclude that the employer apparently failed to recognize the legal theory upon which the claimant proceeded and, because the claimant did not identify the theory of her claim with particularity, rather than reversing and determining that the disability was proved to be total, we reverse and remand for the purpose of permitting the employer to present evidence, if any it has, in rebuttal of the claimant's prima facie case.