The following opinion was filed January 7, 1957:
Currie, J.(on motions jor rehearing). The briefs filed in support of respondents’ motions for rehearing contend that permanent partial disability must be determined on the basis of body loss, not wage loss. The governing statute is sec. 102.44 (3), Stats., which reads as follows:
“For permanent partial disability not covered by the provisions of sections 102.52 to 102.56 the aggregate number of weeks of indemnity shall bear such relation to the number of weeks set out in paragraphs (a) and (b) as the nature of the injury bears to one causing permanent total disability and shall be payable at the rate of 70 per cent of the average weekly earnings of the employee to be computed as provided in section 102.11. Such weekly indemnity shall be in addition to compensation for healing period and shall be for the period that he may live, not to exceed, however, these named limitations, to wit:
“(a) One thousand weeks for all persons fifty years of age or less.
“(b) For each successive yearly age group, beginning with fifty-one years, the maximum limitation shall be reduced by 2% per cent per year, with no reduction in excess of 50 per cent.”
*567bThe case of Northern States Power Co. v. Industrial Comm. (1947), 252 Wis. 70, 30 N. W. (2d) 217, is cited in support of such contention. That case involved an injury sustained as a result of accident, and not, as in the instant case, disability caused by occupational disease. This distinction would be immaterial if we were dealing with a scheduled or relative disability covered by secs. 102.52 and 102.55, Stats. Green Bay Drop Forge Co. v. Industrial Comm. (1953), 265 Wis. 38, 60 N. W. (2d) 409, 61 N. W. (2d) 847. Whether such distinction is material as to a case of permanent partial disability due to occupational disease bearing no relation to the schedules of sec. 102.52 is an issue which confronts us here.
In the Northern States Power Co. Case the employee sustained an injury in the nature of a protruded intervertebral disc while lifting a refrigerator during a demonstration to a customer, for which he was operated upon. Based upon medical testimony that he had sustained a 10 to 15 per cent permanent disability due to loss of motion in the spine, the commission determined his permanent partial disability at 12)4 per cent and its award of compensation was affirmed on review by the circuit court. On appeal, the employer and his insurance carrier contended that, because the employee’s earnings were as high, or higher, after the ending of the healing period, as they were at the time of the accident, he had sustained no permanent partial disability within the meaning of sec. 102.44 (3), Stats. This court, in an opinion written by Mr. Justice Wicichem, held that prior to the 1923 amendments to the Workmen’s Compensation Act, establishing schedule and relative disabilities, permanent partial disability was measured by wage loss, but that, by reason of such amendments, permanent partial disability is now measured by body impairment and not wage loss. We quote from the opinion as follows (252 Wis. p. 76) :
*567c“During the healing period it is possible to establish a wage loss because that is a past event. But since an award for permanent disability is to be made for all time at the end of this period it must be based upon some sort of prediction as to impairment of earning capacity. It appears to us that the legislature has specifically chosen in the case of nonschedule permanent partial disabilities the method of comparing the severity of the injuries causing such a disability with those causing permanent total disability. We see no other construction that will give meaning to sec. 102.44 (3).”
In the case of a nonschedule or relative injury due to industrial accident, such as was involved in the Northern States Power Co. Case, it is possible for a physician to examine the injured employee, after the healing period has been completed, to determine whether there has been any impairment of body functions. If such impairment is found, it is further possible for the physician to determine the ratio which such impairment bears to total disability and place a percentage on such permanent partial disability. In case of some partially disabling occupational disease it may be also possible for a physician by physical examination to determine the percentage of permanent partial disability then existing. However, in the instant case, it is utterly impossible to make a physical examination of Wagner and determine the percentage of permanent partial disability. This is because the sensitivity produced by the dermatitis cannot be measured objectively.
There is no question but what Wagner has sustained a permanent partial disability as pointed out in the original opinion. It is our conclusion that in situations like this, where the permanent partial disability cannot be determined by objective examination, it must be determined on the basis of wage impairment. Any other result would leave Wagner remediless. The wording of sec. 102.44 (3), Stats., does not preclude such an interpretation, and we deem the same to be consistent with the objectives of the Workmen’s Compensation Act.
*567dThe brief of the attorney general questions this statement in our original opinion (ante, p. 560) : “Obviously the percentage of temporary partial disability cannot be less than the percentage of permanent disability.”
Temporary partial disability, is, under the provisions of sec. 102.43 (2), Stats., measured in terms of wage loss, while permanent partial disability, under the provisions of sec. 102.44 (3), Stats., is measured on the basis of body impairment. To establish the amount of such body impairment, in the highly unusual type of occupational-disease situation present here, wage impairment may be the only measuring stick. However, temporary partial disability under the provisions of sec. 102.43 (2) is measured in terms of actual wage loss. Other factors than actual wage loss may be considered in determining the permanent partial disability, as pointed out in the original opinion. Therefore, the above-quoted sentence in the original opinion is erroneous and is withdrawn. This same error carried over into the mandate, which requires that the same be modified.
In the concluding paragraph of our original opinion we stated that the cause was being remanded to the commission under the powers vested in this court under secs. 251.09 and 102.24 (1), Stats. Upon further consideration, we now deem it was error to base such remand on any powers of this court under sec. 251.09, as this section has no application to court review of Industrial Commission. orders under the Workmen’s Compensation Act. If the commission makes a finding of fact not supported by the evidence, and the commission’s order, or any part thereof, rests on such finding, the setting aside of the order on court review authorizes a remand for further proceedings under the provisions of sec. 102.24 (1), Stats. M. & M. Realty Co. v. Industrial Comm. (1954), 267 Wis. 52, 64 N. W. (2d) 413. In the instant case the erroneous finding of fact was that which determined that there was no permanent partial disability.
*567eBy the Court. — The original mandate is amended to read as follows: “Judgment is affirmed in so far as applicable to the commission’s fixing of April 6, 1951, as the date of injury and the determination of the temporary partial disability. The remainder of the judgment is reversed, and cause remanded to the circuit court with directions to set aside that part of the order which found no permanent disability, and to remand to the commission for the taking of further testimony and the making of an award of permanent partial disability in accordance with this opinion.” Motions for rehearing are denied without costs.