Bianco v. Genco Tool & Gauge Co.

149 N.W.2d 905, 6 Mich. App. 590, 1967 Mich. App. LEXIS 722

• Court: Michigan Court of Appeals
• Decided: April 25, 1967
• Docket: Docket No. 712
• Status: Published

Opinion

T. G. Kavanagh, J.

This case involves a claim under the workmen’s compensation law.¹

In February, 1955, claimant Bianco was struck in the face by a piece of steel that flew out of the machine upon which he was working. He sustained a broken nose, a fractured skull, and an injury to his left eye resulting in the complete enucleation of that eye. After the injury he continued as a working-partner of the firm (defendant Genco). Because of the increased strain on his right eye, he spent only 20% of his time in his skilled capacity as a tool and guage maker. The balance of his time was spent in the performance of managerial duties on behalf of the partnership.

On February 5, 1957, claimant noticed the sight in his right eye diminishing and ceased to work completely because total blindness, caused by a systemic condition, ensued. He left the partnership in January, 1958.

After the 1955 injury to the left eye, claimant received, for the specific loss of that eye, compensation for 162 weeks. That period of compensation expired on March 20, 1958, and in August, 1959, a petition for further compensation was filed. The hearing referee found claimant to be totally and permanently disabled by virtue of the loss of vision of both eyes and ordered compensation to be paid at the rate of $36 per week for a period commencing on March 21, 1958, such period not to exceed 800 weeks.

Defendants took the matter to the workmen’s compensation appeal board which affirmed the decision of the referee. Defendants now appeal to this court.

The board found that claimant’s loss of his second eye was unconnected to his employment and unrelated to the 1955 injury. These findings of fact are supported by the evidence and are thus binding upon us. CL 1948, § 413.12 (Stat Ann 1960 Rev § 17.186).

Claimant clearly is totally and permanently disabled as that term is defined in section 10 of part 2 of the act.² He claims that he is entitled to compensation from his employer (defendant Genco) for total and permanent disability, under section 9, subd (a).³

Plaintiff relies upon Clark v. Chrysler Corporation (1966), 377 Mich 140, as authority for Ms claimed right to compensation. In that case plaintiff had lost one hand above the wrist and had the thumb, index, and middle fingers of his other hand amputated as a result of a work-related accident. The appeal board awarded compensation for the specific loss of each hand. Plaintiff appealed on the ground that he was entitled to benefits for total and permanent disability and to differential benefit payments from tbe second injury fund. At tbe time plaintiff was injured, tbe act did not provide total and permanent disability benefits for tbe loss of industrial use of botb bands. By an amendment to tbe act effective in August, 1956, sucb benefits were made available. Tbe Supreme Court beld tbat, beginning with, tbe effective date of tbe amendment, plaintiff was entitled to compensation for total and permanent disability from bis employer, and upon legislative increase of tbe benefit rate for sucb disability, then to differential payments from tbe second injury fund.

Defendants contend tbat they are not liable for total and permanent disability payments under section 9, subd (a), because tbe total and permanent disability did not result wholly from tbe work-related injury. In support of this proposition they cite Weaver v. Maxwell Motor Co. (1915), 186 Mich 588.

In tbe Weaver Case, tbe plaintiff bad lost one eye before tbe workmen’s compensation act bad been enacted. He lost bis other eye in an industrial accident when the act applied. Tbe Supreme Court beld tbat each loss by itself constituted only permanent partial disability. Since tbe total incapacity could not be entirely attributed to tbe compensable loss, tbe claimant was entitled only to compensation for partial disability.

At tbe time tbat Weaver was decided, part 2, section 9, did not provide for compensation for total and permanent disability benefits. Tbat section has since been amended to provide for compensation for total and permanent disability and for differential payments out of tbe second injury fund. One of tbe purposes of tbe amendment is to soften some of tbe harshness of tbe Weaver rule.

The rationale underlying Weaver is that the workmen’s compensation act is intended to hold the employer liable only with regard to work-related injuries. See CLS 1961, § 412.1 (Stat Ann 1960 Rev § 17.151). This rationale is equally applicable to the employer’s liability for total and permanent disability benefits under the amendment. However, the claimant’s entitlement to differential payments out of the second injury fund is another matter. Section 9, subd (a) provides that if a. claimant is totally and permanently disabled under the act (as is plaintiff in-this matter), and if he is entitled to compensation from his employer under the act (as is plaintiff here), then he is entitled to differential payments out of the second injury fund if the amount of benefits he can receive under the act from Ms employer is less than the amount allowed for total and permanent disability, and if the period for which he can receive payments from his employer is shorter than the period provided for total and permanent disability compensation.

In this case plaintiff became totally and permanently disabled on February 5, 1957. At that time, he was receiving compensation under the act from his employer. Consequently, on that date he became entitled to differential payments out of the second injury fund to the extent that his benefit rate was less, and Ms period for receiving compensation was shorter, than the rate and period provided for. total and permanent disability.

We conclude that the board was in error when it awarded plaintiff compensation from Ms employer for total and permanent disability. It should have, instead, awarded differential payments out of the second injury fund.

Reversed and remanded for amendment of the award in conformance with this decision.

Lesinski, C. J., and Quinn, J., concurred.

1 CL 1948, § 411.1 et seq., as amended (Stat Ann 1960 Rev § 17.141 ei seq.).

2 OLS 195G, § 412.10 (Stat Ann 1960 Rev § 17.160).

3 CLS 1956, S 412.9 (Stat Ann 1960 Rev S 17.159).