Casey v. Escanaba & Lake Superior Railroad

287 N.W. 538, 290 Mich. 601, 1939 Mich. LEXIS 749

• Court: Michigan Supreme Court
• Decided: September 6, 1939
• Docket: Docket No. 25, Calendar No. 40,259.
• Status: Published

Opinions

Potter, J.

July 17, 1930, both of plaintiff’s legs were fractured in an industrial accident arising out of and in the course of his employment. Compensation for total disability was paid to July 23, 1931. On defendant’s application, an award was entered stopping plaintiff’s compensation as of July 21, 1932. February 15,1934, plaintiff filed a petition for further compensation which was later denied by the department. October 15, 1937, another petition was filed for further compensation upon the ground plaintiff was totally disabled. There is ample proof to sustain the finding and award of the department. But it is here urged there has been no change in plaintiff’s physical condition since the finding and award of 1934.

When the awards of 1932 and 1934 were made by the department, it adjudicated that at that time plaintiff had fully recovered from his injuries. Otherwise, it had no right to stop compensation. The adjudication of the department, not plaintiff’s testimony, controls. Plaintiff claimed at the time he filed his last petition he was totally disabled. Testimony was taken before the department of labor and industry and it so adjudicated. This is an adjudication of such a change of physical condition as is contemplated by the statute and fully sustains the award of the department. Similar questions were involved in Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190; MacDonald v. Great Lakes Steel Corp., 274 Mich. 701; Smith v. Pontiac Motor Car Co., 277 Mich. 652; Markey v. S. S. Peter & Paul's Parish, 281 Mich. 292; DeTroyer v. Ernst Kern Co., 282 Mich. 689.

Award of the department is affirmed, with costs.

Bushnell, North, and McAllister, JJ., concurred with Potter, J.