Harrison v. Lakey Foundry Co.

106 N.W.2d 521, 361 Mich. 677, 1960 Mich. LEXIS 361

Opinions

Carr, J.

The finding of facts in this case as made by the referee and approved by a majority of the members of the appeal board is supported by competent testimony. In May, 1949, plaintiff, while in the employ of defendant, sustained an injury involving a fracture of both legs. He was paid compensation on a voluntary-basis for varying periods of total and partial disability, and in December of 1953 an award was entered by the workmen’s compensation appeal board in accordance with the payments that had been made. At that time, however, plaintiff was working for defendant in favored employment and his earnings were in excess of his wages at the time of his injury.

1 In December of 1953 it was discovered that plaintiff was suffering from silicosis which prevented his further employment. He received compensation at the rate of $34 per week, and applications for lump-sum advance payments were granted by the department, so that prior to the filing of the application in the instant proceeding plaintiff had received the maximum amount of $10,500 because of the disability ..resulting from silicosis.

In September of 1958 plaintiff filed an application for an award of compensation because of disability claimed to have resulted from the 1949 injury. Such application was based on the theory that he was entitled to receive compensation because of the disability resulting from the injured legs during the same period of time that he was receiving the award based on the finding of silicosis and the total disability resulting therefrom. This claim presents the issue in the case, that is, whether plaintiff is entitled to compensation because of the 1949 injuries during the period of time for which he was compensated for total disability resulting from the condition discovered in 1953. This involves a question of statutory construction. Does the workmen’s compensation act

Footnotes

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* entitle plaintiff to the award which he claims 1 .

The referee entered an order denying the award sought and the majority of the appeal board, one commissioner dissenting, affirmed. In rendering its decision the appeal board pointed out that plaintiff had not suffered 2 losses of wage-earning capacity; during the period of time involved in the ease. Obviously such was the situation. Under the provisions; of the statute plaintiff’s claim was not well-founded.. The controlling language of the compensation act does not permit such an award.

The order of the appeal board should be affirmed.'

Dethmers, C. J., and Kelly and Black, JJ., concurred with Carr, J. ;

PA 1912 (1st Ex Sess), No 10, as amended (CL 1948, §411.1 et seq., as amended [Stat Ann 1960 Rev §17.141 et seq.]).