Lauder v. Paul M. Wiener Foundry

72 N.W.2d 159, 343 Mich. 159, 1955 Mich. LEXIS 311

Opinions

Carr, C. J.,

Plaintiff’s intestate, Thomas Lauder, entered the employ of defendant Paul M. Wiener Foundry in 1945, working as a molder for several years. He contracted silicosis and on March 2,1951, his employment was terminated. Subsequently he applied for compensation under the statute and following a hearing was awarded $26 per week for total disability from March 3, 1951, to March 5, 1951, and partial disability at the rate of $4.34 per week for the period between March 6, 1951, and August 3, 1952. During said period plaintiff was employed other than by defendant foundry. On the date last mentioned he had a position with an employer referred to in the record as the Manning, Maxwell, Moore Company and, also, as the Shaw-Box Crane. In such employment Lauder was in charge of a stockroom and his position involved not only the care of property but the keeping of records. It is conceded that in this employment he received wages equal to or greater than those paid to him by defendant foundry at the time of his disability from silicosis in March, 1951.

On or about September 1, 1953, it was discovered that Lauder was suffering from carcinoma of the throat, a condition that incapacitated him for further work. It is conceded that such condition was not related in any way to his silicosis. Under date of July 15, 1953, he made application for further compensation based on the occupational disease that brought about his release by defendant Paul Wiener Foundry in March, 1951. The matter was heard on stipulated facts and an award of compensation made at the rate of $26 per week from September 1, 1953, until the further order of the commission, but not exceeding the aggregate amount of $6,000. On review the award was affirmed by the workmen’s compensation commission. On leave granted by this Court, defendants have appealed, claiming that under the facts involved the award was not authorized by statute.

The legal question presented involves the interpretation of part 7, § 3, of the workmen’s compensation law of the State.

* Said section (CL 1948, § 417.-3 [Stat Ann 1950 Rev §17.222]) read as follows:

“If an employee is disabled or dies and his disability or death is caused by a disease and the disease is due to the nature of the employment in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for his disablement, and he shall be entitled to be furnished with medical and hospital services, all as provided in part 2 of this act, except as hereinafter stated in this part: Provided, however, That if it shall be determined that such employee is able to earn wages at another occupation which shall be neither unhealthful nor injurious and such wages do not equal his full wages prior to the date of his disablement, the compensation payable shall be a percentage of full compensation proportionate to the reduction in his earning capacity.”

It does not appear that any case involving facts substantially identical with those in the case at bar has previously come before this Court under the section above quoted. However, in Byrne v. Clark Equipment Co., 302 Mich 167, the question arose whether plaintiff had established by proof her right to compensation for the death of her husband, of whom she was a dependent. The death of the employee resulted from infection following an operation for an occupational hernia in connection with which an infected appendix was removed. The testimony taken on the hearing before a deputy commissioner did not disclose affirmatively that the death resulted from the operation for hernia. The infection causing the result, under the medical testimony, might have had its source in the appendix. The award was set aside on the ground that it was obviously based on speculation and conjecture, the Court emphasizing that the burden was upon plaintiff to establish her claim. In discussing the situation, and after reference to statutory provisions relating to hernia, it was said, in part (p 176):

“Section 3 of the same part [7] of the act (CLS 1940, § 8485-3 **§[Stat Ann 1941 Cum Supp § 17.222]) • provides, in part:

“ ‘If an employee is disabled or dies and his disability or death, is caused by one of the diseases (hernia) mentioned in the schedule contained in section 2 of this part and the disease is due to the nature of the employment in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for his disablement.’

“Section 8421, CL 1929 (Stat Ann § 17.155), provides that, ‘if death results from the-injury,’ the employer shall pay the dependents of the employee the prescribed compensation for a period of 300 weeks from the date of the injury.

_ “Section 8428, CL 1929 (Stat Ann § 17.162), provides, in part:

“ ‘If the injury so received by such employee was the proximate cause of his death, and such deceased employee leaves dependents, as hereinbefore specified, wholly or partially dependent on him for support, the death benefit shall be a sum sufficient, when added to the indemnity which shall at the time of death have'been paid or become payable under the provisions of this act to such deceased employee, to make the total compensation * * * equal to the full amount which such dependents would have been entitled * * * in case the accident had resulted in immediate death.’ ” ...

It will be noted that certain words and phrases in the statutory provisions quoted by the Court were italicized for emphasis. It was, as before stated, a claim for compensation resulting from the death of the employee. If in the instant case the claim were of like character an award of compensation would be improper against these defendants unless death resulted from the silicosis; It may be noted that following the making of the award in his favor and after the appeal to this Court was taken Lauder died, inferentially from the throat condition and not because of the silicosis that he contracted while in the employ of the Paul M. Wiener Foundry. The administratrix was substituted as plaintiff. While the claim here is based on disability rather than on death, it will be noted that the statute groups the words together and contains nothing implying that different rules shall apply in a death case than under a claim for disability compensation.

Under part 2 of the workmen’s compensation law, which governs compensation for disability resulting from personal injuries, other than' occupational diseases, arising out of and in the course of employment, questions have arisen in prior cases involving the rights of the parties when an employee, previously suffering a compensable disability, is prevented in some way from earning wages in another employment. Th,e statute above quoted, which controls the case at bar, obviously contemplates that if an employee is able to earn wages at another occupation, equal to those received prior to his disablement, he is not entitled to compensation. The. amount of pay received in another employment is not necessarily controlling. Rather, the matter at issue in such ease is wage-earning capacity. In Hood v. Wyandotte Oil & Fat Co., 272 Mich 190, the Court in discussing this question said, in part (pp 192, 193):

“What is meant by the term ‘wage-earning capacity after the injury?’ It is not limited to wages actually earned after injury, for such a holding would encourage malingering and compensation is not a pension. On the other hand mere capacity to earn wages, if ‘nondescript’ by reason of injury, affords no measure unless accompanied by opportunity to obtain suitable employment. Opportunity is circumscribed by capacity of the injured and openings to such a wage earner. In the instance at bar plaintiff’s present wage-earning capacity, if he has any, appears to be limited to problematical employment as a barber under conditions suitable to, and favoring his physical condition and, therefore, in an existing labor market with an opening for such a handicapped employee.

“An injured person may recover to the point where he can, if favored, perform special service, if such is obtainable, but, if none can be obtained because of his injury, his capacity to work and earn cannot be measured against his incapacity. If his injury isolates him from employment then, of course, he is not to be held to have capacity to work and earn wages. If his injury has reduced his capacity to work and relegated him to the rating of ‘odd lot’ or ‘nondescript’ workers for whom labor openings are extremely limited, then opportunity, within his capacity, should be made to appear.”

The foregoing language was quoted with approval in Pigue v. General Motors Corporation, 317 Mich 311, 316, 317. In that case plaintiff sustained a compensable injury and received compensation. Thereafter he was given a position by his employer doing clerical work. Subsequently the union of which he was a member called a strike, which continued for several weeks. Plaintiff made application for compensation covering the period when he was not work-' ing because of such strike. An award in his favor was set aside by this Court on the ground that the inability to earn wages during the period in question was not the result of the previous injury but solely for a reason not in any way connected therewith. In discussing the situation, it was said (p 316):

“The principle upon which compensation is awarded is, that the employee has suffered a loss in his wage-earning capacity as a result of a compensable injury suffered while in the employ of his employer.”

A like result was reached in Dunavant v. General Motors Corporation, 325 Mich 482. In that case the plaintiff sustained an injury to his left hand and was paid compensation for total disability for a period of approximately 6 weeks. Thereafter the employer furnished him with work at which he received wages equal to those paid prior to his injury. However, the employee had been afflicted with pulmonary tuberculosis, and suffered a recurrence of such ailment which rendered him unable to carry on the work in which he was at the time engaged. The workmen’s compensation commission allowed compensation for total disability from the time that tuberculosis prevented employment until the further order of the commission. Following the decision in the Pigue Case and other decisions of similar import, it was held that plaintiff’s inability to continue in his employment was not the result of the accidental injury to his hand,'that the employment in which he was engaged was available to him, and that the sole reason for his not continuing therein was the recurrence of the ailment from which he had previously suffered.

In the recent case of Adkins v. Rives Plating Corporation, 338 Mich 265, the plaintiff sustained an injury while in the employ of the defendant and received compensation for total disability. Subsequently he returned to work at wages equal to those that he formerly received. Approximately 3 months later he sustained an accidental injury while riding a bicycle on a public street, and made application for further compensation covering, the period during which he was unable to work because of the second injury. The award was made but on appeal was set aside by this Court on the ground that there was no causal relationship between the first and second injuries. In reaching such conclusion the Court distinguished prior decisions on which plaintiff relied, citing with approval Rucker v. Michigan Smelting & Refining Co., 300 Mich 668, in which an award of compensation because of a so-called “second injury” was set aside on the ground that no causal connection was shown between such injury and the first compensable disability.

Summarizing the reasons for reversal in the Adkins Case, it was said (p 273):

“The affirmation of the award in the instant case would establish a precedent allowing compensation for subsequent injuries which have not arisen out of and in the course of the employment, which bear no relationship to the scope thereof and are but remotely connected with the original injury.”

The Court also quoted with approval from Simpson v. Lee & Cady, 294 Mich 460, 463, as follows:

<■ a compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health,- accident and old-age insurance and spread general protection over risks common to all and not arising out of and in the course of employment.’ ”

Each case of this nature must be determined under proper legal principles and in accordance with' the facts involved. In the case at bar plaintiff’s intestate, after leaving the employ of the defendant Paul M. Wiener Foundry, obtained a position with another company, which position he held until suffering a disability not connected in any way with his silicosis. There is nothing in the record to suggest that such position constituted “favored employment” as the term is commonly used. No reason is shown, or suggested, why the last employer had. reason to give Lauder light work. The prior compensable disability had not been sustained in its employ. Apparently Lauder held a responsible position involving not only the care of property but the keeping of records that, inferentially, required some measure of skill and ability. Certainly such work was not of the type referred to in Hood v. Wyandotte Oil & Fat Co., supra. Lauder was not in the category of a “nondescript” or “odd lot” worker.

It is a fair inference that if Lauder had not been stricken with the malady that resulted finally in his death he could and would have continued in his employment, or in other employment consistent with his abilities. There is nothing in this record suggesting that such work was not available. Assuming that he could not return to work as a molder, his ability to establish a wage-earning capacity in other employment was not thereby prevented. Having in mind the provisions of the statute above quoted, it is apparent that he was able to earn wages at occupations not unhealthful nor injurious, at wages equal to or greater than those paid to him at the time of his release by Paul M. Wiener Foundry in March, 1951.

It is the position of counsel for the plaintiff that if an employee sustains a disability preventing him^ from re-engaging in the particular kind of work in which he was employed at the time of such disability, but is able to do other kinds of work and to earn the same or higher wages as in the prior employment and is prevented for any reason other than his own fault from continuing therein, he is entitled to demand the reinstatement of full disability compensation benefits payable for the original disability. In other words, an employer who has paid compensation because of loss of earning capacity in one line of work may find that his obligation is revived because of some occurrence having no relation to the employment in his service and not connected in any way with the disability there incurred. Under plaintiff’s theory such result would follow in the instant ease if Lauder had been injured in a traffic accident and permanently disabled, or had suffered a disabling injury arising out of and in the course of his employment by another. If plaintiff’s argument is well-founded, the fact that resort might be had under the workmen’s compensation law against the. later employer would not be a bar to asserting further liability on the part of the employer paying the compensation in the first instance.

Such an interpretation' of the statute obviously leads to the conclusion that an employer, situated as is the defendant, Paul M. Wiener. Foundry in the present case, becomes an insurer as to an employee prevented from following one line of work but having an established wage-earning capacity in other lines. If plaintiff here is entitled to an award, such an employer is faced with possible added liability, that might arise in many different ways for reasons not connected with the original disability or with the employment in which it was sustained. We do not think that the statute may properly be so construed., Had the legislature intended such result, we think appropriate language indicating such liability would have been used.

Under the statute as interpreted in the Byrne Case, supra, a claim by dependents for benefits in the event of death of the employee, based on the provisions of the statute relating thereto, would not be well-founded and, as before noted, the language used by the legislature indicates that the same principles shall control in the event of compensation for disability as are applicable where claim is based on the death of the employee. The principles suggested by the language above quoted from the Adkins Case are applicable here.

An order will enter remanding the case to the workmen’s compensation commission with directions to set aside the award. No costs are allowed, the interpretation of a statute being involved.

Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred with Care, C. J.

PA 1912 (1st Ex Sess), No 10, as amended (CL 1948 and CLS 1952, § 411.1 et see/. [Stat Ann 1950 Rev and Stat Ann 1953 Cum Supp § 17,141 et seq.]).