Lynch v. Briggs Manufacturing Co.

45 N.W.2d 20, 329 Mich. 168

• Court: Michigan Supreme Court
• Decided: December 5, 1950
• Docket: Docket 6, Calendar 44,420
• Status: Published

Opinions

Bushnell, J.

Plaintiff Denver C. Lynch was an employee of defendant Briggs Manufacturing Company. He is about 59 years of age and a steam fitter by trade. While so employed by Briggs he sustained a compensable injury oh March 26, 1946, when an 800-pound washbowl fell against him and fractured his left knee. He was hospitalized for about 3 months and was voluntarily paid total compensation until September 7, 1946. He then returned to Briggs, where he was given favored work at his skilled rate of pay. His injured knee “flies out of place” so that he cannot do overhead work or any that requires climbing.

On October 3, 1946, he applied for a hearing and adjustment of this claim. The hearing was scheduled for February 11, 1947. On November 13, 1946, he was assaulted, robbed, and his jawbone was broken. He was again hospitalized until April of 1947. During this time his application for hearing was withdrawn. Lynch returned to work at favored employment in April, 1947, still suffering, however, from his knee disability. His so-called “trick knee” was described by plaintiff’s physician as a “marked lateral instability of the knee joint, with looseness of the medial and lateral collateral ligaments of the knee joint.” The employer’s medical witness described this condition as “lmock-knee” or “genu valgum.” On May 5, 1947, he filed a second application for a hearing which was scheduled for August 28, 1947.

While standing in a safety zone near the Briggs plant with another workman on May 27, 1947, an automobile came directly towards them. The other man. jumped out of the way but when Lynch attempted to jump, his injured knee slipped out of place and. he was struck by the car. As a result his left leg was broken. While still in the hospital with this injury, his second application was dismissed on September 2d “for lack of prosecution.”

He filed a third application on April 23,1948. His leg was then still in a cast and he had not yet been able to resume any kind of work. The hearing on June 24, 1948 resulted in a denial of compensation by the deputy commissioner. On review the commission held that Lynch was “entitled to compensation of $21 a week for total disability from November 13, 1946 to April 16, 1947 and from May 22, 1947 until further order of the commission.” The order of the commission, however, reads: “$21 per week for total disability from March 27, 1946 to September 7, 1946, from November 13, 1946 to April 16, 1947 and from May 22, 1947 until the further order of the commission.”

The commission determined that Lynch was totally disabled as a skilled steam fitter in March of 1946, and that his favored work thereafter did not establish a wage-earning capacity “as a steam fitter, the skilled occupation in which he was engaged when the injury occurred.” Defendant was granted leave to appeal from this award.

The appellant claims that there was no proof of total disability; that Lynch was not entitled to compensation because his present loss of earnings is due to a disability unassociáted with his employment; and that the commission should not have granted compensation for a period of more than 1 year prior to the filing of plaintiff’s last (third) application.

The finding of Lynch’s total disability as a skilled steam fitter is' supported by the evidence.

The purpose of the workmen’s compensation act (CL 1948, § 411.1 et seq. [Stat Ann § 17.141 et seq.]) is to provide compensation for disability resulting from an occupational injury. Prior to the 1927 amendment to the act, Lynch would have received compensation even though he worked at another job paying higher wages. Geis v. Packard Motor Car Co., 214 Mich 646. A subsequent amendment to part 2, § 11, altered this situation. See CL 1948, § 412.11 (Stat Ann 1949 Cum Supp § 17.161).

Under this proviso the employer is permitted to set off, against compensation payable, the employee’s “wage-earning capacity” after the injury. MacDonald v. Great Lakes Steel Corp., 268 Mich 591, 594; Markey v. S. S. Peter & Paul’s Parish, 281 Mich 292, 298; and Parling v. Motor Wheel Corp., 324 Mich 420.

Lynch’s favored work after his total disability did not, however, establish his wage-earning capacity. Smith v. Pontiac Motor Car Co., 277 Mich 652, 657. Nevertheless, if physically able to perform the favored work, he could not be awarded compensation if he refused such work. Pigue v. General Motors Corp., 317 Mich 311. An employee, entitled to compensation for partial disability, cannot be awarded an increase in compensation because of a subsequent nonoccupational disease creating permanent disability, but the partial disability payments may be continued. Dunavant v. General Motors Corp., 325 Mich 482.

Lynch at the time of hearing was not physically capable of performing the favored work. He was prevented from doing so by events not under his control. Yet he was still totally disabled in his skilled employment because of his occupational injury of 1946. Supervening events, stopping his favored work and not attributable to him, will not defeat his compensation as a skilled employee. Ward v. Heth Brothers, 212 Mich 180; Letourneau v. Davidson, 218 Mich 334; Neal v. Stuart Foundry Co., 250 Mich 46; Cundiff v. Chrysler Corp., 293 Mich 404; and Parling v. Motor Wheel Corp., supra.

Lynch, was voluntarily paid compensation until September 7,1946. He later filed three separate applications for compensation. The first was withdrawn on application of his counsel, and the second was dismissed “for lack of prosecution.” The third application filed on April 23, 1948, is the only one involved in the present proceedings.

The power of the commission to award compensation is expressly limited by the following applicable statutory provision:

“If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any, period which is more than 1 year prior to the date of the filing of such application.” CL 1948, § 413.14 (Stat Ann 1949 Cum Supp § 17.188).

Under this statutory provision the period for which compensation could be awarded in the instant case could not extend retroactively beyond 1 year prior to April 23, 1948, the date upon which plaintiff’s present petition was filed. It follows that the award of the commission for March 27, 1946, to September 7, 1946, and for November 13, 1946, to April 16, 1947, must be vacated; but the award “from May 22, 1947 until the further order of the commission” should be and is affirmed.

The cause is remanded to the workmen’s compensation commission for entry of an award in accordance herewith.

Reid, North, and Dethmers, JJ., concurred with Btjshnell, J.