Siebert v. Northport Point Cottage Owners' Ass'n

148 N.W.2d 790, 378 Mich. 661, 1967 Mich. LEXIS 118

• Court: Michigan Supreme Court
• Decided: March 7, 1967
• Docket: Calendar 6, Docket 51,312
• Status: Published

Opinions

Adams, J.

Magnus Larson committed suicide one day before his case was decided by the workmen’s compensation appeal board. His claim arose on September 28, 1959, and notice was given to the employer on September 19, 1960. It was decided by the referee on November 6,1962. Review demanded by the defendants was completed by the board of appeals on August 18, 1964. Throughout this time Larson’s claim was increasing week by week. When he gave notice, his claim amounted to $1,673.55. When affirmed by the appeal board, it amounted to $8,396.13.

It is maintained that no matter how long the delay in deciding Larson’s claim, no matter how many weeks of benefits had accrued before decision by the appeal board, all that was necessary to wipe out his rights was for him to die. Had he lived two more days, there is no question but that his estate could assert and collect what was due him.-

1.

Defendants assert that benefits under the workmen’s compensation law are personal rights belonging to the injured employee and his dependents and since the workmen’s compensation act did not contain a provision for the prosecution of a claim by an administrator, Larson’s administrator may not prosecute one.

In Stetu v. Ford Motor Co., 277 Mich 468, Houg v. Ford Motor Co., 288 Mich 478, Brandner v. Myers Funeral Home, 330 Mich 392, and Adams v. Sebewaing Brewing Company, 347 Mich 265, the rule was laid down that where an award of compensation has been made prior to the employee’s death an administrator may collect upon the claim. The Court, in Houg, said (pp 481, 482):

“Plaintiff’s death terminated defendant’s liability for the remainder of such payments which he would have received in case he had lived (CL 1929, § 8428 [Stat Ann § 17.162]), but did not discharge defendant’s liability for the payments which had accrued under the order of the department of labor and industry prior to his death. Defendant remained liable therefor and the amounts which had accrued in plaintiff’s lifetime are collectible by his personal representative. Stetu v. Ford Motor Co., 277 Mich 468.” (Emphasis supplied.)

It will be seen from the above that the main reason the administrator is given the right to pursue the claim is because “the payments * * * bad accrued.” No authorization of such right in the act was deemed necessary. If an administrator may pursue a claim which has accrued under an order of the workmen’s compensation commission, why should he not be allowed to pursue an identical claim upon death of the claimant before a final order has been entered? The authority of an administrator not being derived from the act, it must be concluded it is the same in one case as in the other.

2.

It is asserted there can be no final order until the decision of the appeal board because this Court has held that a hearing before the appeal board is de novo. Fawley v. Doehler-Jarvis Division of National Lead Company, 342 Mich 100.

The appeal board, in its opinion in this present case, stated:

“In these days when the case load of the appeal board and the hearing referees are numbered in the thousands and with the time necessary for the determination of right under the procedure section of the statute being measured in years, it only adds insult to injury to tell the estate’s administrator that he has no right to proceed except in those cases where final awards have been entered by the tribunal established for resolving the disputes which arose. An unscrupulous employer knowing the time consumed in determining the rights of the parties, could well decide that it is cheaper to let the injured die than to pay him or attempt to save his life when there are no dependents within the meaning of the compensation statute.”

The question is not whether there can be no final order until decision by the appeal board, but whether there need be such a final order.

In Schlickenmayer v. City of Highland Park (1931), 253 Mich 265, this Court held that a widow’s claim for death benefits arising out of her husband’s death in the course of his employment was a new and original liability of the employer and her right to compensation was not derivative from the husband’s rights against his employer for the injury causing death. While not necessary to decision in that case, the Court said (p 267):

“It [the widow’s right to compensation] did not pass to plaintiff from him upon his death, — it was not part of his estate. It did not come to plaintiff as an heir. * * * Upon the death of decedent his right to be awarded compensation ceased.” (Bracketed material added.)

In Munson v. Christie (1935), 270 Mich 94, which involved a claim by the widow and administratrix for an award for medical services that should have been paid by the employer during the lifetime of the employee, the Court granted the benefits but by way of dictum stated (pp 100, 101):

“It is settled that the rights and benefits afforded the employee by this act do not survive to his heirs as such. And we can agree' with apellante that the act contains no provision for prosecution of a proceeding before the commission by a representative of the deceased or of his estate, and therefore such representative cannot petition for an award-.”

In Stone v. Smith (1936), 275 Mich 344, the question of abatement of weekly benefits was directly considered. An award of compensation for total disability had been made by the deputy commissioner to the employee and was pending on appeal when the employée died. Notice of death was given by Mildred G. Stone in which it was recited that she was the dependent widow and special-administratrix, of the estate of George E. Stone, the deceased'employee, and that death resulted from the injury. The notice requested confirmation of the award of compensation by the deputy commissioner to Stone and that the same be allowed at the rate of $18 a week for the period from September 23, 1933, to the date of death, November 9, 1934. The department entered an -order dismissing the proceeding as to George E. Stone but treated the notice as also being an application for adjustment of claim filed in behalf of dependents which it referred to a deputy commissioner for the taking of additional testimony and the determination of rights. This Court upheld the order of the department, pointing out that if the employer had liability it would only be for death benefits to dependents under the act which makes such compensation payable from the date of the injury, and that there could not be two recoveries for the same injury covering the same time — one to the injured employee and the other to his dependents. This Court held (p 351):

“His death amounted to an abatement of that proceeding [the employee’s claim]. After the death of the injured employee, the employer is liable, if at all, under the provisions of CL 1929, § 8421 [part 2, § 5] and the other sections of the statute therein referred to [compensation for death benefits to dependents].” (Bracketed material added.)

The holding of Stone was followed in Holtz v. B. F. Keith Detroit Corp. (1936), 276 Mich 72. It was further clarified in Mooney v. Copper Range R. Company, 318 Mich 120, where the Court said (p 125):

“In the case at bar the claim for compensation. was abated only so far as the injured employee was concerned. The proceeding was still pending to determine the rights of the dependent. The purpose in each ease was to determine whether the injured employee had suffered a compensable in-, jury and, if so, to grant an award to the injured employee or his dependents. The evidence necessary to establish a compensable injury would of necessity be the same in each case. The term ‘abatement’ as used in the Stone and Holts Cases does not mean that the dependent must begin a new proceeding. Such dependent may continue the original claim for compensation by the substitution of a new party claimant and continue the proceedings for the purpose of determining the rights of such dependent.”

The key question was stated by the appeal board as follows:

“Does the fact that the legislature enacted a law which gave the injured employee a right to be compensated for his injury and then having also enacted a provision. which gave his dependents a right to certain compensation when the injury is the proximate cause of death foreclose an administrator of the deceased’s estate from maintaining an action, to secure that which did accrue during the lifetime of the employee where death from causes unrelated to the injury intervened before such employee could secure a determination of his rights ?”

In tracing the development of the law, the appeal board analyzed the question as follows:

“When the statute was first enacted in 1912, the legislature did provide as a part of the death benefit accruing to the dependents certain compensation which could have accrued during the compensable period during the lifetime of the employee when and if ‘death results from the injury.’ This provision read as follows:

“(PA 1912 [1st Ex Sess], No 10, part 2, §5) ‘When weekly payments have been made to an injured employee before his death the compensation to dependents shall begin from the date of last such payments, but shall not continue more than 300 weeks from the date of the injury.’

“The above-noted provision could well account for some of the seemingly inconsistent decisions which have been entered. It could also account for the language used by the legislature which requires that in the case of death from the injury compensation shall be paid to dependents. This provision was, however, stricken from the statute by PA 1943, No 245.

“When we keep in mind that the last-noted provision was there at the time the language of part 2, §12 was first enacted, we can better understand what was being provided in section 12. Said section (CL 1948, §412.12 [Stat Ann 1960 Rev §17.162]) now provides as follows:

“ ‘The death of the injured employee prior to-the expiration of the period within which he would receive such weekly payments shall be deemed to end such disability, and all liability for the remainder of such payments which he would have received in case he had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity.

“ ‘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 for the injury and death exclusive of medical, surgical and hospital services and medicines furnished as provided in section 4 hereof, equal to the full amount which such dependents would have been entitled to receive under the provisions of section 5 hereof, in case the injury had resulted in immediate death, and such benefits shall be payable in the same manner as they would be payable under the provisions of section 5 had the injury resulted in immediate death.’

“It should be noted that the above quoted section contains two separate paragraphs. One terminates ‘disability’ and liability for ‘remainder’ of compensable period; the other establishes a death benefit where the injury was the ‘proximate cause’ of death and the employee leaves dependents as defined. It is here worthy of further emphasis to note that the above-quoted section does not provide that death ends liability and abates the claim. It provides only that death from any cause ‘be deemed to end such disability,’ and the ‘remainder’ of such payments which would have been payable had the employee lived are terminated. We cannot construe the word ‘disability’ as being synonymous with liability, nor is the word ‘remainder’ synonymous with the word ‘accrued.’

“Where the injury is the ‘proximate cause’ of death and ‘the deceased employee leaves dependents,’ the statute provides that the dependents shall be compensated as if death had been immediate. The amounts which the statute provides as a death benefit to those dependent is a sum sufficient when added to the indemnity which shall at time of death [have?] been paid ‘or become payable’ to make the total compensation for the injury and death equal to the amount which would have been payable if the injury had caused immediate death. We cannot construe such provision as being a legislative directive that the claim for that which had accrued during the lifetime of the employee abates if the death was unrelated to the injury.

. “It is quite evident that section 12 deems ‘disability’ to have ceased when death occurs from any cause and it does terminate liability for the payment of the ‘remainder’ of compensation which might have accrued if the employee had lived during the total compensable period. The language used by the legislature in section 12 was necessary because section 10 had deemed certain type injuries to have caused ‘disability’ for specified periods. This presumption of disability found in section 10 immediately preceding section 12 could well have extended liability beyond the date of death without the above provisions found in section 12. After stating that ‘disability’ ceased on the date of death from any cause, the legislature did then enact in this section the death benefit equal to that payable where death was immediate ‘if’ the injury was the ‘proximate cause’ of the death. With the exception that it did terminate the period of disability, this section did nothing whatsoever to the rights of the deceased or the rights of the administrator of. his estate where death was unrelated to the injury or where the employee left no dependents wholly or partially dependent upon him. If death was not related to the injury, it is apparent that a decedent’s administrator has no right to death benefits. However, the provisions of section 12 did not abate the administrator’s right to that which accrued to the employee during his lifetime.” (Emphasis added.)

Without recognizing the significance- of the sections of the workmen’s compensation act applicable to dependents in effect at the time of the Stone and Holts Gases, this Court announced in Hoffman v. Parker Monument Co. (1939), 290 Mich 394, 395, where the employee died from a disability due to occupational disease before any award had been made and a daughter sought to continue the claim as executrix and purported assignee but not as a dependent, “We have repeatedly held that the workmen’s compensation act contains no provision for continuing the prosecution of a claim by a personal representative of. a deceased workman,” citing Schlickenmayer, Munson and Stone.

In Nacey v. Utley (1940), 295 Mich 266, 270, it was said:

“The case here stands solely on the petition of the. plaintiff, now decehsed, on which no compensation had yet been paid or finally awarded at the time of-his death. The rights, if any, of a dependent or a personal representative of the deceased are not before the'department or this Court in the instant case. * * *

“The liability of the employer, if the employee’s death results from a compensable injury, is to the-employee’s dependents. The employee’s death prior to the -final order of the department of labor and industry awarding compensation ends the employer’s liability to pay compensation to the employee and his proceeding to recover the same becomes abated thereupon. Stone v. Smith, 275 Mich 344.”

Clearly, the Court in Nacey v. Utley never reached the question of the right of a personal representative to continue with the employee’s claim.

In Benton Harbor Malleable Industries v. General Motors Corporation, 358 Mich 684, Justice Kelly followed the holding of the Stone Case in concluding that after the death of the employee any proceedings before the referee should be for the purpose of determining the rights of the dependent to compensation under part 2, § 5 of the workmen’s compensation act.

The foregoing analysis serves to show that the cases of Schlickenmayer, Munson, Stone, Holtz, Utley and Benton Harbor Malleable are distinguishable on their facts from the instant case and are not controlling here. Any dictum to the contrary appearing in those cases is no longer to be followed, and is hereby disapproved. To the extent that the holding in Hoffman v. Parker Monument Co., supra, is in conflict with the views herein expressed, such holding is hereby overruled.

This Court stands committed to the rule that: ¡

“The test of an injured employee’s right to compensation is his inability by reason of the accident to work and earn wages in the employment at which he was engaged when injured.” Levanen v. Seneca Copper Corporation, 227 Mich 592, 601.

See, also, Millaley v. City of Grand Rapids, 231 Mich 10; Smith v. Pontiac Motor Car Co., 277 Mich 652; Thomas v. Continental Motors Corp., 315 Mich 27; Dunavant v. General Motors Corporation, 325 Mich 482.

The proceedings in this case culminating in the order of the appeal board, supported by its opinion on review on remand from this Court, establish that Magnus Larson fully met this test. There is no sound reason why the compensation owing to him should not be collectible by his personal representative, the same as unpaid wages would be.

3.

I would dispose of counsel’s contention that section 2921 of chapter 29 of the revised judicature act of 1961 (CLS 1963, § 600.2921 [Stat Ann 1962 Eev § 27A.2921]) applies by saying that the revised judicature act is a statute of general nature relating to organization and jurisdiction of the courts and matters of civil procedure. It is not a part of the workmen’s compensation act and upon the authority of Autio v. Proksch Construction Company, 377 Mich 517, Martin v. White Pine Copper Company, 378 Mich 37, and Pevarnic v. Northwestern Leather Company, 378 Mich 48, its provisions are not applicable to proceedings for workmen’s compensation.

4.

Finally we are asked to determine whether the appeal board’s finding that Magnus Larson suffered a personal injury arising out of and in the course of his employment which was causally related to his disablement from heart disease was supported by some competent evidence and also whether the appeal board’s finding that notice was timely given and claim was timely made was supported by competent evidence. We have examined the record and find that the findings of the appeal board as to both questions are supported by competent evidence.

I would affirm the order of the appeal board with costs to appellee.

T. M. Kavanagh and Souris, JJ., concurred with Adams, J.