Tomasini v. Youngstown Mines Corp.

115 N.W.2d 387, 366 Mich. 503, 1962 Mich. LEXIS 528

Opinions

Black, J.

Defendant, granted leave, appeals from an award to plaintiff under part 7 of the workmen’s compensation law (CL 1948 and CLS 1956, § 417.1 et seq. [Stat Ann 1960 Rev § 17.220 et seq.]). The award was made for total disability, commencing-June 3, 1955, that being the appeal board’s determined date of “disability by silicosis.”

The duly raised question of want of timely notice-of disablement (see section 10 of said part 7 [CL-1948, § 417.10 (Stat Ann 1960 Rev § 17.229)]) is decisive and calls for reversal of such award. Plain tiff failed to give notice of disablement until filing ■of application for adjustment of claim on September 11,1957. That was more than 2 years after plaintiff -quit bis job with defendant

Footnotes

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*; also more than 120 days after he first learned of the condition which is alleged to be the cause of statutory disablement. Unless plaintiff has proved that defendant had knowledge of disablement, prior to or on the date he voluntarily left its employ, such notice came too late.

For information of the profession, the appeal board’s treatment of the above question is related as ■follows:

“Defendant also contends that plaintiff’s claim is barred by the pertinent statute of limitations contained in the workmen’s compensation act.

“Plaintiff advances as 1 argument that he was :first aware of his true chest condition on or about May 8, 1957, and that he made timely application thereafter. The application for hearing was filed on September 11, 1957, and copy was mailed to defendant on September 12, 1957. However, this was more than 120 days subsequent to May 8, 1957, and consequently was not within the period specified by section 10, part 7 of the workmen’s compensation act.

“However, it is clear from the undisputed testimony that defendant caused plaintiff to be examined annually including X-rays from and after 1935. Complete reports were received by defendant from Saranac Lake. Defendant at all times had at its finger tips complete and authentic information as to plaintiff’s condition. Defendant had full and reliable sources of information and means of knowl edge relative to plaintiff’s silicotic condition from which the conclusion should have been drawn that plaintiff should no longer be exposed to silica hazards at the time he left the mine on June 3, 1955. Defendant thus had notice and knowledge of injury. Having such knowledge defendant failed to file any report of injury. Such failure prevented the statute of limitations from running. Consequently the filing and service of plaintiff’s application for hearing constituted timely and proper claim of compensation.”

Note the board’s employment of the word “injury,”' rather than “disablement” of “disability.” It is quite erroneous to say that an employer’s knowledge of nondisabling “injury,” distinguished from knowledge of disability due to “injury,” tolls the limita-tional period section 10 ordains. The appeal board, pre-eminently skilled in the use of terms employed by the compensation act, must have known that there was no proof of statutory “disability” or “disablement.” Thus the board must have used—advertently —the foregoing expression “knowledge of injury.” Such knowledge, even if proven, is not sufficient to breathe life into this barred claim.

Mr. Tomasini continued to work for the defendant employer, as a miner of ore, some 42 years. Then, at age 68, 3 years after he became eligible to retire on pension, he decided to retire and receive such pension without notifying the employer (then or thereafter until September 11, 1957) of disablement and without being able, before the referee or appeal board, to prove that he became disabled while he remained at such employment.

Is there proof-—any proof—supporting plaintiff’s contention that the defendant emplojmr had timely knowledge of statutory disablement? He bore the burden of proof on that score and failed utterly to sustain it. As before said there is quite a distinction between the continued sufferance of a nondisabling occupational ailment and the fact or occurrence of statutory disablement. Daily wage earners as well as sedentary executives may endure the petulant pip throughout their working days and yet, even though such morbus be or become regarded as a part 7 “disease,” no right of compensation on account thereof can accrue unless the proven result is statutory disablement. Chilblains and headaches, or, say a chronically tympanitic tummy, may continue to vex bench workers, record keepers, and vice-presidents, yet if no resulting “disablement” arise, and is proved, compensation cannot be awarded. Nondisabling afflictions are not compensable, and it requires something more than employer knowledge of such an affliction to stop the ticking of section 10’s limitational clock.

Here, by direct and unavoidable statutory limitation, a former employee’s claim comes too late. He must or should lose on that account. Had his claim been timely, and had it been supported by due proof of statutory disablement, he doubtless would have won. That, in sum, is all there is to this case; a case where the administrative agency below, in order to write up an apparently plausible finding for plaintiff, had to pluck from thin legal air a ruling of law that timely employer knowledge of nondisabling “injury” takes the place under section 10 of timely employer knowledge of disablement. The appeal board has no right to manufacture law in such manner and we in turn have no right to manufacture a legislative intent that long-time retired employees be exempted from the operation of said section 10 as Justice Souris would do here. Such function belongs to the legislature. That branch of government has told us, in plain section 10 words, that Mr. Tomasini’s claim is both 2 years late and 120 days late. Satis verba.

For recent emphasis of what “date of disablement” means, see the unanimous opinion of Joslin v. Camp bell, Wyant & Cannon Foundry Co., 359 Mich 420, 428 (per Souris, J.):

“The foregoing interpretations of parts 2 and 7 of the act give meaning to all sections thereof. Thus, Mate of disablement’ determines when rights accrue, when notice must be given, and when claim must be filed, while ‘time of injury’ determines the amount of weekly compensation benefits to be paid to the extent such benefits depend upon an employee’s dependency status and his average weekly wage.”

As said in Joslin (p 425), the appeal board is required “to determine the date of disablement”; to which I would add that the board is required to determine such date from proof and proof only. There is no evidence here, of any “date of disablement,” excepting that which was given by plaintiff’s medical witness, Dr. Martinetti. The only date of disablement found and determined by him was May 8,1957. That was when he first saw and examined the plaintiff. To this undisputed fact should be added 2 others. The first is that Dr. Martinetti refused, when asked the direct question, to opine that plaintiff was disabled prior to the date of such first examination. The second is that plaintiff did not recall him to the stand, after the employer’s Saranac Lake X-ray negatives had been offered in evidence and interpreted by defendant’s medical witnesses, to opine that such negatives disclosed or tended to disclose a condition of disability.

I vote to reverse and remand for vacation of the award.

Carr, C. J., and Dethmers, Kelly, Kavanagh, and Otis M. Smith, JJ., concurred with Black, J.

Plaintiff testified:

“Q. We have to ask you these questions for the record. During the time before you quit the mine did you ever talk to Mr. Purpieh [plaintiff’s foreman] about having these troubles, you yourself?

“A. No. I didn’t mention to nobody. I going to quit I tell them, that’s all.”

The testimony of Mr. Purpieh was to the identical effect; that plaintiff quit without complaint and “told me he was going on pension.”