Opinion
Docket No. 31, Calendar No. 43,736.
Decided May 18, 1949.
Appeal from Department of Labor and Industry. Submitted April 7, 1949. (Docket No. 31, Calendar No. 43,736.) Decided May 18, 1949.
Joel G. Allen presented his claim for compensation against National Twist Drill Tool Company, employer, and Travelers Insurance Company, insurer, for disability caused by pneumoconiosis. Award to plaintiff. Defendants appeal. Affirmed.
Walier M. Nelson ( Benjamin Marcus, of counsel), for plaintiff.
Buell A. Doelle, for defendants.
Defendants National Twist Drill Tool Company and its insurer seek to have an award of the department of labor and industry vacated on the grounds that plaintiff Joel G. Allen's disability, due to silicosis, is only nominal; that he was guilty of wilful and intentional misconduct in failing to wear a mask while engaged in sandblasting, and because the award requires defendants to pay disability benefits for a period longer than 500 weeks.
Allen, after undergoing a pre-employment physical examination, began work for defendant Drill Tool Company as a general laborer on November 30, 1942. In April of the following year, after submitting to an X-ray examination of his lungs, he was transferred to the sandblast department, where he earned $59 per week until late in September of 1945, when he was assigned to work as a janitor because of his low seniority. After being laid off on account of lack of work on October 15th, he applied the next day for employment at the L.A. Young Spring Wire Corporation, where, after being given another X-ray examination, he was refused employment. Prior to entering the employ of defendant company, he worked approximately 4 years for G.C. Baer Company, food chemists. His duties with this company consisted of the machine-mixing of starch, sugar, salt and other baking ingredients. After entering defendant's employ he continued to work an additional 4-hour shift at Baer Company. At the time his case was heard by the deputy commissioner in May of 1946, he had resumed full-time employment with Baer Company at $44 per week.
The commission found that Allen was totally disabled for work as a sandblaster by reason of pneumoconiosis, contracted during his employment by the Drill Tool Company. The company contends that he was only partially disabled, for which compensation is not payable under section 4 of part 7 of the workmen's compensation act, as amended by Act No. 318, Pub. Acts 1945 (3 Comp. Laws 1948, § 417.4 [Comp. Laws Supp. 1945, § 8485-4, Stat. Ann. 1947 Cum. Supp. § 17.223]).
In Finch v. Ford Motor Company, 321 Mich. 469, we said:
"We believe that the commission was correct in holding that plaintiff was totally disabled. Section 1 of part 7 of the act, as amended in 1943, defines `disability' to mean `the state of being disabled from earning full wages at the work in which the employee was last subjected to the conditions resulting in disability.' We feel that plaintiff is disabled within the meaning of this definition. In Stewart v. Lakey Foundry Machine Co., 311 Mich. 463, we held that it was not necessary that a claimant be totally disabled from performing any work, but that the test was whether he was able to earn full wages at the work at which he was employed when last subjected to the conditions resulting in disability. To like effect see Thomas v. Continental Motors Corp., 315 Mich. 27, and Syrjala v. Castile Mining Co., 316 Mich. 125. In the instant case, the fact that plaintiff did try to get work with another employer along the same line that he was accustomed to, and lost his job because of his pneumoconiosis shows that he is more than partially disabled. Again, the extent of his disablement was a question of fact, and the finding of the commission is supported by the record."
3 Comp. Laws 1948, § 417.1 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1947 Cum. Supp. § 17.220). — REPORTER.
The commission in the instant case said:
"The doctors who examined the plaintiff agree that he should not be employed as a sandblaster due to the condition of his lungs. The evidence is clear that he could not return to such employment by reason of the condition of his lungs. He is therefore disabled from earning full wages at the work at which he was employed when last subjected to the conditions resulting in disability."
There is testimony in the record to support this statement.
Defendant Drill Tool Company provided a mask for the protection of its employees who worked in its sandblast department. Allen was informed by his assistant foreman, "a safety man," and the company's doctor, that a mask should be worn for his protection against those hazards which would cause a lung disease. The testimony in the record before us, however, indicates that this rule was not strictly enforced. The assistant foreman himself admitted that he did not wear a mask at all times and that there were other sandblasters, with one exception, who did not regularly wear their masks. There is some indication that the masks provided were not entirely satisfactory. Allen testified that he had difficulty in keeping his eyeglasses focused while wearing the mask. This and other testimony in the record sustains the commission's conclusion that Allen's failure to wear a mask at all times did not constitute intentional and wilful misconduct within the meaning of the act. See Day v. Gold Star Dairy, 307 Mich. 383.
In order to relieve defendant because of Allen's failure to obey instructions, it is necessary that defendant show that those instructions were rigidly enforced.
The order of the commission requires payment of compensation at the rate of $5.67 per week for total disability beginning October 16, 1945, until further order, but not to exceed the aggregate sum of $6,000.
The award in question is in conformity with the statute and the open award directed in Rench v. Kalamazoo Stove Furnace Co., 286 Mich. 314, and permits a petition to stop or alter payments if such be required.
The award is affirmed, with costs to appellee.
SHARPE, C.J., and BOYLES, REID, NORTH, DETHMERS, BUTZEL, and CARR, JJ., concurred.