Opinion
Docket No. 137, Calendar No. 37,226.
Submitted October 10, 1933.
Decided December 5, 1933.
Appeal from Department of Labor and Industry. Submitted October 10, 1933. (Docket No. 137, Calendar No. 37,226.) Decided December 5, 1933.
Fred Ammond presented his claim against Muskegon Motor Specialties Company, employer, and Metals Mutual Insurance Company, insurer, for injuries received while in defendant's employ. On petition for further compensation. Award to plaintiff. Defendants appeal. Reversed.
Christian A. Broek ( Robert M. Anderson, of counsel), for plaintiff.
Francis D. Campau, for defendants.
This is an appeal from an award of compensation by the department of labor and industry.
On July 26, 1930, the plaintiff suffered an accidental injury while, employed as a cam grinder by the defendant, Muskegon Motor Specialties Company. It is conceded that the accident arose out of and in the course of his employment. The injuries resulting from the accident were a fracture of the left index finger, dislocation of the middle finger, contusion and laceration of all the fingers, thumb and hand. He was earning $27 a week. An agreement approved by the department was entered into with the employer on August 13, 1930, providing for the payment of $18 a week. Payments were continued under the agreement until October 15, 1930, at which time on application of the defendant an order was made by a deputy commissioner stopping compensation. The order was affirmed by the department on appeal. After this the plaintiff was taken back to work as a night watchman at less wages but as he worked longer hours he received the same pay as he was receiving when injured. After working a year and a half as night watchman he was discharged. Following this he worked for awhile as a meat cutter but was unable to continue because of the condition of his hand. He then filed a petition for further compensation which was granted by the deputy commissioner and affirmed on appeal by the department. From this award the defendants have appealed.
The issue presented is one of fact. To sustain the award it must appear that the plaintiff's physical condition has changed since the order was made stopping compensation on October 15, 1930. Washburn v. Jackson Tindle, 229 Mich. 644.
The department found a changed condition but neither in the opinion filed nor in the plaintiff's brief is there any reference to evidence in support of the finding. In the testimony taken no attempt was made to show a change and consequently none was shown. In fact there was no change. On the hearing of the petition to stop compensation the medical testimony then taken shows that the plaintiff's physical condition was the same as it is now. The doctor had discharged him and he was taken back to work but at employment in which it was not necessary to use his injured hand. At that time he was disabled to the same extent as he is today. We think the department erred in stopping compensation but as that order was not appealed from the matter cannot be reopened except on a showing of changed condition.
As there is no evidence to support the finding of the department, the award is reversed.
WEADOCK, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred with McDONALD, C.J.
POTTER, J. I dissent from the conclusion herein.