Summary
In White v Michigan Consolidated Gas Co, 342 Mich. 160; 69 N.W.2d 160 (1955) (White I), a unanimous Court held that the plaintiff was entitled to a closed period of compensation from May 21, 1951, until November 7, 1952.
Summary of this case from Askew v. Ann Arbor Public SchoolsOpinion
Docket No. 51, Calendar No. 46,303.
Decided March 9, 1955.
Appeal from Workmen's Compensation Commission. Submitted January 6, 1955. (Docket No. 51, Calendar No. 46,303.) Decided March 9, 1955.
Albert White presented his claim for compensation for injuries received while in the employ of Michigan Consolidated Gas Company. Plaintiff, on appeal from deputy to commission, received award on basis of continued total disability. Defendant appeals. Reversed.
Dann Rosenbaum, for plaintiff.
A.D. Ruegsegger and Dyer, Angell Meek, for defendant.
On November 10, 1952, a deputy commissioner of the workmen's compensation commission awarded compensation to appellee-employee "at the rate of $21 per week for total disability from May 21, 1951 to February 6, 1952 and at the rate of $21 per week for partial disability from April 2, 1952 to August 18, 1952," because of a knee injury resulting from an accident on August 27, 1949. The award of the deputy commissioner further determined that "the plaintiff's disability * * * ceased as of August 18, 1952."
On November 24, 1952, appellee-employee filed application with the commission for review of the deputy commissioner's findings. Appellant elected not to appeal, and on January 12, 1953, paid the compensation awarded by the deputy commissioner.
At the request of the appellee an extension of time to March 3, 1953, in which to file transcript was granted by the commission. A year passed without appellee filing his brief. Appellee's brief was filed on April 15, 1954; appellant's brief on April 30, 1954, and on June 4, 1954, the commission filed its opinion and order.
In its opinion the commission held that the record proved that appellee-employee was still disabled on November 7, 1952, being the date of the hearing, and consequently was entitled to compensation "from August 18, 1952 until the further order of the commission."
Appellant-employer's petition for leave to appeal was granted by this Court on September 8, 1954. Appellant's statement of question involved is as follows:
"Does the workmen's compensation commission have power or authority to enter an order directing the payment of compensation to the date of the order and until the further order of the commission based solely on a finding that the claimant was disabled on the date of the hearing held 18 months previously where there is no evidence of the claimant's physical condition since the date of the hearing?"
Appellant is not contesting the validity of the commission's order insofar as it requires payment of compensation for the period of time prior to the hearing, which began on November 6, 1952. Appellant contends that there is no evidence in the record that appellee was disabled during the 18-month period elapsing between the deputy commissioner's findings on November 10, 1952, and the commission's opinion and order of June 4, 1954.
The record establishes beyond question that there was no evidence submitted to the commission in regard to the appellee's physical condition since the date of the hearing 18 months previous to the commission's opinion and order.
The order of the commission awarding compensation must be based upon competent evidence. In Foley v. Detroit United Railway, 190 Mich. 507, 516, this Court said:
"To sustain its award the board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident."
The board, here referred to, was the industrial accident board whose powers and duties have been transferred to the workmen's compensation commission. See CL 1948, § 408.6 (Stat Ann 1950 Rev § 17.6[6]). — REPORTER.
Findings of fact by the commission are binding upon this Court if such findings are supported by competent evidence.
See CL 1948, § 413.12 (Stat Ann 1950 Rev § 17.186). — REPORTER.
It is an accepted principle of law in this State that an award of compensation may be modified by a showing of a change in the physical condition that affects the earning power of the injured employee. Goines v. Kelsey Hayes Wheel Co., 294 Mich. 156, 158, 159. In that case, this Court also said:
"It is well settled that if the department fails to make a finding upon a material issue, we may examine the testimony taken at the hearing to determine whether there is any competent evidence to support the award."
The department, here referred to, was the department of labor and industry, whose powers and duties with respect to workmen's compensation have been transferred to the workmen's compensation commission. See CL 1948, § 408.6 (Stat Ann 1950 Rev § 17.6[6]). — REPORTER.
There is no evidence sustaining the commission's order of June 4, 1954, for compensation payments for the period from November 6, 1952, to June 4, 1954, and the order of the commission to the extent that the same requires payment of compensation benefits for periods subsequent to November 7, 1952, is set aside. Costs to appellant.
CARR, C.J., and BUTZEL, SHARPE, BOYLES, REID, and DETHMERS, JJ., concurred.
SMITH, J., took no part in the decision of this case.