Atherton v. Fawcett, 106.

• Decision Date: 06 September 1940
• Docket Number: No. 106.,106.
• Citation: 293 N.W. 708,294 Mich. 436
• Parties: ATHERTON v. FAWCETT et al.
• Court: Michigan Supreme Court

294 Mich. 436

293 N.W. 708

ATHERTON

v.FAWCETT et al.

No. 106.

Supreme Court of Michigan.

Sept. 6, 1940.

Proceeding under the Workmen's Compensation Act by Frank Atherton, employee, opposed by Franklin Fawcett, employer, and others. From an award of the Department of Labor and Industry, defendants appeal in the nature of certiorari.

Award affirmed.

Appeal from Department of Labor and Industry.

Argued before the Entire Bench.

Denis McGinn, of Escanaba, for appellants.

R. W. Nebel, of Munising, for appellee.

WIEST, Justice.

This is an appeal by defendants in the nature of certiorari from an award of compensation to plaintiff. Defendants, by motion, ask leave to take newly discovered evidence.

Plaintiff was in the employ of defendant Franklin Fawcett and, February 13, 1931, while attempting to move a log with a cant hook, the hook slipped and he fell and received injuries to his chest and ribs. The employer reported the accident and the parties entered into an agreement for compensation which was approved by the commission. August 12, 1931, a settlement receipt was filed and approved by the commission August 22, 1931. In January, 1935, plaintiff filed a petition for further compensation on account of increased disability and, in May, 1936, the commission, upon a finding that the settlement receipt of 1931 had never been approved by the commission, awarded compensation at the rate of $10 per week, for total disability from July 29, 1931, and until the further order of the commission, less a period of 39 days. The attention of the commission being called to the error in holding the settlement receipt had not been approved, the then commission acknowledged the error and an opinion was prepared to correct the same by a holding that plaintiff, under such circumstances, was not entitled to further compensation. This contemplated order was not entered and, upon a change in the personnel of the commission, entry was refused. Thereupon defendants applied to this court for relief and we issued a writ of mandamus requiring the department to set aside its erroneous order and make review. Fawcett v. Department of Labor and Industry, 282 Mich. 489, 276 N.W. 528. Thereupon the commission vacated its former order and, upon cnsideration of the case, found that plaintiff, by reason of the injuries sustained in 1931, is suffering total disability from heart trouble attributable to the injuries and, in August, 1938, awarded him compensation of $10 per week from September 1, 1931, with the exception of 39 days, and until the further order of the commission.

The commission found that plaintiff, since September 1, 1931, was totally disabled by a heart condition and stated:

‘The date of September 1, 1931, was selected because it was during the preceding month of August the the plaintiff attempted to pick blueberries and found himself unable to do so because of the condition of his heart. The immediate question is whether or not such heart condition is attributable to the accidental injury of February 13, 1931. The determination of this question, in our opinion, rests largely upon our findings of fact regarding the happening and nature of the original injury. * * *

‘The record indicates that up to the time of the accident, the plaintiff was a well, able-bodied woodsman. * * * We believe the preponderance of the evidence introduced in this case to indicate that the plaintiff's disabling heart condition could be caused by an accident of the nature herein found, that is, by a severe blow causing a bruised area approximately four or five inches wide and six inches long over the heart, fracturing two ribs over the heart and rendering the recipient unconscious over a period of one-half hour to forty-five minutes immediately thereafter. * * *

‘We have, therefore, a situation of an apparently able-bodied woodsman suffering an accident of such nature as might cause a disabling heart condition followed immediately by the actual development of such disability. In this case, the possibility of such an accident having caused the disability, when considered in connection with the fact that the disability definitely dates from the accident, indicates in our opinion, the clear probability of a causal relationship between the two. We, therefore, find the plaintiff to have been totally disabled as a result of the said...