Chelli v. Am. Bos. Mining Co., 22.

• Decision Date: 04 April 1939
• Docket Number: No. 22.,22.
• Parties: CHELLI v. AMERICAN BOSTON MINING CO.
• Court: Michigan Supreme Court

288 Mich. 441

285 N.W. 14

CHELLI

v.AMERICAN BOSTON MINING CO.

No. 22.

Supreme Court of Michigan.

April 4, 1939.

Appeal from Department of Labor and Industry.

Proceedings under the Workmen's Compensation Act by Paoli Chelli, employee, opposed by the American Boston Mining Company, employer. From an order of the Department of Labor and Industry modifying an award of compensation to the employee, the employer appeals in the nature of certiorari.

Order modified and affirmed, and cause remanded for entry of order in conformity with opinion.

Argued before the Entire Bench.

M. S. McDonough, of Iron River, for appellant.

Ray Derham, of Iron Mountain, for appellee.

BUSHNELL, Justice.

Defendant was granted leave to appeal from an order of the Department of Labor and Industry, which modified an award of compensation of plaintiff Chelli for partial disability at $7 per week from May 1, 1936, until further order. The order of the department provided that compensation should be paid plaintiff for partial disability at the rate or $8 per week from January 1, 1932 to April 16, 1936, and thereafter $16 per week during the period of total disability and until the further order of the department.

Plaintiff was injured on January 29th or 30th, 1929, while working in the Loretta Mine of defendant. A piece of timber eight inches wide, one inch thick, and sixteen feet long, fell down the mine shaft, a distance of about 22 feet, and struck plaintiff in his back and leg while he was bending over to hook a hoist line on other timber. Chelli was knocked unconscious, taken to the hospital, and did not return to work until 51 days thereafter. At the time of the injury he was working as a timber trammer and, when he returned to work, he was given lighter employment. He worked as a puffer man for about a year, his duties being to operate the engine that controlled the bucket hoist. After this, he worked for two or three days cleaning up the track and, in 1934, for two days he worked around the stock pile and cleaning up the year. Other than this, he never returned to heavy work after his injury. The records of the department were not available at the hearing and the parties agreed that a compensable report had been filed; that a compensation agreement, dated February 25, 1929, set up plaintiff's wages as $24 per week; that compensation was paid him at the rate of $16 per week until March 31, 1929, and, on April 5, 1929, a settlement receipt was filed covering payments over a period of eight weeks and three days. There is no showing that this settlement receipt was ever approved by the department. No further payments were made to plaintiff and, on September 15, 1937, he filed a petition for review of payments in which he represented that, since October 1, 1931, his physical condition had become worse, so that his earning capacity was lessened, etc.

Defendant interposed the plea of res adjudicata and claimed that the settlement receipt was a bar to any further action. Defendant also interposed a plea based upon the general statute of limitations, in that the petition for review was not filed within six years from the date of the injury. Defendant also relied upon the limitations found in the Workmen's Compensation Act, 2 Comp.Laws 1929, §§ 8431, 8432 (Stat.Ann. §§ 17.165, 17.166).

The testimony shows that, from November 15, 1935 to April 15, 1936, plaintiff was employed by the Works Progress Administration at a wage of $44 per month.

Defendant's medical expert, Dr. Alexander, testified that he made a physical examination of plaintiff on December 3, 1937. The doctor said: ‘He suffers from hypertrophic arthritis, which is generalized,not confined to any one area, and there is X-ray evidence of an arteriosclerosis, which is also generalized.'

The doctor said, on cross-examination, that plaintiff was ‘totally disabled in the field of common labor,’ but he did not attribute the arthritic condition to the injury.

Dr. Frederickson testified for the plaintiff, having had him under observation while a patient in the County Infirmary. In answer to a hypothetical question this witness said: ‘I think the accident would be responsible for his condition.’ He was cross-examined as to the effect of any other injuries that plaintiff might have sustained and admitted that it was possible that intervening causes might have affected...