Clifton v. Chrysler Corp., 103.

• Decision Date: 22 December 1938
• Docket Number: No. 103.,103.
• Citation: 282 N.W. 912,287 Mich. 87
• Parties: CLIFTON v. CHRYSLER CORPORATION.
• Court: Michigan Supreme Court

287 Mich. 87

282 N.W. 912

CLIFTON

v.CHRYSLER CORPORATION.

No. 103.

Supreme Court of Michigan.

Dec. 22, 1938.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Aubrey Clifton, employee, opposed by the Chrysler Corporation, employer. From an award of the Department of Labor and Industry in favor of the employee, the employer appeals.

Award vacated.

Argued before the Entire Bench.

Kerr, Lacey & Scroggie, of Detroit, for appellant.

Albert Summer, of Detroit, for appellee.

NORTH, Justice.

Defendant has appealed from an award of compensation made to plaintiff who claims disability resulting from an accident arising out of and in the course of his employment by defendant. The commission found the accident happened June 21, 1935, notwithstanding defendant's claim that the accident, if any, happened in October, 1935. The date is of consequence because defendant filed report of a noncompensable accident to plaintiff October 12, 1935; and if plaintiff were seeking compensation incident to this accident, he could not obtain an award because of his failure to demand compensation within six monthsafter the happening of the accident. There is testimony in the record tending to sustain the determination of the commission as to the date of the accident and, therefore, we must abide by the finding made. The defendant filed no report of plaintiff's having sustained an accident in June, 1935. Plaintiff's testimony is that while lifting crank shafts, weighing 70 to 80 pounds, off of a conveyor line, incident to which he had to reach up over his left shoulder and lower the crank shafts to the floor, his right foot slipped on the wet floor, straining his back and right side. Plaintiff reported the injury to his foreman and was sent to the first aid where he received treatment. He continued to work through June and July but on July 28th was transferred to a lighter bench job. He took the month of augustoff from his work because he wanted to go south and because his back was hurting him. He returned to his work in September and continued through October but did not work very regularly because his back was still troubling him. He was released from his employment by defendant November 7, 1935. From November until the following June plaintiff worked at the Motor Products Corporation. He then went south again and returned that following September. In October, 1936, he began working at the Hudson Motor Car Co. and continued in its employment until the latter part of November. In January, 1937, he entered Harper Hospital where he was placed in a body cast which extended from his shoulders to the base of his spine. He was still wearing the cast at the date of the hearing, June 28, 1937. From May, 1937, to June 4, 1937, he was again in the employ of the Hudson Motor Car Co. He has not worked since and he claims that since the injury his condition has been continuously growing worse.

Plaintiff's physician diagnosed plaintiff's condition as arthritis of the spine; and the physician also found that plaintiff had some bad teeth accompanied by pyorrhea. The commission found that the accident sustained by plaintiff caused his disability and that proper notice had been given as required by statute. 2 Comp.Laws 1929, § 8431. Defendant on this appeal presents the following questions:

(1) Did the plaintiff give defendant adequate notice of the accidental injury claimed by him within the time required by the workmen's compensation law?

(2) Was the plaintiff suffering from any compensable disability at the time of the hearing before the deputy commissioner?

(3) Was the plaintiff, at the time of the hearing before the deputy commissioner, suffering from any disability as a result of an accidental injury?

At the hearing before the deputy commissioner appellant admitted that it did not file with the department any report of an accident to appellee in June, 1935; and appellant denied having had notice or knowledge of the alleged accident within three moths from its happening. This is contrary to plaintiff's contention. Claim for compensation was not filed until February 2, 1937. Both the deputy and the commission on review found appellant had notice of the accident within the three months' statutory period. 2 Comp. Laws 1929, § 8431.

‘The requirement of the statute that the employer must receive notice of the accidental injury within three months of its occurrence is a substantial right and not one to be disregarded.’ Maki v. S. J. Groves & Sons, 279 Mich. 644, 273 N.W. 300, 301.

Decision of this appeal turns upon whether the record contains any evidence tending to support the commission's finding that defendant had notice or knowledge of the accident within the three months' statutory period. The substance of all of the material testimony on this question is covered by the following, which we quote from the commission's opinion:

‘Q. When did you (plaintiff) first report this injury and the accident to the Plymouth Motor Car Co? A. At night.

‘Q. Where? A. To my foreman or job setter and the first aid.

‘Q. What did you tell them? A. I told them I hurt my back. * * *

‘Q. Did you go to the first aid department? A. Yes.

‘Q. What did you tell them? A. I told them I hurt my back. Strained by back.

‘Q. Did they ask you any questions as to how...