Harrison v. Lakey Foundry Corp.

• Decision Date: 01 December 1960
• Docket Number: J,No. 47,47
• Citation: 361 Mich. 677,106 N.W.2d 521
• Parties: Ford HARRISON, Plaintiff and Appellant, v. LAKEY FOUNDRY CORPORATION, Defendant and Appellee. une Term.
• Court: Michigan Supreme Court

Page 521

106 N.W.2d 521

361 Mich. 677

Ford HARRISON, Plaintiff and Appellant, v. LAKEY FOUNDRY CORPORATION, Defendant and Appellee.

No. 47, June Term.

Supreme Court of Michigan.

Dec. 1, 1960.

Marcus, Kelman, Loria, McCroskey & Finucan, Muskegon, for plaintiff and appellant.

Joseph T. Riley, Muskegon, for defendant and appellee.

Before the Entire Bench.

CARR, Justice.

The finding of facts in this case as made by the referee and approved by a majority of the members of the appeal board is supported by competent testimony. In May 1949, plaintiff, while in the employ of defendant, sustained an injury involving a fracture of both legs. He was paid compensation on a voluntary basis for varying periods of total and partial disability, and in December of 1953 and award was entered by the workmen's compensation appeal board in accordance with the payments that had been made. At that time, however, plaintiff was working for defendant in favored employment and his earnings were in excess of his wages at the time of his injury.

In December of 1953 it was discovered that plaintiff was suffering from silicosis which prevented his further employment. He received compensation at the rate of $34 per week, and applications for lump sum advance payments were granted by the department, so that prior to the filing of the application in the instant proceeding plaintiff had received the maximum amount of $10,500 because of the disability resulting from silicosis.

In September of 1958 plaintiff filed an application for an award of compensation because of disability claimed to have resulted from the 1949 injury. Such application was based on the theory that he was entitled to receive compensation because of the disability resulting from the injured legs during the same period of time that he was receiving the award based on the finding of silicosis and the total disability resulting therefrom. This claim presents the issue in the case, that is, whether plaintiff is entitled to compensation because of the 1949 injuries during the period of time for which he was compensated for total disability resulting from the condition discovered in 1953. This involves a question of statutory construction. Does the workmen's compensation act ¹ entitle plaintiff to the award which he claims?

The referee entered an order denying the award sought and the majority of the appeal board, one commissioner dissenting, affirmed. In rendering its decision the appeal board pointed out that plaintiff had not suffered two losses of wage-earning capacity during the period of time involved in the case. Obviously such was the situation. Under the provisions of the statute plaintiff's claim was not well-founded. The controlling language of the compensation act does not permit such an award.

The order of the appeal board should be affirmed.

DETHMERS, C. J., and KELLY and BLACK, JJ., concurred with CARR, J.

EDWARDS, Justice.

This appeal suggests to us that the Michigan workmen's compensation act provides for the concurrent payment of 2 workmen's compensation total disability awards to the same person, covering the same weeks of disability, provided that it be shown that he is suffering from 2 separate disabilities, either of which would occasion total disability.

The majority of the workmen's compensation appeal board held to the contrary. The majority opinion said:

'The question is whether or not the plaintiff's disability from his 1949 injury can be compensated during the concurrent period of time for which he has been compensated for total disability due to his 1953 injury. Plaintiff's average weekly wage at the time of his 1949 injury was $60.80. His maximum compensation rate was $21 a week. His average weekly wage at the time of second injury is reported as $76.40 and his compensation rate has been $34 a week. * * * In this case the plaintiff's earnings at the time of the second injury were substantially greater than his earnings at the time of his first injury. His second earnings during the time of their continuance completely substituted for his right to compensation for his first injury. Insofar as wage earning capacity is concerned he did not have 2 wage earning capacities to lose as his second loss completely enveloped the first.

'The plaintiff has suffered 2 injuries. He is totally disabled by reason of each injury independent of the other. However he has not suffered, compensation wise, 2 losses of wage earning capacity during the period of time herein involved. The award of Referee Weber is, therefore, affirmed.

'The plaintiff is, of course, entitled to further medical care for his 1949 injury to the extent that it is medically advisable that he receive it.'

This reasoning seems wholly in accordance with the language, limitations and intent of the workmen's compensation act. The section dealing with total disability ¹ provides in its first sentence for a dollar ceiling on the weekly compensation to be paid 'while the incapacity for work resulting from the injury is total.' It also expresses the compensation to be paid in terms of percentage of the employee's weekly wage, with added increments for each dependent, and with the total to be reduced when a dependent reached 21. The section also provides for supplementation of the weekly compensation by the second injury fund when the sum due from the particular employer is deemed too low. The benefits under the act are thus related to the employee's disability, to his previous earnings and to the needs of his family, rather than constituting a specific sum of the nature of tort damages. This concept is illustrated further in C.L.1948, § 412.10 (Stat.Ann. 1960 Rev. § 17.160), dealing with partial incapacity:

'The amounts specified in this cause are all subject to the same limitations as to maximum and minimum as above stated. In case of the loss of 1 member while compensation is being paid for the loss of another member, compensation shall be paid for the loss of the second member for the period herein provided, payments to begin at the conclusion of the payments for the first member.'

It is also illustrated in C.L.1948, § 412.11 (Stat.Ann.1960 Rev. § 17.161), which provides:

'The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.'

It is still further illustrated by C.L.1948, § 412.12 (Stat.Ann.1960 Rev. § 17.162), which provides that death terminates all liability from pre-existing injuries as to the individual's estate, and conditions further compensation upon the existence of dependents:

'The death of the injured employe prior to the expiration of the period within which he would receive such weekly payments shall be deemed to end such disability, and all liability for the remainder of such payments which he would have received in case he had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity * * *'

While I recognize that none of these sections specifically interdicts the ingenious argument which appellant's counsel has propounded to us, they do serve to illustrate that the interpretation he urges would be fundamentally inconsistent with the nature of the act.

Larson, in dealing with the underlying concept of workmen's compensation, uses these words in contrasting it to tort damages:

'In compensation, unlike tort, the only injuries compensated for are those which produce disability and thereby presumably affect earning power.

'For this reason, some classes of injuries which result in verdicts of thousands of dollars at common law produce no award whatever under a compensation statute. For example while common-law verdicts of great size are common for facial disfigurement, it is usually held that, in the absence of an express provision making disfigurement compensable, no allowance can be made for it. More than half of the States now have such express provisions, but significantly, the basis in most instances is still the argument that a repellent appearance may diminish the claimant's chances of obtaining and holding employment. Similarly, impairment or destruction of sexual potency is not in itself a basis for an award, and, presumably the same result would apply to such an injury as destruction of child-bearing capacity in a woman.

'The limitation of compensation to 'disability' also runs consistently through all questions of elements of damage. To take a familiar example: there is no place in compensation law for damages on account of pain and suffering, however dreadful they may be. So also in death benefit cases, compensation law refuses to recognize such items as loss of consortium or conscious suffering of the deceased in the interval preceding death.

'A compensation system, unlike a tort recovery, does not pretend to restore to the claimant what he has lost; it gives him a sum which, added to his remaining earning ability, if any, will presumably enable him to exist without being a burden to others.' 1 Larson, Workmen's Compensation Law, §§ 2.40, 2.50.

I agree with Justices Black and Carr that the language of the workmen's compensation statute cannot, consistent with the legislative intent demonstrated in the scheme of the act, be interpreted as affording 2 awards for total disability for the same period of time.

SMITH, Justice.

The defendant Lakey Foundry Corporation has phrased the question well. It is as follows:

'We know of no greater disability than total disability and we do not believe there can be any greater form of disability than total disability. The way we understand plaintiff's contentions is that he had concurring total disabilities. The statute 17.159 M.S.A. speaks of total incapacity for work resulting from the injury and there is an admitted holding by the Appeal Board that plaintiff was totally...