Henderson v. Consumers Power Co.

• Decision Date: 18 May 1942
• Docket Number: No. 29.,29.
• Citation: 4 N.W.2d 10,301 Mich. 564
• Parties: HENDERSON v. CONSUMERS POWER CO.
• Court: Michigan Supreme Court

301 Mich. 564

4 N.W.2d 10

HENDERSON

v.CONSUMERS POWER CO.

No. 29.

Supreme Court of Michigan.

May 18, 1942.

Proceeding under the Workmen's Compensation Act by Arthur L. Henderson, claimant, to recover compensation for loss of vision in claimant's left eye, opposed by the Consumers Power Company, employer. From an award of the Department of Labor and Industry in favor of claimant, the employer appeals.

Award affirmed.Appeal in Nature of Certiorari from the Department of Labor and industry.

Before the Entire Bench, except WIEST, J.

Arthur J. Paul, of Jackson, for appellant.

Sessions & Warner, of Lansing, for appellee.

STARR, Justice.

Defendant company appeals from an award of the department of labor and industry, granting plaintiff compensation for the loss of vision in his left eye, at the rate of $18 per week for 100 weeks, beginning October 1, 1937.

Plaintiff entered defendant's employ as a lineman in September, 1926. His duties, in part, consisted of putting up power lines which required ‘climbing poles, handling wire.’ It is admitted that his work was classified as skilled employment. On December 24, 1930, plaintiff, about 53 years old, while engaged in his regular work, fell from a pole sustaining injuries to his head and neck. He was taken to Hurley Hospital in Flint in an unconscious condition and did not regain consciousness for about 24 hours. He could not remember the circumstances of his accident, but recalled awakening in the hospital and suffering severe pain in his head and neck. He was attended by a physician who was paid by defendant company on a fee basis. Plaintiff's injury was diagnosed, as shown by the hospital record, as ‘concussion of the brain.’

Plaintiff remained in the hospital for about two days and was then removed to his home and there confined in bed for approximately two weeks. While confined at home he suffered severe headaches, became delirious at times, and noticed a blurring in his left eye. Prior to the accident plaintiff had been in a healthy and vigorous condition and had experienced no eye trouble.

During plaintiff's confinement at home a Mr. Clements, superintendent, and Mr. Bernathy, assistant superintendent of electrical work for defendant company visited him. As soon as plaintiff was able to be up and walk around, defendant sent him to see Dr. Halligan, who had attended him while he was in the hospital.

On January 2, 1931, defendant filed a noncompensable report of the accident with the department of labor and industry, which stated in part:

‘12. Nature and cause of injury-Fell from pole, injured back.

‘13. Length of time lost by employe-No time lost.

‘14. Date of Return to Work (left blank) * * *

‘If said employe hereafter becomes entitled to compensation on account of said accident, a report will be immediately made by us under Rule ‘B’.

‘Date of this report-December 31, 1930.’

After several weeks' confinement at home plaintiff returned to work, but because of defective vision in his left eye, he was never thereafter able to perform his former duties as a lineman. He was given miscellaneous jobs, such as making collections, working on the payroll, and hunting and cutting off ‘jumpers'-a term applied to persons stealing electricity. However, so far as the record shows there was no reduction in the amount of his wages.

Plaintiff continued to have trouble with his left eye and suffered severe headaches. In May, 1931, an assistant superintendent of defendant company sent plaintiff to see a Dr. Jefferson, who referred him to Dr. Roberts, an eye specialist. Dr. Roberts found that plaintiff had only light perception or protective vision (sometimes referred to as peripheral or industrial vision) in his left eye. In 1935 plaintiff, at the suggestion of an official of defendant company, made five trips to Niles, Michigan, to consult with Dr. Bonine, an eye specialist. Plaintiff's defective vision continued until about October 1, 1937, when his left eye became completely blind.

In October, 1931, plaintiff told Mr. Scott Dickson, assistant to the general manager of defendant company in Flint, that he was losing the sight of his left eye and that he thought he should have compensation. Plaintiff testified regarding his conversation with Mr. Dickson, as follows:

‘Q. * * * Did you ever tell anyone in authority at the Consumers Power Company about the trouble you were having with your eye? A. I did.

‘Q. Whom did you tell? A. Scott Dickson (assistant to the general manager). * * *

‘Q. I see. How did you happen to be talking to him? A. Well, I was afraid they would be laying me off because I could not see good, so I went in and said to him, ‘I am losing the sight of my eye,’ I said, ‘it is no good to me now as far as working and the like of that,’ and I said, ‘I think I should have compensation for it because,’ I said, ‘I know, realize, they don't usually keep a fellow on if he could not see good for this work.’ * * * ‘Art,’ he said, ‘this is going to be kind of bad for some fellows here,’ he said, ‘and we don't want any trouble.’ He said, ‘As long as you want any work, you can have work for the Consumers Power Company,’ if I just wanted to work, and I said, ‘If I knew that it was all right,’ ‘well,’ he said, ‘you don't know of anyone they have ever been mean with.’ So I went on to work * * *

‘Q. Well, did this assistant general manager, that you talked to, say anything about not making a claim at that time for the loss of the eye? A. Well, he said if it would implicate some fellows that had not properly made reports, he said ‘You wouldn't want to cause me,-trouble to anyone?’ and I said, ‘No; I never made anyone trouble and I don't want to.’

‘Q. What was the result of your conversation, so far as whether or not you were going to make claim for the loss of the eye? A. I just walked out, I went on to work; I never heard any more about it.

‘Q. Did he say anything? State whether or not he said anything to you about what might happen if the claim,-if you made a claim for the loss of the eye? A. ‘Well,’ he said, ‘you know, if you make claim, make any trouble around here,’ he said, ‘after they pay your compensation they can lay you off,’ and he said, ‘you are gone.’

‘Q. But did he at that time tell you if you did not make any claim for the loss of your eye that you would have a job as long as you wanted to work? A. He did. * * *

‘Q. State whether or not this conversation you just related was the reason why you did not sooner make a claim for the loss of your eye? A. I was. I supposed I would have work as long as I wanted it.’

In September, 1938, plaintiff was laid off and his wages paid until October 1. Thereafter he went to the assistant to the chief clerk of defendant company and requested compensation for his left eye. The next day he was called back to work. Regarding this incident plaintiff testified:

‘Q. When did they discharge you? A. Well, they laid me off once from the 15th of September in '38, and they paid me up until the first of October, and I went in to see when I was going to go back to work. I have (had) been in a couple of different times, then I went in another morning and I did not find Mr. Crawley in, so I went in and talked to Bob Ervine; I worked for Bob Ervine five years, I went in to take to him, ‘If they think I am going to walk off and say nothing they are wrong, because I was to have work for I have to live.’ I told him that if they figured I was going to walk off and say nothing they were off, because I was going to have pay for my eye for I had to live,-my work; and the next morning I was called to report to work.'

Plaintiff remained in defendant's employ until he was discharged in July, 1940. On December 23, 1940, plaintiff filed with the department of labor and industry a claim for ‘compensation and medical expense in accordance with the statute’ for ‘serious head injuries which subsequently caused loss of left eye * * *.’ Defendant filed denial and also supplemental denial of liability.

Upon hearing before a deputy commissioner plaintiff was awarded compensation of $18 per week for 100 weeks, beginning October 1, 1937. Such award was the statutory schedule of compensation for the ‘loss of an eye’. 2 Comp.Laws 1929, § 8426, Stat.Ann. § 17.160. On review the award of the deputy commissioner was affirmed by the department, the opinion stating in part:

‘We specificially find that plaintiff sustained an accidental injury arising out of and in the course of his employment with defendant as lineman on December 24, 1930, resulting in concussion of the brain; that said accident caused the loss of vision in his left eye on or about October 1, 1937; that from the date of the accident until October 1, 1937, plaintiff had peripheral or protective vision, which as a matter of law, is useful vision in industry; that the report of noncompensable accident filed with the department on January 2, 1931, was an improper report and therefore the statute of limitations in the workmen's compensation act did not run against plaintiff's claim for compensation; that these proceedings, started within six years from the date of the loss of the eye, are timely; and further, that defendant's action, after it knew plaintiff had lost the sight of his eye as a result of the accident, in lulling him to a false sense of security extending until the expiration of the 500 week period cannot be condoned.’

Defendant, having obtained leave to appeal, contends:

That plaintiff gave no notice to defendant that his accident of December 24, 1930, caused any injury to his left eye or surrounding nerves.

That a claim was not made within the statutory period as set up in the workmen's compensation act.

That claim was not made within the period set up by the general statute of limitations.

That claim for compensation was made more than 500 weeks from the date of the accident, therefore, the department of labor and industry does not have jurisdiction.

The first question is whether defendan...