Hood v. Wyandotte Oil & Fat Co.

• Decision Date: 03 June 1935
• Docket Number: No. 70.,70.
• Court: Michigan Supreme Court
• Parties: HOOD v. WYANDOTTE OIL & FAT CO. et al.

272 Mich. 190

261 N.W. 295

HOOD

v.WYANDOTTE OIL & FAT CO. et al.

No. 70.

Supreme Court of Michigan.

June 3, 1935.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Charles Hood, claimant, opposed by Wyandotte Oil & Fat Company, employer, and another. Order by Department of Labor and Industry denying petition of employer and another to have compensation stopped or reduced, and employer and another prosecute appeal in nature of certiorari.

Affirmed.

Argued before the Entire Bench.

Bishop & Weaver, of Detroit, for appellants.

Woodruff, BeGole & McInerney, of Wyandotte (Frank W. Atkinson, of Detroit, of counsel), for appellee.

WIEST, Justice.

March 31, 1933, while pulling a 2-wheel truck, with a 200-pound load, up a greasy and smooth gangplank to a freight car, plaintiff slipped, immediately experienced sharp pain in his left groin, followed by pain in the spinal area and lumbar region, indicating injury to such parts. September 26, 1933, he was awarded compensation at the rate of $13.92 per week, during total disability. In June, 1934, defendants petitioned to have the compensation stopped or reduced. Upon hearing and review the petition was denied, plaintiff was adjudged totally disabled, and this review, by appeal in the nature of certiorari, was taken by defendants.

Defendants do not ask that compensation to plaintiff be entirely stopped, but that it be reduced or adjusted to accord with his wage earning capacity in some other employment.

At the time of injury plaintiff was a laborer, but at a previous time had worked as a barber. He is admittedly wholly incapacitated from performing manual labor but, it is claimed, that if favored, he can work as a barber, at least part of the time, and the exercise would be beneficial.

He has no such job, and plaintiff testified to his efforts to obtain employment as a barber and of refusals because of his physical condition caused by the accident.

The statute, by amendment in 1927 (Pub. Acts 1927, No. 376), now provides, C. L. 1929, § 8427(e): ‘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.’ See MacDonald v. Great Lakes Steel Corporation, 268 Mich. 591, 256 N. W. 558.

What is meant by the term ‘wage earning capacity after the injury’? It is not limited to wages actually earned after injury, for such a holding would encourage malingering, and compensation is not a pension. On the other hand, mere capacity to earn wages, if ‘nondescript’ by reason of injury, affords no measure unless accompanied by opportunity to obtain suitable employment. Opportunity is circumscribed by capacity of the injured and openings to such a wage earner. In the instance at bar, plaintiff's present wage earning capacity, if he has any, appears to be limited to problematical employment as a barber under conditions suitable to, and favoring, his physical condition and, therefore, in an existing labor market with an opening for such a handicapped employee.

An injured person may recover to the point where he can, if favored, perform special service, if such is obtainable, but if none can be obtained because of his injury, his capacity to work and earn cannot be measured against his incapacity. If his injury isolates him from employment, them, of course, he is not to be held to have capacity to work and earn wages. If his injury has reduced his capacity to work and relegated him to the rating of ‘odd lot’ or ‘nondescript’ workers for whom labor openings are extremely limited, then opportunity, within his capacity, should be made to appear.

In Jordan v. Decorative Co., 230...