Kaarto v. Calumet & Hecla, Inc.

• Decision Date: 02 July 1962
• Docket Number: No. 92,92
• Citation: 116 N.W.2d 225,367 Mich. 128
• Parties: Emil KAARTO, Plaintiff-Appellee, v. CALUMET & HECLA, INC., Defendant-Appellant.
• Court: Michigan Supreme Court

Page 225

116 N.W.2d 225

367 Mich. 128

Emil KAARTO, Plaintiff-Appellee, v. CALUMET & HECLA, INC., Defendant-Appellant.

No. 92

Supreme Court of Michigan.

July 2, 1962.

McLean & Olds, by Charles B. Olds, Calumet, for defendant-appellant.

Leo Elmer Maki, Ontonagon, for plaintiff-appellee.

Before the Entire Bench.

SOURIS, Justice (for reversal).

Plaintiff was burned on the hands and face as a result of an explosion in defendant's mine, where he was engaged in what both parties describe as skilled employment. Workmen's compensation benefits were paid to him voluntarily by defendant for a period of about 7 months while he recuperated from his injuries. Upon recovery, plaintiff returned to the mine and resumed his former duties, performing them satisfactorily and without significant discomfort. At the end of 14 months, defendant's mine was shut down for economic reasons and all its employees, including plaintiff, were laid off.

Apparently regular mining employment is no longer available in the locality of plaintiff's residence, although he has worked on a few occasions at an adventure-type mine. Plaintiff concedes that his injuries do not impair his ability to perform his former mine employment and he says that he would return to such employment were it available to him. The only work available to plaintiff now is common labor, but plaintiff claims that his injuries limit him in performing such labor and, on that account, seeks workmen's compensation benefits.

It appears from the record that a residual effect of the burns on plaintiff's hands and face is that they are susceptible to extremes of temperature. Because of pain resulting from exposure to such extreme hot or cold temperatures, plaintiff cannot work where he would be subjected to such conditions. The mining work plaintiff did was in fairly uniform median temperatures and he had no difficulty performing his duties in the mine during the 14 months he worked following his injury and prior to his lay-off. However, after only one day as a member of a county road commission crew performing common labor in the sunshine, plaintiff's hands and face became swollen and painful. Similar discomfort occurred when he tried cutting wood in the winter.

The appeal board awarded plaintiff benefits on the theory that he has suffered 'serious disability in the field of common labor as the result of his injury.' On leave granted, defendant appeals, claiming that under our workmen's compensation law plaintiff may not claim benefits because his injuries do not disable him from earning wages at the employment in which he was working at the time of the injuries. Without conceding that the evidence supports the appeal board's finding that plaintiff is disabled from performing common labor, defendant claims that even if true such disability is not compensable under our law because the test of compensability for an injured skilled worker is limited to a determination of his capacity to earn wages in his skilled employment.

Unlike other states, and perhaps unique to Michigan,* an injury is not compensable under our statute unless it impairs the employees' 'earning capacity in the employment in which he was working at the time of the injury.' C.L.1948, § 412.11 (Stat.Ann.1960 Rev. § 17.161). See Levanen v. Seneca Copper Corp., 227 Mich. 592, 199 N.W. 652.

The statutory language quoted has led to absurd results. For instance, in Hirschkorn v. Fiege Desk Co., 184 Mich. 239, 150 N.W. 851, plaintiff's vision was substantially impaired as a result of an industrial injury, but he was thereafter able to perform his old duties satisfactorily and at the same wages. As is the claim in the case at bar, the injury undoubtedly impaired the injured worker's earning capacity in some employment, but it did not impair his earning capacity in the employment in which he was engaged at the time of injury and, therefore, an award of compensation had to be reversed.

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