Kasarewski v. Hupp Motor Car Corp., 19.

• Decision Date: 28 June 1946
• Docket Number: No. 19.,19.
• Citation: 23 N.W.2d 689,315 Mich. 225
• Parties: KASAREWSKI v. HUPP MOTOR CAR CORPORATION et al.
• Court: Michigan Supreme Court

315 Mich. 225

23 N.W.2d 689

KASAREWSKI

v.HUPP MOTOR CAR CORPORATION et al.

No. 19.

Supreme Court of Michigan.

June 28, 1946.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Peter Kasarewski, claimant, opposed by the Hupp Motor Car Corporation, employer, and the Travelers Insurance Company, insurance carrier. From an award of compensation by the Department of Labor and Industry, the employer and insurance carrier appeal.

Award vacated.

Before the Entire Bench.

Buell A. Doelle, of Detroit, for appellants.

Maurice Sugar, of Detroit, (Benjamin Marcus and Jerome W. Kelman, both of Detroit, of Counsel), for appellee.

NORTH, Justice.

From an award of compensation to plaintiff, defendants bring this appeal. Plaintiff was an employee of defendant Hupp Motor Car Corporation approximately 16 months prior to the event in consequence of which he seeks compensation. There is competent testimony in support of the department's finding that plaintiff had a right femoral hernia when he began working for the Hupp Motor Car Corporation. In his work he lifted material weighing from 60 to 77 pounds. On October 31, 1944, after he lifted a piece of material from the floor in the usual course of his work, he felt a pain in the region of his hernia. There was no fortuitous event. Plaintiff reported to his foreman there was something wrong with him and that he could not work. He obtained a pass from the foreman; and at the first aid department plaintiff was advised to consult his own physician. He went to his family physician and upon being urged to do so, underwent an operation. His hernia was surgically repaired on November 8th, and he returned to his employment Junuary 15, 1945. His award of compensation was for total disability from October 31, 1944, to January 15, 1945, also for doctor and hospital bills.

The sole question presented by appellants is: ‘Did the Department of Labor and Industry err in holding that the aggravation of a pre-existing hernia by a nonaccidental event is compensable under the provisions of the Michigan Workmen's Compensation Act?’

Plaintiff's position is indicated by the following headings in his brief:

‘The plaintiff's claim is not based upon the provisions of Part VII of the Workmen's Compensation Act [Comp.Laws Supps.1940, 1945, § 8485-1 et seq.], otherwise known as the occupational disease amendment, but * * * by virtue of Part II of the Act [Comp.Laws 1929, Comp.Laws Supps.1940, 1945, § 8417 et seq.].

‘The limitations regarding hernia expressed in Part VII do not govern or apply to claims arising under Part II of the Act.

‘An injury caused by a non-fortuitous event is compensable by virtue of Part II of the Workmen's Compensation Act as amended in 1943.’

Since the 1943 amendment, act No. 245, Pub.Acts 1943, to the workmen's compensation act: ‘An employe, who receives a personal injury arising out of and in the course of his employment’ is entitled to compensation in the manner prescribed, but subject to restrictions or limitations in the act. Comp.Laws Supp.1945, § 8417. Plaintiff's contention is that his right to compensation is controlled solely by Part II from which the foregoing is quoted. In other words, plaintiff takes the position that his claim for compensation should be adjudicated in total disregard of Part VII of the compensation law. We are of the opinion that plaintiff's contention is not tenable, at least in so far as applied to nonfortuitous hernia cases. Instead, we think the compensation act, like all other statutes, should be construed as a whole, Comp.Laws 1929, § 8407 et seq., as amended; and if possible, its various provisions should be so construed as to harmonize, rather than conflict, with each other. In Justice Butzel's opinion in Hagopian v. Highland Park, 313 Mich. 608, 621, 22 N.W.2d 115, 117, he said: ‘The act at all times had to be construed as a whole and parts coordinated together. * * * Part 7 must be read in connection with the balance of the act otherwise many of its provisions become meaningless.’

Throughout the workmen's compensation act a material change and a broadening of its scope was accomplished by a general change of the expression ‘accidental injury’ to ‘personal injury’ in the 1943 amendment. This modification, among others, was made not only in Part II of the act but also in Part VII. And it is in Part VII of the act that a broadened scope is given to the term ‘personal injury’ as used in the statute. The legislature there said: ‘ Whenever used in this act: * * * The term ‘personal injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to' the employment, Act No. 245, Part. VII, § 1, Pub.Acts 1943, Comp.Laws Supp.1945, § 8485-1, Stat.Ann. § 17.220; and in this same section a specific limitation is placed upon compensation for hernia in these words: ‘Provided, however, That a hernia to be compensable must be clearly recent in orgin * * *.’ It would be anomalous to hold that nonfortuitous ‘personal injury’ resulting from hernia means one thing in one part of the act but something different in another part of the act. This is especially true in view of the fact that the 1943 amendment affected not only Part II but Part VII, as well as other parts of the act. Hence it would seem that compensation for ‘personal injury’ incident to a hernia not caused by a fortuitous happening should be determined in the light of limitations in the statute applicable to compensation for hernia.

Plaintiff's theory is that he sustained a personal injury by reason of aggravation of a pre-existing hernia which aggravation impaired his earning capacity. But we think it would be a clear evasion of the expressed purpose of the statute to hold that the aggravation is something wholly apart or disassociated from the hernia, and therefore aggravation of a preexisting hernia is compensable in the face of the express statutory requirement that to be compensable a hernia ‘must be clearly recent in origin.’ Compensation for an aggravated hernia is nonetheless compensation for a hernia disability. Under the express statutory provision, for the purpose of determining the right to compensation, there is no room for a distinction between hernia not clearly recent in origin and an aggravated pre-existing hernia. In either case an award of compensation, if made, would be in consequence of hernia disability.

In Barclay v. General Motors Corporation, 309 Mich. 534, 16 N.W.2d 64, 65, the plaintiff had a hernia which became worse or aggravated while he was in the defendant' employ. Plaintiff Barclay testified: ‘the hernia had been getting worse and started to bother him just a few months after he went back to work and has bothered him ‘on and off, all along.” On appeal to this court denial of compensation was affirmed, two Justices dissenting. In the majority opinion we said: ‘As to plaintiff's hernia the department found: ‘That his condition could not have been recent in origin notwithstanding the fact the condition was not previously disabling.’ There was testimony to sustain this finding. It follows that plaintiff is not entitled to compensation because his hernia was not ‘clearly recent in origin’ as required by the statute.'

In like manner it must be held in the instant case that the aggravated hernia which caused plaintiff's disablement in October 1944 was not recent in origin, and because of the restrictive provision in the statute plaintiff is not entitled to compensation. Our decision in Riley v. Berry Bors. Paint Co., 293 Mich. 500, 292 N.W. 469, 470, was made under the workmen's compensation law as amended in 1937, but the pertinent provisions of the act are in effect the same as embodied in the 1943 amendment. In the Riley case we said: ‘And further, in cases of hernia the right to compensation is also restricted by...