Kibbey v. L. O. Gordon Mfg. Co.

• Decision Date: 06 December 1932
• Docket Number: No. 78.,78.
• Citation: 245 N.W. 512,260 Mich. 531
• Parties: KIBBEY v. L. O. GORDON MFG. CO. et al.
• Court: Michigan Supreme Court

260 Mich. 531

245 N.W. 512

KIBBEY

v.L. O. GORDON MFG. CO. et al.

No. 78.

Supreme Court of Michigan.

Dec. 6, 1932.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Ornie N. Kibbey, claimant, opposed by the L. O. Gordon Manufacturing Company, employer, and the General Accident Fire & Life Assurance Corporation, Limited, insurance carrier. An award was granted in March, 1929, and the Department of Labor and Industry having granted an additional award over two and a half years later, the employer and insurance carrier appeal.

Affirmed.

Argued before the Entire Bench.Kerr, Lacey & Scroggie, of Detroit, for appellants.

Parmenter & Van Eenenaam, of Muskegon, for appellee.

NORTH, J.

In August, 1928, while in the employ of the defendant manufacturing company, plaintiff sustained an injury by reason of oil getting into his right eye. There seems to have been no report of the accident by either the employer or employee, and the former asserts that it had no knowledge of the accident having occurred. However, in February, 1929, plaintiff presented a claim for compensation alleging injury to his right eye. The employer filed denial of liability. On March 28, 1929, the deputy awarded compensation for two weeks at $18 per week. This award was paid and the receipt filed, but the receipt was not approved. Nothing further occurred between the parties relative to this injury or compensation until November 14, 1931. On that date plaintiff petitioned for further compensation, alleging in the meantime he had suffered total loss of the sight of his right eye as the result of his former injury. An award of $18 per week for 100 weeks was made by the deputy commissioner, and upon review before the full board this award was affirmed. The defendants have appealed and they assert that the application for further compensation should have been denied because: ‘First, plaintiff did not show that this loss of vision was due to the accident; and, second, even though this were proved, he is barred by the statute of limitations.’

As bearing upon these questions, we quote the following portion of the record. Plaintiff testified as follows:

‘Q. You received an injury on August 1, 1928? A. Yes.

‘Q. And were paid compensation for two weeks? A. Yes.

‘Q. What is your condition now as compared to May 2nd, 1929 (the date the settlement receipt was signed)? A. Well, it is worse. I can't see anything and then I could see some. * * *

‘Q. Have you had any other injury to that eye other than that of August 1st, 1928? A. No, sir. * * *

‘Q. How long ago did the sight in your right eye become that you could not see anything but shadow? A. About the first of June of this year (1931). * * *

‘Q. And in March, 1929, an order was made then of two weeks' compensation following August 8th, 1929? A. Yes.

‘Q. And since March of 1929 until you filed this petition you made no further claim for compensation? A. No, sir.’

Dr. V. N. Morford, an eye, ear, nose, and throat specialist, testified in part as follows:

‘Q. When did you first see him? A. In August, 1928.

‘Q. Did you attend him at that time? A. Yes.

‘Q. For what? A. He came up from the L. O. Gordon plant complaining of his eye smarting and hurting and blurring. He could not see so good. That was his eye condition at that time. * * *

‘Q. Did you learn the cause of this smarting? A. He said he got some oil in his eye three or four weeks previous to that time that I saw him.

‘Q. Would that cause it? A. It would. It could. * * *

‘Q. Have you seen him subsequent to 1928? A. I saw him three times in August and then not again until October 3rd, 1931.

‘Q. What was his condition then, Doctor? A. He just came up at that time to find out if there was any help to the loss of vision to that right eye.

‘Q. Did you examine him? A. Yes.

‘Q. What did the examination show? A. It showed a very dense cornea and he could only see shadow at 10?? at that time. * * *

‘Q. He sets the time (when loss of vision occurred) as June 1st, 1931. From your examination could you tell from the density of the cornea how long it had been? A. No, sir.

‘Q. Do you think that would be the probable date? A. It could be.’

Two other specialists testified. The testimony of one of them is to the effect that plaintiff now has no useful vision for industrial purposes in the right eye and that this condition is permanent; that following the accident plaintiff reported to him ‘that he got oil in the eye’; that such an accident might, so far as witness knew, and probably would, incite the inflammation of the eye; and that witness had no other history of anything else having caused plaintiff's loss of sight in his right eye. There is other testimony in the record, some of which tends to corroborate that above quoted, and some of which tends to impair the probative force of the quoted testimony. But a full consideration of the record satisfies us that there was testimony from which the commissioners could and did find that plaintiff's loss of vision in his right eye was due to the accident of August 1, 1928. We are bound by such finding. Estrin v. Workmen's Circle Colony, 249 Mich. 186, 228 N. W. 701.

The other question is whether plaintiff is barred by the statute of limitations. Appellant relies primarily upon the provisions contained in section 8431, 2 Comp. Laws 1929; and it also asserts reliance upon the general statute of limitations (Comp. Laws 1929, §...