Levanen v. Seneca Copper Corp.

• Decision Date: 24 July 1924
• Docket Number: No. 69,Oct. Term, 1924.,69
• Citation: 227 Mich. 592,199 N.W. 652
• Parties: LEVANEN v. SENECA COPPER CORPORATION.
• Court: Michigan Supreme Court

227 Mich. 592

199 N.W. 652

LEVANEN

v.SENECA COPPER CORPORATION.

No. 69, Oct. Term, 1924.

Supreme Court of Michigan.

July 24, 1924.

Certiorari to Department of Labor and Industry.

Proceedings under the Workmen's Compensation Act by John Levanen, claimant, opposed by the Seneca Copper Corporation, employer. Award of Commission of Department of Labor and Industry, and employer brings certiorari. Reversed, and award vacated.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.H. C. Schulte, of Houghton, for appellant.

E. F. Legendre, of Laurium, for appellee.

STEERE, J.

John Levanen was working for defendant as a shaft miner in the Seneca copper mine near the town of Mohawk in the upper peninsula of Michigan, and on December 7, 1920, sustained an accidental injury while barring loose ground from the side of the shaft, a portion of which slipped and struck him on the left leg, breaking the fibula, or smaller of the two lower leg bones.

Defendant recognized the case as one of ‘compensable accident,’ made a proper report to the then Industrial Accident Board, and provided him suitable medical and hospital attention. The broken bone was properly set, and in a reasonable time made a good recovery, as the attending physician testified and an X-ray examination of his leg showed beyond dispute.

As authorized by the act in such cases an agreement was reached and filed with the Industrial Accident Board on December 23, 1920, providing compensation to plaintiff at the rate of $14 per week during total disability and a proper rate per week during partial disability, if he became legally entitled to the same thereafter.

On August 1, 1921, a final settlement receipt was filed with the board, signed by Levanen, and subscribed by two witnesses, acknowledging receipt in full on final settlement of compensation for his injuries, amounting to $270.12.

On October 17, 1921, he filed a petition with the accident board to reopen the case, claiming that as result of his accident he was totally disabled from following his former employment or any work of a similar nature. Answer was filed by defendant in denial and hearing thereafter had on December 10, 1921, before Deputy Commissioner Derhanm, who, ‘having made careful inquiry and investigation of said matter and being fully advised,’ dismissed plaintiff's petition without prejudice. No appeal from this adjudication was taken.

On February 8, 1922, plaintiff filed a second petition to reopen the case, alleging that after returning to defendant's employ for a short time he found himself totally incapacitated from doing any work at his former employment as a miner by reason of his injuries sustained in the accident in question. Defendant answered, denying he was incapacitated from work by reason of the accident, and alleged that his present indisposition, if any, was imputable to rheumatism or other ailments not resulting from accidental injury while in defendant's employ. Full hearing was had before Deputy Commissioner Beattie, who, on April 13, 1923, made an adjudication denying and dismissing plaintiff's petition.

Plaintiff took no appeal from this second decision, but on May 24, 1922, filed a third petition asking that the case be reopened, stating he had been given employment since his injury by defendant and others and attempted to work, but found himself totally incapacitated from doing work of any kind requiring use of his leg injured in said accident. Defendant filed an answer in denial as before, alleging no right to a further hearing, because no appeal had been taken to previous awards, and on hearing of the second petition all facts and issues presented by the third petition had been heard and passed upon; the entire matter being res adjudicata.

This third petition was heard on August 29, 1922, before Deputy Commissioner Brown, who, after hearing the proofs and allegations of the parties, adjudged claimant was not entitled to receive further compensation, and denied his petition. At that hearing the Commissioner allowed plaintiff, against defendant's objection, to introduce testimony covering both his former and present physical condition and to retry the whole case from the beginning.

Within the time fixed by law plaintiff filed a claim for review of this third arbitral award, and the case was thereafter heard on October 25, 1922, by the full Commission of the Department of Labor and Industry. At this hearing on review it was suggested to plaintiff's attorney by the Commission that he make application for permission to submit further testimony, which he did. Permission was then granted by the Commission, against defendant's objection.

On December 2, 1922, the Commission wrote plaintiff's attorney that the case had been carefully considered, and the medical testimony was found so conflicting that the Department desired an examination of plaintiff by an impartial physician; that there seemed little doubt as to his physical condition, but whether it could be connected with the accident the medical testimony did not show, and, if an impartial physician could be agreed upon by the parties and his examination reported to the Commission, to be used as testimony, it might aid in the solution of this rather perplexing case, and an order was made holding the case in abeyance to give the parties opportunity to have an examination made as suggested.

Pursuant to this suggestion counsel for the respective parties agreed to an examination of plaintiff by two physicians, Drs. Abrams and Lebine, each party suggesting one to whom the other made no objection. On making such examination the two physicians were at variance as to plaintiff's then physical condition, and particularly the condition and cause of a lump or raised area near the place of fracture on his left leg, which they agreed an exploratory operation would determine.

Touching that subject, the record, shows that applicants for work in defendant's mine were given a physical examination before being employed, and plaintiff testified that he received such an examination. The record of his employment examination made by Dr. Conrad on April 24, 1918, showed that he had at that time varicose veins in his lower limbs. Dr. Conrad also attended him professionally at the time of the accident. He testified that when he set the small bone of his left leg and cared for him during his recovery plaintiff was still afflicted with varicose veins in his legs, and he then treated him for a varicose ulcer on the right leg; that after his recovery there appeared a small swelling on the shin bone of his left leg near the fracture, which in his opinion was manifestation of a varicose vein. The medical experts disagreed as to whether this enlargement was a varicose vein or a rupture of the sheath of the anterior of the tibial muscle which might permanently lame the afflicted party and cause severe pain whenever the muscle was put on tension.

Following some correspondence between the parties and the Commission, the latter suggested, in a letter dated February 5, 1923, that defendant arrange for an exploratory operation on claimant's leg with a view to determining definitely the issue between the experts. Plaintiff was therefore sent to the University hospital at Ann Arbor and there examined by Dr. Hugh Cabot, dean of the medical faculty and professor of surgery, who on examination determined an operation unnecessary for such purpose, and submitted his diagnosis to the Commission in two letters, one of April 17, 1923, and one of April 25, 1923...