Markey v. S. S. Peter & Paul's Parish

• Decision Date: 01 September 1937
• Docket Number: No. 113.,113.
• Citation: 281 Mich. 292,274 N.W. 797
• Court: Michigan Supreme Court
• Parties: MARKEY v. S. S. PETER & PAUL'S PARISH et al.

281 Mich. 292

274 N.W. 797

MARKEY

v.S. S. PETER & PAUL'S PARISH et al.

No. 113.

Supreme Court of Michigan.

Sept. 1, 1937.

Appeal from Department of Labor and Industry.

Proceedings under the Workmen's Compensation Act by Aloysius Markey, claimant, against S. S. Peter & Paul's Parish employer, and American Employers Insurance Company, insurer. From an order of the Department of Labor and Industry denying employer's petition to discontinue or reduce claimant's compensation, defendants appeal.

Reversed and remanded.

Argued before the Entire Bench.

H. Monroe Stanton, of Saginaw, for appellants.

Joseph P. Friske, of Saginaw, for appellee.

FEAD, Chief Justice.

Plaintiff, assistant janitor for defendant, with wages of $10 per week, was injured and received workmen's compensation at $7 per week for a time, later reduced to $5 per week. From November, 1935, he has worked as timekeeper for the Public Works Administration, a federal agency, with salary of $70 per month, increased in April, 1936, to $25 per week. In June, 1936, defendant filed petition to stop or reduce plaintiff's compensation under the proviso in paragraph (e), § 8427, Comp.Laws 1929: ‘Provided, 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.’

Under the testimony, the department would be justified in holding that plaintiff has not recovered from his injury. He said he was in dire financial straits and, while not actually on relief, would have had to accept public aid if he had not obtained the job as timekeeper. The commission held that his employment with the Public Works Administration did not establish an earning capacity under the statute because it was, in fact, public relief and did not create the relationship of employer and employee. Vaivida v. City of Grand Rapids, 264 Mich. 204, 249 N.W. 826, 88 A.L.R. 707. January 8, 1937, it entered award continuing compensation until further order.

It will be noted that in the Vaivida and succeeding cases to like effect, Oleksik v. City of Detroit, 268 Mich. 697, 256 N.W. 600;Davenport v. City of Detroit, 268 Mich. 374, 256 N.W. 354;Cody v. City of Negaunee, 270 Mich. 336, 259 N.W. 118;Wagner v. Welfare Relief Commission, 272 Mich. 64, 260 N.W. 791, some or all of such incidents were present, as that the work was merely incidental to relief; wages were based upon the necessities of the person and his family rather than upon the worth of the work; the person was engaged in ‘made’ work; work was provided for rehabilitation; or that it was done for the public body which was charged with the duty of furnishing the relief. When, however, the person is withdrawn from the jurisdiction of the public body which was the duty to furnish him relief and is given work by another public agency which has not such obligation, work for the latter is done under the relationship of employer and employee. McLaughlin v. Road Commission, 266 Mich. 73, 253 N.W. 221;Konopka v. Jackson County Road Commission, 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552.

The Public Works Administration was established under the Federal Emergency Relief Act of 1933, U.S.C.A., tit. 15, chap. 16, §§ 721-727, 728. The act did not confine aid to alms, but permitted the administrator to establish agencies which could afford assistance either by way of relief or upon a business basis. In re Dissolution of Community Co-op. Industries, Inc., 279 Mich. 610, 273 N.W. 287.

The Public Works Administration was recognized by the Emergency Relief Appropriation Act of 1935, 49 Stat. 115 (15 U.S.C.A. § 728 note), and the Emergency Relief Appropriation Act of 1936, 49 Stat. 1608 (15 U.S.C.A. § 728 note), both of which appropriated money for ‘useful projects.’ The act of 1935 authorized the President to fix different rates of wages for various types of work but which would not ‘affect adversely or otherwise tend to decrease the going rates of wages paid for work of a similar nature.’ Section 7 (15 U.S.C.A. § 728 note). And the act of 1936 provides that the rates of pay for persons engaged upon useful projects ‘shall be not less than the prevailing rates of pay for work of a similar nature.’ 15 U.S.C.A. § 728 note.

Under the act of 1935, Executive Order No. 7064 (40 U.S.C.A. § 414 note) provided that, so far as practicable, the persons employed were to be selected from those receiving relief, but the act of 1936 gives others the same eligibility for employment as applicants whose names had appeared on relief rolls.

It is clear that it was the purpose of the Public Works Administration to furnish employment is lieu of relief and that the relation of employer and employee was established therein as completely as in the case of any other employment by the Federal Government.

It is further contended that plaintiff's employment as timekeeper is temporary and establishes no earning capacity. Smith v. Pontiac Motor Car Co., 277 Mich. 652, 270 N.W. 172;Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, 261 N.W. 295. Timekeeper is a recognized regular job in ordinary business, and plaintiff's employment has the incidents of ordinary permanency. It had continued more than a year when the award denying the petition to stop compensation was entered. It is subject to the same conditions which govern any other employment-continuance of the work by the employer and continuance of the hiring of the employee, the termination of neither of which conditions can be foretold at this time. It may cease soon or last a long time. It cannot be called temporary within the purview of those decisions.

This leads us to the construction of the words ‘wage earning capacity’ in the proviso. The proviso was adopted to relieve the employer of the payment of compensation pro tanto, if and while the employee has capacity to earn sufficient wages in the same or another occupation, MacDonald v. Great Lakes Steel Corp., 268 Mich. 591, 256 N.W. 558, whether or not he works, Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, 261 N.W. 295.

After a disabling injury, wage-earning capacity may be recovered by an improvement in physical condition. If the employee's compensation were stopped or reduced by reason of improvement in physical condition, resulting in an increased wage earning capacity, it would be necessary, on petition to restore compensation, that h...