Morgan v. Lloyds Builders, Inc., 65

• Decision Date: 28 December 1955
• Docket Number: No. 65,65
• Parties: B. O. MORGAN, Plaintiff and Appellant, v. LLOYDS BUILDERS, INC., and Continental Casualty Company, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 880

73 N.W.2d 880

344 Mich. 524

B. O. MORGAN, Plaintiff and Appellant, v. LLOYDS BUILDERS, INC., and Continental Casualty Company Defendants and Appellees.

No. 65.

Supreme Court of Michigan.

Dec. 28, 1955.

L. W. Beardsley, Battle Creek, Russell W. Conroy, Battle Creek, of counsel, for plaintiff and appellant.

Dwight W. Fistler, Battle Creek, for defendants and appellees.

Before the Entire Bench.

REID, Justice.

Plaintiff who was an employee of defendant Lloyds Builders Inc. appeals on leave granted and in the nature of certiorari from an order of the workmen's compensation commission dated August 17, 1954, 'That the award of the deputy commissioner be and it is hereby modified and that the plaintiff shall be paid by the defendants, compensation for total disability of $21.00 per week from January 15, 1948 to January 31, 1948 and from December 13, 1948 to January 11, 1949 and for the specific loss of the right eye at the rate of $26.00 per week from July 29, 1952 until the further order of the commission, but not to exceed 150 weeks from May 9, 1951, defendants to have credit for compensation voluntarily paid.'

Defendant employer states as the sole question involved the following: Should the claim of plaintiff for compensation be denied for failure to give notice to the employer required by § 15 of part 2 of [344 Mich. 526] the Workmen's Compensation Act? Defendant says it should be denied.

Plaintiff was employed as a carpenter by Lloyds Builders Inc., defendant. On January 14, 1948, while working at his employment, he was pulling a nail backwards when a piece of nail broke off, striking him in the right eye. Plaintiff seasonably notified his employer of his injury. After considerable treatment the foreign body was surgically removed from his eye at the University hospital at Ann Arbor. He was paid weekly disability workmen's compensation at the rate of $26 a week from January 15, 1948 to January 31, 1948, and also from December 13, 1948 to January 11, 1949. Subsequently difficulty developed in the right eye in 1951 for which he was treated by doctors, which resulted in loss of vision in the said right eye, May 9, 1951.

Plaintiff filed application for hearing and adjustment of claim dated July 28, 1953, with the workmen's compensation commission. Defendant Lloyds Builders Inc. claims it was not given notice of the loss of sight. The commission appropriately notified defendant of the hearing, in which hearing defendant Lloyds participated.

The facts as found on review by the workmen's compensation commission are as follows:

'Plaintiff was paid compensation voluntarily from January 15, 1948 to January 31, 1948 and from December 13, 1948, to January 11, 1949 and we find the defendant was liable for the compensation paid during these periods.

'Since the petition filed by the plaintiff, dated July 28, 1953, is a petition for the payment of further compensation and we find the loss of vision in the right eye occurred on May 9, 1951, he is entitled to receive compensation at the rate of $26.00 per week from July 29, 1952 until the further order of the commission, but not to exceed 150 weeks from May 9, 1951. The award of the deputy commissioner is modified to conform with this opinion.'

Plaintiff claims compensation for total loss of right eye.

C.L.1948, § 413.14, Stat.Ann. § 17.188, is as follows:

'If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.'

C.L.1948, § 412.15, Stat.Ann. § 17.165, part 2, § 15 of the act, contains the following:

'In all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within 3 months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within 6 months after the happening of the injury, but does develop and make itself apparent at some date subsequent to 6 months after the happening of the same, claim for compensation may be made...