Mosier v. Marshall Furnace Co.
| Decision Date | 16 May 1947 |
| Docket Number | No. 19.,19. |
| Citation | 318 Mich. 113,27 N.W.2d 514 |
| Parties | MOSIER v. MARSHALL FURNACE CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Department of Labor and Industry in the Nature of Certiorari.
Proceeding under the Workmen's Compensation Act by Edward Mosier, employee, to recover compensation for an occupational disease, opposed by Marshall Furnace Company, employer, and Michigan Mutual Liability Company, insurance carrier. From an award of compensation by the Department of Labor and Industry, the employer and insurance carrier appeal in nature of certiorari.
Award affirmed.
Before the Entire Bench.
Herbert C. Winsor, of Marshall, for plaintiff and appellee.
L. J. Carey and Geo. J. Cooper, both of Detroit, for defendants and appellants.
Leave to appeal in the nature of certiorari was granted to appellants Marshall Furnace Company and Michigan Mutual Liability Company in order to resolve doubt with respect to a recent amendment to the workmen's compensation act. The basic question concerns the construction of § 4, Act No. 10, pt. 7, Pub.Acts 1912, 1st Ex.Sess., as added by Act No. 61, Pub.Acts 1937, and as amended by Act No. 245, Pub.Acts 1943 and Act No. 318, Pub.Acts 1945, Comp.Laws Supp.1940-1945, § 8485-4, Stat.Ann.1946 Cum.Supp. § 17.223. Part 7 came into the workmen's compensation law by Act No. 61, Pub.Acts 1937, and covers occupational diseases. The schedule of diseases for which compensation was provided in the 1937 act included silicosis and pneumoconiosis. Temporary or permanent total disability or death from silicosis or other dust disease was compensable in an amount not to exceed an aggregate total of $3,000. The aggregate amount payable, according to section 4 of part 7 of the act, was to be computed in the following manner:
In 1943, under Act No. 245, many changes were made in the workmen's compensation act. The schedule of diseases in part 7 was eliminated and in place thereof other appropriate language was substituted. In section 4, with which we are concerned, the method of computing dompensation for silicosis and other dust disease remained unchanged, although the aggregate total of compensation was increased from $3,000 to $4,000.
By Act No. 318, Pub.Acts 1945, further changes were made in section 4. The aggregate total was increased to $6,000; and although the method of computing compensation was retained, the amount added during the second calendar month was increased from $50 to $75, and from $50 to $75 each calendar month thereafter. The 1945 amendment contains this proviso:
‘That rights accruing prior to the effective date of this amendatory act shall be preserved and governed by the provisions of this section prior to the effective date of this amendatory act.’
The 1945 amendment was ordered to take immediate effect and was approved May 28, 1945. It is with the quoted language of the proviso that we are presently concerned.
Plaintiff Edward Mosier entered the employ of Marshall Furnace Company in 1941. He worked regularly as a molder from the date of his employment, except for occasional layoffs, because of lack of work, until April 26, 1943, and from that date continuously to June 30, 1945 without any layoffs. During the summer of 1943 he consulted a physician because of occasional vomiting spells and was treated for secondary anemia. An X-ray of his lungs, made on August 16, 1943, showed evidence of silicosis, but he continued to work until June 30, 1945, when he was given a week's vacation with pay. Because it was believed that a few weeks' rest would be beneficial, he did not return to work at the end of his vacation. On September 18, 1945, he secured a statement from his doctor that he was suffering from silicosis and no longer was able to work as a molder. In the light of this statement the employer on October 15, 1945, filed a report of industrial injury, reading: ‘Claims silicosis.’ In this report under the heading ‘Date of Injury’ the employer stated, ‘last day worked, June 30, 1945.’
Dr. Howard, a specialist in diseases of the lungs, after an X-ray study, made on November 6, 1945, testified that Mosier was suffering from ‘type two pneumoconiosis with extensive involvement of both lungs.’
The department of labor and industry determined that Mosier was entitled to compensation of $21 per week from July 9, 1945, but not to exceed an aggregate of $2300. This gross amount was computed by the department in the following manner:
‘From July 30, 1943 to August, 1943 (the first month silicosis resulting from molding became compensable) ........ $500.00
From August 30, 1943 to July 9, 1945 (the date of disablement found by the Commission) 24 months at $75.00 ........ 1800.00
Total ........ $2300.00'
Defendants contend that the computation should be as follows:
‘From July 30, 1943 to August 30, 1943 ........ $500.00
From August 30, 1943 to May 25, 1945 (the effective date of Act No. 318 of 1945) 21 months at $50.00 ........ 1050.00
From May 25, 1945 to June 30, 1945 (the actual date of disablement) 1 month at $75.00...
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