Napolion v. Nat'l Concrete Metal Forms Corp.

• Decision Date: 21 May 1937
• Docket Number: No. 21,Jan. Term.,21
• Citation: Napolion v. Nat'l Concrete Metal Forms Corp., 279 Mich. 668, 273 N.W. 309 (Mich. 1937)
• Parties: NAPOLION v. NATIONAL CONCRETE METAL FORMS CORPORATION et al.
• Court: Michigan Supreme Court

279 Mich. 668

273 N.W. 309

NAPOLION

v.NATIONAL CONCRETE METAL FORMS CORPORATION et al.

No. 21, Jan. Term.

Supreme Court of Michigan.

May 21, 1937.

Appeal (In Nature of Certiorari) from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Ernest Napolion, claimant, opposed by the National Concrete Metal Forms Corporation, employer, and the Maryland Casualty Company, insurer.To review an award of the Department of Labor and Industry reversing an award of a deputy commissioner for claimant, claimant brings certiorari.

Award of the Department set aside and award of the Deputy Commissioner affirmed, and case remanded.

WIEST, J., FEAD, C. J., and NORTH, J., dissenting.

Argued before the Entire Bench.

Robert A. Acchione, of Detroit (Milman Andrews, of Detroit, of counsel), for appellant.

Mason, Davidson & Mansfield, of Detroit, for appellees.

BUTZEL, Justice.

On June 7, 1928, while Ernest Napolion was working for the National Concrete Metal Forms Corporation, floor forms used in the construction of a concrete floor in the Union Guardian Building, Detroit, collapsed.Plaintiff with several others fell a distance of from 13 to 16 feet on to the steel reinforcing rods or mesh of the floor below.Plaintiff claims that, in addition to spraining his left wrist, he wrenched his back so that it resulted in a hemorrhage of the spinal cord and he thus became permanently disabled.Immediately after the accident, he was taken by defendants' superintendent, under whose supervision he worked, to the first aid room of the main contractor from whom plaintiff's employer held a subcontract.Plaintiff's wrist was bound up and he continued to work during the day.As he still complained the following day, he was taken by the foreman to a doctor employed by defendants.Plaintiff claims that he complained of the pains in his back as well as in his wrist.An X-ray picture was taken of the swollen wrist.The doctor felt the back, but evidently thought little of the injury, for he prescribed no treatment for the back and permitted plaintiff to return to work.Plaintiff continued to work with but few interruptions for approximately seven months after the accident.The employer filed a noncompensable report on July 11, 1928, stating therein that the nature of the injury was a sprained wrist; that plaintiff lost no time, but returned to work the same day.Plaintiff claims that the disability from the injury to his back became progressively worse, forcing him to slow down in his work so that he was finally discharged the forepart of January of the following year.He testified that he had continuous pains in the back after the accident and that he gradually became lame; that in the latter part of December, 1928, he asked his foreman or supervisor for compensation, and again the following month, but that both times the foreman merely laughed at him and walked away, and that shortly after the second requestplaintiff was discharged.

The foreman testified that plaintiff never asked for compensation and left defendants' employ in order to open a small grocery store; that the peculiarity in plaintiff's walk had existed prior to the accident.In January, 1929, the month in which plaintiff left defendnats' employ, plaintiff was suffering from a very serious condition affecting his back.He was treated for eight or nine months by a physician, who testified that he believed plaintiff was suffering from myelitis, but could not state definitely whether it was caused by a fall or by syphilis; that the treatment in either case would be practically the same.The physician had not preserved his notes in regard to the case, and was somewhat indefinite in his testimony owing to the lapse of time since the treatment.Although plaintiff became disabled in January, 1929, he did not file application for adjustment of claim until November 13, 1934.This was over six years and five months after the accident occurred, but less than six years after he became so disabled as to be unable to work and entitled to compensation.Plaintiff is an illiterate colored man.He claims he consulted attorneys in reference to filing a claim for compensation, but that he did not have the funds to pay the fees asked of him.

The deputy labor commissioner awarded plaintiff full compensation of $18 per week for total disability from January 4, 1929.Upon application for review, the commission reversed the order of the deputy commissioner.A question of fact arose as to whether plaintiff immediately after the accident did not also report the injury to the back to the doctor.Plaintiff states that he told the doctor, ‘my arm is hurt and my back.I fell on my left side and my back’; that the doctor examined his back, hip, and arm, and ran his two thumbs down the back, but did not look at the back.The record of the doctor, to whom plaintiff was taken the day following the accident, does not show any injury to the back.

It is evident that on June 8, 1928, no importance was paid to the injury to the back by the doctors, as only the sprained wrist was treated.The fact that plaintiff immediately returned and continued to work for the next six months, with only an occasional day or two off, tends to establish the correctness of the report in only describing the injury to the wrist.Plaintiff, however, claims that he continued to complain about the pain in his back to the foreman and that he asked him for compensation in December, 1928, and also the following month.

The opinion of the commission is so confusing that it is difficult to reconcile various statements.It states that the report of the noncompensable accident filed by the defendant was entirely proper in form at the time it was made, and that there was no evidence that defendant had any knowledge of this being a compensable accident until November, 1934.However, the commission then proceeds to discuss the testimony and states that:

‘Assuming we reject the testimony of the foreman, who testified plaintiff never made any claim for compensation and accepting the testimony that he did claim compensation within six months after the accident but was refused it, we are next confronted with the situation that plaintiff has not asserted his claim or taken any steps to collect compensation within a reasonable time which the supreme court has definitely held must be done.’

This latter statement casts doubt upon the former statement and does not base the opinion on a finding that no claim for compensation was made.The reversal of the award of...