Palchak v. Murray Corp. of Am.

• Decision Date: 27 June 1947
• Docket Number: No. 53.,53.
• Citation: 28 N.W.2d 295,318 Mich. 482
• Parties: PALCHAK v. MURRAY CORPORATION OF AMERICA.
• Court: Michigan Supreme Court

318 Mich. 482

28 N.W.2d 295

PALCHAK

v.MURRAY CORPORATION OF AMERICA.

No. 53.

Supreme Court of Michigan.

June 27, 1947.

Appeal from the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Law by Margaret Palchak, claimant, opposed by the Murray Corporation of America, employer, to recover further compensation for injuries. A deputy commissioner of the Department of Labor and Industry made an award to claimant for total disability, and the employer appealed to the Compensation Commission. From an order of the commission modifying and affirming the deputy commissioner's award, the employer appeals, in the nature of certiorari.

Award affirmed.

Before the Entire Bench.

Charfoos, Gussin & Weinstein, of Detroit for plaintiff-appellee.

Buell A. Doelle, of Detroit, for defendant-appellant. defendant-appellant.

CARR, Chief Justice.

While in the employ of defendant on July 7, 1943, plaintiff sustained an injury to her right eye, of such a character as to be compensable under the provisions of the workmen's compensation law of this State, Act No. 10, Pub.Acts 1912, 1st Ex.Sess., as amended, 2 Comp.Laws 1929, § 8407 et seq., Stat.Ann. § 17.141 et seq. A small piece of steel which she was endeavoring by the use of pliers, to insert into an airplane wing assembly, slipped, striking the eye in such manner as to cause a laceration of the cornea as well as other injuries to the member. Some two or three weeks later it became necessary to remove a part of the lens in order to alleviate the resulting condition. Following this operation plaintiff was discharged from the hospital on August 11, 1943. Under date of September 20, 1943, defendant filed its report of the injury to plaintiff with the department of labor and industry.

Three or four months after the injury plaintiff resumed her employment at the plant of the defendant. Her work then consisted of inserting screws in pieces of metal. She continued at this labor for nearly a year, receiving treatment during such period for the eye condition. She was again hospitalized in July, 1944, at which time a second operation on the eye was performed. Thereafter she was again employed by defendant until November 20, 1944, when she was laid off because of lack of work.

An agreement between plaintiff and defendant was filed with the compensation commission of the department of labor and industry on September 24, 1944, reciting that plaintiff had lost industrial vision in her right eye on July 7, 1943, and providing for compensation at the rate of $18 per week for a total of 100 weeks from the date of the injury. This agreement was approved by the compensation commission, and defendant made payments in accordance with its terms for the period referred to therein.

Early in 1945, plaintiff entered the employ of the Pittsburgh Die and Casting Company, at Swissville, Pennsylvania, where she worked until the middle of June, 1945, when she quit because she caught her hand in a press and was fearful of further injury. Shortly thereafter she went to California where she was employed in a drug store for a short period in October. It is her claim that she quit this employment because of difficulty in distinguishing various pieces of money that she was required to handle in her work.

On November 27, 1945, plaintiff filed a petition for further compensation, in which she referred to the accidental personal injury sustained by her on July 7, 1943, and the compensation that had been paid under the agreement above mentioned. She stated further that since July 5, 1945, she had been disabled in the employment in which she was engaged at the time of the injury and was, for that reason, entitled to further compensation. She further alleged that her condition had become progressively worse, to such an extent that her earning capacity was thereby affected. Based on these averments she asked that she be granted such relief as ‘she is entitled to under the workmen's compensation law of Michigan.’ To this petition defendant filed its answer, asserting, among other defenses raised, that plaintiff was not entitled to relief because she had failed to give proper notice to defendant of the condition for which she sought compensation, and that she had not made proper claim therefor. A hearing before a deputy commissioner of the department of labor and industry resulted in an award to plaintiff of $18 per week for total disability, beginning June 6, 1945. On appeal the compensation commission modified the award in accordance with its finding that plaintiff had been totally disabled since July 1, 1945, and payment of compensation was ordered to begin from the later date. In other respects the commission's order affirmed the award of the deputy. From such order defendant has appealed.

After discussing the evidence in the case at some length the compensation commission summarized its findings as follows: ‘We find that plaintiff has been totally disabled since July 1, 1945 as the result of the accidental personal injury she sustained on July 7, 1943 when employed by the Murray Corporation of America. We further find that plaintiff's disability is due to a definite pathology in the injured eye which is separate and apart from and in addition to that caused by the loss of vision in the right eye. We further find that such complications are not the usual and natural result of the loss of vision in an eye. We further find there is no relationship between the disabling symptoms and the loss of vision in the right eye except that both are due to the accident.’

The commission also found specifically that there was no ‘pathology other than that caused by the direct injury to the right eye.’ Dr. Barnett, an opthalmologist, testified in plaintiff's behalf, and stated that on an examination made by him he found that the lens had been removed from the eye, but the greater part of the capsule remained and had undergond degenerative changes resulting in the formation of little cysts. He testified further that these cysts might break, causing irritation and releasing fluid. It is plaintiff's claim in substance that the condition causing her disability at the time she filed her petition for further compensation manifested itself in headaches, irritation, and ‘tearing’ of the eye.

The findings of fact set forth in the opinion of the compensation commission are supported by evidence and are, therefore, binding on the court. Comp.Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943, Comp. Laws Supp.1945, § 8451, Stat.Ann.1946 Supp. § 17.186, Tjernstrom v. Ford Motor Co., 285 Mich. 450, 280 N.W. 823;Hayward v. Kalamazoo Stove Co., 290 Mich. 610, 288 N.W. 483;Ryder v. Johnson, 313 Mich. 702, 22 N.W.2d 43. On the basis of such finding the situation before us involves an injury to the eye, resulting, first, in immediate loss of vision, for which loss compensation has been paid, and, second, in the development and final manifestations of the condition for which plaintiff seeks further compensation in this proceeding.

Defendant does not question the specific findings of fact set forth in the opinion of the compensation commission. It contends, however, that the award made should be set aside because of plaintiff's failure to give defendant notice of the condition for which she sought compensation under her petition of November 27, 1945, and to file her claim based on such alleged condition within the time prescribed by statute. As before noted, both of these defenses were raised by the answer to plaintiff's petition. It is claimed that the provisions of Comp.Laws 1929, § 8431, ^*Stat.Ann. § 17.165, are applicable. Said section, as of the date of the injury, read as follows:

Ԥ 17.165. Notice of injury or death; claim for compensation; time limit. Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three [3] months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six [6] months after the occurrence of the same; or, in case of the death of the employe, within six [6] months after said death; or, in the event of his physical or mental incapacity, within the first [1st] six [6] months during which the injured employe is not physically or mentally incapacitated from making a claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three [3] months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six [6] months after the happening of the accident, but does develop and make itself apparent at some date subsequent to six [6] months after the happening of the same, claim for compensation may be made within three [3] months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employe, but no such claim shall be valid or effectual for any purpose unless made within two [2] years from the date the accidental personal injury was sustained: And provided further, That any time during which an injured employe shall be prevented by reason of his physical or mental incapacity from making a claim, shall not be construed to be any part of the six [6] months' limitation mentioned in this section: And provided further, That in all cases in which the employer has been given notice of the happening of the accident, or has notice or knowledge of the happening of said accident, within three [3] months after the happening of the same, and fails, neglects or refuses to report said accident to the industrial accident board as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employe or his dependents, or in favor of...