Pigue v. Gen. Motors Corp.

• Decision Date: 08 April 1947
• Docket Number: No. 47.,47.
• Citation: 26 N.W.2d 900,317 Mich. 311
• Parties: PIGUE v. GENERAL MOTORS CORPORATION, OLDSMOBILE DIVISION.
• Court: Michigan Supreme Court

317 Mich. 311

26 N.W.2d 900

PIGUE

v.GENERAL MOTORS CORPORATION, OLDSMOBILE DIVISION.

No. 47.

Supreme Court of Michigan.

April 8, 1947.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Dwayne L. Pigue, claimant, opposed by General Motors Corporation, Oldsmobile division, employer. From an award of the Department of Labor and Industry granting claimant total disability compensation, employer prosecutes an appeal in the nature of certiorari.

Award vacated.

Before the Entire Bench, except BUTZEL, J.

Henry M. Hogan, of Detroit (G. W. Gloster, E. H. Reynolds, and R. V. Hackett, all of Detroit, of counsel), for defendant-appellant.

Raymond H. Rapaport, of Lansing, for plaintiff-appellee.

SHARPE, Justice.

Leave having been granted, defendant appeals from an award of the department of labor and industry entered July 10, 1946, granting plaintiff compensation at the rate of $21 per week for total disability from November 21, 1945, to March 14, 1946.

Plaintiff was injured on June 29, 1944, while in the employ of defendant company as a machine repair helper. He fell from a scaffold, striking his shoulder and the back of his head and injuring his chest. Following the injury plaintiff was paid compensation from July 13, 1944, to August 26, 1944, and from February 5, 1945, to March 24, 1945.

After his injury, plaintiff was given a job by defendant doing clerical work. It has been stipulated that on March 14, 1946, plaintiff returned to clerical work of the same character which he was doing up to the time of the strike with wages at the rate of $1,325 per hour; that on March 19, 1946, his rate was increased to $1.375 per hour; and that plaintiff is still employed by defendant company at this rate of pay.

In appealing, defendant urges that there is no competent evidence that plaintiff's disability is the result of the injury. Plaintiff testified that he was first employed by defendant corporation June 10, 1936, was given a physical examination, including X-rays; that from the time he was first employed until the date of the accident, he did heavy work and lost no time because of sickness or ill health; and that while his shoulder condition has healed satisfactorily, nevertheless, he suffers severe pains in his chest which come on with any appreciable amount of exertion.

Dr. Cyrus B. Gardner, a witness produced by plaintiff, testified as follows:

‘Q. Doctor, what would your opinion be as to disability since the date of the accident right up on through the present? Would he in your opinion be able to do heavy work or any work involving lifting in any of that period? A. Yes, I think he can do it, because he is a strong, powerful man, but I feel it would be injudicious and put his life in jeopardy if he did heavy physical exercise. I think if that man ran half a block he might drop dead. I think that is a dangerous thing, and so I advised him against it.

‘Q. And would it in your opinion be painful for him to do heavy work? A. Be painful?

‘Q. Yes. A. Well, that is a matter which he himself could only evaluate. I think he is probably telling the truth about that, if he does have pain when he does heavy work. His blood pressure would indicate that that might be true, not only possible but entirely probable.

‘Q. Well, doctor, assuming the fact that you have stated to be true and adding to them further the fact that prior to the time of the accident he was a well, healthy, and able-bodied man, had never had any difficulty in his chest region, and tells us that he worked steadily at more or less heavy work up to that time without any difficulty, would you have an opinion as to whether or not there might be a causal connection between his present condition and the accident? A. I would have an opinion.

‘Q. What would your opinion be, doctor? A. It would seem that the only logical conclusion to draw would be to the effect that there was a causal relationship between this accident which was a severe accident and the pain which he seems to have had since that time.’

In compensation cases we review the record to determine if there is competent evidence to support the finding of facts, see Putnam v. Beechler, 299 Mich. 552, 300 N.W. 880.

In our opinion there is competent testimony to sustain the finding of fact that plaintiff was totally disabled from doing the work he had been doing at the date of the injury of June 29, 1944.

The pivotal question in this case relates to plaintiff's right to compensation during the period of a strike called by a union of which he is a member. The department of labor and industry awarded plaintiff compensation during this period, stating:

‘The remaining question is whether the defendant is entitled to be relieved from the payment of compensation during the plaintiff's aforementioned period of disablement because of the fact that he was a participant in a strike called by the union of which he is a member. We think not. The Workmen's Compensation Law obligates an employer operating thereunder to pay compensation benefits to employees who are either totally or partially disabled because of injuries arising out of and in the course of their employment. The foregoing requirement is subject only to the limitation that compensation payments may be either reduced or entirely omitted when the employer provides the employee with suitable employment at which he is able to earn wages at least equal to those being received at the time of his injury. The employer's inability to provide suitable employment at equal wages, be it from lack of materials or lack of demand for its products or inability to operate its plant for the reason appearing in this case, namely, a plant strike, is not, in our opinion, a sufficient cause to relieve it from the payment of compensation benefits, and we so find; see Sotomayor v. Ford Motor Co., 300 Mich. 107, 1 N.W.2d 472, and authorities cited therein. An order will be entered affirming the award of the Deputy Commissioner.’

In coming to our conclusions on this question we take into consideration that plaintiff was given light employment at wages equal to or greater than he received at the time of his accidental injury; that he was a member of the union that called a strike on November 21, 1945; and that but for this strike plaintiff would have remained in the employ of defendant company with no lessening of wages.

The principle upon which compensation is awarded is, that the employee has suffered a loss in his wage earning capacity as a result of a compensable injury suffered while in the employ of his employer.

In Levanen v. Seneca Copper Corp., 227 Mich. 592, 199...