Pulley v. Detroit Engineering & Mach. Co.

• Decision Date: 04 October 1966
• Docket Number: No. 4,4
• Citation: 145 N.W.2d 40,378 Mich. 418
• Parties: Robert H. PULLEY, Jr., Plaintiff and Appellant, v. DETROIT ENGINEERING AND MACHINE COMPANY, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 40

145 N.W.2d 40

378 Mich. 418

Robert H. PULLEY, Jr., Plaintiff and Appellant, v. DETROIT ENGINEERING AND MACHINE COMPANY, Defendant and Appellee.

No. 4.

Supreme Court of Michigan.

Oct. 4, 1966.

Markle & Markle, by Fergus Markle, Detroit, for appellant.

Lacey & Jones, T. F. Felker, Detroit, for appellee.

Before the Entire Bench.

O'HARA, Justice.

This is an appeal upon leave granted from a decision ¹ of the court of appeals. The decision affirmed a denial of compensation made by the workmen's compensation appeal board. The board's order reversed the decision of the hearing referee, which had required payment to the appellant of compensation benefits based on a finding of total disability.

It is stipulated that at the time of his injury, appellant was engaged in common labor. He was operating a punch press. The press malfunctioned, injuring plaintiff severely and resulting in the amputation of his left hand diagonally from the second metacarpal. It is beyond discussion that he has lost the industrial use of the hand. He was paid for the specific loss period of 215 weeks. In the meantime, he was reemployed by appellee in a clerical capacity at a wage equal to or greater than that he had earned previous to his injury. The record leaves no doubt that the employer-appellee made every possible effort toward plaintiff's rehabilitation. The work to which appellant was assigned was found by the appeal board to be 'a regularly recognized occupation and not made work.' This finding of fact is binding upon us. ² Citations to cases would be superfluous.

After some time, appellant became dissatisfied with his work. He found, he testified, that its clerical nature made him nervous. With medical support for this contention, he asked for and received a leave of absence. He went to his birthplace in Tennessee. He did not return at the end of his leave, which expired on or about April 20, 1960. He stayed on in Tennessee until March of 1961. In that year he worked briefly in a garage as an assistant service manager. So far as the record discloses this job terminated for lack of work. Upon his return to Detroit, the place of his injury and prior employment he sought work only from his former employer. He was advised no work was available, and thereupon he filed a claim for additional benefits. The referee found total disability and consequent payment until further order of the department.

The Michigan workmen's compensation law ³ provides for the payment of a weekly benefit to an injured employee claiming partial or total disability, under §§ 9 or 10 of part 2 of the act, of 66 2/3% Of his average weekly wages before the injury but in no case does it permit such claimant to receive benefits which, when added to his current wage-earning capacity, would exceed his average weekly earnings at the time of injury. ⁴ His wages before the injury are a known factor. What he is 'able' to earn thereafter is a matter of proof and an issue of fact. Because our law does not award benefits for industrial injury and consequent disability alone, a body of case law has of necessity grown up interpreting the statutory term 'weekly wage loss.' Presumably and actually, an employee can be injured, disabled to a degree and yet suffer no weekly wage loss because he is shown to be able to earn, an amount equal to or greater than that which he was earning at the time of his injury. In many instances from the highest motives of desire to rehabilitate the employee and restore him as a wage-earning member of society, some employers have retained injured employees in new jobs within their capacity to perform. It is not difficult to perceive however, that an ill-intentioned employer desirous of avoiding compensation payments could rehire an injured and disabled employee, establish his capacity to earn as much or more than before his injury and terminate his employment. Then, if the bare elements of proof of what the employee was paid were construed as establishing his 'earning capacity the whole purpose of the act would be vitiated.

Thus, the method of determining the employee's earning capacity, as that term is used in the act, is a complex of fact issues which are concerned with the nature of the work performed and the continuing availability of work of that kind, and the nature and extent of the disability and the wages earned. This determination by legislative enactment is reposed in the workmen's compensation department. Justice Wiest stated the proposition thus: ⁵

'We do not weigh the evidence. The weighing scale is in other hands, and, even if we think it out of balance, we cannot reweigh.'

We properly do prescribe and have prescribed the statutory interpretation of 'wage-earning capacity.' It appears in Hood, supra, and it was quoted with approval in Pigue v. General Motors Corporation, 317 Mich. 311, at pp. 316--317, 26 N.W.2d 900, at p. 903:

"What is meant by the term 'wage earning capacity after the injury'? It is not limited to wages actually earned after injury, for such a holding would encourage malingering, and compensation is not a pension. On the other hand mere capacity to earn wages, if 'nondescript' by reason of injury, affords no measure unless accompanied by opportunity to obtain suitable employment. Opportunity is circumscribed by capacity of the injured and openings to such a wage earner."

Under the foregoing rule, the appeal board found as follows:

'On May 27, 1957 this employer manifested commendable concern over plaintiff's misfortune and offered him a clerical job in its planning and scheduling department. This was a regularly recognized occupation and not made work.' (Emphasis supplied.)

The following excerpt from the record describes the work in question:

'Q. And what exactly was he performing?

'A. In the automobile business you ship parts to automobile assembly plants all over the United States. His job was to record those shipments by assembly plants on our records so that we would know whether we were up to schedule with our customers or not.

'Q. I see. Is that a necessary function of your department?

'A. Very necessary.'

We cannot, under such record, disturb the finding of the appeal board that the work appellant was performing was 'a regularly recognized occupation and not made work.' This wording, it would seem, may have been used in the finding by reason of the language of Mr. Justice Fead in Markey v. S. S. Peter & Paul's Parish, 281 Mich. 292, at pages 299--300, 274 N.W. 797, at page 800:

'When an employee accepts work and receives wages therefor in a recognized regular employment, with the ordinary conditions of permanency, as here, there is no room for argument that he has not thereby established a present earning capacity equal to such wages, whatever may be his physical condition.'

Thus, while appellant was so employed and his wages were equal to or greater than those received at the time of his injury, which is not disputed, he was not entitled to compensation benefits.

It is undisputed that he left his work of his own volition. His counsel argues with commendable vigor that to hold that he had to remain in such employment or forfeit his rights under the compensation act 'creates nothing less than a form of serfdom or slavery.' We would quickly agree, were the premise correct. We think, in the ardor of his advocacy, counsel overlooks an important point. It was not the fact of his voluntary leaving this employment that resulted in his loss of compensation benefits. To leave was his prerogative. He was not receiving any benefits at the time he left, nor under the act was he entitled to any. He had established a wage-earning capacity equal to or greater than the wages he was receiving at the time of his injury. When he filed an application for additional benefits, he became the moving party and his was the burden of proving that his inability to obtain employment was the result of his injury and disability. Certainly, because he had established such capacity did...