Shaw v. Gen. Motors Corp.

• Decision Date: 16 February 1948
• Docket Number: No. 26,Jan. Term.,26
• Citation: 31 N.W.2d 75,320 Mich. 338
• Parties: SHAW v. GENERAL MOTORS CORPORATION, CHEVROLET GEAR & AXLE DIVISION.
• Court: Michigan Supreme Court

320 Mich. 338

31 N.W.2d 75

SHAW

v.GENERAL MOTORS CORPORATION, CHEVROLET GEAR & AXLE DIVISION.

No. 26, Jan. Term.

Supreme Court of Michigan.

Feb. 16, 1948.

Appeal from Department of Labor and industry.

Proceeding under the Workmen's Compensation Act by Minnie Shaw, employee, opposed by General Motors Corporation, Chevrolet Gear and Axle Division, employer. From an award of compensation to employee, the employer appeals.

Affirmed.

Before the Entire Bench, except BUTZEL, J.

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

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

CARR, Justice.

Plaintiff herein sustained an injury, in February, 1944, while working in the employ of defendant. It is her claim that while carrying two drums, weighing approximately 35 pounds each, she slipped, or stumbled, and fell, injuring her shoulder. She reported the occurrence to her foreman and was directed to the first aid department maintained by defendant. After receiving treatment there she reported again to her foreman, informing him that she could not resume her regular work because her arm was hurting her. Thereupon she was assigned lighter employment, in which she continued until the latter part of August, 1945, when she was laid off with other employees. She was not subsequently employed, but did apply for and received unemployment compensation insurance.

On June 6, 1946, plaintiff filed her application for compensation under the workmen's compensation act 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.) with the department of labor and industry. Defendant filed its answer thereto, denying plaintiff's right to benefits under the act, and asserting in support of such denial, among other reasons, that plaintiff had not sustained a compensable injury arising out of and in the course of her employment and that claim for compensation had not been made within the time prescribed by the statute above cited. Following hearing before a deputy of the department, plaintiff was awarded compensation at the rate of $21 per week until further order. The compensation commission of the department sustained the award. Having obtained leave from this court, defendant has appealed.

Plaintiff was a witness in her own behalf on the hearing before the deputy commissioner, testifying to the manner in which the accident happened, and the resulting injury to her shoulder. She also testified that the injury continued to cause her trouble and that she went to defendant's first aid department for treatment on an average of one or twice a week as long as her employment continued. She further claimed that because of the injury she lost an average of one day per week during the time that she remained in defendant's employ.

A physician who had examined plaintiff testified, in substance, that she was suffering from a painful enlarged supraspinatus bursa which might have resulted from trauma, for which condition the physician recommended excision. Defendant introduced medical testimony at variance with that given by plaintiff's witness. The deputy, and the compensation commission on appeal, determined the controverted issues in favor of plaintiff, sustaining her claim to compensation. The findings of fact are summarized in the commission's opinion as follows: ‘We find as a fact that the plaintiff sustained an accidental personal injury arising out of and in the course of her employment in February 1944; that the defendant had notice but failed to file report; that more than eight days' time was lost as a result of the accident, and that since the defendant failed to report the matter, claim for compensation is timely filed. We further find that the plaintiff is still totally disabled as a result of the injury, and is entitled to the compensation as awarded by the Deputy Commissioner.’

It is not disputed that the injury sustained by plaintiff arose out of and in the course of her employment. Defendant contends, however, that there was no evidence before the department to show that plaintiff sustained a compensable disability. Emphasis is placed on plaintiff's continuance in the employ of the defendant for approximately 18 months after she sustained the injury to her shoulder, and on the fact that the record does not show that her wages in the lighter employment given her were less than prior to the accident. It is argued that such employment after the injury raises a presumption that plaintiff did not suffer a loss in earning capacity.

In support of its contention defendant relies on MacDonald v. Great Lakes Stell Corp., 274 Mich. 701, 265 N.W. 776. There plaintiff was granted compensation based on the difference between his average weekly earnings at the time of his injury and his wage-earning capacity thereafter. From such award he appealed on the ground that the reduction therein on the basis indicated was improper. In sustaining the action of the department this court said:

‘He makes not showing of change of physical condition or ability to work, of inability to obtain a job, that he belongs in the class of ‘nondescript’ or ‘odd lot’ labor, Hood v. Wyandotte Oil & Fat Co., 272 Mich. 190, 261 N.W. 295, nor that otherwise there has been a change in his actual earning capacity since his discharge. The board refused to reinstate the original award on the ground that a wage-earning capacity had been established by the employment and no change in such capacity had been shown.

‘The action of the board amounts to a ruling that the actual earning of wages establishes an earning capacity under the proviso in [2 Comp.Laws 1929] section 8427[e], that, prima facie, such earning capacity continues after the discharge of the employee from the employment in which the wages are earned and that the burden of showing a change of earning capacity when the employment ceases (in order to reinstate the original award or to decrease the set-off against it) is upon the employee. This is merely an application of the rule that the burden of proof of right to compensation and its amount is on the employee. The prima facie assumption of continuance of earning capacity is in accord with ordinary human experience and not unfair.

‘The ruling does no require the employee to show a change of physical condition after his discharge, nor does it prevent his showing his actual earning capacity after the employment ceases, as affected by his physical condition, his ability to work, the market for his labor, and other pertinent circumstances.

‘Plaintiff having failed to present evidence to rebut the prima facie showing of earning capacity resulting from actual employment, the award is affirmed.’

In Hood v. Wyandotte Oil & Fat Co. [272 Mich. 190,261 N.W. 296], cited in the above quotation, it was said:

‘An injured person may recover to the point where he can, if favored, perform special service, if such is obtainable, but if none can be obtained because of his injury, his capacity to work and earn cannot be measured against his incapacity. If his injury isolates him from employment, then, of course, he is not to be held to have capacity to work and earn wages. If his injury has reduced his capacity to work and relegated him to the rating of ‘odd lot’ or ‘nondescript’ workers for whom labor openings are extremely limited, then opportunity, within his capacity, should be made to appear. * * *

‘The board found total disability. 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. There was evidence that plaintiff has no wage earning capacity by reason of his injuries and inability to obtain employment in his handicapped condition.’

In the case at bar rebuttal testimony of the character referred to by the court in the language above quoted was offered on behalf of plaintiff. She testified before the deputy commissioner that, because of the condition of her shoulder, she was at the time of the hearing unable to work, that the condition was ‘getting worse’, and that the pain was continuous. Her medical witness further testified that the bursitis, because of its character and location, was very painful. The department found a condition of total disability, which finding is supported by plaintiff's proofs. It must be said, therefore, that any presumption of earning capacity resulting from the fact that plaintiff was employed by defendant at very light work for approximately18 months after the injury yields to the proof tending to show her actual physical condition as of the...