Smith v. Pontiac Motor Car Co.

• Decision Date: 08 December 1936
• Docket Number: No. 130,April Term.,130
• Parties: SMITH v. PONTIAC MOTOR CAR CO.
• Court: Michigan Supreme Court

277 Mich. 652

270 N.W. 172

SMITH

v.PONTIAC MOTOR CAR CO.

No. 130, April Term.

Supreme Court of Michigan.

Dec. 8, 1936.

Certiorari from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Edd Smith, claimant, opposed by the Pontiac Motor Car Company, a division of General Motors Corporation, employer, wherein the employer filed petition to stop compensation. The Department of Labor and Industry declined to issue an order stopping compensation, and employer brings certiorari.

Affirmed.

Argued before the Entire Bench.

Albert Summer, of Detroit, for plaintiff.

J. G. Stevenson and E. C. McDonald, both of Detroit, for defendant.

POTTER, Justice.

August 28, 1933, plaintiff was injured while in the employ of defendant. He was awarded and paid compensation for total disability for a limited time, and later for partial disability to December 18, 1934, after which, on February 5, 1935, a petition to stop compensation was filed by appellant. Plaintiff's wages were 42 cents an hour when he was injured. At the time of the hearing on defendant's petition to stop compensation, plaintiff was receiving 58 cents an hour. Both jobs were at common labor. The Department of Labor and Industry declined to issue an order stopping compensation, and defendant brings certiorari.

The Workmen's Compensation Act substitutes statutory compensation for common-law liability for negligence and the defenses thereto. It aims to make the employer of labor compensate the laborer for his injuries without regard to negligence; to make the industry in which the employee is injured bear the loss resulting from the personal injuries of employees therein upon the same principle depreciation and obsolescence of equipment are made a charge against industry. The injured employee is entitled to compensation for decreased earning capacity due to injuries arising out of and in the course of his employment. Compensation is supposed to ‘fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident.’ 2 Comp.Laws 1929, § 8427.

‘The test of an injured employee's right to compensation is his inability by reason of the accident to work and earn wages in the employment at which he was engaged when injured.’ Levanen v. Seneca Copper Corporation, 227 Mich. 592, 199 N.W. 652, 655. See, also, Runnels v. Allied Engineers, Inc., 270 Mich. 153, 258 N.W. 230;MacDonald v. Great Lakes Steel Corporation, 274 Mich. 701, 265 N.W. 776.

No question is raised but that plaintiff was injured, his capacity to earn wages impaired, and that his physical condition has not changed since the last award made by the Department of Labor and Industry.

Up until the enactment of Act No. 376, Pub.Acts 1927, and in many cases since that time, it has been the holding of this court there could be no change in the award made by the Department of Labor and Industry upon a petition to stop compensation where there had been no change in the employee's physical condition. Beckwith's Estate v. Spooner, 183 Mich. 323, 149 N.W. 971, Ann.Cas.1916E, 886;Pocs v. Buick Motor Co., 207 Mich. 591, 175 N.W. 125;Diebel v. Construction Co., 207 Mich. 618, 175 N.W. 126;Jones v. St. Joseph Iron Works, 212 Mich. 174, 180 N.W. 374;Burley v. Central Paper Co., 221 Mich. 595, 192 N.W. 538;Anderson v. Ford Motor Co., 232 Mich. 500, 205 N.W. 588;Miller v. Keene, 232 Mich. 596, 206 N.W. 524.

When an award has been made upon an application to review payments to stop or reduce compensation to the injured employee stopping or reducing the same, upon a subsequent application for reinstatement of compensation or for an increase in the award, it has been uniformly held the employee is not entitled to an award except upon showing a change for the worse in his physical condition. Adams v. C. O. Barton Co., 274 Mich. 175, 264 N.W. 333;Dyer v. McQuistion, 273 Mich. 327, 263 N.W. 73;Roe v. Daily Record, 273 Mich. 5, 262 N.W. 330;Martin v. Kalamazoo, etc., Co., 271 Mich. 514, 260 N.W. 758;Runnels v. Allied Engineers, Inc., 270 Mich. 153, 258 N.W. 230;McKay v. Jackson & Tindle, Inc., 268 Mich. 452, 256 N.W. 480;Ammond v. Motor Specialties Co., 265 Mich. 211, 251 N.W. 327;Kilgour v. Remington-Rand, Inc., 252 Mich. 657, 234 N.W. 131;Peet v. City Bakery Co., 238 Mich. 431, 213 N.W. 692;Klum v. Lutes-Sinclair Co., 236 Mich. 100, 210 N.W. 251;Burley v. Central Paper Co., 221 Mich. 595, 192 N.W. 538;Beckwith's Estate v. Spooner, 183 Mich. 323, 149 N.W. 971, Ann.Cas.1916E, 886. These decisions are logical and consistent. But the Legislature, by Act No. 376, Pub. Acts 1927, amended the workmen's compensation statute by adding a proviso to section 11, part 2, of the act, which now stands as a part of 2 Comp.Laws 1929, § 8427(e), as follows: ‘Provided, The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.’

Upon a petition to review payments to stop compensation under this act, there is, in view of this proviso of the statute, to be taken into consideration by the Department of Labor and Industry not only the question, which was determinative before its enactment, whether there has been any change in the physical condition of the employee, but also the added question which is not necessarily dependent upon the employee's...