Tarnow v. Railway Exp. Agency, 50
| Decision Date | 03 December 1951 |
| Docket Number | No. 50,50 |
| Citation | 331 Mich. 558,50 N.W.2d 318 |
| Parties | TARNOW v. RAILWAY EXPRESS AGENCY. |
| Court | Michigan Supreme Court |
Joseph S. Folz, Kalamazoo, for appellant.
Edward J. Ryan, Kalamazoo, for appellee.
Before the Entire Bench.
Plaintiff Herbert A. Tarnow, on October 10, 1938, while loading a packing case at the Kalamazoo station of defendant Railway Express Agency, slipped and injured his back. He was paid compensation to December 24, 1938, when he returned to work to help out during the holiday rush season. A settlement receipt was then filed and approved.
Tarnow's work thereafter was of a clerical nature and did not involve heavy lifting. Although wearing a brace, he suffered increasing pain and was unable to continue work after March 10, 1944.
A complete physical examination with a myelogram, on August 11, 1949, showed a 'ruptured intervertebral disc, or a nucleus pulposus.' A persistent lumbar defect was observed with a fluoroscope. An operation performed in October of 1949 disclosed an old ruptured disc, described by his physician as 'pretty well disintegrated, bettered up; an old disc in the spaces between lumbar 3 and lumbar 4,' to which the accident of October 10, 1938, was attributed as the 'likely cause.'
An application for hearing and adjustment of claim, dated September 30, 1949, was received by the commission on October 14, 1949.
The deputy commissioner, after a hearing on January 13, 1950, held on July 31, 1950, that Tarnow was not entitled to compensation.
On appeal the deputy's award was reversed by the commission and one was entered November 21, 1950, granting compensation at $18 per week from March 10, 1944 (the date when Tarnow ceased working) to May 20, 1948, the end of the 500-week compensable period.
The situation presented, the statutory problem relating thereto, and the reasoning of the commission in support of its award are tersely stated in the following quotation from the opinion of the commission:
'These proceedings for further compensation were commenced on October 14, 1949, approximately seventeen months after the expiration of the 500-week compensable period. Defendant contends that plaintiff's right to further compensation is barred for failure to bring proceedings within the 500-week period and by section 14 of part III of the workmen's compensation act as amended by Act 245 of the Public Acts of 1943.
'There can be no doubt that proceedings for further compensation may be commenced after the expiration of the 500-week period if the petitioner has not been paid compensation for either total or partial disability up to the end of that period. See Murray v. Ford Motor Company, 296 Mich. 348 , where proceedings for further compensation were started approximately four months after the expiration of the 500-week period.
'The amended section 14 of part III on which defendant relies as a bar to plaintiff's recovery in this proceeding reads as follows:
"If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.' That provision became effective July 30, 1943. It was not in effect at the time of the injury. Does it apply to a petition for further compensation filed several years after its enactment but relating to an injury which occurred several years prior to its enactment? The right to petition for further compensation is a substantive right. Plaintiff had the right without the limitation of section 14 at the time the accident occurred. That right was a benefit which accrued to him when the accident happened. That right was a contractual right that existed because his employer had elected to be subject to the workmen's compensation act. The act was then elective and not compulsory. The provisions of the workmen's compensation act were a part of the contract of hire. The provisions of the act in effect when the accident occurred, being a part of the contract of hire, are controlling of the substantive rights of the plaintiff. Those rights became vested in him by amendment. Plaintiff's right to proceed for further compensation is controlled solely by the provisions of the act in effect when the accident happened.'
If the 1943 amendment is applicable, since plaintiff's application for further compensation was not filed until 17 months after the expiration of the 500-week compensable period, and the amendment precludes the allowance of compensation for more than one year prior to the date of filing such application, plaintiff is barred from recovery because the one year retroactive period began five months after the expiration of the compensable period.
Plaintiff argues that he acquired a contractual vested right to compensation at the time of his injury, which could not be affected by the 1943 amendment. He urges the view that this amendment is not a procedural one in the nature of a statute of limitation, as argued by defendant. He bases his argument upon the absence of language restricting the time within which his claim for further compensation must be filed or asserted.
Plaintiff, in answer to defendant's argument that the claim, if it became a vested right in 1938, is barred by the six-year statute of limitation, as applied in Hajduk v. Revere Copper & Brass, Inc., 268 Mich. 220, 255 N.W. 770, and Ardelian v. Ford Motor Co., 272 Mich. 117, 261 N.W. 267, says the statute of limitations under Scalzo v. Family Creamery Co., 308 Mich. 587, 14 N.W.2d 505, bars only those payments which do not fall within six years prior to filing of the claim for further compensation.
Did the contractual obligation to pay further compensation arise in 1938, the time of Tarnow's injury, or in 1944 when, because of conditions resulting from that injury, he was no longer able to work?
Tarnow's right to compensation arose at the time of the injury, and he was so paid until he returned to lighter work and payment of compensation was then suspended. If he again became unable to work due to conditions resulting from his injury, he would have been entitled, upon proper proof, to further compensation for the unexpired portion of the 500-week compensable period.
"The law which must control the compensation to be paid is that which was in effect at the time the tight to the compensation springs into existence." Thomas v. Continental Motors Corp., 315 Mich. 27, 23...
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...persons who were injured before January 1, 1982, the Court of Appeals relied, in Franks, on the statement in Tarnow v. Railway Express Agency, 331 Mich. 558, 50 N.W.2d 318 (1951), that the law in effect at the time of injury controls an employee's right to workers' compensation benefits. Th......
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...Co. (1944), 308 Mich. 305, 13 N.W.2d 829; Scalzo v. Family Creamery Co. (1944), 308 Mich. 587, 14 N.W.2d 505; Tarnow v. Railway Express Agency (1951), 331 Mich. 558, 50 N.W.2d 318; Babcock v. General Motors Corp. (1954), 340 Mich. 58, 64 N.W.2d 917.5 It should be noted that as early as 1935......
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