Webber v. Steiger Lumber Co.
| Decision Date | 12 November 1948 |
| Docket Number | No. 84,June Term, 1948.,84 |
| Citation | 34 N.W.2d 516,322 Mich. 675 |
| Parties | WEBBER v. STEIGER LUMBER CO. et al. |
| Court | Michigan Supreme Court |
Appeal from the Department of Labor and Industry.
Proceeding under the Workmen's Compensation Act by Fred Webber, claimant, opposed by the Steiger Lumber Company, employer, and the Hartford Accident and Indemnity Company to recover further compensation. The deputy commissioner found in favor of claimant, and that finding was affirmed by the Department of Labor and Industry, and the employer and insurer appeal.
Case remanded for modification of award in accordance with opinion and, in other respects, award affirmed.
Before the Entire Court.
Charles M. Humphrey and Charles M. Humphrey, Jr., both of Ironwood, Attorneys for Defendants and Appellants.
Bernard E. Larson, of Ironwood, Attorney for Plaintiff and Appellee.
This is an appeal from an order of the department of labor and industry awarding further compensation to the plaintiff-appellee, Fred Webber, on a second application for compensation after payments under first award had been stopped.
Fred Webber, the applicant, a common laborer, 46 years of age, was injured on August 8, 1945, while in the employ of the appellant, Steiger Lumber Company. A spring pole struck him on the face and head, breaking his nose and knocking him to the ground. He was not rendered unconscious. After being given first aid, the appellee went on with his work that afternoon. That evening he went to a doctor, and on the 9th he went to another doctor who operated on his nose and resected a portion of the septum. Appellee was away from work until September 20, 1945, when he returned to work for the lumber company, and he remained in its employ until his discharge on November 1, 1945. Thereafter he worked at Watersmeet for about three weeks when he was forced to quit because of fainting spells which he was having and which had caused him to fall into the river several times during this three weeks period of his employment.
Appellee was voluntarily paid compensation to September 8, 1945. He filed his first application for compensation on January 9, 1946, the alleged nature of his disability being ‘residuals of head injury and traumatic neurosis.’ The hearing on that petition before the deputy commissioner was held March 15, 1946, and there was an award of $21 per week compensation for total disability from August 9 to September 20, 1945, and from December 8, 1945, to March 15, 1946, and further payments to be made in conformity with the compensation law, with credit allowed for compensation voluntarily paid. On review the commission affirmed the award, except it ordered that the compensation was to cease as of March 15, 1946, for the reason that the commission was of the opinion that appellee was not entitled to get any further payments until and unless he proved his disability by actually trying to keep employed at some kind of work which he was capable of doing. The following appeared in the opinion of the commission:
‘We are strongly of the opinion that as of the date of hearing before the Deputy Commissioner on March 15, 1946, the claimant should have been making an effort to do some work and by this very practical means demonstrate whether he in fact has any disability attributable to his injury.’
Webber thereafter went to wrok for another company, but he held that job for only eight days when he was forced to quit because of his inability to perform the duties incident to his work. On the 19th of August, 1946, he filed an application for further compensation, which was heard before a deputy commissioner on January 28, 1947, and April 8, 1947. The deputy commissioner found that the total disability of appellee was due to the injury which he had received while in the employ of the defendant lumber company, and that he was and still is totally disabled to perform common labor, and held that compensation at $21 per week should be paid from March 15, 1946, and until further order of the commission. This award was affirmed by the commission. The employer and its insurer brought this appeal. The issues raised by the appellants are as follows:
‘1. Are the issues in this case res adjudicata?
‘2. Did the Department of Labor and Industry grant plaintiff a rehearing, which is without its jurisdiction?
‘3. Has the Department of Labor and Industry jurisdiction to grant compensation benefits to plaintiff, based upon intensification of ailments precluded by a former order and opinion?
Our review of the record brings the conclusion that appellants' claim of res judicata is meritorious in part, but only in part. The commission's award on plaintiff's first petition was made July 15, 1946. That award adjudicated the issue of fact that plaintiff under the record before the commission was not then entitled to compensation,except such as accrued to March 15, 1946. But on plaintiff's second petition heard a year later, which was for further compensation, an award of $21 per week was extended back to March 15, 1946, which was four months prior to the commission's order and adjudication on July 15, 1946. To that extent the commission's second award was a re-adjudication of the same issue covered by the first award, and was invalid. The foregoing is not controlling of the validity of the second award if limited to the period subsequent to July 15, 1946. During that subsequent period plaintiff's claim for compensation and the award made August 15, 1947, were upon the theory that plaintiff's condition as bearing upon disability was shown to be worse at the second hearing than it was shown at the first hearing by the testimony which the commission believed.
‘In compensation cases an unappealed finding of physical condition, while conclusive on the parties up to the date of such award, is not res judicata with regard to subsequent proceedings on a further application.’ Murray v. Ford Motor Co., 296 Mich. 348, 355, 296 N.W. 284, 287.
‘The doctrine of res judicata is limited in its operation when sought to be applied to man's physical condition which constantly changes and under a statute which provides that weekly payments may be reviewed and ended, diminished, or increased as the facts warrant (2 Comp.Laws 1929, § 8453) [Stat.Ann. § 17.188].’ Houg v. Ford Motor Co., 288 Mich. 478, 285 N.W. 27, 28.
Insofar as the award in the instant case antedated the commission's former denial of compensation on July 15, 1946, for the period subsequent to March 15, 1946, it must be vacated because the rights of the parties had been adjudicated to July 15, 1946.
At the 1946 hearing the commission awarded plaintiff compensation for total disability but limited it to the period from: ‘August 9, 1945 to September 20, 1945 and from December 8, 1945 to March 15, 1946 * * *.’ As before noted, plaintiff's petition is for further compensation. The controlling issue is whether there was testimony at the August 15, 1947, hearing tending to show a change of condition since the earlier hearing, July 15, 1946. In considering this issue we must start with the conclusive presumption or fact that at the time of the earlier hearing plaintiff was not disabled, because that was the adjudication of the commission at that time.
‘It is the adjudication of the department, and not plaintiff's testimony, which controls.’ Hayward v. Kalamazoo Stove Co., 290 Mich. 610, 288 N.W. 483, 484.
‘The unappealed adjudication by department of labor and industry that an employee was not suffering disability on a certain date is conclusively binding on all parties to case on employee's subsequent petition for further compensation.’ (syllabus) Gulec v. Chrysler Corporation, 292 Mich. 711, 293 N.W. 890.
Then comes the query: Is there any testimony tending to show a changed condition resulting in plaintiff's disability at the later hearing which resulted in an award of compensation? If there is such award should be sustained. While in the instant case there is some testimony to the contrary, there is testimony in support of plaintiff's contention that his condition has become worse since his earlier hearing. As a witness plaintiff testified as follows:
* * *
‘
Doctor Michael A. Gertz, a witness for plaintiff, testified:
* * *
* * *
In its legal aspect the instant case is quite identical with Gulec v. Chrysler Corporation., supra [292 Mich. 711, 293 N.W. 891], wherein on a rehearing which resulted in an award of compensation to the employe, it is said in the prevailing opinion:
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