White v. Michigan Consol. Gas Co.
Decision Date | 01 June 1957 |
Docket Number | No. 52,52 |
Citation | 352 Mich. 201,89 N.W.2d 439 |
Parties | Albert WHITE, Plaintiff and Appellee, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant and Appellant. , |
Court | Michigan Supreme Court |
Dyer, Meek, Ruegsegger & Bullard, Detroit, for appellant.
Dann, Rosenbaum & Bloom, Detroit, for appellee.
Before the Entire Bench.
This is the second time plaintiff's claims of disability have been before this Court for adjudication.
Defendant in this proceeding appeals on leave granted from a workmen's compensation award entered by the workmen's compensation appeal board. The award ordered payment of compensation at the rate of $21 per week for disability resulting from an injury to his right knee received by plaintiff in the employment of defendant on August 27, 1949. The award provided weekly payments from November 7, 1952, to the last date of hering on October 20, 1955, with the exclusion of a total of 5 weeks when plaintiff was temporarily employed on 2 occasions. The award also found plaintiff disabled from his previous occupation on the last date of hearing and ordered continuing compensation until further order of the department.
This plaintiff had previously been paid compensation for disability from the same injury up to November 7, 1952, under another award by the appeal board, which had likewise been appealed to this Court. See White v. Michigan Consolidated Gas Co., 342 Mich. 160, 69 N.W.2d 160. In that case, this Court disapproved an award of continuing compensation beyond November 7, 1952, apparently on the basis of extended delay in the appeal process and on the finding that the record then submitted did not contain competent evidence to sustain a finding of continuing disability beyond November 7, 1952.
In rejecting that portion of the appeal board's award which contemplated continuing compensation, this Court said:
'The order of the commission awarding compensation must be based upon competent evidence. In Foley v. Detroit United Railway, 190 Mich. 507, 516, 157 N.W. 45, 48, this Court asid:
"To sustain its award the board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident." White v. Michigan Consolidated Gas Co., 342 Mich. 160, 163, 69 N.W.2d 160, 161.
The order entered by the Court did not remand the case for further proceedings. As a consequence, plaintiff, claiming disability from the same injury subsequent to November 7, 1952, filed application for hearing and adjustment of claim for further compensation on June 28, 1955. After hearings extending between September 20, 1955, and October 20, 1955, a workmen's compensation department referee denied further compensation. When plaintiff appealed, on October 15, 1956, the appeal board reversed the referee's finding and entered the award from which defendant brings the instant appeal to this Court.
Plaintiff's original injury, according to his testimony, occurred August 27, 1949. He was at that time employed as a common laborer by defendant on maintenance work involving defendant's gas mains. Plaintiff testified that he suffered an injury to his knee when he slipped in the mud while carrying pipe to a truck. Plaintiff also reported to defendant's doctor, Dr. Carpenter, who entered a notation at that time:
A report of the original injury was filed by defendant and 1 day's compensation was voluntarily paid.
On September 13, 1949, plaintiff left the employ of defendant, according to his testimony, because he requested from his foreman a job assignment where he would not have to bend his knee so much, and was told there were no such assignments available.
In the period following plaintiff's departure from the employment of defendant, his testimony indicated recurring difficulty with his knee, but he worked at various types of jobs until April 28, 1952, when he returned to defendant to request medical treatment for his knee. On this day, on referral by defendant, he was seen by Dr. Carpenter. Concerning the visit of April 28, 1952, Dr. Carpenter testified:
The operation was performed on May 13, 1952, by defendant's surgeon and with defendant voluntarily assuming the medical costs. Dr. Carpenter's notes showed in relation to the operation:
Plaintiff left the hospital May 21, 1952, and was seen by Dr. Carpenter on August 18, 1952, who at that time felt that he had made a good recovery and was able to return to work.
At the original hearing the plaintiff gave testimony to the effect that he had been unable to find work which he was able to do. And, as we have previously indicated, the appeal board found a continuing disability, which was reversed for lack of competent evidence by this Court. White v. Michigan Consolidated Gas Co., supra.
The record of the subsequent hearing on September 20-22 and October 20, 1955, which is now before us contains testimony from plaintiff, his wife and 3 physicians. From the date of the operation referred to above down to the date of the second hearing, plaintiff indicated that he had been unable to work except for 2 brief periods:
'The Referee: What leg is that?
Concerning one of the employment episodes, plaintiff testified:
During this entire period, however, plaintiff did not seek further medical attention, and his only treatment was the application of liniment and heat pads. Dr. Raymond F. Lipton, an orthopedic surgeon, testified without objection concerning an examination of plaintiff on September 20, 1955, as follows:
Another surgeon called by plaintiff gave a similar diagnosis, also without objection, of 'internal derangement of the right knee joint.' Both...
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