Wicko v. Ford Motor Co.
| Decision Date | 15 March 1940 |
| Docket Number | No. 17.,17. |
| Citation | 290 N.W. 818,292 Mich. 335 |
| Parties | WICKO v. FORD MOTOR CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Department of Labor and Industry.
Proceeding under the Workmen's Compensation Act by Gabriel Wicko, employee, opposed by the Ford Motor Company, employer. From an order of the Department of Labor and Industry reducing an award of deputy commissioner for total disability to one for partial disability at rate of $7.50 per week, the employee appeals in the nature of certiorari.
Award vacated, and case remanded, with directions.
Argued before the Entire Bench.
Dann & Atlas, of Detroit, for appellant.
E. C. Starkey, of Dearborn, and Buell Doelle, of Detroit, for appellee.
Plaintiff, while in defendant's employ, sustained an accidental injury arising out of and in the course of his employment on November 22, 1935. Upon hearing before a deputy commissioner on September 7, 1938, plaintiff had an award of compensation for partial disability at the rate of $7.50 per week from May 17, 1938, until the further order of the commission and also for some fixed periods prior to May 17, 1938. On October 27, 1938, plaintiff returned to defendant's employ at the same pay as formerly received and his compensation was stopped by agreement. He was given light work as a floor sweeper. On December 5, 1938, plaintiff was laid off. It seems to be conceded in this record that plaintiff because of his injuries was unable to continue in the kind of work at which he had been formerly employed by defendant and that the employment given him from October 27, to December 5, 1938, was an attempt to rehabilitate him. His present petition for further compensation was filed December 8, 1938, and upon hearing before the deputy commissioner he was awarded compensation for total disability from September 7, 1938, to October 26, 1938, and from December 5, 1938, until the further order of the commission. Defendant had review before the full commission and plaintiff's award was reduced to one for partial disability at the rate of $7.50 per week from December 5, 1938, until the further order of the commission. From this modified award he has appealed.
On the hearing of plaintiff's last petition for compensation it was shown that he tried light work for rehabilitation, but even light work caused a swelling of his injured right hand and resulted in plaintiff obtaining medical attention at defendant's first aid; and seemingly, though this does not appear definitely from the record, because of his inability to continue the light work, plaintiff was laid off after a trial of 5 weeks. Plaintiff's present petition alleges that since December 2, 1938, his condition has been growing progressively worse, in that he has been unable to secure or perform employment, thereby greatly impairing his earning capacity. It is defendant's contention that there is no testimony tending to sustain the conclusion of the department that plaintiff on the date of his last hearing (January 18, 1939) was totally disabled; but instead defendant asserts plaintiff's condition is no worse than at the time of his former hearing September 7, 1938, when it was adjudicated he was partially disabled and compensation awarded at $7.50 per week. Appellee's contention is not sustained by the record. We quote first from plaintiff's testimony:
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Further, in so far as this record discloses the result of plaintiff's attempt to do light work, none of the facts so disclosed were or could have been covered by the testimony taken at the former hearing because these were all subsequent occurrences. At the former hearing the fact was adjudicated that plaintiff was then suffering only partial disability, but proof as to plaintiff's subsequent condition quite conclusively discloses that at the time of his last hearing plaintiff was totally disabled and had been totally disabled at least since he was laid off on December 5, 1938. Under such a record appellee's contention that there is no proof of change of condition for the worse cannot be sustained.
On hearing plaintiff's present petition the deputy commissioner found plaintiff was totally disabled. But due to a seeming misconception of the applicable law, notwithstanding it also found plaintiff was totally disabled, the commission modified the deputy's award of compensation...
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