Ziegler v. Fuller Mfg. Co.

• Decision Date: 04 October 1948
• Docket Number: No. 18.,18.
• Citation: 322 Mich. 431,34 N.W.2d 33
• Parties: ZIEGLER v. FULLER MFG. CO. et al.
• Court: Michigan Supreme Court

322 Mich. 431

34 N.W.2d 33

ZIEGLER

v.FULLER MFG. CO. et al.

No. 18.

Supreme Court of Michigan.

Oct. 4, 1948.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act on the claim of LeRoy H. Ziegler against Fuller Manufacturing Company, employer, and American Mutual Liability Insurance Company, compensation insurer, for an award for the loss of an eye. From an award for claimant, employer and carrier appeal.

Affirmed by equal division of Supreme Court.

Before the Entire Bench.

Alexander, Cholette, Buchanan, Perkins & Conklin, of Grand Rapids (Edward D. Wells, of Grand Rapids, of counsel), for defendants and appellants.

Rathbun & Arvidson, of Lansing, for plaintiff and appellee.

REID, Justice.

Defendants appeal from an award by the department of labor and industry to plaintiff for loss of an eye.

Plaintiff, LeRoy H. Ziegler, sustained an accidental injury to his left eye on July 17, 1940, while he was employed as a foreman in the heat treating department of the defendant company. The injury occurred when he was struck in the eye by a piece of steel which penetrated the eye. The steel was removed from the eye at Borgess hospital in Kalamazoo by Dr. Marshall. Plaintiff was confined in the hospital for 20 days while the eye was being treated. He returned to part time work about a week after he was discharged from the hospital and about a week later resumed his regular duties. About six or eight weeks after the injury he was fitted with glasses by Dr. Marshall. He had not previously used glasses but has used them since that time. Plaintiff left the employment of defendant company some time in the month of September, 1941, to engage in his own business.

Some time in the early part of 1945 plaintiff began to notice that the vision in his left eye had diminished. He also noticed that the appearance of the eye was changing and that a white formation was covering the center of the eyeball. The vision in the left eye gradually diminished during 1945. Some time approximately two or three months prior to the latter part of the month of December, 1945, he discovered he had practically no vision in the left eye. Plaintiff consulted Dr. Marshall in February, 1946, concerning the vision of his left eye. At that time he also discussed the matter of the loss of vision of the eye with a representative of the defendant company.

Plaintiff made claim for compensation for the loss of vision of the left eye for the first time on February 22, 1946. It is not disputed that plaintiff has lost the vision of his left eye by reason of a traumatic cataract.

A Report of compensable accident was filed with the department of labor and industry on July 26, 1940. It was a proper report for the reason that plaintiff did sustain a compensable injury. He was off work approximately 30 days as the result of the eye injury. During that period of time he was paid his regular wages.

The department found that plaintiff lost the vision of his left eye on October 30, 1945, as the result of the accident he sustained on July 17, 1940, and that plaintiff is entitled to compensation of $21 per week from October 30, 1945, until the further order of the commission but not to exceed 150 weeks from that date for the loss of vision of his left eye.

Plaintiff never made claim for any compensation not only for the loss of vision, but also for injury to the eye, until February 22, 1946. The report of compensable accident, filed by the employer with the department of labor and industry on July 26, 1940, contained the following note: ‘This man is receiving his weekly pay check so he should not receive compensation.’ The record further shows that the defendant employer actually paid said wages during the 34 days when the plaintiff was unable to perform his work because of the injuries sustained on July 17, 1940, as well as the plaintiff's medical and hospital expenses.

Defendants assert that plaintiff's claim is barred by section 15 of part 2 of the workmen's compensation act, 2 Comp.Laws 1929, § 8431, as last amended by Act No. 245, Pub.Acts 1943, Comp.Laws Supp.1945, § 8431, Stat.Ann.1947 Cum.Supp. § 17.165, which provides:

‘No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within 6 months after the occurrence of the same; or, in case of the death of the employe, within 6 months after said death; or, in the event of his physical or mental incapacity, within the first 6 months during which the injured employe is not physically or mentally incapacitated from making a claim: Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within 3 months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within 6 months after the happening of the injury, but does develop and make itself apparent at some date subsequent to 6 months after the happening of the same, claim for compensation may be made within 3 months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employe, but no such claim shall be valid or effectual for any purpose unless made within 2 years from the date the personal injury was sustained: And provided further, That any time during which an injured employe shall be prevented by reason of his physical or mental incapacity from making a claim, shall not be construed to be any part of the 6 moths' limitation mentioned in this section: And provided further, That in all cases in which the employer has been given notice of the happening of the injury, or has notice or knowledge of the happening of said accident within 3 months after the happening of the same, and fails, neglects or refuses to report said injury to the compensation commission as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employe or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.’

The statute in effect at the time of the happening of the injury complained of was, so far as concerns this controversy, in substantially the same form as above quoted.

Plaintiff claims that defendants are precluded from the benefit of the statute of limitations as contained in the above section, Stat.Ann.1947 Cum.Supp. § 17.165, and that the reason defendants are so precluded is that defendants, although making a report of compensable accident to the department of labor and industry, did not prepare nor present to plaintiff an agreement for compensation required under subsection (c) of section 17 of part 3 of the workmen's compensation act, 2 Comp.Laws 1929, § 8456, Stat.Ann. § 17.191. Plaintiff further claims that the preparation, presentation to plaintiff for signature and forwarding of such agreement was required of defendants before the 14th day after the accident. In substance plaintiff claims that the forwarding of such agreement would amount to a report of the making of the agreement, and plaintiff further claims that failure to prepare, present for signature and forward such agreement was a violation of the provision in the last paragraph of subsection (e) of said section 17 of part 3 of the workmen's compensation act, and in consequence defendants have not the right to raise the defense of the statute of limitations contained in section 15 of part 2 of the workmen's compensation act.

The department in making its award determined among other things as follows:

‘Defendants failed to comply with the express statutory provision of the act when an agreement was not executed and submitted to the department for its approval. Such an agreement was required for the reason plaintiff had...