Ellis v. City of Detroit , 302 Mich. 296 ( 1942 )

I am not in accord with the opinion of Chief Justice CHANDLER. The established facts are that the accidental injury occurred on April 11, 1931; that the 500-weeks' period expired November 8, 1940; and that the petition for further compensation was filed on December 16, 1940. It is also established that plaintiff did not receive or accept the 500th-week payment.

Defendant relies upon Kiviniemi v. Quincy Mining Co., 286 Mich. 680, and Willard v. Globe Housewrecking Co.,294 Mich. 42, as authority for the rule that the department of labor and industry have no jurisdiction to entertain a petition for compensation after the 500-weeks' period has expired. In those cases it was held that the power to review payments ceases when plaintiff has received the maximum number of weekly payments mentioned in the statute. In the case at bar plaintiff did not receive the maximum number of payments and hence the mentioned cases are not controlling.

In Jelusich v. Wisconsin Land Lumber Co., 267 Mich. 313, we said:

"The statute does not provide any limitation for the making of claims for further compensation under 2 Comp. Laws 1929, § 8453. These may be made whenever there has been a change in the physical condition of the plaintiff. * * * The only restriction upon such claims is that compensation may not be granted for a period greater than 500 weeks after the injury."

See, also, Murray v. Ford Motor Co., 296 Mich. 348.

Under the above rule, plaintiff is not barred from seeking further compensation, nor is he barred by his refusal to accept payment for the 500th week for partial disability. Chief Justice CHANDLER states: "Although the final payment was not received by him, we are of the opinion that under the facts before us defendant's tender determined the rights of the parties in this proceeding." At most defendant's offer to pay the amount it claimed due was nothing more than a tender, but a tender does not affect the legal rights of the parties. See Zimmerman v.Miller, 206 Mich. 599. A tender of one payment for partial disability, even though it be for the 500th payment, cannot determine plaintiff's rights for total disability for any period of time. If plaintiff is entitled to compensation for total disability, his right may not be cut off by an offer to pay for partial disability.

On October 9, 1933, the department of labor and industry awarded plaintiff compensation for partial disability at the rate of $9 per week. There was no appeal from this award. Such an award was res judicata as to all essentials leading up to that award. Klum v. Lutes-Sinclair Co., 236 Mich. 100. Upon the petition for further compensation filed December 16, 1940, the department found as a fact that plaintiff has been totally disabled since October 25, 1934, and awarded plaintiff compensation for total disability since that date less the amounts paid for partial disability.

In Gulec v. Chrysler Corp. (on rehearing), 292 Mich. 711, we held that it was within the power of the department to fix the period of plaintiff's total disability so long as the beginning of that period was subsequent to its former adjudication.

The only remaining question may be stated as follows: Was there any competent evidence introduced to sustain the award?

Plaintiff testified that since October 9, 1933, he has not earned any money from his labor; and he testified as follows:

"Q. * * * Can you do any kind of work?

"A. No, sir.

"Q. Are you able to do any heavy work?

"A. No, sir.

"Q. Can you do light work?

"A. No, sir, I am not able to do any kind of work.

"Q. Are you able to do any work whereby you would be sitting down? "A. Well, maybe I could peel potatoes, like I done sometime home."

Dr. Barone, a witness sworn for plaintiff, testified that he examined plaintiff about the middle of December, 1940; and that a small left inguinal hernia showed. He also said:

"I examined the abdomen in which there were several scars, and these scars showed a ventral hernia. * * *

"Q. Doctor, in your opinion, has the condition of Mr. Frank Ellis become worse since October 9, 1933?

"A. It is my belief that at the time of examination that the ventral hernia was larger and therefore worse than it was in 1933. * * *

"Q. Now, doctor, in your opinion, can Mr. Ellis, during this period from October 9, 1933, to the present time, do any kind of work? * * *

"A. It is my belief that this man could not do any labor and he could not do any work which required standing on his feet but if he could acquire employment sitting down, I believe he could do that."

In my opinion there was competent evidence from which the department of labor and industry could find as a fact that plaintiff's physical condition and earning power had diminished since the award for partial disability. In such cases it is our duty to affirm.

The award is affirmed; plaintiff may recover costs.

STARR and BUSHNELL, JJ., concurred with SHARPE, J.