Brown v. Warren Iron & Metal Co. , 44 Mich. App. 458 ( 1973 )

44 Mich. App. 458 (1973) 205 N.W.2d 276

BROWN
v.
WARREN IRON & METAL COMPANY.

Docket No. 14081.

Michigan Court of Appeals.

Decided January 18, 1973.

Levine & Benjamin, P.C., for plaintiff.

Lacey & Jones (by Hayim I. Gross), for defendants.

Before: LESINSKI, C.J., and J.H. GILLIS and PETERSON,^[*] JJ.

Leave to appeal applied for.

J.H. GILLIS, J.

On July 31, 1962, while employed by defendant firm, plaintiff suffered amputation of the middle, ring, and little fingers when his right hand was caught in a metal-shearing machine. He returned to work September 26, 1962, but was paid specific-loss benefits for 71 weeks by the State Accident Fund. Plaintiff continued to do the same work until he retired in 1966 at the age of 62. Thereafter, he filed a petition claiming total disability on the basis of the hand-injury residuals, an old ankle fracture, back problems, and respiratory problems. The hearing referee denied compensation.

The Workmen's Compensation Appeal Board concluded that plaintiff did suffer total disability. The majority found that the disability resulted solely from the hand-injury residuals, and awarded compensation to the plaintiff commencing July 31, 1962, the date of the specific loss. The minority concluded that disability resulted both from the hand-injury residuals and the back injury, and would have awarded compensation from the date of retirement, December 16, 1966.

The sole issue raised on appeal is whether the Workmen's Compensation Appeal Board erred in awarding compensation for total disability from July 31, 1962, instead of from December 16, 1966.

The applicable section of the statute which was in effect at the time of this accident read as follows:

"While the incapacity for work resulting from the injury is total, the employer shall pay * * * to the injured employee, a weekly compensation * * * and in no case shall the period covered by such compensation be greater than 500 weeks from the date of injury * * *." (Emphasis supplied.) MCLA 412.9(a); MSA 17.159.

The "date of injury" specified in the statute means the date of the original accident, not the date of subsequent disablement. Kiviniemi v Quincy Mining Co, 286 Mich 680 (1938); Grodzicki v Revere Copper & Brass, Inc, 268 Mich 143 (1934); Lakso v Munro Iron Mining Co, 243 Mich 261 (1928); Bullard v Mult-A-Frame Co, 33 Mich App 678 (1971).

Plaintiff's theory is essentially the same as that asserted by the plaintiffs in the Bullard case. As we stated there, p 684:

"A careful reading of MCLA § 412.15 (Stat Ann 1968 Rev § 17.165) pursuades [sic] the Legislature equated `personal injury' with `original accident' and distinguished personal injury from subsequent disability or incapacity.

"Plaintiffs, however, point to the words in MCLA § 417.2 (Stat Ann 1968 Rev § 17.221)[9] equating `personal injury' with `disability' and contend that since their personal losses disabled them they were personally injured at the date of disablement. After careful analysis of the section we cannot agree. When it equates personal injury with `such' disability it is referring to disability as defined in the section immediately preceding it.[10] The preceding section refers to a situation where a worker first becomes unable to pursue his occupation for wages because of some physical impairment. It is not authority for the proposition that a worker may be disabled twice from the same accident. The section was meant to apply to a disability where the exact date of its causes was difficult, if not impossible, to ascertain. The solution was to make the date of disability the date of personal injury for purposes of applying the procedures and practices of the Workmen's Compensation Act. There is no problem in determining the dates of the causes of plaintiffs' disabilities. Plaintiffs were in the `state of being disabled' when they were first injured and the subsequent physical losses were only further complications of their disablement.[11]

"[9] `The disablement of an employe resulting from such disease or disability shall be treated as the happening of a personal injury within the meaning of this act * * *.'

"[10] MCLA § 417.1(a) (Stat Ann 1968 Rev § 17.220[a]) which defines disability as `the state of being disabled from earning full wages at the work in which the employe was last subjected to the conditions resulting in disability.'

"[11] Disablement is defined as the `event of becoming * * * disabled.' MCLA § 417.1(b) (Stat Ann 1968 Rev § 17.220[b])."

The cases cited by plaintiff in urging that the "date of injury" should be the last day of work are inapposite, as they are all concerned with diseases or injuries not attributable to a single event. MCLA 412.1; MSA 17.151. Such is not the case here, where the injury is attributable to a single event, and the subsequent worsening of plaintiff's physical condition, while entitling him to further compensation, did not constitute another injury.

The decision of the Workmen's Compensation Appeal Board is affirmed. Costs to appellees.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.