West v. Northern Tree Co. , 365 Mich. 402 ( 1961 )

Edwards, J.

This is a workmen’s compensation case in which compensation was ordered by a referee and the appeal board of the workmen’s compensation commission due to injuries sustained from freezing of plaintiff’s hands while he was employed cutting brush for the Northern Tree Company on or about February 16, 1957.

The single question raised by defendant-appellants on appeal is — did the plaintiff give prompt notice of his injury to the employer as required by section 15, part 2 (CLS 1956, § 412.15 [Stat Ann 1960 Rev § 17.165]), of the.workmen’s compensation act!

The section relied on follows:

“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.”

The facts in this matter are cited thus in the opinion on review of the workmen’s compensation appeal board:

“Plaintiff worked for the defendant as a brush cutter. He commenced work on February 2, 1957, and worked through February 16, 1957. His foreman would allow a brush fire so that employees could warm their hands. On February 16th plaintiff’s work crew was moved to another location with another foreman. This foreman would not permit a brush fire and the plaintiff froze his right hand.

“The record indicates that the plaintiff started to build a fire and that the new foreman kicked the brush away and said, ‘in this crew we don’t have a fire, either work or go home.’ At that time the plaintiff said to the foreman, ‘My hands is cold, my hands is freezing.’ He also showed his hands to the foreman and said, ‘How could a man work with hands cold like that?’ In our opinion the defendant, through its foreman, had ample notice of the plaintiff’s injury. The award of Referee Lewis is affirmed with the modification that past due payments draw interest at the rate of 5% per annum.”

Subsequent to the date referred to above, claimant testified that he had considerable pain with his hands on-the ev.ening of the day in question and that his hands continued to give him trouble for a period of over a year during which he first had the nail of the right index finger removed and subsequently had the right index finger amputated down to the knuckle. This operation occurred on April 4, 1958.

This record provides no dispute and appellants bring us no question as to causal relationship between the episode of February 16,1957, and the loss of the finger and the periods of disability when claimant was hospitalized.

February 16,1957, however, was the last day that claimant worked for defendant company and, of course, the significance of the nature of the report is greater in that the employer had no contact with claimant’s condition thereafter until after the date of the amputation. Defendants presented no testimony at all at the time of the hearing and the record consists entirely of the testimony of claimant, his wife, and the operating surgeon.

Relying entirely on claimant’s own testimony, defendants claim that no notice as required by statute was given to the employer because claimant testified that after leaving work on February 16, 1957, he did not again call the condition of his hands to the attention of the employer until the filing of the application.

The notice provision, of course, serves to protect employers from stale claims and to facilitate their prompt investigation of the facts with the view toward providing necessary medical attention and minimizing the effect of any injuries. This Court has held in Banks v. Packard Motor Car Company, 328 Mich 513, 517:

“The notice, which may be written or oral, requires no niceties of expression so long as it is of a nature to reasonably inform the employer that a compensable injury was sustained.”

On this appeal we are confronted with a finding of fact on the part of the workmen’s compensation appeal hoard:

“The defendant, through its foreman, had ample notice of the plaintiff’s injury.”

Generally the question of the giving of timely and sufficient notice is one of fact. LaPorte v. Kalamazoo Stove & Furnace Co., 308 Mich 687; Mauch v. Bennett & Brown Lumber Co., 235 Mich 496.

The record here indicates that claimant gave notice of “the time, place and cause of the injury.” CL 1948, § 412.16 (Stat Ann 1960 Rev § 17.166). He related the cause of injury and showed the resulting condition as it was known to him at the time. He did not know that it would lead to amputation and disability until long after the statutory limit had run. The law should not be read to require the impossible. And in this statute we have an express command not to do so:

“A notice given under the provisions of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, or the commissioner of insurance, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.” CL 1948, § 412.18 (Stat Ann 1960 Rev § 17.168).

We find no evidence of intent to mislead the employer in this record. We do find evidence to support the findings of the appeal board which are, therefore, binding on us. CL 1948, § 413.12 (Stat Ann 1960 Rev § 17.186).

Affirmed. Costs to appellee.

Kelly, Black, Kayanagh, and Souris, JJ., concurred with Edwards, J.