Samels v. Goodyear Tire Rubber Co. , 317 Mich. 149 ( 1947 )

I concur in the opinion of Mr. Justice REID, except in stating that the award of compensation was made under part 2 of the act. I think the opinion of the commission indicates that the award of compensation was made under part 7, § 3, of the act, (Comp. Laws Supp. 1945, § 8485-3, Stat. Ann. 1946 Cum. Supp. § 17.222) for epicondylitis, which under the circumstances of this case is an occupational disease. As stated by Mr. Justice REID, there is testimony to support such a finding. If the commission had not so found, it would be necessary to reverse the award and remand for a finding of fact on that question.

In its opinion the commission refers to part 2, § 1, of the act, not for the purpose of finding that epicondylitis is compensable under part 2, but to fix the time, January 29, 1945, when compensation should begin. It quotes:

"The term `time of injury' or `date of injury' as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death."

The opinion of the commission recites at length the conditions under which plaintiff worked, plainly showing that under the circumstances plaintiff's disability was "due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment" (part 7, § 1, subd. [c], of the act [Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1946 Cum. Supp. § 17.220]). The commission found:

"We have made a careful review of this record. It is our opinion and we find that the plaintiff sustained a personal injury on January 27, 1945, not attributable to a single event but to repeated events and strain which brought about an unexpected result; that the injury arose out of and in the course of his employment."

When considered with the rest of the opinion, this is a sufficient finding that plaintiff was awarded compensation under part 7 of the act, section 2 (Comp. Laws Supp. 1945, § 8485-2, Stat. Ann. 1946 Cum. Supp. §17.221) of which declares:

"The disablement of an employee resulting from such disease or disability shall be treated as the happening of a personal injury within the meaning of this act."

The commission has found that plaintiff is entitled to compensation under part 7, § 3, of the act for an occupational disease which plainly was "due to the nature of the employment in which such employee was engaged and was contracted therein," according to the language of said section 3. There is testimony to support the finding. For those reasons, I concur in affirming the award.