207 Mich. 319 | Mich. | 1919
On November 5, 1915, Frank Addison, appellee, suffered an accident while in the employ of defendant W. E. Wood Company, causing a comminuted fracture of the middle third of both bones of the lower right leg. It is undisputed that the injury arose out of and in the course of his employment, and
The customary course of proceedings under the workmen’s compensation law was followed promptly and on December 3, 1915, appellant insurance company, representing as insurers the Wood Company, entered into an agreement with Addison for incapacity compensation, on a form prescribed by the industrial accident'board, “at the rate of $10 per week during disability,” which was filed with and approved by the board.
Immediately after the accident Addison was taken to a nearby hospital for emergency treatment. Dr. A. C. Hall, a specialist in traumatic surgery, acting in behalf of appellants, at once took charge of the case and later removed the injured employee to Harper hospital where he was furnished all needed medical and hospital services, medicine, etc., for approximately one year, during which time he was under Dr. Hall’s care and treatment with all expenses borne by defendants, receiving in addition thereto $10 per week from the insurer as provided in their agreement, and a further $5 per week contributed by the W. E. Wood Company. He became dissatisfied with the medical services of Dr. Hall, and, declining to permit further treatment of his injury by him, selected another physician who immediately transferred his patient to a different hospital and soon thereafter amputated the injured member at a point sufficiently below the knee to class the loss as that of a foot. This amputation was performed without the knowledge or consent of appellants, whose medical advice had been that amputation was not necessary. Defendants, however, continued to pay Addison the statutory compensation of $10 per week and $5 per week extra for some time during which negotiations were had and a tentative agreement reached as to compensation, as defendants contend, which Addison later refused to recognize, the
To summarize the salient facts which raise the question: Addison suffered an accidental injury under which he was paid compensation for total incapacity at the rate of $10 per week for 54 1/3 weeks. Necessarily the payments during that time were under the provisions of section 9, part 2, of the act (2 Comp. Laws 1915, § 5439), as he had lost no members and was totally incapacitated for work. His foot was then amputated and payments at the rate of $10 per week were continued until he had been paid and tendered compensation for 125 weeks, the compensation specified in section 10 (§ 5440) for loss of a foot. The industrial accident board awarded compensation for total incapacity during the 541/3 weeks plaintiff was disabled without loss of any member, and after the operation continued compensation during 125 weeks more for loss of a foot.
Plaintiff’s counsel acquiesces in the award, being “inclined to believe that the board was correct in its interpretation,” but, with a reservation directed to the proposition of total incapacity to the maximum period under section 9, also says:
“We are not certain that the industrial accident board arrived at the correct decision in this matter, in awarding compensation to applicant for 541/3 weeks as for disability, and for 125 weeks for loss of a foot. We are quite certain that if the board! erred at all it erred to the prejudice of applicant.”
Part 2 of the act (commencing at section 5431, 2 Comp. Laws 1915) deals with the subject of compensation. Section 4 of that part (§ 5434) provides:
“During the first three weeks after the injury the employer shall furnish, or cause to be furnished, reasonable medical and hospital services and medicines, when they are needed.”
This section is but incidentally pertinent as it is undisputed that the employer furnished or caused to be furnished to the injured employee what was required in that particular for not only the first three weeks after the injury, but almost a year longer.
The controversy directly involves the construction of sections 9 and 10 of part 2, which are necessarily to be considered both with reference to their relations with each other and the general purpose of the act. First dealing in the matter of compensation with the subject of total incapacity, without particularizing as to the nature of the injury, the legislature provided:
*323 “Sec. 9 (2 Comp. Laws 1915, § 5439). While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half his average weekly wages, but not more than ten dollars nor less than four dollars, a week; and in no case shall the period covered by such- compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed four thousand dollars.”
Then passing to the s.ubject of partial incapacity it further provided:
“SEC. 10. (5440) While the incapacity for work resulting from the injury is partial, the employer shall pay or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period, covered by such compensation be greater than three hundred weeks from the date of the injury. In cases included by the following schedule the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, to wit:”
The section then continues with 16 short specifying sub-paragraphs declaring what “shall be” the compensation, measured by weeks and average weekly wages, for loss of various named members, the 14th being, “For the loss of a foot, fifty percentum of average weekly wages during one hundred and twenty-five weeks”; while the last provision of this section directly relating to loss of named members differentiates the two by relegating a double loss to the provisions of the immediately preceding section, which is devoted exclusively to total incapacity, as follows:
“The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, «ball*324 constitute total and permanent disability,, to be compensated according to the provisions of section nine.”
“Permanent disability” in the connection used can signify in its application no more than a. conclusive presumption of total incapacity for work as a result of the injury during the maximum number of weeks for which compensation may be awarded under the provisions of section 9. “Disability” and “incapacity” are of like import as found in this act, which does not cover injuries having no tendency to impair the earning capacity of the employee. The purpose and scope of the legislation is directed and limited to providing a measure of compensation, not full but certain, to those incapacitated for work by industrial accidents, to be paid without regard to any of the legal liability tests of the employee’s or employer’s negligence, assumption of risk or negligence of a fellow-servant. Such award is based on loss of earnings only, rated by previous average weekly wages, a percentage of which is to be paid during a fixed number of weeks made by the act definitely determinable as the facts are found, and limited at longest to 500 weeks. Loss of members is only recognized and provided for as the same relates to impairment of earning capacity for a definite time. Even if the injury results in death of the employee, continuation of a percentage of deceased’s average weekly wages during a maximum period of 300 weeks is the basis and limit of the award to his dependents.
As applied to the facts in the instant case it is manifest that plaintiff’s condition before amputation of his foot entitled him to weekly compensation from the date of his injury for continuing total incapacity under section 9. During that time he had lost no member, and section 10 had no application. Upon the amputation of his foot by a physician of his own selection, Addison’s theretofore indeterminate total inca
It is within the spirit of the law and does no violence to the wording of the sections under consideration to construe them as authorizing compensation for existing total incapacity resulting from any injury to a member while medical skill is attempting to restore and save the same, and until such time as developments have proved amputation necessary, followed by compensation for the loss of such member during the period fixed by the act after such loss becomes an actuality cognizable under the schedule in section Í0. When the schedule provisions of section 10 become applicable, the actual extent and duration of incapacity resulting from the specified injury yield to the indisputable presumption expressly declared in the statute by the legislature, which only obtains in case the member is in fact gone or lost. Packer v. Olds Motor Works, 195 Mich. 497.
Counsel contend that this construction is at variance with Limron v. Blair, 181 Mich. 76, wherein it is said that if the injured employee “is in fact disabled by the loss of a foot, or otherwise, for a greater
“If one of the results of the accident is the loss of a foot, the period of total disability is 125 weeks, although it may be in fact only 6 weeks. The period is not extended because, as a result of the accident, the employee was in fact totally disabled for a period of 125 weeks, or for any shorter period. * * * The statute speaks in terms of disability. * * * It does not provide a specific indemnity for the loss of a member in addition to compensation for disability. The aim of the statute is to afford compensation if the employee is disabled. When the period of disability ends, compensation ceases.”
Manifestly this means the period of disability as fixed and defined by statute, not necessarily the full period of actual disability in fact which may be and sometimes is for life. The disability in terms of which the statute speaks is disability or incapacity for work as recognized, defined and limited by the various provisions of the act. While the statute does not provide specific indemnity for' loss of a member in addition to compensation for otherwise caused disability, when an existing disability is, or becomes, defined by and limited to the loss of a member, its thereafter duration and degree, as specified in section 10, are conclusively determined and fixed as total disability,. or incapacity for work, during a period of 125 weeks, although it may be in fact only 6 weeks or for life, but if the injured employee is also in fact “otherwise” disabled, compensation could continue until such disability is in fact removed, or in contemplation of law terminated by reaching the maximum time or amount authorized. To construe the law in this class of cases
The award made by the board in this case does not impose concurrent payments for separate injuries, or disconnected from earning power for any specific injury causing physical impairment. It provides compensation payable weekly for a fixed time during which the employee is actually or presumptively disabled, not any portion of it for loss of a member as such, but, so far as that loss is involved, based on a presumed disability or total impairment of earning capacity for a stated number of weeks after such loss.
We conclude that the construction of the act by the industrial accident board as applied to the facts in this case is permissible within the wording, spirit and inferable intent of the law considered in all its provisions.
The award is therefore affirmed.