202 Mich. 673 | Mich. | 1918
On November 20, 1913, John N. Curtis, husband of plaintiff, sustained an accidental injury while in defendant’s employ by which he was incapacitated for the work in which he was engaged until December 10, 1913, when he returned and continued in defendant’s service until some time in January, 1914, quitting, as defendant claimed, because most of its employees were laid off at that time owing to weather conditions and there was no further work for him to do. How steadily he worked after returning is a matter in dispute. When he returned to work on December 10, 1913, an agreement was entered into between him and defendant in regard to compensation for his injuries under provision of the employers’ liability act, measured by one-half his average weekly wages during the period he was absent and incapacitated for work by reason of the accident. The agreement, signed by the respective parties, stated the nature of the accident and his injuries as follows:
“A ditch caved in and bruised said John Curtis about the lower limbs and strained one knee.”
This settlement was approved by the industrial accident board and the stipulated compensation paid. A year later, on December 6, 1914, Curtis made application to the industrial accident board to reopen the case, claiming he was misled into signing the settlement agreement and receipt for payment as specified, requesting a hearing and further allowance of compen
On February 2, 1917, plaintiff filed with the industrial accident board and served on defendant a claim for compensation because of the accidental death of said John N. Curtis while in defendant’s employ, made as dependent widow of deceased according to the form adopted by the accident board for that purpose.
Defendant denied liability, filing and serving its grounds of contest and an arbitration hearing was thereafter had before Fred A. Zierleyn, a deputy commissioner of the board authorized to act in the matter as chairman, at which hearing representation of the committee of arbitration was waived by stipulation of the parties. The proofs and allegations of the parties having been heard and submitted by consent to said deputy commissioner acting as a committee of arbitration, a decision was thereafter rendered in favor of defendant, and claim for review before the full board was then filed by plaintiff. Upon such review, without taking further testimony, the board by a majority opinion reversed the arbitration decision and made an award to plaintiff of one-half deceased’s
“In disputed cases where it is contended that the death was not the result of the injury, or where other defenses are interposed, the widow or the dependents are entitled to make application for arbitration, as the case is an original one not affected by the agreement in regard to compensation made by the deceased before his death.”
It is undisputed that the case of John Curtis against defendant came under jurisdiction of the industrial accident board in the first instance only by virtue of the agreement with him in regard to a settlement, which it approved, and but for jurisdiction thus acquired the board could not have entertained his belated application made nearly a year later for additional compensation.
Defendant’s various contentions center upon the two propositions that there is no evidence in the record to support the board’s finding that deceased’s death resulted from an accidental injury; and no claim for
Curtis was about 64 years of age at the time of his decease. The medical certificate of his death, dated February 13, 1915, gave the cause of death as follows: “Bright’s disease, contributory (secondary) partial paralysis of lower extremities.” His physician, who signed this certificate, had been called to attend him about a year after his accident and testified that he found him afflicted with a partial paralysis of his lower limbs which subsequently resulted in his death; that from the history of the case as he learned it, together with deceased’s condition as he diagnosed it, he was of the opinion that the partial paralysis he found resulted from the accident of over a year before, upon which deceased’s and, later, plaintiff’s claims were based. This opinion was controverted by a physician who visited deceased shortly after the accident and by other expert testimony. Much of the testimony in both cases was devoted to this issue of fact and runs along similar lines, being there directed to the cause of deceased’s then condition, in relation to which he testified, and here to the cause of his death. The point is stressed for plaintiff that in the case of John Curtis against defendant, both the industrial accident board and this court found that he was “totally disabled as a result of accident,” and “rightly paid compensation up to the time of his death,” which apparently is assumed as the starting point for inquiry into plaintiff’s rights. This court did not pass upon, and could not decide, any issues of fact, as to which the finding of the board is made conclusive by statute when supported by any competent testimony. It was there found that the testimony of Curtis and his physician gave support to the finding of the board and the award was affirmed, since, as said in Redfield v. Insurance Co., 183 Mich.
The question of whether there is any proof to support the finding that deceased’s death resulted from the accident, which is elaborately argued in the briefs of counsel seems, however, on this record secondary to the more direct and serious question of an intervening statute of limitations. Under section 7, part 2, of the act (2 Comp. Laws 1915, § 5437), by authority of which this claim is made, no dependent of an injured employee can be deemed during the employee’s life a party in interest to any proceeding by him for enforcement of any claim for compensation, nor as respects compromise thereof by the injured employee. From this it would seem to follow, in harmony with the previous ruling of the board above referred to, that, not being a party in interest to the proceeding by her husband during his lifetime, plaintiff’s subsequent claim, or “new cause of action” arising from his death, was not beneficially or detrimentally affected through anything done by him in his proceeding, except a possible reduction of her claim by reason of payments actually made to him. Aside from this, whether her husband’s death immediately followed the accident or he lived to institute proceedings for compensation in his own behalf, her claim based on a new, original right arising from his death was the same. She admits and it is undisputed that the first and only direct claim made upon defendant by her after her husband’s death for compensation in compliance with the act was in 1917, about 22 months after her husband’s death in February, 1915.
By section 15, part 2, of the act (2 Comp. Laws 1915, § 5445), no proceedings for compensation can be maintained unless the claim therefor is made within six months after the accident “or, in case, of death of the employee, or in the event of his physical or mental in
The following notice of death was filed with the board by deceased’s attorney, and a copy mailed to defendants at the same time, as he testified, but receipt of which is denied:
“Before the Honorable the Industrial Accident Board.
“John N. Curtis v. Slater Construction Co.
“Take notice that your petitioner John N. Curtis died last night from his injuries.
“DeHull N. Travis,
“Attorney for Petitioner.”
Although defendant denied receipt of any such paper the board in its majority opinion found as a fact it was mailed to the defendant, and expressed the belief, or assumed “that the respondent received it in the ordinary course of mail,” construing it as follows:
“We think that notice constituted a claim on the part of the dependent wife to the effect that she intended to claim compensation on account of the death of her husband, if indeed any claim was necessary at all under the circumstances of this case.”
We find no legal ground for so construing this brief
In support of the ruling that a claim by plaintiff within six months after the death was not required, the case of Moffat v. Crow’s Nest Pass Coal Co., 7 B. W. C. C. 1040, is cited wherein it was held, under the workmen’s compensation act of British Columbia, that where the injured workman had instituted proceedings for compensation and died about two weeks later his dependents could continue the proceeding without fresh claim or notice. The British Columbia act, though containing a provision similar to the Michigan act as to claim and notice, provides further that want of notice, or any defect or inaccuracy in that connection shall not be a bar to the maintenance of such proceeding if it appears that the employer was not prejudiced in his defense thereby, thus giving latitude to the arbitrator for exercise of discretion in that par
Under the plain requirement of our statute it was incumbent on plaintiff to make claim for compensation within six months from February 11, 1915. She having failed to do so, the award of the industrial accident board appealed from was without jurisdiction and cannot be sustained.
The order is therefore reversed and the award set aside, with costs to appellant.