291 N.W. 890 | Mich. | 1940
Lead Opinion
"In our opinion the plaintiff is totally disabled as a result of the accidental injury, at least it would be unusual if pain at the region complained of by plaintiff were not disabling."
As appears from the record and our former opinion, after a previous award of compensation had been stopped (June 5, 1935) on petition of defendant, plaintiff made another application for further compensation on December 27, 1935. The deputy commissioner awarded compensation for partial disability; but on review the department reversed the deputy's award and denied compensation on May 19, 1936. Plaintiff's application to this court for leave to appeal was denied.
The department's denial of compensation on May 19, 1936, was the last adjudication of plaintiff's right to compensation preceding his present petition for further compensation which was filed May 23, 1938. As we have plainly pointed out in several recent decisions, the department's denial of compensation on May 19, 1936, must have been on the ground that plaintiff was not then suffering any disability affecting his earning capacity. Casey v. Railroad Co.,
The award of the department of labor and industry is reversed and the case remanded for the entry of an award in accordance herewith. Plaintiff will have costs of this court.
BUSHNELL, C.J., and BOYLES, McALLISTER, and BUTZEL, JJ., concurred with NORTH, J.
*1
Dissenting Opinion
On rehearing we find no reason for changing our former opinion. Gulec v. Chrysler Corp., ante, 159.
The contention that our former opinion conflicts with the opinions in Casey v. Railroad Co.,
As said in the Hayward Case:
"It is the adjudication of the department, and not plaintiff's testimony, which controls."
The first denial of an award by the department was unappealed and established rights as of that time, and the subsequent denial of an award, now before us, was on the ground that no lessened ability to labor and earn wages was in fact established, and this finding has support in the evidence and we may not hold otherwise under uniform decisions of this court.
Award should be affirmed, with costs to defendant.
SHARPE and CHANDLER, JJ., concurred with WIEST, J. *713