Plaintiff was burned on the hands and face as a result of an explosion in defendant’s mine,, where he was engaged in what both parties describe as skilled employment. Workmen’s compensation benefits were paid to him voluntarily by defendant for a period of about 7 months while he recuperated from his injuries. Upon recovery, plaintiff returned to the mine and resumed his former duties, performing them satisfactorily and without significant discomfort. At the end of 14 months, defendant’s mine was shut down for economic reasons and all its employees, including plaintiff, were laid off.
Apparently regular mining employment is no longer available in the locality of plaintiff’s rеsidence, although he has worked on a few occasions at an adventure-type mine. Plaintiff concedes that *130 his injuries do not impair his ability to perform his former mine employment and he says that he would return to suсh employment were it available to him. The only work available to plaintiff now is common labor, but plaintiff claims that his injuries limit him in performing such labor and, on that account, seeks workmen’s compensation benefits.
It appears from the record that a residual effect ,pf the burns on plaintiff’s hands and face is that thеy are susceptible to extremes of temperature. Because of pain resulting from exposure to such extreme hot or cold temperatures, plaintiff cannot work where he would be subjected to such conditions. The mining work plaintiff did was in fairly uniform median temperatures and he had no difficulty performing his duties in the minе during the 14 months he worked following his injury and prior to his layoff.. However, after only 1 day as a member of a county rоad commission crew performing common labor in the sunshine, plaintiff’s hands and face became swollen and painful. Similar discomfort occurred when he tried cutting wood in the winter.
The appeal board awаrded plaintiff benefits on the theory that he has suffered “serious disability in the field of common labor as the result of his injury.” On leave granted, defendant appeals, claiming that under our workmen’s compensation law plaintiff may not claim benefits because his injuries do not disable him from earning wages at the employment in which he was working at the time of the injuries. Without conceding that the evidence supports the appeal board’s finding that plaintiff is disabled from performing common labor, defendant claims that even if true such disability is not comрensable under our law because the test of compensability for an injured skilled worker is limited to a detеrmination of his capacity to earn wages in his skilled employment.
*131
Unlike other States, and perhaps unique to Michigan,
*
an injury is not compensable under our statute unless it impairs the employee’s “earning capacity in the employment in which he was working at the timе of the injury.” CL 1948, § 412.11 (Stat Ann 1960 Rev § 17.161). See
Levanen
v.
Seneca Copper Corp.,
The statutory language quoted has led to absurd results. For instance, in
Hirschkorn
v.
Fiege Desk Co.,
In
Geis
v.
Packard Motor Car Co.,
In the case at bar, the evidence is sufficient to support the appeal board’s finding that this skilled worker’s injuries impaired his wage-earning capacity
as a common laborer.
It is also clear from the record that there is no longer available regular em
*132
ployment requiring plaintiff’s skills and plaintiff is thereby limited to employment as a common laborer, in which labor his wage-earning capacity has been impaired by industrial injury. Had plaintiff been engaged in сommon labor at the time of injury, he would be entitled to compensation benefits because his injuries prеvent him from doing some common labor.
Miller
v.
S. Fair & Sons,
' Were there a way properly to affirm what the appeal board sought here to accomplish, we would affirm. The statutory language, however, bars the way to substantial justice for this plaintiff. We repeat what this Court said 47 years ago, in Jаnuary of 1915, in Hirschkorn v. Fiege Desk Co., supra, at p 242:
“The award made by the board was a very equitable one, and is one which we would prefer to sustain, if we could do so without attempting to amend the law by judicial construction. It appears to be, howеver, an exigency which the law has not provided for. We think the relief in such cases lies with the legislature, rather than with the courts.”
Reversed. No costs.
Notes
See 2 Larson’s Workmen’s Compensation Law, § 57.22.