This is аn appeal from a decision of the Workmen’s Compensation Appeal Board, which reversed a referee’s decision granting plaintiff continuing compensation based on a November 23,1964 hand injury, and denying compensation for alleged work-related back and heart conditions. The opinion of the Workmen’s Compensation Appeal Board states in pertinent part the facts of the case:
"After working for defendant for more than 30 years plaintiff became totally disabled on January 21, 1968, by a heart problem. His primary occupation was that of *219 a lift truck driver involving some lifting. At the time of the hearing he was a 56-year old married man with his wife and three children as dependents.
"On October 11, 1968, a Petition for Hearing was filed alleging disability due to a hand injury in November of 1964, a back injury in 1965 and a heart attack on January 21,1968.
"A hearing was held on October 13, 1969, before Referee Erwin K. Johnson who issued a decision dated September 14, 1970, awarding continuing compensation based on the hand injury of November 23, 1964, and an average weekly wage of $126.62 ordering as follows:
" 'IT IS FURTHER ORDERED thаt the plaintiff did have an injury 10/29/65 for which compensation has properly been paid. It is further ordered that the employee did not have an injury in the summer of 1965 nor did he have an injury arising out of his employment on 1-21-68.
" 'The fact that the employee has a compensable and a non-compensable disability at the same time, does not mean he cannоt draw compensation benefits.’
"Defendant appeals from that decision 'on the grounds that there were no proofs that the claimant was disabled as a result of an industrially related injury, but by a heart attack which was found not to be related to employment.’
"Plaintiff cross-appeals seeking the reversal of the referee’s decision urging us to find an injury date of January 21, 1968, when he was disabled from a coronary condition.
"The record contains ample competent proof supporting the referee’s finding that plaintiff’s heart condition did not arise out of and in the course of his employment. * * *
"Turning to plaintiff’s hand problem we note that the trauma he allegedly suffered on November 23, 1964, was not serious enough to require more than the routine taking of x-rays or to cause him any wage loss for he continued his work as a lift driver. However, plaintiff constantly complained of numbness in his hand and the ñrst aid records substantiate the difficulties he experienced after his 1964 injury.
*220 "Plaintiff himself testified that the hand problem did not prevent him from working and that the real reason for quitting his job was not his hand or his back but his heart trouble. He further admitted that he did not consult a doctor or treat his hand problem other than to complain at first aid department until after his final disabling heart condition and that he 'worked right along with it,’ despite the numbness he felt and the absence of full use of his hand.
"A careful review of the record leads us to the inescapablе conclusion plaintiff’s non-compensable heart condition and not his hand problem accounts for his wage loss and that the referee erred in ñnding that plaintiff is totally disabled as a result of his 1964 hand injury.
"However, the medical proofs show that plaintiff’s right hand was injured on November 23, 1964, and that whatever difficulties he continued to have with his hand during the intervening years arе directly traceable to that traumatic incident.
"Therefore, the referee’s decision shall be modified to find an injury date of November 23, 1964, which did not result in wage loss at this time but may require medical care to which plaintiff is entitled.” (Emphasis supplied.)
Plaintiff does not now object to the finding that his back condition and heart condition were not compensаble. Essentially three issues are raised on appeal.
I
Does the fact that plaintiff continued working after the hand injury preclude a finding of disability and granting of compensation benefits?
Preliminarily we note that the determinations of fact of the appeal board, absent fraud, are conclusive. MCLA 418.861; MSA 17.237(861);
Lyczynski v Mohawk Lumber & Supply Co,
The board decided that the plaintiffs noncompensablе heart condition and not his hand injury accounted for the post-January 22, 1968 wage loss and therefore the referee erred in determining that plaintiff was totally disabled as a result of his 1964 hand injury. The rule is that "[I]t is loss of wage earning
capacity
— not actual loss of wages— which is compensable”.
Sims v R D Brooks, Inc,
We see nothing contrary to our conclusion in the cases. In
Hirschkorn v Fiege Desk Co,
A closer examination of these cases also demonstrates that they are not necessarily inconsistent with the result we reach here. (For a contrary conclusion see 2 Larson’s Workmen’s Comрensation Law, § 57.22, pp 29-55.) In Pulley the Court stated at p 423:
"Presumably and actually, an employee can be injured, disabled to a degree, and yet suffer no weekly wage loss because he is shown to be able to earn an amount equal to or greater than that which he was earning at the time of his injury. In many instances from the highest motives of desire to rehabilitate the employee аnd restore him as a wage-earning member of society, some employers have retained injured employees in new jobs within their capacity to perform. It is not difficult to perceive, however, that an ill-intentioned employer desirous of avoiding compensation payments could rehire an injured and disabled employee, establish his cаpacity to earn as much or more than before his injury and terminate his employment. Then, if the bare elements of proof of what the employee was paid were construed as establishing his 'earning capacity’ the whole purpose of the act would be vitiated.
"Thus, the method of determining the employee’s earning capacity, as that term is used in the act is a complex of fact issues which are concerned with the nature of the work performed and the continuing availability of work of that kind, and the nature and extent of the disability and the wages earned. This determina *224 tion by legislative enactment is reposed in the workmen’s compensation department.” (Emphasis supplied.)
The Court further stated that if wages actually earned were the test of wage-earning capacity impairment, the test as stated would encourage malingering. Quoting from
Markey v SS Peter & Paul’s Parish,
" 'When an employee accepts work and receives wages therefor in a recognized regular employment, with the ordinary conditions of permanency, as here, there is no room for argument that he has not thereby established a present earning capacity equal to such wages, whatever may be his physical condition.’
"Thus while appellant was so employed and his wages were equal to or greater than those received at the time of his injury, which is not disputed, he was not entitled to compensation benefíts. ” (Emphasis supplied.)
In Pulley the Court affirmed a denial of compensation benefits to an employee who had, after the amputation of his left hand in а punch press accident, accepted clerical work with his employer at an equal or greater salary, only to quit later after becoming dissatisfied with his new position. He later applied for compensation but, unlike the situation of Medacco here, he did not introduce adequate proof of his actual earning capacity after his employment ceased. In contrast, Medacco, who did not voluntarily quit his job, did submit a great deal of medical testimony to the effect that his hand at the time of the hearing was completely useless for physical labor, and that the hand condition had been progressively worsening.
Kaarto, supra, at p 132, is also consistent, since there an injured skilled miner was denied compen *225 sation because he could continue after the injury to work as a skilled miner while:
"Had plaintiff been engaged in common labor at the time of injury, he would be entitled to compensation benefits because his injuries prevent him from doing some common labor. Miller v S Fair & Sons,206 Mich 360 ;171 NW 380 (1919); Smith v I Stephenson Co,212 Mich 154 ;180 NW 384 (1920); and Wieland v Dow Chemical Co,334 Mich 427 ;54 NW2d 708 (1952). However, because he would be able to perform his skilled mining work but for the economic conditions which closed the mine, he is barred by the statute from recеiving compensation for his impaired earning capacity as a common laborer.”
Plaintiff Medacco drove a forklift truck, and certainly this is in the field of common labor, the apparent distinguishing factor for the Court in
Kaarto.
It is noteworthy that the result reached in
Hirschkorn, supra,
where an employee was denied compensation for an eye injury when he returned to his old job at equal pay as a mаchine operator, might very well not be reached under
Kaarto’s
thesis that skilled and common labor need be distinguished in judging earning capacity. The
Kaarto
ruling was expressly adopted in
Adair v Metropolitan Bldg Co,
38 Mich. App 393;
Defendants аlleged authority for the assertion that disability means wage loss comes from two sources. They first assert that MCLA 418.401; MSA 17.237(401) specifically defines disability as: "[T]he state of being disabled from earning full
*226
wages at the work in which the employee was last subject to the conditions resulting in disability”. We do not take this definition to mean that
"capacity
to earn wages” is not the focal point of analysis. Second, defendants cite
Hutsko v Chrysler Corp,
Since we decide that the Workmen’s Compensation Appeal Board applied the wrong legal standard in determining the correctness of the hearing referee’s factual findings, this case must be remanded so that factual ascertainments can be made consistent with the appropriate legal standards discussed above. On remand, of course, if the appeal board should decide that the plaintiff’s hand injury was not totally disabling as of the date of the heart attack, but became totally disabling at a subsequent time, it may award continuing compensation benefits after that date.
II
Does an intervening, noncompensable, totally *227 disabling heart condition render a prior work-related disability noncompensable?
The plaintiff raises this issue under the view that the Workmen’s Compensation Appeal Board opinion actually held that the intervening noncompensable heart condition rendered the prior work-related hand injury noncompensablе. This view is apparently based on that portion of the appeal board’s opinion that reads: "A careful review of the record leads us to the inescapable conclusion plaintiff’s noncompensable heart condition and not his hand problem accounts for his wage loss and that the referee erred in finding that plaintiff is totally disabled as a result of his 1964 hand injury”. Assuming that the appeal board meant to hold that an intervening, noncompensable, totally disabling heart condition renders a prior work-related disability noncompensable, we must disagree with the appeal board’s conclusion.
As aforesaid, an employee may continue to work after an injury occurs which does nоt immediately disable him and still claim compensation when the disability arises.
Grodzicki, supra; Brown, supra.
Defendants seek to distinguish the cases plaintiff cites by asserting that these cases involved situations wherein the right to receive compensation had been adjudicated and fixed
before
the claimant’s employment ceased because of a noncompensable injury, a factual element not present in plaintiff’s case here. However, the element was also not present in
Sims, supra,
and yet the Supreme Court still affirmed the continuing grant of compensation payments to the claimant, even though he could no longer work because of his incarceration. Moreover, in
Sims
the hearing on Sims’ claim was not requested or held until
after
Sims could no longer
*228
work, like the situation here. See also,
Cundiff v Chrysler Corp,
Ill
May the plaintiff raise on remand to the Workmen’s Comрensation Appeal Board the argument that he suffered the loss of the industrial use of his hand, and should be compensated for the loss?
Despite the fact that plaintiff claimed loss of the industrial use of his right hand in his initial petition for a hearing of his claim, the hearing referee did not make a finding with reference to plaintiffs specific loss. No reason was given for the failure to deal with the issue. The Workmen’s
*229
Compensation Appeal Board also did not deal with the issue, apparently believing any loss of the plaintiff arose because of the noncompensable heart condition. Plaintiff now requests this Court to deal with the evidence presented below and decide whether his specific loss claim is justified. However, our review here is limited to questions of law, and we may not make our own factual findings. Const 1963, art 6, § 28; MCLA 418.861; MSA 17.237(861);
Neagle v State Library,
Reversed and remanded for proceedings consistent with this opinion.