220 Mich. 653 | Mich. | 1922
(after stating the facts). The report to the industrial accident board was made by the superintendent after he saw Edward’s condition, was told by him of the fall and after he had full time to investigate and determine whether the accident had occurred as claimed. Under these circumstances it was an admission by the defendant and sufficient' evidence to justify the department of labor and industry in finding that the accidental injury was received as therein stated. McCartney v. Wood-Temple Co., 217 Mich. 505. There was also an abundance of testimony justifying the finding that the death of plaintiff’s son was due to accident, and as we are not the triers of the facts we can not consider defendants’ claim that the finding is against the weight of the evidence.
The injured employee made no claim for compensation although he lived for nearly 14 months after the accident. It is insisted that his failure to claim compensation within the time required by the statute bars plaintiff from recovering in this proceeding. We can not follow this contention. By section 15 of part 2 of the act as amended (Act No. 64, Pub. Acts 1919) it is provided:
“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within three months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, within six months after said death;” * * *
And by section 7 of part 2 of the act (2 Comp. Laws 1915, § 5437) it is provided:
“No dependent of an injured employee shall be*657 deemed, during the life of such employee, a party in interest to any proceeding by him for enforcement of the collection of any claim for compensation, nor as respects the compromise thereof by such employee.”
Mr. Justice Steere, speaking for the court in reference to this provision, in Curtis v. Slater Construction Co., 202 Mich. 673, said:
“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.”
The claim of plaintiff as dependent was made April 25, 1921, about a month after her son’s death. It was made within the time required by the express terms of the statute. The action or non-action of the employee in no way aided or detracted from her right.
We are not persuaded that defendants were in any way prejudiced by the misstatemént in the claim for compensation of the place of the accident. Defendant had knowledge of the accident which is the equivalent of notice (2 Comp. Laws 1915, § 5448). In its report to the industrial accident board it correctly stated the place of the accident. We have frequently held that the niceties of common-law pleadings are not required in these proceedings, and where defendant was not harmed it can not complain.
Defendants’ counsel insists that the department of labor and industry was in error in holding that compensation should be awarded from the date of the accident. This involves a consideration of portions of three sections of the act as amended by Act No.
“No compensation shall be paid under this act for any injury which does not incapacitate the employee for a period of at least one week from earning full wages, but if incapacity extends beyond the period of one week, compensation shall begin on the eighth day after the injury: Provided, however, That if such incapacity continues for six weeks or longer or if death results from the injury, compensation shall be computed from the date of the injury.”
Section 5 of the same part, as amended, reads:
“If death results from the injury, the employer shall pay, or cause to be paid, subject, however, to the provisions of section twelve hereof, in one of the methods hereinafter provided, to the dependents of the employee, wholly dependent upon his earnings for support at the time of the injury, a weekly payment equal to sixty per centum of his average weekly wages, but not more than fourteen dollars nor less than seven dollars a week for a period of three hundred weeks from the date of the injury. If the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury. When weekly payments have been made to an injured employee before his death the compensation to dependents shall begin from the date of the last of such payments, but shall not continue more than three hundred weeks from the date of the injury.”
In section 12 of the same part, as amended, will be found the following provision:
“If the injury so received by such employee was the proximate cause of his death, and such deceased employee leaves dependents, as hereinbefore specified,*659 wholly or partially dependent on him for support, the death benefit shall be a sum sufficient, when added to the indemnity which shall at the time of death have been paid or become payable under the provisions of this act to such deceased employee, to make the total compensation for the injury and death exclusive of medical, surgical and hospital services and medicines furnished as provided in section four hereof, equal to the full amount which such dependents would have been entitled to receive under the provisions of section five hereof, in case the accident had resulted in immediate death, and such benefits shall be payable in weekly installments in the same manner and subject to the same terms and conditions in all respects as payments made under the provisions of said section five.”
We are persuaded that this legislation contemplates that in cases where compensation has been paid to the injured employee during his lifetime compensation to his dependents begins with the date of his death; when no compensation has been paid to the employee during his lifetime compensation to his dependents dates from the date of the accident. Whether in all cases this will work out equitably is not for our consideration. Such argument may properly be addressed to the legislature.
Defendants’ counsel insists that the amount of compensation fixed by the department of labor and industry was not fixed in accordance with the holdings of this court in Kostamo v. Christman Co., 214 Mich. 652; LaLonde v. Jennison Hardware Co., 219 Mich. 194. He further insists that there is no testimony in the case justifying the amount fixed or which would authorize this court in fixing any amount as the proper amount. Plaintiff’s counsel concede the paucity of testimony and ask that the case be remanded for further testimony on this question. We think this should be done. Carpenter v. Detroit Forging Co., 191 Mich. 45; Campbell v. Cummer-Diggins
The case will, therefore, be remanded for further proceedings not inconsistent with this opinion. Neither party will recover costs.