193 Mich. 127 | Mich. | 1916
Lead Opinion
(after stating the facts). It is not shown that any deceit was practiced by the agent of the insurance company in obtaining the agreement for compensation. Claimant says that he supposed it was a receipt when he signed it, but that he did not ask to have it read, nor did he read it himself, although he was competent to do so. Under these circumstances he will not be heard to deny the validity of the agreement. Sanborn v. Sanborn, 104 Mich. 180 (62 N. W. 371). But such an agreement may undoubtedly be reviewed by the Industrial Accident Board upon a proper showing, under section 13, pt. 3, of the act (2 Comp. Laws 1915, § 5466), and the compensation ended, diminished, or increased in accordance with the law and the facts. Upon such a review, as said in Estate of Beckwith v. Spooner, 183 Mich. 323 (149 N. W. 971):
“It can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry.”
But the facts do not bring this case within any provision of the law that will permit an increase of compensation beyond the amount stated in the agreement.
‘‘The absence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity.”
But how can an award for partial disability be made, under the statute, in the presence of a total actual disability, except as a specific liability under the schedule in section 10 of part 2? There is no way by which we can fix the duration of a partial disability that has been merged in a total disability. This is true even if the partial disability is, as asserted by claimant, something more than the mere loss of the finger. And, if we could approximate its probable duration, there is no method provided for determining the amount of the compensation. The section referred to says:
“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.” Act No. 10, Pub. Acts 1912, Extra Session, pt. 2, § 10 (2 Comp. Laws 1915, § 5440).
And it is impossible to know how much the claimant might have earned if suffering only from the partial disability, when, as a matter of fact, he cannot earn anything because of the total, disability. The difficulty is illustrated by the award that the Industrial Accident Board made. That board found a total disability,
The injury must be treated simply as the loss of the third finger, for which the claimant is specifically compensated by the terms of the statute. The agreement entered into by the parties was in accord with this provision, and must stand.
¡ The order of the Industrial Accident Board is reversed, and the petition dismissed, but without costs.
Rehearing
On Rehearing.
We were led to grant a rehearing in this case upon the claim made by the applicant that the award of the board rested in part at least upon an impairment of the shoulder, due to the accident, and by the insistence of counsel that we had overlooked this finding of the board in determining the case. We have re-examined the case, aided by briefs filed upon the rehearing, and conclude that the case made upon this record was correctly decided. In applicant’s petition to the board to set aside and review the agreement there is no claim of disability by reason of any impairment of the shoulder. The petition alleges:
*133 “That because of the condition of his hand he will suffer partial disability for the performance of work of any kind for the remainder of his life.”
The testimony as to the cause of the condition of applicant’s shoulder was in conflict. While the board mentioned the inflammation about the shoulder, there was no finding that the condition of the shoulder in any way contributed to applicant’s disability, or that it was caused by the accident, and it was not made the basis of the award, and did not enter into it. The award was based upon the finding that the injury, “together with the previous loss of other members of the same hand,” produced a total incapacity. In making the order it did, based upon this finding, the board was in error. The order is reversed and the petition dismissed.