« ΠροηγούμενηΣυνέχεια »
its return that it did not mean that appellants should pay compensation to the injured employee to cover any period of time during which he was not prevented by the accidental, personal injury from earning full wages in the occupation in which he was injured, is inconsistent with its order. It is apparent that the said orders of the board, as acted upon by the claimant, are inconsistent with this return and should not stand. Hirschkorn v. Fiege Desk Co., 184 Mich. 239.
So much of the orders of the board above set forth as direct payment in accordance with the agreement are vacated and set aside, and the case will be remanded to the industrial accident board with instructions to enter an order in compliance with its answer in the return to the writ of certiorari.
Reversed, and remanded.
BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, and KUHN, JJ., concurred.
SCHIMMEL V. DETROIT PRESSED STEEL CO.
MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-Loss OF
his left hand and a laceration of the second finger and
Certiorari to Industrial Accident Board. Submitted May 1, 1919. (Docket No. 63.)
(Docket No. 63.) Decided July 17, 1919.
Carl Schimmel presented his claim for compensation against the Detroit Pressed Steel Company for injuries received in defendant's employ. From an order denying a petition to discontinue payments for total disability, defendant and the American Mutual Liability Insurance Company, insurer, bring certiorari. Affirmed.
Charles H. Ruttle (Guy W. Moore and Hal P. Wilson, of counsel), for appellants.
Payne & Payne, for appellee.
STONE, J. On October 31, 1917, the claimant, who was.employed by the appellant Detroit Pressed Steel Company, in the capacity of electrician, sustained an accidental, crushing injury to his left hand, when said hand was run over by an electric traveling crane. The nature of the claimant's work was such as required him to work in elevated places, requiring him to maintain his balance by whatever means were near at hand, while he carried on his work. He was engaged in placing conduits between certain buildings of said appellant, and was required for the time being to work near a crane runway. While working in that position, and with no other means of support, he grasped one rail of said crane runway, or allowed his left hand to rest thereon to steady himself. While in that position, an electric traveling crane proceeded along said runway without giving a warning, and upon and over his left hand, necessitating the amputation of the index finger, together with the third metacarpel bone thereof, a severe crushing and loss of the tendon-flexor tendon-of the second finger, and a severe laceration of all of the tendons of the palm. After being totally disabled for over one month, claimant returned to work for said appellant and was employed in an entirely different line of employment, namely, that of foreman in the tool crib. At the time of the accident his wage was 45 cents an hour, while at the time of the hearing before the industrial accident board, a man in the same employment was paid from 85 cents to one dollar an hour. Claimant's wage in the tool crib was 55 cents an hour. But it was his claim that he could no longer follow any part of his former employment, that of an electrician.
The effect of the accident upon claimant, at least so far as his former employment with this respondent is concerned, was clearly stated by Frederick May, chief electrician for the respondent:
“Cross-examination. "Q. If he had partial loss of the second finger and the palm of the hand there was injured, he couldn't grip?
"A. Of course, eventually I would find that out.
“Q. If you fourt that out would you put him back on that work?
"A. I wouldn't put him back, it is certainly true, after I found that out."
Claimant, among other things, testified as follows: "Q. Now, was it necessary to use both hands?
“A. I could never have done the work I was doing with one hand.
"Q. At any time would it be necessary to hold anything in position with one hand and tighten it up with a wrench or pliers in the other hand?
"A. I have had to work for half an hour or threequarters of an hour at a time, and hang on with one hand and work with the other.
"Q. Here in this plant? "A. Yes, sir.
"Q. Have you ever tried to work at the occupation you were engaged in at the time of the accident?
"A. I have tried to use my hands in several lines. "Q. In what lines?
"A. I mean in several branches of the electrical. I have tried to repair my wife's electric iron which is the simplest thing in the world to repair, and I couldn't hold the small wires sufficiently tight enough with the left hand, to skin it with the right hand. I can't handle the knife in my left hand at all.”
A physician called by the claimant expressed the opinion that the claimant will not be able to use the injured hand in heavy work and heavy lifting. He testified as follows:
“Q. Would you say the hand was permanently injured?
"A. No, well, permanently injured in certain regards.
“Q. In what regard, doctor?
“A. I don't believe with that scar over the nerve, he will ever regain the proper function of that middle finger, I don't believe.
"Q. What would you say as to his capacity to grip?
“A. That is what I said before. I tested it several times, of course, and I formed the opinion that the function was just about 50 per cent. of normal strength.
"Q. And in your opinion with anything that would require a strength of grip he would not be able to do it?
"A. I don't think so."
At first an agreement in regard to compensation was entered into, by the terms of which said respondent agreed to pay applicant 35 weeks' compensation at $10 per week for the loss of the left index finger. This agreement was never approved by the industrial accident board. Although payments were being made to claimant under this agreement, yet he filed notice of claim for injury, and on May 23, 1918, a committee of arbitration awarded claimant compensation for 35 weeks at $10 per week for loss of index finger; and, in addition thereto, $10 per week for disability subsequent to the 35 weeks' period. Payments were continued by respondent, and accepted by claimant during 34 weeks, but claimant refused to accept the payment for the 35th week or to sign a settlement receipt, claiming that because of the condition of his hand he was unable to perform the same duties as prior to the accident.
Respondent American Mutual Liability Insurance Company filed a petition with the board praying to be relieved from further liability under the award of the committee on arbitration, it appearing that applicant had returned to work for the respondent, in charge of the tool crib, at 55 cents per hour, plus a ten per cent. bonus, and that he was able to perform his former duties, although he never actually attempted so to do.
Testimony was taken by the parties hereto, and after consideration by the industrial accident board an order was entered December 24, 1918, denying respondent's petition, and ordering the payment of $10 per week for total disability subsequent to June 26, 1918, the date of the expiration of the 35 weeks period. It is this order of the industrial accident board that this court, upon certiorari, is asked to review. That order continuing compensation reads as follows:
"A petition having been filed by the respondents in the above entitled cause, praying for reasons therein set forth that they be permitted to discontinue payments of the compensation in the case as of July 3, 1918, and the same having come on to be heard before the full board on November 20, 1918, and proofs having been filed and due consideration having been had thereon; the board finds as a fact from the entire files and testimony in the case that said applicant has been since the date of the accident, and was at the time his deposition was taken on November 18, 1918, totally incapacitated as an electrician, the employment