MacDonald v. Great Lakes Steel Corp. , 274 Mich. 701 ( 1936 )

Under approved agreement plaintiff was awarded compensation of $16.80 per week for total disability as a carpenter, skilled labor. He returned to work for the same employer as a watchman, unskilled labor, at $16 per week. In MacDonald v. Great LakesSteel Corp., 268 Mich. 591, we held that, while engaged in such employment, his earnings constituted a set-off against the award, reducing the latter to $9.20 per week, under the proviso in 2 Comp. Laws 1929, § 8427 (e), which reads:

"Provided, The compensation payable, when added to his wage-earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury."

While the case was pending in this court plaintiff was discharged by defendant and has not since been employed. He petitions for reinstatement of his full original award. He makes no showing of change of physical condition or ability to work, of inability to obtain a job, that he belongs in the class of "nondescript" or "odd lot" labor, Hood v. WyandotteOil Fat Co., 272 Mich. 190, nor that otherwise there has been a change in his actual earning capacity since his discharge. The department refused to reinstate the original award on the ground that a wage-earning capacity had been established by the employment and no change in such capacity had been shown.

The action of the department amounts to a ruling that the actual earning of wages establishes an earning capacity under the proviso in 2 Comp. Laws 1929, § 8427 (e), that, primafacie, such earning capacity continues after the discharge of the employee from the employment in which the wages are earned and that the burden of showing a change of earning capacity when the employment ceases (in order to reinstate the original award or to decrease the set-off against it) is upon the employee. This is merely an application of the rule that the burden of proof of right to compensation and its amount is on the employee. The prima facie assumption of continuance of earning capacity is in accord with ordinary human experience and not unfair.

The ruling does not require the employee to show a change of physical condition after his discharge. Nor does it prevent his showing his actual earning capacity after the employment ceases, as affected by his physical condition, his ability to work, the market for his labor and other pertinent circumstances.

Plaintiff having failed to present evidence to rebut theprima facie showing of earning capacity resulting from actual employment, the award is affirmed.

NORTH, C.J., and WIEST, BUTZEL, BUSHNELL, EDWARD M. SHARPE, POTTER, and TOY, JJ., concurred.