Barnot v. Ford Motor Co. , 282 Mich. 37 ( 1937 )

Wiest, J.

Plaintiff, while in the employ of defendant, on February 5, 1930, sustained a contusion and fracture of the first metatarsal of his left foot. He was paid compensation in accordance with an agreement, approved March 7, 1930, at the rate of $18 per week, from the time of the injury to March 3, 1930, when he returned to work and was given light work for a short time, and then resumed his former employment of manual labor and so continued until laid off in the following summer.

In May, 1932, he was rehired and did work in the foundry, requiring him to be on his feet for eight hours a day. He made no complaint of his injured foot. A month after he was hurt and after he had returned to work he signed a settlement receipt. The receipt was never approved or disapproved. He was again laid off in October, 1932, and testified that he would have kept on working had it not been for the general lay-off at that time. In November, 1935, he petitioned for further compensation, claiming that his foot had become worse and that after he was laid off in October, 1932, he had done no work except around home. That was not. true for he was then in the employ of the Packard Motor Car Company as an oven tender in the core room and had been there since Angnst 24, 1933, and had worked continuously there eight hours per day, at work requiring him to be on his feet, and he never complained of any trouble with his foot. After this was shown by the defendant, plaintiff recalled that he was working for the Packard Company and receiving a few cents more than $5 per day.

During the time he worked for defendant company, both before and after the injury, he received $48 per week.

The department treated the application as one of review of payments under an award by agreement and held:

“Plaintiff has met the burden of proof to show a loss of earning capacity since August 24, 1933, amounting to $18 per week, and is entitled to receive and recover compensation from the defendant in the sum of $12 per week for partial disability from August 24, 1933, until the further order of the department. ’ ’

This found and measured his partial disability by decreased earnings rather than by capacity to work and made defendant an insurer required to make up the difference between what plaintiff earned before and after the accident. Such is not the test any more than mere inability to get work. The test to be applied is whether his injury has decreased his capacity to work as before and, therefore, he has earned less by reason of his physical disability and defendant should be made to respond for the loss occasioned by the injury.

We find no evidence that the lesser wage plaintiff received was in any way attributable to the accident. True, he earned less but, unless the decrease in earn ings was occasioned by disability caused by the accident, defendant cannot be required to make up the difference.

The award is vacated, with costs.

Fead, C. J., and Butzel, Sharpe, Potter, and Chandler, JJ., concurred with Wiest, J.