Rench v. Kalamazoo Stove & Furnace Co. , 290 Mich. 476 ( 1939 )

September 17, 1937, plaintiff, while in the employ of defendant company, by accidental injury suffered permanent loss of the industrial use of both hands. March 16, 1938, he was awarded compensation of $18 per week from September 17, 1937, for 500 weeks. Defendant appealed from the award based on a finding of permanent disability, claiming it should have been a specific award for loss of fingers, carrying the statutory compensation only, for 270 weeks. 2 Comp. Laws 1929, § 8426 (Stat. Ann. § 17.160). We affirmed the award with the modification that it continue only until further order, stating:

"It may be possible that plaintiff can acquire some industrial use of his hands and, if so, defendant should not be precluded from having such a future condition properly adjudicated." Rench v. Kalamazoo Stove Furnace Co., 286 Mich. 314,321.

The modification was made.

April 7, 1938, plaintiff petitioned for a lump sum advancement of the compensation for 270 weeks, under the provisions of 2 Comp. Laws 1929, § 8438, as amended by Act No. 148, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 8438, Stat. Ann. § 17.172), to enable him to purchase a farm, and April 13, 1938, an order of the department granted the advancement in the sum of $3,900.98, which was the then present worth of compensation for 270 weeks. No appeal was taken from this order, evidently because it was within the admitted liability of defendant, and it was immediately paid. With this money plaintiff purchased and, to some extent, stocked a farm. November 10, 1938, we handed down our mentioned opinion.

November 22, 1938, plaintiff petitioned for a further advancement in order to pay his attorneys $520 for their services, stating therein:

"That the plaintiff was without means to defray the expenses of said appeal, and that he did employ Carney Carney to defend said award in the Supreme Court, and that they have advanced out of their own funds all expenses incident thereto, and have not been paid anything for their services or expenses, and plaintiff is not in a financial position at this time to pay for said services and expenses.

"That plaintiff has agreed with Carney Carney and they have agreed with plaintiff that their entire charges for expenses, printing of briefs and legal services in said cause be fixed by this commission at the sum of $520, plus taxable costs."

Defendant filed objections. Testimony was taken relative to plaintiff's physical disability and financial condition and the department, upon a finding that "plaintiff is totally disabled and that such total disability is permanent and will continue for the full period of 500 weeks; * * * that it is for the best interest of plaintiff that the prayer of the petitioner be * * * allowed; * * * that the amount of said attorney fee and expenses is a reasonable amount and the same is hereby approved," ordered that defendant pay $520 to the attorneys from the first payments falling due after the expiration of the period of 270 weeks previously advanced.

Defendant appealed and contends that the department is without jurisdiction to fix attorney fees, except in case of dispute between the plaintiff in a compensation proceeding and his attorney, citing 2 Comp. Laws 1929, § 8449 (Stat. Ann. § 17.184). That statute provides:

"The fees and payment thereof of all attorneys and physicians for services under this act shall be subject to the approval of the industrial accident board.^* In the event of disagreement between the parties as to the fees for services of attorneys and physicians, either party may apply to the board^* for a hearing."

In the instance at bar plaintiff and his attorneys agreed upon the fees and the department approved the agreed amount as empowered so to do by the statute. The point of want of jurisdiction is without merit.

Defendant claims that the facts do not warrant the order. The ordered advancement was against objection by defendant and in such case the statute, 2 Comp. Laws 1929, § 8438, as amended by Act No. 148, Pub. Acts 1935, provides:

"And said board^* may at any time direct in any case, if special circumstances be found which in its judgment require the same, that the deferred payments be commuted on the present worth thereof at five per cent. per annum to one or more lump sum payments, and that such payments shall be made by the employer or the insurance company carrying such risk, or the commissioner of insurance, as the case may be."

Counsel for defendant contend that the advancement to pay the attorneys was not a special circumstance justifying the order but an abuse of discretionary judgment.

Plaintiff was without financial means. Defendant, by appeal, brought the award to review in this court. The presentation in behalf of plaintiff reasonably required the services of an attorney and constituted a special circumstance directly connected with plaintiff's beneficial rights under the compensation statute, and the reasonable expenses of such services may be met and cared for out of an award under the approved agreement and proceedings had. Counsel for defendant stress the possibility of the death of plaintiff before the advancement, measured by the amount of weekly payments, will accrue, and consequent loss to defendant. This argument was made in McMullen v. Gavette Construction Co., 207 Mich. 586, and rejected.

At the hearing on the petition evidence was introduced fully justifying the finding that plaintiff's disability was total and the very nature of his injuries rendered the same permanent. This issue and evidence thereon was proper in supplement of and showing continuation of the original award for total and permanent disability.

The award is affirmed, with costs to plaintiff.

BUTZEL, C.J., and BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.

^* The powers and duties of the industrial accident board have been transferred to the department of labor and industry and the board abolished. See 2 Comp. Laws 1929, § 8312 (Stat. Ann. § 17.3). — REPORTER.