Rajkovich v. Oliver Iron Mining Co. , 292 Mich. 162 ( 1940 )

Plaintiff, while working as a miner for defendant company, was injured February 11, 1929, by falling pieces of rock striking the crown of his head and parts of his body. A report of the accident was made and compensation was by approved agreement. Compensation was paid until August 24, 1929, when plaintiff returned to work and continued to work as a miner until April 7, 1933. A settlement receipt, dated September 13, 1929, was filed but never approved. At the time plaintiff quit work the mine had slowed down but he claims he was no longer able to work because of his condition resulting from the mentioned injuries.

On June 3, 1938, over five years after he quit work and more than nine years after he was injured, he filed a petition for further compensation, claiming total disability from traumatic neurosis caused by the injuries he received in 1929. A deputy commissioner denied compensation, but upon appeal the department awarded compensation of $18 per week for total disability from April 7, 1933, until the expiration of the statutory period of 500 weeks, or until the further order of the department. Defendant reviews by appeal in the nature of certiorari.

Plaintiff, unquestionably, has disabling neurosis, and the principal question is whether the proofs support the finding of a causal relation of the neurosis to the 1929 injuries so as to constitute it traumatic neurosis.

An examination of the record discloses competent evidence in support of the finding and, therefore, it may not be disturbed.

The death of the company physician, who treated plaintiff, did not bar plaintiff from testifying to the nature and extent of the injuries he received. The statute (3 Comp. Laws 1929, § 14219 [Stat. Ann. § 27.914]) relative to matters equally within the knowledge of the deceased party or his agent has no application.

Expert testimony by Dr. DeJong, in part based upon records made by another who was not called as a witness, was inadmissible, but in this review that, while noticed, does not call for reversal, there being other competent evidence in support of the award.

As we said in Dennis v. Sinclair Lumber Fuel Co., 242 Mich. 89 :

"The claimed incompetent testimony can all be stricken out and still leave ample proof supporting the findings of the department. Such being the case, we will not spend time in determining whether it should have been excluded."

In the approved agreement for compensation the injuries resulting from the accident were described as:

"Laceration of scalp. Contusion of inner side left foot below ankle. Fracture undetermined."

At the hearing plaintiff claimed one of his arms was also injured.

In Stackhouse v. General Motors Corp., 290 Mich. 249, we held:

"A claim for a specific injury is barred if not made within the required time, even though a claim for another and distinct injury arising out of the same accident was timely filed."

At the hearing, counsel for defendant invoked the agreement statement of injuries as a bar to others and said:

"If there is competent evidence of those other injuries the defendant wishes to amend its answer to (include) the statute of limitations contained in the act itself."^*

The answer of the defendant did not plead the bar nor did the conditional proposal operate as an amendment.

Plaintiff is not seeking further compensation for injuries not covered by the approved agreement but for total disability occasioned by a resultant neurosis from his head and foot injuries.

Defendant's liability includes compensation for disability of plaintiff to work and earn wages by reason of traumatic neurosis.

There has been no stoppage in this case by way of approved settlement receipt or order of the department.

If defendant was entitled to notice of the disability occasioned by traumatic neurosis (a point we do not decide) and did not receive such notice, and it is claimed that relief, therefore, is barred by statute, such defense should have been pleaded and issue joined thereon and, in the absence of such plea and issue, may not now be urged.

The award is affirmed, with costs to plaintiff.

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

^* See 2 Comp. Laws 1929, § 8431 (Stat. Ann. § 17.165). — REPORTER.