Rice v. J. F. Braun & Son , 271 Mich. 532 ( 1935 )

Plaintiff while in the employ of defendant company as a carpenter on September 4, 1928, suffered a fall resulting in a limited compression fracture of the bodies of the second and third lumbar vertebrae of the spine, a fracture of the metacarpal bone of the left wrist and injury to one of his knees. Claim was made for compensation and paid at the rate of $18 per week until May 27, 1929, for total disability. March 31, 1930, plaintiff filed a petition for further compensation and the same was granted and paid from February 1, 1930, to August 4, 1932, at the rate of $18 per week for total disability, at which time defendants filed a petition to stop compensation, the result of which was an order by the department of labor and industry as of November 28, 1932, stopping compensation as of August 4, 1932.

December 21, 1932, plaintiff filed another petition in which he recited the following claim "that since November 5, 1932, my condition has become worse, and I have been disabled from doing any work and I am entitled to further compensation." April 15, 1933, the department of labor and industry denied the petition. No appeal was taken by plaintiff.

August 5, 1933, plaintiff filed a petition for further compensation in which he stated "that since February 25, 1933, my condition has become worse. I am unable to do any work of any kind, I am totally disabled, at present time." The department of labor and industry on October 2, 1934, granted plaintiff compensation at the rate of $9.60 per week since November 22, 1933, from which order defendants appeal.

It is the contention of defendants that plaintiff has failed to show a substantial change for the worse since the hearing of February 24, 1933, and, further, that the award of the deputy commissioner of February 25, 1933, and affirmed on April 15, 1933, adjudicates plaintiff's present claim.

In Runnels v. Allied Engineers, Inc., 270 Mich. 153, 158, we said, "to entitle the plaintiff to compensation under the petition last filed by him, it must appear from the evidence submitted that there had been such a change in his physical condition, after the award entered on January 31, 1933, as had lessened his earning ability."

See, also, Levanen v. Seneca Copper Corp., 227 Mich. 592;Stevens v. Consumers Power Co., 266 Mich. 591; McKay v. Jackson Tindle, Inc., 268 Mich. 452.

In the instant case plaintiff has filed several petitions for further compensation, the one previous to the last one being heard on February 24, 1933. Upon that hearing, plaintiff claimed total disability and an award was denied by the department of labor and industry. The denial of an award for further compensation unappealed from is an adjudication that plaintiff was not incapacitated as of the date of the hearing or if incapacitated that the disability was not the result of the original injury received. The last petition filed by plaintiff was on August 5, 1933, in which he claimed total disability since February 25, 1933. In order that plaintiff may now receive compensation, he must prove a change in his physical condition since the hearing of February 24, 1933, and that this change has lessened his earning ability.

Much medical testimony was produced and that most favorable to plaintiff was that he was disabled from performing the usual work that a carpenter is called upon to do and that plaintiff was suffering from pain. This evidence was not helpful to plaintiff in that it failed to show a change in his condition and lessening of his earning power. If in this case plaintiff is to recover compensation, the basis for it must be found in his own testimony. A fair statement of his testimony insofar as it pertains to his condition since February 24, 1933, is that he has suffered more pain and his condition has grown worse. We held inDeBernardi v. Oliver Iron Mining Co., ante, 212, that anintensification of ailments in and of itself is not sufficient to base an award for further compensation upon. The mere statement that his condition has grown worse is a conclusion which without evidence of what the change is and how it affects and lessens his earning ability is insufficient to base an award upon.

The award is vacated, with costs to defendants.

POTTER, C.J., and NELSON SHARPE, NORTH, FEAD, WIEST, BUTZEL, and BUSHNELL, JJ., concurred.