Cibor v. Fabricon Products Co. ( 1966 )

J. H. Gillis, J.

Plaintiff John Cibor was injured on May 25, 1951, while operating a punch press for his employer Fabricon Products Company. The injury resulted in the loss of four fingers on his right hand, for which he was voluntarily paid compensation by defendant Continental Casualty Company, his employer’s insurer, based on the specific loss of four fingers. Defendant Fabricon Products Company filed a report of the accident with the workmen’s compensation department. Plaintiff returned to selected work in late 1951. After the plaintiff was paid the statutory amount for the specific loss of four fingers, he filed an application for further compensation on January 8, 1953. The defendant-employer filed a notice of defenses and proof of service. On March 12, 1954, the application for hearing and adjustment of claim for compensation was withdrawn by plaintiff’s counsel.

Plaintiff, on January 10, 1961, more than 500 weeks after the injury, filed an application for hearing and adjustment of claim alleging the industrial loss of use of his right hand and general disability resulting from the accident of May 25, 1951. No change in his physical or working condition had taken place since his return to selected work. The hearing referee awarded the statutory compensation for industrial loss of a hand and denied compensation for general disability as there was no wage loss shown to have existed for one year prior to the date of the application. On appeal the workmen’s compensation appeal board affirmed the referee’s decision.

This Court must determine whether the workmen’s compensation act bars a claim for compensation for loss of the industrial use of a hand filed in the workmen’s compensation department almost 10 years after the injury, for which claimant heretofore had been paid compensation for the specific loss of four fingers of the same hand.

The defendant-employer timely filed the required basic report of compensable injury and paid the statutory compensation for the specific loss set forth in its report filed pursuant to the requirements of part 2, § 15, of the workmen’s compensation act.¹ In plaintiff-appellee’s brief, under the counterstatement of facts, he states: “The employer’s basic report adequately described the injury as: ‘The loss of all fingers except the thumb, and entire hypothenar.’ ”

The plaintiff now contends that the defendant’s report was inaccurate and faulty in that it did not specify that the plaintiff had suffered the industrial loss of his hand. It is sufficient to say at this time that the employer’s report, in addition to specifying the loss of four fingers, was accompanied by a diagram drawn by Dr. Harold B. Leppink, M. D., certifying the points of amputation. The defendant-employer fulfilled the requirements of the act.

Perhaps at this time it would be well to state that the factual situation in this case can readily be distinguished from the recent case of Autio v. Proksch Construction Company (1966), 377 Mich 517. In the Autio Case the appeal board found that the defendant-construction company had failed to file an accurate report of the loss claimed by the plaintiff Autio. In the instant case no such finding was made by the board. "While it is true that an inaccurate or incomplete report tolls the statutory limitational period provided by CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165), since amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.165), the record in the instant case shows that the report was accurate in all details. True, in the report, the employer did not arrive at a conclusion that as a result of the loss of four fingers, the plaintiff suffered the industrial loss of a hand. An example of an inaccurate report would be that set forth in Weenink v. Allen Electric Equipment Co. (1936), 276 Mich 561, where the report filed by the employer set forth an injury to a leg but failed to make any mention of an injury to a hip and back.

The instant case is not one where a further condition developed which was not apparent at the time of the original injury. If the injured employee disputed the propriety of the payments, it was incumbent on him to file a claim as required by part 2, § 15, of the workmen’s compensation act, supra.

Reversed. Costs to appellants.

Lesinski, C. J., and Fitzgerald, J., concurred.

1 CLS 1961, § 412.15 (Stat Ann 1960 Rev § 17.165), since amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.165).