Ziegler v. Fuller Manufacturing Co.

I cannot concur in the foregoing opinion. The date of the accidental injury suffered by plaintiff was July 17, 1940. Nine days later, the defendants submitted a report of the injury to the department of labor and industry, which report contained the following statement:

"This man is receiving weekly pay check so he should not receive compensation."

The record shows that plaintiff suffered an immediate disability from the injury, and was totally disabled for a period of approximately four weeks and partially disabled for an additional week. Under such circumstances, the two-year statute of limitations contained in part 2, § 15, of the act has no application, and the only part of this section which does have application is the following:

"No proceedings for compensation for an injury under this act shall be maintained, * * * unless the claim for compensation with respect to such injury * * * shall have been made within 6 months after the occurrence of the same."

If plaintiff had promptly made claim for compensation for the period during which he was first disabled from the injury, as required by the above quoted provision, there is no question but that his present petition for further compensation because of recurrence of disability could be maintained. Palchak v.Murray Corporation of America, 318 Mich. 482; Chelli v.American Boston Mining Co., 288 Mich. 441; Rowe v. ConsumersPower Co., 268 Mich. 162. However, plaintiff did not make or file a claim for compensation within six months after the occurrence of the injury, and, unless the defendants have waived the benefit of this provision, his claim would be barred.

In Curtis v. Slater Construction Co., 194 Mich. 259, it was said:

"We think it clear that where an injured employee and his employer enter into an agreement with reference to compensation under the terms of the act, and file the same with the industrial accident board,^* such action constitutes a waiver on the part of the employer of the statutory requirement that the employee shall file his claim within six months from the date of injury."

The requirement as to filing of claim may also be waived by the employer where, in recognition of its liability under the act, it voluntarily pays the employee's wages while he is disabled. InMaki v. School District of Wakefield Township, 235 Mich. 689, plaintiff was paid half wages during the first six months of his disability. We said:

"Counsel, in oral argument and briefs, have spent much time discussing the question as to whether any official or member of defendant's board had notice of the accident and received claim for compensation. We think this is a useless argument, because it is conceded in the record that the school officials recognized its liability and agreed with plaintiff for compensation and voluntarily paid it regularly for six months. This action upon the part of the school officials eliminates the question of notice of injury, notice of claim, and was a distinct recognition of its liability."

While the word "compensation" was used in this opinion the record shows that at the time the compensation paid was not "workmen's compensation" under the act, but rather was half of the employee's regular wages for six months. No agreement was entered into under the act for the payment of these wages as workmen's compensation; they were paid voluntarily by the employer in recognition of its liability.

We have practically the same situation here, i.e., plaintiff was paid his regular wages during his period of disability in lieu of workmen's compensation. I believe that the only proper construction that may be put upon the action of the employer in paying the plaintiff his regular wages and in reporting the fact of its doing so to the department of labor and industry with the observation that plaintiff "should not receive compensation" is that the employer recognized its liability and waived the requirement that claim be made. The fact that defendants paid the expense of plaintiffs' hospitalization and treatment is further evidence of defendants' recognition of liability.

The defendants had a duty under part 3, § 17 (c), of the act (2 Comp. Laws 1929, § 8456 [Stat. Ann. § 17.191]) to "prepare and sign an agreement to pay compensation to said employee under the terms of this act, and present said agreement to the injured employee for his signature, and * * * forward said agreement so signed to the industrial accident board."^** Had defendants complied with the terms of this provision, there would be no question as to whether or not the plaintiff's present petition was brought in time. In failing to do so, and in leading plaintiff to believe that they recognized their liability in the premises, they have precluded themselves from now asserting that the plaintiff's claim was not filed in time.

The compensation commission held that plaintiff was entitled to compensation of $21 per week from October 30, 1945, until the further order of the commission, but not to exceed 150 weeks from that date for the loss of vision of his left eye.

The award is affirmed, with costs to plaintiff.

BUSHNELL, C.J., and SHARPE, J., concurred with BUTZEL, J.

BOYLES, J., concurred in the result.

^* The powers and duties of the industrial accident board were transferred to and vested in the compensation commissioners of the department of labor and industry and the board abolished. See 2 Comp. Laws 1929, § 8312, as amended by Act No. 241, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 8312, Stat. Ann. 1946 Cum. Supp. §17.3). For present administrative body, see Act No. 357, Pub. Acts 1947 (Stat. Ann. 1947 Cum. Supp. § 17.6[1]). — REPORTER.

^** See footnote, ante, 438.