Bruce v. Taylor & Maliskey

Ostrander, J.

(after stating the facts). If claimant is totally disabled, his compensation must continue to be paid, not for longer than 500 weeks. Plaintiffs in certiorari argue that it is anomalous that he should be permitted to recover for a period greater than the one fixed for the total loss of his foot, and it is suggested that the statute (section 10) be construed to mean for the loss of a foot, or what is equivalent thereto.

Sections 9 and the applicable parts of section 10, part 2 of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, §§ 5439, 5440), read:

“Sec. 9. While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half his average weekly wages, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed four thousand dollars.

“Sec. 10. While the incapacity for work resulting from) the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury. In cases included by the following schedule the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall bé as specified therein, to wit: * * * For the loss of a foot, fifty per centum of average weekly wages during one hundred and twenty-five weeks.”

,The board has found that claimant’s incapacity for work is total. It would seem that the finding might well have been that his incapacity is partial only, thus limiting payments to 300 weeks, in view of claimant’s admission that he had not tried to work since receiving, his injury, nor sought any employment other than such as .requires him to stand on his feet. However, I .think there is some testimony tending to support the finding. We cannot by construction of the statute make a case of partial incapacity for work when the fact is found that the incapacity is total.

The conclusion of the board will not be disturbed.

Stone, C. J., and Kuhn, Bird, Moore, Steers, Brooke, and Person, JJ., concurred.