As I construe the department's finding and award, the holding is that plaintiff suffered a personal injury which would have entitled him to *Page 617 compensation except "for the reason that he has not suffered any disability as the result of such injury." Obviously the purpose of the department's determination is to enable plaintiff to be later awarded compensation in event his injury results in disability. Otherwise there was no need for the department to modify the award of the deputy who denied compensation, one of the reasons being that "prompt notice of said hernia was not given to the employer."
Review of the record discloses that without any fortuitous circumstance, plaintiff in the regular course of his employment in July, 1944, when lifting a box of scrap experienced a pain in his right side. He at once told his foreman he had a "hurt" in his right side by lifting. Plaintiff was not taken to the employer's first aid department nor given a pass to enable him to go there. However, as plaintiff testified "right after" he experienced the pain, and definitely in the same month he went to his own doctor who then told plaintiff he had a hernia. Notwithstanding plaintiff continued his employment until the last day of September, 1944, when he was laid off because of lack of seniority, he in no way informed his employer that he had a hernia until some time in November, 1944. Under such circumstances, the deputy commissioner correctly held that plaintiff was not entitled to compensation because his hernia was not "promptly reported to the employer," as provided in the statute. Act No. 10, pt. 7, § 1, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1945 Cum. Supp. § 17.220).
No claim is made that plaintiff did not have the same knowledge as to his having a hernia in July, 1944, as he had when he reported it the following *Page 618 November. No excuse for or explanation of plaintiff's delay in giving notice to his employer appears in this record. I cannot escape the conclusion that decision in the instant case is controlled by our former decisions in Riley v. Berry BrothersPaint Co., 293 Mich. 500; Barclay v. General Motors Corp.,309 Mich. 534; and Caufield v. Ford Motor Co., 310 Mich. 555. In the latter case we said that the statutory provision as to prompt reporting "must be held not only to refer to the happening of the hernia, rather than to the happening of subsequent disability, but it must also be held to be a mandatory provision." The department's award is vacated, with costs to appellant.
CARR, BOYLES, REID, and STARR, JJ., concurred with NORTH, J.
BUSHNELL, J., took no part in the decision of this case. *Page 619
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