Pretzer v. State Psychopathic Hospital

Sharpe, J. On September 7,1935, the plaintiff, a man 63 years of age, suffered an accidental injury arising out of and in the course of his employment as a male nurse by the State psychopathic hospital at Ann Arbor. He was kicked in the abdomen by a patient and an operation disclosed a small tear in the lower part of the small intestine. Plaintiff remained 20 days in the general hospital and was then *456 transferred to the convalescent hospital. He returned home about four weeks after the injury. Compensation at the rate of $18 per week in accordance with an approved agreement was paid to September 19, 1936. On September 29, 1936, the defendants filed a petition to stop payment of compensation. On May 20, 1938, the department denied defendants ’ petition to stop payment of compensation. Defendants appeal and contend that there was no competent evidence to support the finding of the department of labor and industry that the incapacity for work of the plaintiff was the result of the accident. An additional fact of interest is that plaintiff never resumed employment of any kind; and subsequent to his return from the hospital, he was committed to Ypsilanti State hospital as an insane patient. The law is clear that in order to' stop compensation, the party asserting that there has been a recovery must sustain the burden of proof. See Hovey v. General Construction Co., 233 Mich. 531; Warner v. Railway Co., 248 Mich. 60; Johnson v. Pearson, 264 Mich. 319. In the instant case the burden was upon defendants to show by competent evidence that plaintiff had recovered from the effects of. the accident. In the opinion of the department it is said: “The department finds that during the time that plaintiff was employed- by the defendant hospital and up to the time of his accidental injury, he was mentally normal and in full possession of all of his faculties. His present disability dates from the accident and has been a progressive development since that time. ’ ’ The evidence supporting plaintiff’s claim is largely drawn from lay witnesses and is to the effect that *457 prior to the injury plaintiff was fully capable and competent to perform his duties as a male nurse, while- the evidence supporting defendants ’ claim is to the effect that subsequent to the accident and injury, plaintiff had a generalized arteriosclerosis and elevated blood pressure, a deteriorated intellect and thinking ability and that this condition existed prior to the accident. "We think the record sustains the finding of the department that the present condition of plaintiff dates from the accident, but to arrive at this conclusion, the department had to weigh the testimony of lay witnesses. In Austin v. Howard A. Davidson, Inc., 246 Mich. 599, 602, we said: “The board * was not bound to take the opinion of the doctor when there were other facts sufficient to support a contrary finding.” And in Johnson v. Pearson, supra, we said: “The commission may rely upon the testimony of plaintiff and lay witnesses in determining the duration of an injury.” See, also, Jelusich v. Wisconsin Land & Lumber Co., 267 Mich. 313. In the case at bar, the department found that defendants failed to show that plaintiff’s present condition had no relation to the accident and injury. The record sustains such a finding and the award is affirmed, with costs to plaintiff. Wiest, C. J., and Bushnell, Potter, Chandler, North, and McAllister, JJ., concurred. Butzel, J., did not sit.