Blust v. National Brewing Co.

Chandler, J. Plaintiff, an assistant brew master, receiving a weekly wage of $25, sustained an accidental injury to his right hand on May 15, 1936, while in the employ of defendant National Brewing Company. On August 28, 1936, the department of labor and industry entered an award granting him compensation at the rate of $16.67 per week. Thereafter defendants filed a petition to stop or reduce compensation and by an award of a deputy commissioner of the department dated January 5, 1937, plaintiff’s compensation was reduced to $3.33 per week from and after said date. Plaintiff took no appeal therefrom. On April 16, 1937, he filed a petition for further compensation, which resulted in an award being entered by the department increasing his rate of compensation to $16.67 per week. Defendants appeal from this award, claiming it to be erroneous for the reason that no showing having been made that plaintiff’s physical condition had changed for the worse since the award of January 5, 1937, the department was without authority to increase the rate of compensation. This necessitates an examination of the record to determine whether any competent evidence was presented which might support the award. *105 The opinion of the department states, “The adjudication of January 5, 1937, in ordering compensation to be paid to plaintiff for partial disability at the rate of $3.33 per week amounted in fact to a determination that plaintiff had an 80 per cent, capacity to earn wages in the field of common labor. That determination was not appealed from and we are not therefore at liberty to inquire into the accuracy of such finding.” . However, the inference drawn by the department does not necessarily follow from the facts upon which it purports to be based. Although the testimony presented upon the hearing of defendant’s petition to stop or reduce compensation is not before us, plaintiff’s answer to that petition in effect claimed total disability and inability to perform the same or similar work in which he was engaged at the time he sustained his injury. His petition for further compensation likewise claims total disability and the testimony adduced in support thereof established his physical condition at the time of the hearing to be no worse than it was in January, 1937. After testifying that he was unable to perform any work, plaintiff stated: “Q. Well we understand then, Mr. Blust, that you feel better now than you did last January? “A. Yes, I have felt pretty good since last spring. ‘ ‘ Q. Can you close the right hand now better than you could last January? “A. It seems that I can, but there is no grip in the hand, no strength there, I cannot do anything with it. “Q. How is your grip; is that about the same as it was last January? “A. The grip is a little better than it was last January, but there is no strength in the arm, I am *106 unable to lift anything or do any work with the right arm.” Plaintiff’s attending physician testified that plaintiff had not been physically able to perform any work since January, 1937, and that his condition varied from time to time. He then gave the following opinion: “Q. Well, then in your, opinion, you would say that the condition of his hand and arm is better than it was last January? “A. I would not say that it is any better. “Q. Would you say that probably it is about the same ? “A. Probably about the same, if it is not worse.” Another physician produced by plaintiff testified, “Q. What I am getting at, Mr. Blust testified here, a little while ago, that his hand and arm is feeling better now than it did last January. Is that what he told you in giving you the history of the case? “A. He told me that he was not in so much distress, so much pain, but otherwise that he was about the same.” Plaintiff’s wife testified: ‘ ‘ Q. During the last two or three months, he has been getting stronger has he? “A. He does not seem to suffer as much pain as he did, but his arm does not seem to be of any more use, although he does hot suffer the pain that he did, there is no strength in the arm, he has no use of that.- “Q. His arm is just about the same as it was? “A. Just about the same in the way of using it, yes, sir.” . The foregoing quoted testimony substantially represents the evidence as to plaintiff’s physical condition at the time of the hearing as compared- with his *107 condition in January, 1937. From a review thereof it must be concluded that there has been no change in his condition. It being conceded that he is totally disabled at present, it follows, therefore, that he was so disabled at the time the award of January 5,1937, was entered. Upon the showing thus made the department had no authority to increase the weekly payments. McKay v. Jackson & Tindle, Inc., 268 Mich. 452. The finding of the department that plaintiff’s physical condition has changed for the worse is not supported by any competent evidence. If plaintiff was totally disabled on January 5,1937, and the deputy commissioner erroneously entered an award based upon partial disability, his remedy was by appeal therefrom, which remedy he failed to pursue. The award is vacated, with costs to appellants. Wiest, C. J., and Butzel, Btishnell, Sharpe, and North, JJ., concurred with Chandler, J.