Johnson v. Cleveland-Cliffs Iron Co.

356 Mich. 387 (1959)

96 N.W.2d 750

JOHNSON v. CLEVELAND-CLIFFS IRON COMPANY.

Docket No. 22, Calendar No. 47,954.

Supreme Court of Michigan.

Decided June 6, 1959.

*388 Aaron Lowenstein, for plaintiff.

Davidson & Clancey (Walter L. Hansen, of counsel), for defendant.

DETHMERS, C.J.

Plaintiff's claim is for compensation for specific loss of the distal phalange of the middle finger of his left hand. Amputation of 3/4 of it was necessitated by an injury arising out of and in the course of his employment. The workmen's compensation appeal board denied compensation for specific loss of the entire phalange under the holdings of this Court in Fanning v. W.E. Wood Co., 255 Mich 618, and Van Eps v. Sligh Furniture Co., 257 Mich 112. Since then, a majority of this Court, in an opinion not shared by this writer, overruled those cases and held such loss to constitute the loss of the entire phalange within the meaning of the specific-loss provisions of the statute.[*]Palazzolo v. Bradley, 355 Mich 284. That must be considered conclusive now of that question in this case.

Defendant urges, in defense of the appeal board's denial of compensation for specific loss, that because the amputation occurred July 13, 1951, and no claim for compensation for specific loss was made until December 4, 1957, more than 6 years later, plaintiff is barred from recovery by virtue of the provisions of CL 1948, § 412.15 (Stat Ann 1950 Rev § 17.165), requiring a claim to be made within 6 *389 months after injury, and because of unreasonable delay as defined in Henderson v. Consumers Power Co., 301 Mich 564, and Napolion v. National Concrete Metal Forms Corp., 279 Mich 668. This issue was duly raised below, but the appeal board did not pass on it, having denied compensation on the ground first above considered. To this defense plaintiff says a number of answers suggest themselves. One of them may possess merit. It is that, in plaintiff's words, "no report sufficient under the statute to start limitations was filed." Plaintiff relies on the provision of the above-mentioned section of the statute that the limitation shall not start to run against the employee's claim until the employer has filed a report of the injury with the commission as required by statute. In that connection plaintiff cites Weenink v. Allen Electric & Equipment Co., 276 Mich 561, and Baughman v. Vicker's, Inc., 323 Mich 710, for the proposition that an employer's filing of an incomplete or incorrect report will not serve the purpose of starting the limitation to run. Plaintiff says the employer's report here filed was incomplete and misleading in that it did not disclose all the facts of plaintiff's injury and loss. The questions as to plaintiff's failure to make timely claim and defendant's failure to file proper report of injury not having been passed on by the appeal board, the case is remanded for determination thereof.

CARR, KELLY, SMITH, BLACK, EDWARDS, and KAVANAGH, JJ., concurred.

VOELKER, J., did not sit.

[*] See CL 1948, § 412.10, as amended by PA 1949, No 238 (Stat Ann 1950 Rev § 17.160). REPORTER.