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JOSEPH KALUCKI,

Applicant,

VS.
AMERICAN CAR & FOUNDRY COMPANY,

Respondent.

Loss OF EYE RESULTING SEVERAL MONTHS AFTER ACCIDENT-LIMITATIONS. Applicant received an injury to his left eye which was not con

sidered serious and did not prevent him from doing his work and earning the same wage for several months following the accident. About 8 months from the date of the accident the eye was examined by an expert and the sight, was found to be entirely gone. Respondent claims that compensation is barred by the failure to make claim within 6 months after the happening of the accident.

HELD: 1. That while the accident set in motion agencies which

ultimately destroyed the sight of the eye, no right to compensation accrued and no compensable injury existed until the point of time was reached where the eye was a total loss.

2. That the injury complained of is the loss of the eye which did not result until several months after the accident, and that the right to compensation is not barred by failure to make claim.

Opinion by the Board:

Applicant's left eye was injured on July 29, 1914, while he was in the employ of respondent and engaged in his usual work, the injury being caused by bits of steel entering his eye. The accident was reported to the company's doctor, and applicant was furnished medical service for a few days, after which he returned to work, it being thought that the eye was not seriously injured. He was able to do his usual work and receive the same wages, although the eye caused him some trouble and inconvenience. He continued in the employ of the company until the work on which he was employed was finished. The eye continued to cause him more or less trouble. and being treated and cared for with the expectation that the

trouble would be overcome. On April 7, 1915, applicant had the eye examined by Dr. Don M. Campbell, and it was then found that the vision of the eye was gone and the eye useless. Claim was made for compensation for the loss of an eye and the case proceeded to arbitration. The principal contention of respondent is the want of notice of injury and that no claim for compensation was made within six months after the accident. The formal claim for compensation was filed and served on the employer on June 10, 1915.

It appears that the employer had knowledge of the accident and caused the injury to the eye to be treated and cared for by its physicians. The serious question in the case arises with reference to the claim for compensation. The furnishing of medical service and treatment by the employer would seem to constitute a waiver of its defense based on failure to make such claim. The defense is a tehcnical one and is interposed in this case to defeat applicant's claim for a very serious injury which is otherwise concededly meritorious.

The claim put forward in this case, that applicant should have made formal claim for compensation for the injury to eye

within six months from the date of the accident, raises some important considerations. It has been held by the Supreme Court that no compensation is recoverable for injury to an eye where the sight is not wholly lost, and where the injured man is able to perform his work and earn the same wages. Under these rulings, the applicant had no claim that could be asserted under the Compensation Law during the first six months following the accident. It seems that it could not reasonably be held that his failure to go through the formality of making a claim during this period, forever bars his right to recovery for the injury. Under the rulings above Teferred to, the applicant had no enforcible claim under the Compensation Law until the sight of the eye was gone. Hirschkorn vs. Feige Desk Company, 184 Mich. 239. Not until the examination made by Dr. Campbell on April 7, 1915, was he aware that the eye was lost. Up to that time he could not have known that he had a claim for compensation under the

the

Law. It is true that he knew a portion of the sight had been lost, but this did not entitle him to compensation, as our Law does not permit recovery for the loss of a percentage of the eye which is less than total. It seems therefore that a distinction must be made in cases of this kind between the accident and the resulting injury. It is apparent that the accident set in motion agencies which ultimately destroyed the sight of the eye, but the loss of the eye which would be the only compensable injury in the case did not occur until several months after the accident. A similar question has been recently passed upon by the Supreme Court of Nebraska in the case of Johanson v. Union Stockyards Co., 156 N. W. Rep. 511. The injury was the loss of an eye which occurred several months after the accident, the principal defense being the failure to file claim for injury within the six months period. The Court say:

“It is conceded that the accident happened more than six months before this claim was made (the date of the accident being December 18, 1914). The trial court found that said accident resulted in a total disability to plaintiff on December 25, 1915. * * The plaintiff went to his home the night after the accident, and he testified that, with the help of his niece, he washed his eye with warm water, and they appear to have so continued treating it, without realizing what might result from the accident, for several days, until the 25th day of December, when he was induced to consult a physician, who advised him to go to a hospital and consult an expert. This he accordingly did, and was informed that his eye was in a serious condition and might result very unfavorably. During this time, apparently, the injury resulting from the accident gradually became developed, and it cannot be said that the injury resulted from the accident, within the meaning of the statute, before the time it was discovered that it might become permanent, which was some time after the 25th of December. This evidence clearly justifies the finding of the trial court under this statute, that the accident resulted in a total disability to plaintiff on December 25, 1915. It also appears from the evidence that the plaintiff's foreman knew of the accident at the time, or very soon after it occurred. He so testifies himself. He could not, of course, then have known of the injury as it finally developed."

While the distinction between "accident” and “injury” in the case cited is based to some extent upon the definition of

these terms given in the Nebraska Act, substantially the same distinction exists independent of statute, as pointed out by us in the opinion filed in the Harry Hart case. It seems that this is the only reasonable interpretation of the law in case of injury to an eye which does not disable the workman from continuing his employment and earning his former wages, but which ultimately results in the loss of the eye. No valid right to compensation exists for which claim could be made until the point of time is reached where the eye is a total loss. It would be most unreasonable to require that the injured workman file claim for compensation before a legal right to such compensation accrued to him. On the other hand, it would be a harsh rule of interpretation to cause the forfeiture of a meritorious claim for such a serious injury, on the ground that the injured man did not claim compensation for the loss of an eye before he was aware that it was lost.

INTER-INSURANCE EXCHANGES.

The Inter-Insurance Exchanges licensed to do business in Michigan

under Act 278, Public Acts of 1913, are so organized that the power to assess their membership is limited and the liability of the members several. It is a fundamental requirement of workmen's compensation insurance that the liability of the insurer be limited only by the amount necessary to pay all lawful claims of the workmen covered, and their dependents. Therefore, such Exchanges must provide for emergency losses and any deficiencies by re-insurance in a company or companies of such responsibility as shall meet the approval of the Industrial Accident Board.

Under the provisions of Act No. 278 of Public Acts of 1913, a number of Inter-Insurance Exchanges have been licensed to do business in Michigan. These Exchanges all operate on substantially the same system, viz., through an attorney in fact to whom each member of the Exchange gives a power of attorney. This power of attorney authorizes the person or corporation to exchange contracts of indemnity with and for the benefit of other members of the Exchange. The attorney in fact controls the operation of the Exchange, carries on the business, adjusts the losses and collects the funds from the members for such losses and the expenses of the operation.

The Exchanges admitted by the insurance department of the state to do business in Michigan, have, through their respective attorneys in fact, adopted and attached to their policies or certificates the Rider prescribed by the Industrial Accident Board, and used by all of the liability companies in Michigan which are carrying compensation insurance. If the action of such attorneys in fact in so adopting the Rider prescribed by the Board is within their powers and their subscribers are thereby made liable for all losses according with the provisions of such Rider, then they would be entitled to the approval of the Board in carrying the risk of employers of labor in this state. But an examination of the powers of at. torney of the different Exchanges raises a very serious question as to the authority of the several attorneys in fact to so bind their subscribers.

Immediately after the compensation law went into effect in 1912, the Board required all liability companies and mutual companies carrying compensation insurance to remove from their policies the clause placing a limitation upon the amount of the company's liability resulting from any one accident. This ruling at first met with serious objection from the insurers, but all have complied with it; and it is now established as a part of the system in Michigan that the liability of the insurer growing out of any one accident is limited only by the amount necessary to pay compensation to all workmen injured and the dependents of all who are killed thereby. Having held from the beginning that any company assuming to carry the risk for an employer of labor must assume and carry all risk, the Board could not now properly approve contracts

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