The petition before us for review is one for further compensation, and "such relief as he (petitioner) is entitled to under the workmen's compensation law of Michigan." At the hearing the department treated the proceedings as one for "review of payments and (to) ascertain what amount, if any, plaintiff was entitled to receive under the award." Prior to the filing of this petition the parties had entered into an agreement for compensation to which he was entitled as a result of his injury on February 5, 1930. This agreement for compensation provided:
"The employee's average weekly wage being $48 it is agreed, that compensation be paid at the rate of $18 per week, during total disability, and at the proper rate per week during partial disability if he becomes legally entitled to compensation for partial disability."
Plaintiff was paid compensation for a short time and then was returned to his employment but at light work. The settlement receipt entered into by the parties was not approved by the department of labor and industry. With some lay-off plaintiff continued in defendant's employ until October 6, 1932, at which time he was permanently released from defendant's employment. He was without employment thereafter until August 24, 1933, at which time he entered the employ of the Packard Motor Car *Page 41 Company where he remained until the time of the hearing, at a weekly wage of approximately $30.
In November, 1935, plaintiff filed this petition and upon review before the department he was awarded for partial disability $12 per week, commencing August 24, 1933, such compensation to continue until the further order of the department.
The question presented on this appeal is whether this award is supported by any testimony tending to show partial disability of plaintiff as a result of his injury. We think there is such testimony. Dr. William J. Cassidy, a witness for defendant, testified:
"It is possible he (plaintiff) probably would have some damage to the proximal ends of the metatarsal at the time. Usually the soft tissue becomes damaged from the result of the injury, as a rule. They heal, the arch becomes fairly firmly fixed, it doesn't do much damage. It shouldn't give him any pain if it is firmly fixed. There is nothing between the metatarsal and tarsal arch to firmly fix it.
"Q. (on cross-examination) Doctor, his condition in the arch and in the toe could cause pain, couldn't it?
"A. Yes. The question of pain is an individual problem, it varies in individuals, pain is a personal problem. * * *
"Q. If he stood on his feet for a number of hours and didn't have the proper support on there, wouldn't he have discomfiture and pain in that foot, if he didn't have the support?
"A. Well, he is apt to, yes, if he has had an arch that has been damaged, if the thing isn't supported he is more apt to have pain, yet. * * *
"Q. And of course the soft tissues down in there that were injured at the time of this accident could be causing pain? *Page 42
"A. Yes, it could. * * * As I say, at the time I saw him, of course, I didn't know how long he was on it. He didn't have very much swelling the day I saw him, very little swelling around the joints. The arch was down, of course."
Dr. T.I. Bergman, who examined plaintiff shortly before the hearing, as a witness for plaintiff testified:
"Examination disclosed a left foot that was scarred on the dorsal surface and atrophy of the great toe of the left foot, and a flat arch and tenderness over the metatarsal arch. The conclusion was that as a result of the accident he told me he had sustained, the ligaments had been pulled out and let his arch down. * * *
"Q. And would he be disabled in standing on his feet continuously?
"A. I think he would, because those ligaments have been pulled out of normal relationship, and it doesn't hold the bones of the arch in a normal position, and that will cause pain, and the longer he stands on it the more pain he will have. * * *
"Q. What disability has this man in the general field of common labor?
"A. As he is now it is probably difficult for him to be on his feet for any length of time. It would be pretty hard to estimate a percentage, although I should say anywhere from 35 to 50 per cent.
"Q. And this disability you found is the result of the accident?
"A. Yes."
Dr. I.W. Ruskin, another witness in behalf of plaintiff, testified:
"And that he (plaintiff) has a disturbed circulation of the left foot, which has prevented proper repair, and which in itself can also be a disturbing element in the foot. It was my further opinion that this disturbed circulation was associated with the *Page 43 trauma that he had received. The patient has a disability in the field of general labor because of his inability to be on his feet continuously. He could do sitting down work, or work that would permit him alternately to sit or stand. * * * I think his explanation that he gave would be one that I could go along with. That is, that he had a great deal of disability while he did that (continued to work after the injury), but as we do know from experience, men will go through a lot of hardship and suffering for the sake of keeping down a job, and I believe at this time if he were given that kind of a job he would perhaps make every effort to keep up with the work.
"Q. How much disability has he in the general field of common labor?
"A. Well, as I mentioned, his disability would be due to his inability to be on his feet continuously, and it would be rather difficult to make any percentage of disability in this case. I would say, setting an arbitrary percentage, his disability is about one-third or a half in the general field of labor, based on his inability to be on his feet continuously.
"Q. Doctor, would he be able to use a sledge hammer weighing 25 pounds, breaking slag and working around the slag (plaintiff's former employment with defendant)?
"A. Well, I believe that would be pretty hard work for a man who has a bad foot."
In the light of the foregoing testimony it cannot be said that the award to plaintiff of $12 a week for partial disability is wholly without evidentiary support. If supported by some testimony, we are bound by the department's determination of issues of fact, and the award made by the department should be affirmed.
In view of the record quoted above, I think this court would not be justified in holding, as is stated in Justice WIEST'S opinion: *Page 44
"This (the award of $12 per week) found and measured his partial disability by decreased earnings rather than by capacity to work."
The opinion of the department does not so state. It is true that $18 per week is approximately the difference in plaintiff's earnings while employed by defendant and his earnings when later employed by the Packard Motor Car Company; but the inference does not follow that therefore the department made this the measure of compensation awarded. The testimony hereinbefore quoted is ample to support the conclusion that at the time this petition was filed plaintiff's earning capacity was impaired to such extent as would fully justify the award made by the department for partial disability. It should be affirmed, with costs to appellee.
BUSHNELL, J., concurred with NORTH, J.