Adcox v. Northville Laboratories, Inc.
| Decision Date | 03 April 1968 |
| Docket Number | Docket No. 2976,No. 1,1 |
| Citation | 160 N.W.2d 587,11 Mich.App. 13 |
| Parties | Rawleigh R. ADCOX, Plaintiff-Appellant, v. NORTHVILLE LABORATORIES, INC. and Michigan Mutual Liability Company, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
Jerome W. Kelman, Kelman, Loria, Downing & Schneider, Detroit, for appellant.
John R. Brown, LeVasseur, Werner, Mitseff & Brown, Detroit, for appellees.
Before LESINSKI, C.J., and GILLIS and T. G. KAVANAGH, JJ.
Plaintiff Rawleigh R. Adcox appeals from a decision of the workmen's compensation appeal board which affirmed the referee's partial denial of plaintiff's application for hearing and adjustment of claim. Plaintiff had been employed by defendant Northville Laboratories, Inc., when injured, and defendant Michigan Mutual Liability Company carried the employer's workmen's compensation coverage.
On February 23, 1961, while in the course of his employment, plaintiff fractured his left hip. Corrective surgery was required and 3 pins were inserted in the hip. By the spring of 1962, plaintiff's recovery was sufficiently complete to allow him to return to work. The treating physician released plaintiff for work and, on April 30, 1962, compensation payments ceased. However, plaintiff was not rehired by his previous employer for the reason, as plaintiff was told, that work was slow at that time. On or about August 1, 1962, plaintiff began experiencing increasingly severe pains in his left hip, which extended the length of his leg. The symptoms were caused by aseptic necrosis 1 of the head of the left femur at the point of insertion in the hip socket.
A letter written by plaintiff was received and filed by the workmen's compensation department on September 17, 1965. Plaintiff formally applied for benefits on November 12, 1965, whereupon defendants voluntarily assumed liability for benefits for the period commencing November 12, 1964. After 2 hearings, the referee awarded additional compensation for the period of September 17, 1964 to November 11, 1964; the reason given for this award was that the letter filed September 17, 1965 was to be treated as an application for further compensation. Plaintiff's request for compensation for the period of August 1, 1962, to September 17, 1964, was denied on the basis of C.L.1948, § 413.14, P.A.1965, No. 44, effective June 3, 1965 (Stat.Ann.1968 Cum.Supp. § 17.188). 2 The workmen's compensation appeal board affirmed this ruling on October 31, 1966; the board held 'that plaintiff has not borne his burden of proving a new or further development which would in effect amount to a new disability.'
The parties concur in stating the question to be: 'Is plaintiff's claim for benefits under the Michigan workmen's compensation law, from August 1, 1962 to September 17, 1964, barred by part 3, § 14, of the workmen's compensation act?'
Plaintiff seeks to escape the one-year-back rule by contending that the disability caused by the aseptic necrosis was the result of a 'further and subsequent development' and was not a continuation of the same disability for which compensation had already been paid. Defendants maintain that the condition was not a 'further and subsequent development' and thus the one-year-back rule applies.
Plaintiff's brief characterizes this as a question of law and not of fact. We cannot assent to this proposition. Concededly, the line between 'law' and 'fact' is not always easily drawn. Though the phrase involved here has a legalistic ring, it represents a determination of causality, which is a peculiarly factual inquiry. The determination is not to be upset if based upon competent evidence, Carter v. General Motors Corporation (1960), 361 Mich. 577, 106 N.W.2d 105, and if no fraud is shown, Martin v. White Pine Cooper Company (1966), 378 Mich. 37, 142 N.W.2d 681. 3
The only medical testimony presented in this case was that aseptic necrosis only rarely develops spontaneously, is primarily the result of a trauma, and that, considering plaintiff's age (60) and the surgery with insertion of 3 pins, 'the treating doctor should be aware that such a condition may develop.' When asked whether it would not be unusual for such a condition to be developing continually from the time of the original trauma, the doctor responded, 'That is true.'
In our opinion, this testimony supports the finding that plaintiff did not sustain the burden of proving a 'further and subsequent development,' that is, one injury with 2...
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Rice v. Michigan Sugar Co.
...of America (1947), 318 Mich. 482, 493, 28 N.W.2d 295.' " 381 Mich. at 610, 166 N.W.2d at 464, fn., quoting Adcox v. Northville Laboratories, 11 Mich.App. 13, 18, 160 N.W.2d 587 (1968). I. e., because the WCAB found as a fact that the plaintiff's condition was not a result of the original in......
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Adcox v. Northville Laboratories, Inc.
...the award of the Referee below.' Upon appeal to the Court of Appeals, the Workmen's Compensation Appeal Board was affirmed. 11 Mich.App. 13, 160 N.W.2d 587. In an opinion by Judge J. H. Gillis, joined in by Chief Judge John Lesinski, the following independent finding of fact 'On or about Au......