Adcox v. Northville Laboratories, Inc.

• Decision Date: 09 April 1969
• Docket Number: No. 15,15
• Citation: 381 Mich. 600,166 N.W.2d 460
• Parties: Rawleigh R. ADCOX, Plaintiff and Appellant, v. NORTHVILLE LABORATORIES, INC., and Michigan Mutual Liability Co., Defendants and Appellees.
• Court: Michigan Supreme Court

Page 460

166 N.W.2d 460

381 Mich. 600

Rawleigh R. ADCOX, Plaintiff and Appellant, v. NORTHVILLE LABORATORIES, INC., and Michigan Mutual Liability Co., Defendants and Appellees.

No. 15.

Supreme Court of Michigan.

April 9, 1969.

Kelman, Loria, Downing & Schneider, Detroit, for defendants-appellees.

LeVasseur, Werner, Mitseff & Brown, Detroit, for defendants-appellees.

Before the Entire Bench, except THOMAS GILES KAVANAGH, Justice.

ADAMS, Justice.

I. The Facts and Proceedings

On February 23, 1961, plaintiff fractured his left his while in the employ of defendant. Compensation was paid from date of injury until April 30, 1962. It was stopped on defendant's allegation that plaintiff was able to return to work. About May 1, 1962, plaintiff was released to work by the treating physician but when he attempted to regain employment from the defendant, he was told that work was slow and he was not re-employed.

On September 17, 1965, the Workmen's Compensation Department received a letter from plaintiff. The Referee considered the letter to be an application for further compensation. He granted compensation benefits beginning September 17, 1964, but denied plaintiff's claim for benefits from August 1, 1962 to September 17, 1964. Without any finding of facts to support his decision, the opinion of the Referee merely states:

'It is further ordered that no compensation is payable prior to September 17, 1964 because of the prohibition of section 14 of Part III of the Workmen's Compensation Act.'

The case was appealed to the Workmen's Compensation Appeal Board. That board, after stating the proceedings and plaintiff's testimony, went on in its opinion as follows:

'The question on appeal is limited to plaintiff's entitlement to weekly compensation for the period August 1, 1962 to November 11, 1964. To support the relative positions, counsel argues, in short, as follows:

'Plaintiff--Claimant's physical development as of 8--1--62 of aseptic necrosis is a subsequent or further development amounting to a new disability, ergo, the one year rule does not apply as plaintiff's application is for compensation other than 'further compensation.'

'Defendant--Plaintiff's condition as of 8--1--62 is nothing more than a normal process of the original injury, plaintiff failed to file timely and therefore the one-year-back rule applies.

'Obviously the Referee below looked to the only medical testimony in the record to resolve this argument. Such testimony comes to us via Dr. Lipton, and pertinent parts thereof are set out as follows:

'* * * Based on the examination and the X-rays I made a diagnosis of healed fracture left hip with residual traumatic arthritis, aseptic necrosis, limitation of motion, some muscular atrophy and symptoms of pain.

'* * *

'Q. In this case what caused the aseptic necrosis in your opinion?

'A. The aspetic necrosis arose as the result of the fracture with damage to the blood supply to the head of the bone. The blood supply of the head of the bone is peculiar in that most of it comes from the lateral side, that is, from the main part of the bone coming up through the neck of the bone. And in the fractures the blood supply is torn off and sometimes does not reestablish itself.

'* * *

'A. Aseptic necrosis never manifests itself at the time of the fracture. It is a condition which develops over a period of time afterwards.

'* * *

'A. It can also develop as the result of scarring which occurs at the fracture point with stricture of the blood supply. But it is most commonly due to actual tearing of the blood vessels at the time.

'* * *

'Q. Now these are conditions that progress from the trauma itself?

'A. Well, basically it is the result of the original trauma, yes, sir.

'Q. And the process does not come on spontaneously, does it, it's a development type thing as opposed to a spontaneous type thing, is it not?

'A. It is extremely unusual for it to be spontaneous. There have been cases but very unusual.

'Q. Was there anything unusual about Mr. Adcox when you examined him to lead you to believe that this would have been spontaneous?

'A. No, I don't believe so. The man had a fracture and he developed his trouble which is the--which would be what one could expect if the man had complications.

'In view of the above set-out medical testimony of Dr. Lipton, it is my opinion that the Referee was correct in this matter in ultimately concluding that plaintiff had not borne his burden of proving a new or further development which would in effect amount to a new disability. An order should enter affirming 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 appears:

'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 of the head of the left femur at the point of insertion in the hip socket.'

While the Workmen's Compensation Appeal Board stated that plaintiff had testified to this effect, the board looked solely to the medical testimony in making its decision and no fact finding was made by the board. The time when plaintiff suffered disablement due to aseptic necrosis was disputed by defendant. It is the crucial question in this case.

II. The Law

Section 14, Part III of the Michigan Workmen's Compensation Act (C.L.1948, § 413.14 (Stat.Ann. § 17.188)) provides:

'If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.'

Plaintiff contends that the one-year rule under the above statute does not apply in this case because plaintiff's claim is not for a disability that continuously existed from the date of injury but for a 'further or subsequent development.'

In Morgan v. Lloyds Builders Inc. (1955), 344 Mich. 524, 73 N.W.2d 880, plaintiff suffered an injury to his right eye on January 14, 1948. Compensation for lost time was paid immediately thereafter. May 9, 1951, plaintiff suffered total loss of vision in the eye as a result of the same injury. Application for hearing and adjustment of claim was filed July 28, 1953. This Court followed the holding in Palchak v. Murray Corporation (1947), 318 Mich. 482, 28 N.W.2d 295, a somewhat similar case. In Palchak the plaintiff first lost the industrial use of an eye and later the eye underwent degenerative changes resulting in the formation of cysts. The opinion in Morgan quotes from Palchak as follows:

'* * * The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff's claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant.' (p. 528, 73 N.W.2d p. 882).

Morgan and Palchak differ from Lynch v. Briggs Manufacturing Co. (1950), 329 Mich. 168, 45 N.W.2d 20. In that case, plaintiff became totally disabled as a steam fitter on March 26, 1946. The disability in his skilled employment continued from that time onward. However, plaintiff was able to work in favored employment. Later, due to injuries not related to his employment, plaintiff was unable to perform the favored work. Plaintiff thereupon filed an application for benefits. They were granted subject to the one-year back rule of the statute. This Court held that the rule applied because the disability was continuous from the date of injury. There had been no subsequent development.

In Loucks v. Bauman (1959), 356 Mich. 514, 97 N.W.2d 321, plaintiff suffered the loss of his left leg on June 20, 1947, and was paid compensation for a specific loss until April 20, 1951. On November 12, 1954, plaintiff filed an application for compensation benefits for disability to his right leg, claiming injury to that leg in the same accident. The Appeal Board, in awarding further compensation, did not apply the one-year limitation. Upon appeal to this Court, a majority of the participating Justices modified and affirmed. Chief Justice Dethmers, joined by Justices Carr and Kelly, wrote in part as follows (pp. 516, 517, 97 N.W.2d p. 323):

'In the instant case, plaintiff speaks of a further development, after loss of the left leg, in that the 'increased weight-bearing due to the loss of Louck's left leg directly contributed to and aggravated the unstable condition of his right leg.' The appeal board made no such finding of fact that the disability of the right leg was a further development, and there is no testimony to support such theory in the appendix. On the contrary, the appeal board expressly found that plaintiff's total disability resulted from both the amputation of the left leg and the unstable condition of the right leg which had existed since the date of his accidental injury on June 20, 1947.'

In Justice Edwards' concurring opinion, he said (pp. 531, 532, 97 N.W.2d p. 325):

'I agree with the Chief...