Arnold v. Ogle Const. Co.

Citation333 Mich. 652,53 N.W.2d 655
Decision Date02 June 1952
Docket NumberNo. 9,J,9
PartiesARNOLD v. OGLE CONST. CO. et al. anuary Term.
CourtSupreme Court of Michigan

McGinn & Fitzharris, Escanaba, for appellants.

R. W. Nebel, Munising, for appellee.

Before the Entire Bench.

CARR, Justice.

Plaintiff entered the employ of the defendant Ogle Construction Company on April 30, 1945. On that day, while engaged with another employee in lifting a heavy box, he strained the muscles of his chest and back. The injury was of such nature as to prevent plaintiff from continuing his employment. He consulted a doctor of osteopathy by whom he was treated for some weeks. On or about June 18, 1945, he obtained employment in maintenance work for another employer, continuing in such capacity until the end of the year. It is his claim that in September, 1946, he undertook to engage in carpenter work but was unable to continue for more than a few days.

Following plaintiff's injury he received compensation for a period of six weeks and five days under he provisions of the workmen's compensation law. 1 Apparently such payments were discontinued because of the belief that plaintiff had recovered and was physically able to resume employment. At the time of the injury in question plaintiff was 69 years of age and had been engaged in carpenter work for many years. Under date of September 20, 1948, he filed application for hearing and adjustment of claim with the workmen's compensation commission of the State, setting forth therein that he had sustained a personal injury while in the employ of the Ogle Construction Company on April 30, 1945, the nature of the disability resulting being stated as 'strained back and chest muscles.' The application was duly heard before a deputy commissioner and an award of compensation made, which was affirmed by the compensation commission. On leave granted defendants have appealed, claiming that under the facts shown by the proofs taken before the deputy such award was not authorized.

In his application for adjustment of claim plaintiff did not allege that the injury referred to was accidentally suffered or was accompanied by any fortuitous circumstance. On the hearing before the deputy, however, he claimed, apparently for the first time, that he had slipped while lifting the box. His testimony in this regard was impeached and was apparently regarded by the workmen's compensation commission as open to question. No finding was made that the injury for which compensation was sought was the result of an accident. The commission, on the evidence before it, having failed to make such finding it must be assumed by this Court that the occurrence did not involve an accident or fortuitous circumstance.

Counsel for appellants in their brief direct attention to evidence relating to plaintiff's physical condition preceding the injury in question. Shortly prior to the hearing before the deputy commissioner, plaintiff was, on December 27, 1948, examined by Dr. A. L. Swinton, a physician and surgeon, who testified in plaintiff's behalf with reference to his condition. The witness came to the conclusion that plaintiff had suffered for some time from a general arthritic condition originating before the injury on April 30, 1945, not curable, and 'insidious and progressive' in nature. The opinion of the witness was summarized in the following statement:

'My belief is that this man's spine was beginning to show weakness prior to this accident; that he had a weakened spine, where even a minimum strain or injury could have activated it, called his attention to it, and aggravated the pain to such extent that he became and is now totally disabled. * * *

'The condition we are dealing with is known as osteoporosis, which means an absorption of solid lime salts of the bone, allowing them to become more easily colapsed and to fail to support the chest, head, upper part of the body. This or any sudden strain could have caused further collapse of the spine, which was gradually, I believe, taking place prior to the injury.'

The testimony of Dr. Swinton as to plaintiff's arthritic condition was not materially different from that of defendants' medical expert, Dr. Harold Q. Groos. The witnesses were not in accord, however, with reference to the possible effect of the strain suffered by plaintiff on April 30, 1945, as an aggravation of the arthritic condition, or as to its relation to plaintiff's disability.

Appellants argue that plaintiff's claim for compensation must rest on the theory of an accidental aggravation of the arthritic condition. However, the commission in its opinion upholding the award made by the deputy apparently disregarded the testimony of the medical experts with reference to plaintiff's ailment and found that his disability was 'directly due to his injury.' Such finding has some support in the testimony of the plaintiff, and the replies made by Dr. Swinton to certain questions propounded to him may be interpreted as also supporting such conclusion. It must be said therefore that the finding by the commission is supported by testimony and must, in consequence, be accepted by this Court as conclusive. C.L.1948, § 413.12, Stat.Ann. § 17.186.

The question presented in the case is whether a non-accidental injury sustained by the plaintiff in the course of and arising out of his employment is compensable under part 2 of the workmen's compensation law. Such question has been considered by the Court in prior decisions. Its determination involves particularly the interpretation of certain provisions of part 2 of the compensation law as amended by P.A.1943, No. 245, and likewise the question of the validity thereof if given the force and effect indicated by the award of the compensation commission. Also involved is the scope of the title of said law as amended by P.A.1937, No. 61.

In writing for affirmance of the award in the instant case Mr. Chief Justice NORTH reaches the conclusion that the combined effect of the two amendments in question renders the act 'sufficient to provide for an award of compensation for non-accidental (occupational) injuries arising out of and in the course of the employment.' As applied to the facts in the instant case such holding necessarily means that the right of compensation for a non-accidental injury is not limited to disability compensable under part 7 of the law, added thereto by the act of 1937, but extends to and includes disability that is not the result of an occupational disease or of incidents peculiar to the nature of the work of the employee. I am not in accord with such conclusion.

It is not disputed that prior to the effective date of P.A.1943, No. 245, a strain received by an employee in the regular course of his employment, and arising therefrom, but not as the result of an accident or fortuitous circumstance, was not compensable. In summarizing the law in this respect in Clifton v. Chrysler Corporation, 287 Mich. 87, 282 N.W. 912, 913, it was said 'In this State the law is settled that if the injury of which plaintiff complains was occasioned merely by his lifting something heavy in the regular course of his employment, there was no accident and plaintiff is not entitled to an award of compensation. Williams v. National Cash Register Co., 272 Mich. 553, 262 N.W. 306; Waites v. Briggs Mfg. Co., 280 Mich. 185, 273 N.W. 441; Nagy v. Continental Die Casting Corp., 283 Mich. 162, 277 N.W. 869. The burden is upon plaintiff to show the happening of an accidental injury arising out of and in the course of his employment; * * *.'

The act cited amended the law by substituting in certain places the word 'injury' in lieu of 'accident' and likewise the word 'accidental' was in certain instances deleted. In other provisions of the law the prior wording was retained in full, thus creating a question of the exact purpose and intent of the legislature. This phase of the controversy was discussed at some length by Mr. Justice Butzel in his opinion for reversal of the award in Croff v. Lakey Foundry & Machine Company, 320 Mich. 581, 586, 589, 31 N.W.2d 728. Further discussion of such issue is not required. It is especially significant, however, that in the enactment of the 1943 amendments the legislature did not see fit to change the title.

The object of the act of 1937 was to enlarge the scope of the law to provide for the payment of compensation for disability resulting from occupational diseases. Shortly after the enactment of the law it was held in Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N.W. 485, 489, L.R.A. 1961A, 283, that the title was not sufficiently broad to cover provisions for such compensation. It was there said:

'If it were to be held that the act was intended to apply to such diseases, it would, in so far as it does so, be unconstitutional and in violation of section 21 of article 5 of the Constitution of this state, which provides that:

"No law shall embrace more than one object, which shall be expressed in its title.'

'That the act, if it were held to apply to and cover occupational diseases is unconstitutional in so far as it does so is shown by the fact that the body of the act would then have greater breadth than is indicated in the title. A careful analysis of the title of the act shows that the controlling words are, 'providing compensation for accidental injury to or death of employes.' No compensation is contemplated except for such injuries. The prefatory words are generally dependent upon the above-quoted clause. The only compensation provided is for 'accidental injury to or death of employes,' and the last clause of the title restricts the right to compensation or damages in such cases 'to such as are provided by this act.''

Because of this situation the legislature of 1937 found it necessary to broaden the title in such manner as to cover the addition to the law made by part 7. Prior thereto the title read:

'An act to promote the welfare of the...

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