Brazauskis v. Muskegon County Bd. of Road Com'rs

• Citation: 345 Mich. 480,76 N.W.2d 851
• Decision Date: 02 April 1956
• Docket Number: No. 17,17
• Parties: Viola BRAZAUSKIS, Widow, Gerald, Carol, Raymond and Dennis Brazauskis, Minor Dependents (Donald B. Brazauskis, Deceased), Plaintiffs and Appellees, v. MUSKEGON COUNTY BOARD OF ROAD COMMISSIONERS, and Travelers Insurance Company, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 851

76 N.W.2d 851

345 Mich. 480

Viola BRAZAUSKIS, Widow, Gerald, Carol, Raymond and Dennis Brazauskis, Minor Dependents (Donald B Brazauskis, Deceased), Plaintiffs and Appellees, v. MUSKEGON COUNTY BOARD OF ROAD COMMISSIONERS, and Travelers Insurance Company, Defendants and Appellants.

No. 17.

Supreme Court of Michigan.

April 2, 1956.

Rehearing Denied May 14, 1956.

Warner & Hart, Lansing, for defendants and appellants.

Marcus, Kelman, Loria, McCroskey & Finucan, Muskegon, for plaintiffs and appellees.

Before the Entire Bench.

BOYLES, Justice.

Plaintiff, widow of one Denald B. Brazauskis, on filing an application for dependency compensation on behalf of herself and 4 minor dependent children, was awarded workmen's compensation by the commission, under the Workmen's Compensation Act, Comp.Laws 1948, § 411.1 et seq., for the death of her husband. The defendant, Board of County Road Commissioners, his employer, and its insurance carrier appeal.

For about 8 months prior to his injury on November 7, 1951, the decedent was regularly employed as a dump-truck operator by the defendant county road commission. While he had a rheumatic heart condition, he worked regularly at manual labor. On November 7, 1951, he drove his truck up to a crane, to be loaded with gravel. After he received his load he drove a short distance away, stopped and climbed upon his load to level it. Having done so he jumped off the load onto the ground, a distance of at least 6 or 7 feet, and at once crawled or rolled under his truck. Another employee saw him, went at once and found him lying on his stomach or side, groaning and trying to get up, with 'some white stuff coming out of his mouth.' An ambulance was called and he was promptly taken to a hospital. He was found to be suffering from a cerebral thrombosis or embolism, his right side became totally paralyzed, he was never able to talk or work again, and died about a year later.

The physician who attended the decedent in the hospital November 7, 1951, testified that he diagnosed the decedent's condition at that time as a cerebral embolism, a blood clot in the brain occluding a blood vessel and causing paralysis. Answering a hypothetical question reciting the circumstances as they occurred on November 7th, he gave his opinion that there was no causal relationship between what had happened on November 7th and the decedent's death. On the contrary, the death certificate received in evidence gave the cause of death 'old cerebral thrombosis, interval between onset and death 1 yr.' A medical witness testified that 'it was a cerebral embolism rather than a definite cerebral thrombosis, but the effects are very similar'; that both could very well lead to death. Dr. Boyd, who attended the decedent on November 8, 1951, testified that in his opinion the decedent 'had rheumatic heart disease with mitral stenosis and mitral insufficiency according to his clinical findings. He had a right-sided paralysis, paralysis of his right arm and his right leg and a speech aphasia. * * * he had rheumatic heart disease and mitral stenosis and embolus to his brain--by an embolus we mean a blood clot and a paralysis of the right arm and right leg and of the speech center.' He further testified:

'Q. So in this case, isn't it reasonable to suppose as did the medical examiner who wrote the death certificate that this man having had a cerebral thrombosis for 1 year, having been invalided and disabled for 1 year, and you know how badly hurt he was, that the old condition was a contributory cause to his death? A. It could be out I can't say that it was.

'Q. But it is a rational assumption, isn't it, Doctor? A. It is a good possibility.

* * *

* * * 'Q. But you cannot eliminate the first stroke as an underlying cause to his death, is that correct?

* * *

* * *

'A. It cannot be eliminated, no.'

One Dr. Steiner, a professor in the College of Medicine at Wayne University, being asked a hypothetical question which gave in detail the facts and circumstances as they had occurred November 7, 1951, and later, testified:

'Q. Could there reasonably be any relationship between the incident when this man jumped off the truck, and his disability and his ensuing death a little over 1 year later? A. Yes.

* * *

* * *

'Q. Could the jump off the truck, the top of a truck, a gravel truck, in a pre-existing rheumatic heart, dislodge an embolus and cause it to travel to the right side of the brain causing a hemiplegia within a matter of minutes? A. It certainly could.

'Q. In view of the history that I gave you of this man never recovering, could that have reasonably led to his death a year later? A. Oh, yes.'

The crucial question seems to be whether there was a causal connection between his jumping off the truck, 6 or 7 feet, with an immediate embolism or blood clot in the brain, and his death a year later. The commission found 'that there was a direct causal relationship between the jumping incident and decedent's subsequent disability and death. The medical testimony strongly supports this finding.'

The instant case is somewhat similar to Graham v. City of Lansing, 303 Mich. 98, 5 N.W.2d 670, 671, where we affirmed an award. In that case an employee of the city of Lansing, who had earlier suffered an amputation of his left leg, below the knee, suffered an injury to the stump of the leg when he jumped off the bed of the city gravel truck where he was employed, as a result of which he could not use his artificial limb and was disabled. The plaintiff testified:

'Q. This action arose out of and in the course of your employment? It was part of your job to ride on this truck? A. Yes.'

The Court said:

'In view of the foregoing and other portions of the record, we think there clearly is competent testimony tending to establish plaintiff's claim that he sustained an accidental injury which arose out of and in the course of his employment. The commission so found, and we are bound by that determination.'

The instant case is distinguishable on the facts from Simpson v. Matthes, 343 Mich. 125, 72 N.W.2d 64, 65, where the Court said:

'The record in this case does not show that an unusual or excessive strain was imposed on plaintiff's physique, or that he exerted himself in a manner unusual to or greater than is ordinarily the case in the general field of common labor.'

Likewise, in Wieda v. American Box Board Co., 343 Mich. 182, 72 N.W.2d 13, 16, there was a complete absence of any unusual happening or fortuitous event which might be considered as a causation of the disablement. Quoting from Robbins v. Original Gas Engine Co., 191 Mich. 122, 157 N.W. 437, the Court said:

"It is not sufficient that there be an unusual and unanticipated result; the means must be accidental--involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result.'

In that case the Court held (syllabus):

'An accidental injury, to be compensable under the workmen's compensation act, must be more than merely an unusual and unanticipated result the means must be accidental--involuntary and unintended, and there must be some proximate connection between accidental means and the injurious result (C.L.1948, § 412.1 et seq., as amended).'

We are satisfied that the testimony as to what happened when the decedent jumped down from the truck shows that his cerebral embolism was caused thereby, and that it had a causal relation to his death.

'Under the workmen's compensation law the department of labor and industry is charged with the duty of considering the testimony offered by the parties, determining facts therefrom and drawing legitimate inferences from the facts found to be established by competent proofs and such findings and inferences, so supported, must be accepted by the Supreme Court (2 Comp.Laws 1929, § 8451, as amended by Act No. 245, Pub.Acts 1943).' Shaw v. General Motors Corporation (syllabus), 320 Mich. 338, 31 N.W.2d 75.

'Finding of workmen's compensation commission that 69-year-old plaintiff carpenter's disability was directly due to his injury, in disregard of the testimony of the medical experts that it was an aggravation of an arthritic condition known as osteoporosis, but supported by testimony of plaintiff must be accepted by the Supreme Court as conclusive (C.L.1948, § 413.12).' Arnold v. Ogle Construction Co. (syllabus), 333 Mich. 652, 53 N.W.2d 655.

See, also, McVicar v. Harper Hospital, 613 Mich. 48, 53, 20 N.W.2d 806.

There was competent testimony to support the finding of the commission. Under such circumstances, we do not set aside the award. ¹

Finally, appellants argue that the employer did not have notice of the injury. However, the secretary of the defendant commission, whose duties included the handling of reports of injuries to employees, admitted on cross-examination that he received a telephone call at the time of the injury that something had happened to decedent and that he called a foreman and asked him to investigate the occurrence. Later, he was presented with an application in behalf of decedent for benefits under a group insurance plan afforded employees which contained the question 'If accident, describe how and where injured and what was being done,' and the reply thereto was 'Undetermined.'

We find that defendants had the required notice and knowledge of the accident and injury.

Award affirmed.

KELLY, J., concurred with BOYLES, J.

SMITH, Justice.

Here, again, we attempt the resolution of the verbal, insoluble, puzzle we have set up as a standard in these cases: Is the injury the unexpected result of ordinary work, or is it the ordinary result of unexpected work? With this case we plunge the deeper into the 'Serbonian bog.' The distinctions become more subtle and microscopic. Our Court necessarily divides and redivides as various fact differentiations are stressed. In the interest of doing consistent justice in these cases we...