Brinkert v. Kalamazoo Vegetable Parchment Co.
| Decision Date | 21 May 1941 |
| Docket Number | No. 76.,76. |
| Citation | 297 Mich. 611,298 N.W. 301 |
| Parties | BRINKERT v. KALAMAZOO VEGETABLE PARCHMENT CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Department of Labor and Industry.
Proceeding under the Workmen's Compensation Act by Henry Brinkert, employee, opposed by the Kalamazoo Vegetable Parchment Company, employer and self-insurer, and the General Accident Assurance Corporation, former insurer. To review an award of the Department of Labor and Industry granting compensation, the employer appeals.
Affirmed.
Argued before the Entire Bench, except McALLISTER, J.
Stearns, Kleinstuck & Stapleton, by Herbert J. Stapleton, and Glenn S. Allen, Jr., all of Kalamazoo, for appellant.
Mason, Sharpe & Stratton, of Kalamazoo, for plaintiff and appellee.
Kerr, Lacey & Scroggie, of Detroit, for defendant General Accident Assur. Corporation.
On May 24, 1937, while in the employ of appellant, plaintiff sustained an accidental injury to his back. He was paid compensation by the General Accident Assurance Company, the employer's insurance carrier at that time. He returned to work on June 21, 1937, but his condition became progressively worse, and finally in June, 1938, by operative procedure, the fourth and fifth lumber vertebrae were fused.
In October, 1938, he had recovered to the extent that he was again able to return to work and continued to be so employed until September 14, 1939, when a second accident occurred. During this period, he performed his regular duties, but the record shows, and the department so found, that he continued to experience some difficulty with his back and that he had been instructed to request assistance whenever any heavy lifting was required. In the summer of 1939, he asked to be transferred to lighter work and this request was under consideration when the later accident occurred on September 14, 1939.
On the date last mentioned, two fellow employees dropped a shaft which struck a dolly or truck, pushing it against the back of plaintiff's legs. The blow caused him to fall backwards and his back, at the point of previous injury, struck a pipe that was lying across the dolly. He has since been totally disabled. At the time of this occurrence, the employer carried its own insurance.
Plaintiff filed a petition for further compensation based on the first accident and one for notice and adjustment of claim, based on the second accident. Both petitions were heard together, the department entering an award in favor of plaintiff and against appellant.
On this appeal in the nature of certiorari, it is not claimed that plaintiff is not entitled to receive compensation. The dispute is between the employer, who claims that the loss should be borne solely by the General Accident Assurance Company, the insurance carrier at the time of the first accident, or that they should be held jointly liable therefor.
The opinion of the department states:
Appellant states the question involved as follows: ‘The test of whether the insurer at the time of the first accident or the insurer at the time of the second accident must bear the whole loss depends upon whether the second accident causes a recurrence or an aggravation of the first injury or whether the second accident is an independent intervening cause of the disability.’ From this statement, the argument proceeds on the theory that there can be no independent intervening cause of disability if the second accident results in an aggravation of a physical...
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