Carter v. City of Detroit, Bd. of Ed.

• Decision Date: 04 December 1975
• Docket Number: Docket No. 22384
• Citation: Carter v. City of Detroit, Bd. of Ed., 238 N.W.2d 419, 66 Mich.App. 128 (Mich. App. 1975)
• Parties: James CARTER, Plaintiff-Appellee, v. CITY OF DETROIT, BOARD OF EDUCATION, Defendant-Appellant. 66 Mich.App. 128, 238 N.W.2d 419
• Court: Court of Appeal of Michigan

Page 419

238 N.W.2d 419

James CARTER, Plaintiff-Appellee, v.CITY OF DETROIT, BOARD OF EDUCATION, Defendant-Appellant.

Docket No. 22384.

66 Mich.App. 128, 238 N.W.2d 419

Court of Appeals of Michigan.

Dec. 4, 1975.

Released for Publication Feb. 24, 1976.

[66 MICHAPP 129]Le Vasseur, Werner, Mitseff & Brown, by Grahame G. Capp, Detroit, for defendant-appellant.

Isadore Goldbaum, Detroit, for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and KAUFMAN, JJ.

PER CURIAM.

This is an appeal from a decision of the Workmen's Compensation Appeal Board(hereinafter referred to as WCAB), which affirmed the referee's order of October 18, 1972.The referee awarded the plaintiff compensation because of a January 16, 1968 injury that caused the dislocation of the plaintiff's shoulder.

After applying for appeal to the WCAB on October 31, 1972, the defendant moved for the taking of additional testimony on September 4, 1974.In its motion, the defendant indicated the following ground:

'1.That the offer of surgery and plaintiff's refusal are undisputed facts and are relevant and material to the disposition of this Workmen's Compensation case.'

The defendant further raised and argued this issue to the WCAB in its brief.The WCAB denied this motion on September 16, 1974.The defendant raised a similar motion on October 3, 1974 and the WCAB similarly denied the second motion for the taking of additional testimony on October 17, 1974.

In the record before the WCAB, the only acknowledgment[66 MICHAPP 130] of hte surgical-offer issue by the plaintiff was in the plaintiff's brief of August 29, 1974.Therein, the plaintiff took the position that the offer was not properly before the WCAB because the review by the WCAB was limited to the record of the hearing and the decision of the referee, and no surgical offer was made prior to the decision of the referee.

There is no indication in either of the above denials of the defendant's motions that the WCAB addressed itself to the surgical-offer issue.In its final disposition of the case, the WCAB opinion of November 7, 1974 stated in pertinent part:

'It is clear plaintiff is disabled because of the January 16, 1968 injury which resulted in the original dislocation.This type of injury rendered all succeeding dislocations predictable.Conceding, arguendo, that the May 9, 1969 injury in the car was the occasion of the employment, the weight of the evidence inexorably flows back to the original injury date.

'In all other respects, the order of the Referee is affirmed, there specifically being no record support for stopping compensation on any basis as of the date of hearing (September 25, 1972.)'

The first four issues raised on appeal all deal with the alleged surgical offer by the defendant which was rejected by the plaintiff.

The WCAB may hear such additional evidence as in its discretion it may allow.M.C.L.A. § 418.859;M.S.A. § 17.237 (859).Further, the WCAB is not bound by the findings of fact made by the referee, but, rather, the review of the referee's decision by the WCAB is De novo.Herrala v. Jones & Laughlin Steel Corp., 43 Mich.App. 154, 157, 203 N.W.2d 752(1972).Thus, the WCAB may receive additional [66 MICHAPP 131] facts on the record and draw its own conclusions from them.

In the present case, the WCAB could have heard, in its discretion, such additional testimony as was necessary to determine the plaintiff's just compensation.Therefore, the defendant did properly raise an issue that the WCAB could deal with on review.

Where an issue was properly raised, but it is not apparent from the record how the WCAB decided it, a remand is necessary for an appropriate finding by the WCAB because this Court...