O'Connor v. Binney Auto Parts
| Decision Date | 08 February 1994 |
| Docket Number | Docket No. 135042 |
| Citation | 513 N.W.2d 818,203 Mich.App. 522 |
| Parties | Harold O'CONNOR, Plaintiff-Appellee/Cross-Appellee, v. BINNEY AUTO PARTS and Sentry Insurance Company, Defendants-Appellees/Cross-Appellants and Joynt Auto Parts and Meridian Insurance Company, Defendants-Appellees/Cross-Appellees, and Second Injury Fund (Total and Permanent Disability Provisions), Defendant-Appellant/Cross-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Eric D. Williams, Big Rapids, for Harold O'Connor.
Kluczynsky, Girtz & Vogelzang by Duncan A. McMillan, Grand Rapids, for Binney Auto Parts and Sentry Ins. Co.
Bremer, Wade, Nelson, Mabbitt & Lohr by Diane E. Goller, Grand Rapids, for Joynt Auto Parts and Meridian Ins. Co.
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Solicitor Gen., and Caleb B. Martin, Jr., Asst. Atty. Gen., for Second Injury Fund.
Before MacKENZIE, P.J., and HOOD and WHITE, JJ.
The Second Injury Fund (SIF) appeals by leave granted an October 18, 1990, opinion and order of the Workers' Compensation Appellate Commission (WCAC) granting plaintiff benefits for total and permanent disability based on the loss of the industrial use of both legs after injury to his right knee while employed by Binney Auto Parts. Binney and its insurer, Sentry Insurance Company, cross appeal, claiming that plaintiff's subsequent employment at Joynt Auto Parts aggravated the condition of plaintiff's right knee, requiring that Joynt pay plaintiff's first-level benefits rather than Binney. We affirm the WCAC's decision with regard to liability for benefits, but reverse its determination of total and permanent disability.
In 1967, plaintiff was injured in a nonwork-related accident, resulting in the amputation of his left leg six inches below the knee. Thereafter, he wore a prosthesis on his left leg. On December 7, 1982, while employed by Binney as a machinist, plaintiff injured the cartilage in his right knee, requiring arthroscopic surgery. At that time, plaintiff's orthopedic surgeon, Dr. Darrell J. Potter, also noted mild-to-moderate degenerative arthritis in the knee joint. Plaintiff returned to work at Binney, where he used a crutch and modified his work habits, obtaining assistance from another employee in lifting parts. Periodically, plaintiff experienced pain, quivering, and shaking in his right leg. Dr. Potter testified that he believed the surgery had been successful and that the pain was attributable to degenerative changes.
Plaintiff left Binney's employ for Joynt in 1984. At Joynt, he performed the same type of work as at Binney, except that lifting was done entirely by hoist. He continued to experience pain, quivering, and shaking in his right leg, which grew worse over time. However, he did not consult a doctor or miss work because of right knee problems during that time. In October 1985, plaintiff was laid off from Joynt.
Plaintiff then did seasonal work for Gummer Peat, making Christmas ropes during the months of October and November in 1985 through 1987. During that time, he experienced increasing debility in his knee. In June 1986, plaintiff again consulted Dr. Potter, complaining of right knee pain. Plaintiff denied any further injury after the injury that occurred in 1982. Potter diagnosed traumatic arthritis arising from the 1982 injury.
In February 1987, plaintiff consulted a second orthopedic surgeon, Dr. Walter M. Braunohler, who recommended knee replacement surgery. Braunohler predicted a ninety-five percent chance of success, producing a pain-free, mobile knee, though plaintiff would still be restricted from running, jumping, climbing, repetitive heavy lifting, and repetitive squatting. Braunohler suggested that plaintiff would be capable of clerical work after surgery. Orthopedic surgeons who examined plaintiff at defendants' request generally agreed that plaintiff should have knee replacement surgery, but even then some restrictions would obtain, preventing plaintiff from doing the kind of work he did at Binney and Joynt, and limiting him to some sort of sedentary work. Plaintiff was eager to have the surgery so that he could return to the job market, but was unable to afford the operation.
In May 1987, plaintiff filed for a hearing. The hearing was held before a magistrate on September 6, 1988. At that time, Gummer Peat and its insurer were dismissed by stipulation of the parties. The magistrate found that plaintiff's disability arose from the 1982 injury at Binney, and found Binney and Sentry exclusively liable for workers' compensation benefits. The magistrate also found that plaintiff was currently totally disabled and required knee-replacement surgery, and ordered Sentry to pay for the operation. Because plaintiff's degree of postoperative disablement could not be determined on the date of the hearing, the magistrate concluded that he could not find plaintiff to be permanently disabled, as the term "permanent" is used in §§ 361(3), M.C.L. § 418.361(3); M.S.A. § 17.237(361)(3), and 521(1), M.C.L. § 418.521(1); M.S.A. § 17.237(521)(1), of the Worker's Disability Compensation Act, M.C.L. § 418.101 et seq.; M.S.A. § 17.237(101) et seq.
In an October 18, 1990, opinion and order, the WCAC, one commissioner dissenting, affirmed the magistrate's findings of work-related injury and liability, but overruled his decision regarding the permanency of the disability, holding that the question of permanency must be decided on the date of the hearing. It found that plaintiff had established permanent disability by proving that he lost the "primary service" of his leg in industry, with primary service meaning standing and walking. The WCAC apparently also felt that the magistrate's decision, if sustained, would unfairly bifurcate a disability evaluation into an initial determination of liability and a subsequent trial of medical treatment, although a claimant had met the statutory definitions of disability. It regarded as speculative the prediction of ninety-five percent success for the knee replacement operation, and, despite some indication that plaintiff had already undergone surgery after the magistrate's ruling, 1 added that it could not force a claimant to undergo surgery if the claimant did not wish to do so. It concluded that any postoperative assessment would properly occur at the expiration of the presumptive eight-hundred-week period allowed for total and permanent disability under § 351(1) of the act. M.C.L. § 418.351(1); M.S.A. § 17.237(351)(1). The SIF appeals the WCAC's reversal of that portion of the magistrate's decision declining to find permanent disability, and Binney appeals the WCAC's affirmance of the decision regarding liability for first-level benefits.
On review by the WCAC, a magistrate's findings of fact are to be regarded as conclusive if supported by "competent, material, and substantial evidence on the whole record." M.C.L. § 418.861a(3); M.S.A. § 17.237(861a)(3). On review by this Court, findings of fact by the WCAC are conclusive if there is any competent evidence to support them. M.C.L. § 418.861a(14); M.S.A. § 17.237(861a)(14); Holden v. Ford Motor Co., 439 Mich. 257, 263, 484 N.W.2d 227 (1992). A decision of the WCAC is subject to reversal if the WCAC operated within the wrong legal framework or its decision was based on erroneous legal reasoning. Corbett v. Montgomery Ward & Co. Inc., 194 Mich.App. 624, 631, 487 N.W.2d 825 (1992).
Sections 521(1) and 361(3) are applicable. Section 521(1) provides:
If an employee has a permanent disability in the form of a loss of a hand, arm, foot, leg or eye and subsequently has an injury arising out of and in the course of his employment which results in another permanent disability in the form of the loss of a hand, arm, foot, leg or eye, at the conclusion of payments made for the second permanent disability he shall be conclusively presumed to be totally and permanently disabled and paid compensation for total and permanent disability after subtracting the number of weeks of compensation received by the employee for both such losses. The payment of compensation under this section shall be made by the second injury fund, and shall begin at the conclusion of the payments for the second permanent disability. [M.C.L. § 418.521(1); M.S.A. § 17.237(521)(1).]
Section 361(3)(g) defines total and permanent disability to include:
Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury. [M.C.L. § 418.361(3)(g); M.S.A. § 17.237(361)(3)(g).]
Neither the WCAC nor any of the parties dispute the magistrate's determination that plaintiff was totally disabled at the time of the hearing. The sole dispute is whether his total incapacity must be deemed permanent because, at the time of the hearing, all the evidence indicated that his condition would not improve without knee replacement surgery, despite a ninety-five percent likelihood of improvement if the surgery were undertaken. Plaintiff and Binney contend that the WCAC's contrary conclusion--that on the date of the hearing, plaintiff was permanently disabled within the meaning of the definitional sections--is supported by existing case law, and inquiry after the hearing regarding whether further surgery was successful is precluded. While we agree that the cases cited provide guidance for determining a permanent loss of use, we conclude that they do not mandate an automatic finding of total and permanent disability in this case.
In Burke v. Ontonagon Rd. Comm., 391 Mich. 103, 214 N.W.2d 797 (1974), the plaintiff suffered a work-related injury to his left knee and, later, as a result of favoring that knee, suffered disability in his right knee. The question was whether the...
To continue reading
Request your trial
-
Cain v. Waste Management, Inc.
...(After Remand), 417 Mich. 359, 338 N.W.2d 165 (1983) ], and has been expanded to cases involving implants, [O'Connor v. Binney Auto Parts, 203 Mich.App. 522, 513 N.W.2d 818 (1994) ], its use has not been extended to cases involving prosthetics or braces. In the instant case, plaintiff wears......
-
Hoste v. Shanty Creek Management, Inc.
...operated within the wrong legal framework or if the decision was based on erroneous legal reasoning. O'Connor v. Binney Auto Parts, 203 Mich.App. 522, 527, 513 N.W.2d 818 (1994). Here, the commission erred as a matter of law in its application of the economic reality test and in its charact......
-
Illes v. Jones Transfer Co.
...the WCAC operated within the wrong legal framework or its decision was based on erroneous legal reasoning. O'Connor v. Binney Auto Parts, 203 Mich.App. 522, 527, 513 N.W.2d 818 (1994). In Holden, supra at 269, 484 N.W.2d 227, our Supreme Court If it appears on judicial appellate review that......
-
Rahman v. DETROIT BD. OF EDUC.
...if it "operated within the wrong legal framework" or based its decision on "erroneous legal reasoning." O'Connor v. Binney Auto Parts, 203 Mich.App. 522, 527, 513 N.W.2d 818 (1994). II. The WCAC concluded that the magistrate's finding that plaintiff suffered only one injury, on November 28,......