DeGeer v. DeGeer Farm Equipment Co., 9

• Decision Date: 14 February 1974
• Docket Number: No. 9,9
• Citation: 391 Mich. 96,214 N.W.2d 794
• Parties: Edward B. DeGEER, Plaintiff-Appellant, v. DeGEER FARM EQUIPMENT COMPANY and Second Injury Fund, Defendants-Appellees. 391 Mich. 96, 214 N.W.2d 794
• Court: Michigan Supreme Court

Page 794

214 N.W.2d 794

Edward B. DeGEER, Plaintiff-Appellant, v. DeGEER FARM EQUIPMENT COMPANY and Second Injury Fund,

Defendants-Appellees.

No. 9.

391 Mich. 96, 214 N.W.2d 794

Supreme Court of Michigan.

Feb. 14, 1974.

Rapaport, Siegrist, Sablich & Mitchell, Lansing, for plaintiff-appellant.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendants-appellees DeGeer Farm Equipment Co. and Sentry Ins. Co.

Michigan Second Injury Fund by Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David J. Watts, A. C. Stoddard, Asst. Attys. Gen., Workmen's Compensation Funds Div., Lansing.

Before the Entire Bench, except LEVIN, J.

SWAINSON, Justice.

In 1956 plaintiff-appellant Edward B. DeGeer suffered a back injury during the course of his employment with the DeGeer Farm Equipment Company. Compensation was paid voluntarily for the first 500 weeks of disability. After the period of initial compensation expired, appellant filed an application for a hearing with the Workmen's Compensation Department alleging permanent and total disability and seeking further compensation under Part II, Section 10(b), (7) of the Workmen's Compensation Act which grants extended benefits when injury results in the 'Permanent and total loss of industrial use of both legs * * *.' (1956 P.A. 195, M.C.L.A. § 412.10; M.S.A. § 17.160, reenacted by M.C.L.A. § 418.361(2), (g); M.S.A. § 17.237(361), (2), (g).) ¹

A hearing was held before a Workmen's Compensation Department hearing referee. The hearing referee granted appellant's application for permanent and total disability benefits, stating in part:

'The plaintiff is totally and permanently disabled as a matter of fact. The question is whether or not he can meet the statutory definition of permanent and total by establishing the loss of use of his legs.

'There is no condition in plaintiff's legs which would disable him. His disabling condition is in his back where he has had four operations. Because of his back he cannot tolerate prolonged sitting, standing, or walking. He cannot use his legs long enough or consistently enough to qualify for type of employment which could reasonably be anticipated. I believe these facts require a finding of loss of use of both legs under the authority of Paulson v. Tile Company, 371 Mich. 312, 123 N.W.2d 715. * * *'

The decision of the referee was thereafter reversed on review by the Workmen's Compensation Appeal Board. The Appeal Board found appellant ineligible for any total and permanent disability benefits. It concluded:

'The legal rules which must guide our determination as to whether plaintiff has suffered the industrial loss of use of both limbs are detailed in the Supreme Court's holdings in Paulson, supra; Miller v. Sullivan Milk Products, Inc., 385 Mich. 659, 189 N.W.2d 304; Whitt v. Ford Motor Co., 383 Mich. 726, 178 N.W.2d 917; and the Court of Appeal's holdings in Lockwood v. Continental Motors Corp., 27 Mich.App. 597, 183 N.W.2d 807, and Kozlowski v. Chrysler Corp., 25 Mich.App. 392, 181 N.W.2d 785.

'(P)laintiff's medical proofs will not in our opinion support his claim that he has suffered the industrial loss of use of both legs. Both physicians are in agreement that plaintiff's employment opportunities are limited because of the injury and subsequent surgery to his back, however, both plaintiff's medical witness and the defendant's medical witness agree that plaintiff is able to perform work which would of necessity require the use of the lower limbs. Neither doctor would testify that plaintiff has in fact suffered the industrial loss of use of his lower extremities. In our opinion the proofs presented will not support a finding that plaintiff has in fact suffered the industrial loss of use of both limbs as a result of the injury he suffered in February, 1956.'

The Court of Appeals (Levin, J. dissenting) denied leave to appeal. This Court subsequently granted leave to appeal, 389 Mich. 803 (1973) and ordered that this case be argued on the same day as Burke v. Ontonagon County Road Commission, 389 Mich. 804 (1973).

Appellant raises one basic question for our consideration.

'Where an employee suffers a back injury which upon use of his legs produces such disabling back pain that no form of employment could reasonably be anticipated, does such employee suffer the industrial loss of use of his legs?'

I

Our first step in reviewing a decision of the Workmen's Compensation Appeal Board is to separate its findings of fact from its understanding of the law controlling the case. If the Appeal Board correctly understood the law and determined as a matter of fact that appellant did not suffer permanent and total disability, we are bound by law to accept its decision in this case. Const.1963, art. 6, § 28; M.C.L.A. § 418.861; M.S.A. § 17.237(861). If, however, the Appeal Board erroneously interpreted the Workmen's Compensation Act in reaching its decision, we have the duty and authority to correct any such erroneous legal conclusions. Id.

In the present case we are unable to perform that necessary first step of review. Unfortunately, the opinion of the Appeal Board has combined its findings of fact and legal conclusions in such a manner that the opinion may be fairly read to support either appellant's position that the Appeal Board denied benefits because it interpreted the law to limit recovery to factual situations in which the disability results from a direct injury to the legs, or appellees' position that no permanent and total loss of industrial use was factually established. Consequently, we must remand this case for further proceedings consonant with the remainder of today's opinion.

In order to allow the appellate courts to properly perform the review...