Derwinski v. Eureka Tire Co.

• Decision Date: 27 December 1979
• Docket Number: No. 2,Docket No. 60751,2
• Citation: 407 Mich. 469,286 N.W.2d 672
• Parties: Eugene DERWINSKI, Plaintiff-Appellee, v. EUREKA TIRE COMPANY, Defendant-Appellee, v. HOSKING TIRE COMPANY and American Insurance Company, Defendants-Appellants. Calendar407 Mich. 469, 286 N.W.2d 672
• Court: Michigan Supreme Court

Page 672

286 N.W.2d 672

Eugene DERWINSKI, Plaintiff-Appellee, v. EUREKA TIRE COMPANY, Defendant-Appellee, v. HOSKING TIRE COMPANY and American Insurance Company,

Defendants-Appellants.

Docket No. 60751.

Calendar No. 2.

407 Mich. 469, 286 N.W.2d 672

Supreme Court of Michigan.

Argued June 5, 1979.

Decided Dec. 27, 1979.

Peter W. Ryan, Iron Mountain, for defendant-appellee.

Stephen N. Ross, Southfield, for defendants-appellants.

COLEMAN, Chief Justice (To affirm).

The plaintiff worked as a tire recapper for defendant Hosking Tire Company from 1964 to 1971 and in the same capacity for defendant Eureka Tire Company from 1971 to 1974. He ceased working for Eureka in 1974 because of a disabling degenerative disc disease for which he is now entitled to and does receive workers' compensation benefits. The question presented is whether the last employer, Eureka, should bear full responsibility for payment of the benefits due plaintiff or whether that responsibility should be shared by both employers. The hearing referee factually found that the plaintiff's back condition was caused by the repeated lifting and bending he was required to do in the course of his work for both employers. On the basis of this finding, the referee concluded that an apportionment of liability was required. The Worker's Compensation Appeal Board accepted and independently verified the referee's factual findings, but rejected his legal conclusion. The appeal board ruled on the basis of public policy, administrative precedent and statutory interpretation that an apportionment was not permitted in cases involving back conditions such as that suffered by the plaintiff. The Court of Appeals reversed the board and remanded for reinstatement of the referee's original order apportioning liability. Defendant Hosking now appeals.

I would affirm the Court of Appeals. Given the particular factual findings of the referee and the appeal board in this case, apportionment was proper. If it is better public policy (less issues to be decided by the WCAB) to excise from "occupational disease" those having to do with the back, the Legislature is the proper forum.

I

The tire recapping process used by both defendants Hosking and Eureka required the plaintiff to engage in extremely repetitious and strenuous physical activity. The plaintiff testified that, in order to recap one tire, he had to lift the tire up and down into and out of various molds and machines a total of approximately 20 times. The lifting distance varied from three to four feet. The tires ranged in weight from 30 pounds to 150 pounds or more. The plaintiff did most of this lifting manually without help from his coworkers.

The plaintiff's work during his seven years at Hosking was much more demanding than his work during his three years at Eureka. At Hosking he was required to recap 50 to 60 tires per day, while at Eureka he was only required to recap 20 to 35 tires per day.

After several minor back incidents in the course of his work at both Hosking and Eureka, the plaintiff suffered another incident at Eureka in December of 1973. Although he worked the rest of the day of this incident and continued to work thereafter, he remained in constant pain. He worked six more months until June of 1974 when the pain became too great and he was forced to cease work.

Two medical experts examined the plaintiff in connection with this case and both of them concluded that the plaintiff was suffering from "degenerative disc disease". One of these experts, Dr. Sim, an orthopedic surgeon from Mayo Clinic, described this disease in lay terms as "(b)asically * * * a worn-out disc" and responded in the affirmative when asked whether this disease was a "process rather than an occurrence type of injury". The other expert, Dr. Roberts, stated that the plaintiff's back condition was of a type that "required prolonged stress, wear and tear, taking years to develop".

Because the plaintiff had not been examined by these experts during the seven years he had worked at Hosking and because there were no X-rays of the plaintiff's back dating from that period, neither doctor could state with a reasonable degree of medical certainty whether the degenerative disc disease had begun at Hosking and continued at Eureka or whether it had sprung up solely during the plaintiff's final three years at Eureka. Based on the data available to them, the doctors could only be certain that the disease had been present since the more serious incident suffered by the plaintiff at Eureka in December of 1973. However, Dr. Sim did testify that it was "quite probable" that the plaintiff's work at Hosking had either caused, contributed to or accelerated the disease; and Dr. Roberts reiterated his view that the degenerative changes in the plaintiff's back, as evidenced by current X-rays, were of "a type and result of rather prolonged wear and tear".

The hearing referee factually found that the plaintiff's back condition "was not caused by any single event but was the result of repeated trauma caused by lifting and bending in the course of his employment with the two defendant companies." ¹ On the basis of this finding, the referee concluded that an apportionment of liability was required based on the respective lengths of time the plaintiff had worked for Hosking and Eureka.

Defendant Hosking appealed the referee's findings and decision to the Worker's Compensation Appeal Board (WCAB) arguing, Inter alia, that the plaintiff's back condition resulted solely from the single-event incident suffered by the plaintiff at Eureka in December of 1973 or from that incident plus subsequent aggravation caused by his continued employment at Eureka until June of 1974. Hosking contended that the plaintiff's condition was compensable by virtue of Chapter Three of the Worker's Disability Compensation Act. ² Because Chapter Three did not contain any apportionment provisions, there could be no apportionment.

The appeal board did not accept the factual propositions urged by defendant Hosking. The board stated:

"First, we proceed to our fact finding. We accept the referee's factual conclusion and independently find that plaintiff's disability is the result of his heavy lifting duties at both employers." ³

The board then stated the legal question presented:

"Having made that finding, which directs that plaintiff's disablement is compensable by virtue of the provisions of Chapter 4 * * * are we required to apportion liability by application of Section 435?" ⁴

The pertinent portion of § 435 ⁵ to which the board referred states:

"The hearing referee Shall apportion liability for compensation among the several employers in proportion to the time that the employee was employed in the service of each employer In the employment to the nature of which the disease was due and in which it was contracted * * *." (Emphasis added.)

The board concluded that this statute should not be read to require apportionment in cases involving degenerative disc disease caused by repeated lifting duties at two or more employers. The board candidly admitted that this conclusion was based on a "conscious policy determination" by the board and its predecessors not to treat back conditions as diseases for purposes of apportionment under § 435. ⁶

The primary reason given by the board for this policy determination was the possibility of an increase in litigation and a concomitant increase in the length of time a claimant must wait for benefits if the statute were to be read so as to include back conditions. In closing, the board added:

"Should our decision here be subject to Court review, and should the Court find insufficient the argument of policy and administrative precedent urged here (which we deem more than sufficient), we urge the consideration of a statutory rationale arising out of definitional differences in Sections 401 and 435. In Section 401, * * * (the term 'personal injury' is defined to) 'include a disease or disability'. Section 435 provides for apportionment among prior employers only for 'disease'. Notwithstanding the medical term 'degenerative disc disease', occupationally-weakened backs could more appropriately be described by the term 'disability' than by the term 'disease' as the latter word is treated in common usage, and thus be excluded from the provisions of Section 435." ⁷

Defendant Eureka appealed the board's decision to the Court of Appeals. That Court reversed the board and remanded the case for reinstatement of the referee's original order apportioning liability. 79 Mich.App. 750, 263 N.W.2d 30 (1977). In its opinion, the Court first explained the purpose of the apportionment provision:

"Apportionment of financial liability for an employee's disease-caused disability is designed to reflect the relative contribution of similar employment conditions at each employer to the occurrence of the disability. In other words, the fortuitous event of a disability, which is but the culmination of a prolonged exposure of the employee to deleterious employment conditions at multiple employers, should not result in the imposition of a financial burden only upon the last in the series of employers." Id., 754, 263 N.W.2d, 32.

The Court then interpreted the term "disease" in § 435 in light of this purpose:

"A disease is present for purposes of the apportionment statute whenever the evidence establishes that the compensable disability derives from the effects of continued and protracted exposure to the inherent elements of the employee's employment."

Finally, the Court compared the factual findings of the appeal board to this interpretation and concluded that the plaintiff's back condition did constitute a disease for purposes of § 435.

Defendant Hosking has now appealed the Court of Appeals decision to this Court.

II

The appeal board's findings of fact are conclusive in the absence of fraud. M.C.L. § 418.861; M.S.A. § 17.237(861). Thus, we are bound to...