Deziel v. Difco Laboratories, Inc.

• Decision Date: 17 July 1978
• Docket Number: Nos. 9,10 and 11,s. 9
• Citation: 403 Mich. 1,97 A.L.R.3d 121,268 N.W.2d 1
• Parties: Mary DEZIEL, Plaintiff-Appellant, v. DIFCO LABORATORIES, INC., and Michigan Mutual Liability Company, Defendants- Appellees. Yusuf BAHU, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee. Harold K. MacKENZIE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, Defendant-Appellee. 403 Mich. 1, 268 N.W.2d 1, 97 A.L.R.3d 121
• Court: Michigan Supreme Court

Page 1

268 N.W.2d 1

Mary DEZIEL, Plaintiff-Appellant, v. DIFCO LABORATORIES, INC., and Michigan Mutual Liability

Company, Defendants- Appellees.

Yusuf BAHU, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee.

Harold K. MacKENZIE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION,

Defendant-Appellee.

Nos. 9, 10 and 11.

403 Mich. 1, 268 N.W.2d 1, 97 A.L.R.3d 121

Supreme Court of Michigan.

July 17, 1978.

Worker's Compensation Appeal Board.

Jerome W. Kelman, for Kelman, Loria, Downing, Schneider & Simpson, Detroit, for plaintiff-appellant Deziel.

Kelman, Loria, Downing & Schneider, for plaintiff-appellant Bahu by Donald W. Loria and Rodger G. Will, Detroit.

Levine & Benjamin, P. C., Alvin L. Levine, Detroit, for plaintiff-appellant MacKenzie.

LeVasseur, Werner, Mitseff & Brown by Grahame G. Capp, Detroit, for defendants-appellees Difco Laboratories, Inc.

Francis L. Sylvester, Lacey & Jones, Detroit, for defendant-appellee Chrysler Corp.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by Edward K. Pedersen, Jr., Jeannette A. Paskin, Detroit, for defendant-appellee General Motors; Frazer F. Hilder, Gen. Counsel, Thomas W. Watkins, James A. Durkin, General Motors Corp., Detroit, of counsel.

MOODY, Justice.

We originally granted leave in these three cases and directed that they be argued and submitted consecutively because they all concern aspects of the same problem: when and under what conditions alleged mental disorders ¹ (including psychoneuroses and psychoses) are compensable under the Worker's Disability Compensation Act of 1969 (the Act). 394 Mich. 466, 232 N.W.2d 146 (1975).

However, after hearing extensive oral arguments, examining the briefs and reviewing the record, and upon reading the opinions of both the referees and Worker's Compensation Appeal Board (the WCAB), this Court determined that in each case certain vital factual findings had been omitted by the WCAB. Therefore, we had no choice but to remand each case to the WCAB for amplification of its factual findings (retaining jurisdiction).

Upon remand, we informed the WCAB that we were not convinced that it had properly construed the law as it applies to mental disabilities of the character involved in these cases. The Court stated that for any injury to be compensable it must arise "out of and in the course of" employment. M.C.L.A. § 418.301; M.S.A. § 17.237(301). In cases such as these, which involve an alleged pre-existing mental condition, the question of whether a disability arose out of the employment should be resolved by establishing a work nexus.

Furthermore, the legal principle to be applied by the WCAB is set forth in Larson's treatise on Workmen's Compensation Law, § 12.20, p. 3-231, whether

"the employment aggravated, accelerated, or combined with the disease or infirmity to produce the * * * disability".

This Court then gave the WCAB a three-step test to apply in resolving the questions of fact and law relating to compensability in these cases:

"1) Is the claimant disabled?

"2) If so, is the claimant disabled on account of some 'personal injury'?

"3) Did the claimant's employment aggravate, accelerate, or combine with some internal weakness or disease to produce the personal injury?

"If those questions are answered in the affirmative and supported by the record, the decision maker must then find as a matter of law that the claimant had a personal injury, which arose out of the employment, and that compensation must be awarded.

"By the same token, if there is support for a negative answer to any of the questions, compensation may not be awarded." 394 Mich. 476, 232 N.W.2d 150.

The WCAB has amplified the records and now these cases are once again before our Court. However, before we discuss the WCAB's decisions on remand, we will briefly restate:

1) the facts in each case;

2) the initial decisions of the referee, WCAB and Court of Appeals in each case;

3) this Court's specific remand order as it applied to each case; and

4) the pertinent part of the WCAB's majority opinion in each case upon remand.

DEZIEL

1. The Facts

"Mary Deziel, 39 at the time of suit, began working for Difco in 1968 handling test tubes, mixtures and various chemicals. On January 23, 1969 a test tube she was filling broke, causing glass to get into her eye. She was treated the next day and returned to work. On April 24, 1969 a test tube filled with iodine slipped from her hand and hit the table, splattering iodine around her eyes. She has not returned to work since. She made claim for compensation asserting she cannot work because of pain in the back of her eyes, anxiety, headaches, tiredness, and occasional dizziness, nausea and tightness in the chest. No physical cause for these symptoms has been found.

"In her testimony before the referee Deziel denied being treated for headaches and nervousness prior to working for Difco.

"However, prior to her employment with Difco, Deziel lived and worked in Ontario where she was treated by Dr. Brewer, who was deposed by Difco after the referee's decision. Brewer testified that he had treated Deziel for various ailments including headaches, anxiety, and tiredness but did not recall whether she had complained of eye problems." 394 Mich. 470-471, 232 N.W.2d 148.

2. Initial Decisions

"The referee accepted and adopted the disease theory of Difco's psychiatrist, Dr. Forrer, namely that Deziel has always suffered from an obsessive-compulsive character which attached to the eye injury and developed into a psychosis, called a schizophrenic reaction. Coupled with that disease theory, the referee found that the iodine splashing 'aggravated the "The Appeal Board in a unanimous opinion reversed the referee, holding that Deziel had not met the burden of proof to show her ailments were associated with her work, because with the exception of her eye ailments she had suffered the same symptoms since 1962." 394 Mich. 471, 232 N.W.2d 148. (The Court of Appeals denied leave to appeal.)

pre-existing latent mental disorder' culminating into a total occupational disablement. He awarded compensation.

3. Remand Order

"In Deziel, the Appeal Board explained its holding in this manner:

" 'Mainly by her own testimony did the plaintiff prevail before the Referee, proving a psychiatric disability associated with her work. Since the decision, additional testimony in the nature of a deposition by Dr. Brewer has become a part of the record. This deposition shows, with substantial weight, that plaintiff had been suffering from the same symptoms since 1962 and periodically thereafter which is most impressive to the point that her disability was not causally connected with her work. Further, her credibility is impaired by the fact she denied suffering such disability prior to her employment with the defendant which is completely controverted by the doctor's deposition.

" '(11) The only discrepancy between her symptoms of 1962 and thereafter and her allegations of disability upon which she predicates her petition for benefits is pain behind the left eye. The plaintiff has not met the burden of proof to show her ailments are associated with her work or that her injury precipitated her present, allegedly disabled condition.

" 'The order of the referee is reversed.'

"From our reading of this, it is impossible for us to determine whether they addressed themselves to the appropriate question. If they did not, their holding as a matter of law would be erroneous.

"We remand for clarification, retaining jurisdiction.

"The phrase 'allegedly disabled condition' in the last full paragraph quoted indicates that the Board may have concluded that the claimant was not disabled despite the testimony of both psychiatrists which seem to lead to the conclusion that she is disabled. The first paragraph, however, indicates that the Board accepted the evidence of disability, but concluded the disability was not occasioned by her work.

"The applicable law is clear. If the claimant is disabled on account of her employment aggravating, accelerating or combining with some internal weakness or disease she is entitled to compensation.

"There is no need to seek any further connection between the work and disability." 394 Mich. 476-477, 232 N.W.2d 150.

4. WCAB's Majority Opinion Upon Remand

"Plaintiff's testimony under oath is completely rebutted as to previous ailments by Dr. Brewer, a medical witness who treated her prior to her employment with the defendant and was called by the defendant for the purpose of impeachment. We have a situation where this Board has the prerogative of disregarding plaintiff's complete testimony unless her testimony is corroborated by other evidence.

"This not being the case we find that plaintiff has not met the burden of proof to show her employment aggravated, accelerated, or combined with some internal weakness to produce an injury.

"Plaintiff's medical problems of 1962 coincide with those now alleged to be disabling by the plaintiff. This fact negates a finding that plaintiff's disability is company-oriented in any way.

"The record calls for a finding of disability and personal injury. As to employment aggravating, accelerating or combining with some internal weakness or disease to produce the personal injury we find in the negative. Other than the fact plaintiff has not worked since the second test tube dropping incident we can

find little evidence to promote the plaintiff's case, especially in the light of the obvious credibility gap." Opinion on Remand, pp. 2-3. ²

BAHU

1. The Facts

"Bahu, 35 at the time of suit, was hired by Chrysler in 1967. In 1968 he worked at a stamping machine lifting and moving 1500 seven-pound parts a day from an overhead conveyor to large tubs. From September 19, 1968 through October 7, 1968 he was off work with back pains and was voluntarily paid workmen's compensation benefits. Bahu returned to work and continued to complain of pain in his back, neck, and...