Drake v. Norge Division, Borg-Warner Corp., BORG-WARNER

• Decision Date: 27 June 1973
• Docket Number: Docket No. 14064,BORG-WARNER,No. 2,2
• Citation: 210 N.W.2d 131,48 Mich.App. 88
• Parties: Emma DRAKE, widow of Clayton Drake, Deceased, Plaintiff-Appellee, v. NORGE DIVISION,CORPORATION, Defendant-Appellee, and Second Injury Fund, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 131

210 N.W.2d 131

48 Mich.App. 88

Emma DRAKE, widow of Clayton Drake, Deceased, Plaintiff-Appellee, v. NORGE DIVISION, BORG-WARNER CORPORATION, Defendant-Appellee and Second Injury Fund, Defendant-Appellant.

Docket No. 14064.

Court of Appeals of Michigan, Division No. 2.

June 27, 1973.

Released for Publication Sept. 10, 1973.

Leave to Appeal Denied Oct. 26, 1973.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lee A. Decker, Asst. Atty. Gen., for defendant-appellant.

Robert Libner, Muskegon, for Emma Drake.

Fredrick W. Bleakley, Grand Rapids, for Norge.

E. R. Whinham, Jr., Detroit, for Mich. Life Ins. Ass'n.

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

BRONSON, Presiding Judge.

Clayton Drake suffered a heart attack on January 24, 1953. He was awarded 750 weeks of workmen's compensation, pursuant to a finding of total disability, from defendant Norge Division, Borg-Warner Corporation, through June 23, 1967. On August 27, 1967, he filed a petition seeking differential benefits from defendant Second Injury Fund and additional benefits from both defendant Second Injury Fund and defendant Norge. He alleged total and permanent disability since 1953 due to the loss of industrial use of both arms and legs. The hearing referee denied Drake's claim. Drake appealed to the Workmen's Compensation Appeal Board. ¹ The appeal board reversed the hearing referee and granted additional compensation until the date of Drake's death to be paid from the Second Injury Fund and death benefits to be paid by defendant Norge. Defendant Second Injury Fund appeals on leave granted.

The appeal board found that 'decedent lost the industrial use of his legs January 24, 1953'. This would place decedent within M.C.L.A. § 418.361(2)(g); M.S.A. § 17.237(361)(2)(g). ² Plaintiff argues that this was merely a factual determination. Defendant argues that the appeal board applied an improper legal standard in determining total and permanent disability.

If this determination by the board were merely a factual one, then we would not disturb it if there were 'any evidence whatever' to support the determination. Thornton v. Luria-Dumes Co.-Venture, 347 Mich. 160, 79 N.W.2d 457 (1956). Here, however, the board has relied heavily on the legal definition of 'loss of industrial use' in Lockwood v. Continental Motors Corp., 27 Mich.App. 597, 183 N.W.2d 807 (1970). We find no cases which have extended Lockwood to cover a heart attack injury. Therefore we are compelled to interpret the statute upon which the board relied in its determination.

In Paulson v. Muskegon Heights Tile Co., 371 Mich. 312, 123 N.W.2d 715 (1963), the Michigan Supreme Court refused to read into this section any requirement that there be a direct injury to the legs. The plaintiff there had suffered an injury which resulted in urine escaping into the sinus cavities of his legs. This in turn prevented plaintiff from walking without pain. He was entitled to receive benefits for the industrial loss of both legs. At 371 Mich. 319, 123 N.W.2d 719, the Court said:

'We construe the statute to mean that permanent and total loss of industrial use, insofar as the facts in this case are concerned, is that leg-connected disabling pain associated primarily with the use of the legs, which is so severe as to make use of the legs in industry practically impossible.'

In Lockwood, supra, the plaintiff had suffered a hearing loss which resulted in vertigo when he used his legs. The Court reversed the appeal board, stating:

'It is enough that Lockwood suffers dizziness when he uses his legs and that because of that dizziness he cannot further use his legs in industry. The fact that he experiences dizziness and resulting loss of the use of his legs when he moves his arms or body extensively or is exposed to noise does not gainsay the fact that he experiences this leg-disabling phenomenon when he uses his legs. That he, perhaps less fortunately than Paulson, is subjected to the disabling phenomenon by causes other than the use of his legs is hardly a good reason for depriving him of compensation which clearly would be payable if the disabling phenomenon manifested itself only when he used his legs.' 27 Mich.App. at 604, 183 N.W.2d at 810--811.

The Lockwood Court further stated:

'While industrial loss of use of the legs is not established by 'any infirmity' which causes total disability, at least where, as here, as in Paulson, the infirmity is Triggered by the use of the legs preventing their further use industrially, the worker has established the right to recover for total and permanent disability even though the infirmity is also triggered by other causes, E.g., noise and other body movement.' 27 Mich.App. at 606--607, 183 N.W.2d at 812. (Emphasis added.)

There was testimony in the case at bar that plaintiff had a similar injury.

'A. Heart and legs. My legs got so bad one time--I can't hardly bend them. They're cold.

'Q. What happens to your legs?

'A. The blood, there ain't no circulation.

'Q. How far can you walk?

'A. I don't walk at all only just out to look around the pump and come back and set down.

'Q. About how many feet is that?

'A. 25, 30.

'Q. Why do you have to sit down?

'A. To get my breath.

'Q. Did you have any trouble with walking before you had your first heart attack?

'A. No. I worked over here to the Norge and I didn't have no trouble there.'

In a concurring opinion board member Storie states:

'The unrebutted evidence before us shows that it is the use of the limbs which causes the fast heart beats with its resulting shortness of breath and edema (swelling of the limbs).'

The problem with the board's reliance on Lockwood is that the opinion itself distinguishes heart attack injuries in footnote 10:

'The Paulson and Lockwood cases are different from the case of the heart disease patient where the disease affects all functions and activities more or less in the same way and where there has been a general decline in bodily function.' 27 Mich.App. at 606, 183 N.W.2d at 812.

The appeal board specifically addressed this distinction:

'If they are different, they certainly are no less meritorious. Considering this case in the light of the intent of the Workmen's Compensation Act, we are unable to accept this neat distinction and compensate one worker and in turn discriminate against the other. We find plaintiff's decedent lost the industrial use of his legs January 24, 1953.'

We agree with the appeal board that this is a meaningless distinction. ³ The fact that plaintiff's heart condition caused a 'general decline in bodily function' certainly does not preclude him from showing that he has lost the industrial use of his legs within the meaning of M.C.L.A. § 418.361(2)(g). The injury was leg-related, as required by Paulson, in that walking caused the heart to beat faster and the resulting edema in the legs--which prevented their use. Plaintiff testified that his legs became cold and immovable. There was sufficient evidence in the record to support the board's finding of fact that plaintiff had lost the industrial use of his legs as a consequence of the work-related heart attack.

Defendant cites language from Miller v. Sullivan Milk Products, Inc., 385 Mich. 659, 666, 189 N.W.2d 304, 309 (1971):

'A review of specific loss cases reveals that loss of 'industrial use' is a question of fact. The test of that fact has been to equate such a loss with the physical or anatomical loss of use of a member of the body rather than with an economic reality test.'

Plaintiff in the case at bar fits within this language because he had lost the actual 'physical' use of his legs.

Defendant also cites the following language from Miller:

'When the limb cannot be used industrially simply because of other disabling infirmities, it would do violence to the statutory intent to hold that the industrial loss of use of such limb has occurred.' 385 Mich. at 667, 189 N.W.2d at 308.

This language also proves nothing because in Miller the plaintiff was claiming workmen's compensation for the loss of two legs when in fact he had only lost the use of a single leg. The 'other disabling infirmities' referred to in that case was the injury to one ankle. In the case at bar it is not disputed that plaintiff's condition was aggravated by the use of both legs which in turn prevented the use of both legs.

The amicus curiae brief of the Michigan Self Insurers Association alleges that the award of the board violates M.C.L.A. § 418.833; M.S.A. § 17.237(833), which states:

'If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.'

Morgan v. Lloyds Builders Inc., 344 Mich. 524, 528, 73 N.W.2d 880, 882 (1955), answers this contention by quoting Palchak v. Murray Corp. of America, 318 Mich. 482, 493--494, 28 N.W.2d 295, 300 (1947):

"The case at bar does not involve distinct injuries sustained in an accident, but rather two results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff's claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply."

Plaintiff in the case at bar is not alleging a second and separate injury sustained at the time of the first injury. There was but a single injury in this case.

Aff...