Dressler v. Grand Rapids Die Casting Corp.

• Decision Date: 27 February 1978
• Docket Number: No. 13,13
• Citation: 262 N.W.2d 629,402 Mich. 243
• Parties: Joseph W. DRESSLER, Plaintiff-Appellee, v. GRAND RAPIDS DIE CASTING CORPORATION and Insurance Company of North America, Defendants-Appellees, and Michigan Plating and Stamping Company and Corporate Service, Inc., Defendants-Appellants. 402 Mich. 243, 262 N.W.2d 629
• Court: Michigan Supreme Court

Page 629

262 N.W.2d 629

Joseph W. DRESSLER, Plaintiff-Appellee, v. GRAND RAPIDS DIE CASTING CORPORATION and Insurance Company of North America, Defendants-Appellees and Michigan Plating and Stamping Company and Corporate Service Inc., Defendants-Appellants.

No. 13.

402 Mich. 243, 262 N.W.2d 629

Supreme Court of Michigan.

Feb. 27, 1978.

Arsulowicz & Meana, Grand Rapids, for plaintiff-appellee; Robert N. Swartz, Grand Rapids, of counsel.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendants-appellees Grand Rapids Die Casting Corporation and Insurance Company of North America.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendants-appellants.

WILLIAMS, Justice.

Defendants, Michigan Plating and Stamping Company and Corporate Service (hereinafter referred to as Michigan Plating), appeal from an award of worker's compensation benefits to plaintiff, Joe W. Dressler, and raise two issues: (1) did the Worker's Compensation Appeal Board (hereinafter WCAB) err in finding that plaintiff's employment at Michigan Plating aggravated his back condition to the point of total disability rather than finding his disability resulted from a fall during his earlier employment with Grand Rapids Die Casting Corporation, and (2) was plaintiff suffering from an occupational disease prior to his employment with Michigan Plating and, therefore, barred from recovering from Michigan Plating by M.C.L.A. § 418.431; M.S.A. § 17.237(431), because he wilfully and falsely represented in his application for employment that he had not previously been treated for back trouble?

We find there was competent evidence to support the findings of the WCAB that (1) plaintiff's employment at Michigan Plating aggravated his back condition to the point of total disability, and (2) plaintiff is not barred from recovery from Michigan Plating by M.C.L.A. § 418.431; M.S.A. § 17.237(431) because that bar relates exclusively to misstatement relative to a prior occupational disease and has no application to a misstatement relative to a prior single-event injury. Judgment is affirmed.

I FACTS

Plaintiff began working at Grand Rapids Die Casting Corporation, co-defendant in this action, in September, 1966. His job consisted of lifting and polishing small and large metal parts. On Friday, June 7, 1968, plaintiff fell at work and injured his spine about two inches above his belt. He reported the fall immediately but did not see a company doctor until his return to work on Monday, June 10.

Dr. Kempers, to whom he reported on that date, prescribed pain pills and returned plaintiff to work with a "slip" ordering that he do no heavy lifting (Appellant's Appendix, 13a). Plaintiff returned to work immediately, but was told there was no light work available (Appellant's Appendix, 14a). He did not return to work again until the week ending June 30, at which time he was given light work which he continued to do for a period of three weeks.

Subsequently, plaintiff was placed back at his regular duties which continued for another week or two until he quit in August, 1968. During this period he suffered varying degrees of back pain. There is some testimony to the effect that plaintiff left his employment because his wages were being garnished and he wanted to look for a better job.

On September 30, 1968, plaintiff began the same type of work at Apex Polishing Company, which caused him less discomfort than his prior job because he was able to get up and walk around to relax his back during the course of work (Appellant's Appendix, 18a). Plaintiff was laid off by Apex in January, 1969, but that same month was able to secure a job at Ronel's Manufacturing Company, again doing polishing.

In June, 1969, plaintiff was laid off by Ronel's, and applied for work at Pridgeon & Clay, but was rejected after a pre-employment physical examination.

In August, 1969, plaintiff applied for work with defendant, Michigan Plating. While filling out his employment application, plaintiff responded to the question, "(h)ave you ever been treated for a back condition?" in the negative (Appellant's Appendix While in the employ of Michigan Plating, on January 9, 1970, plaintiff suffered a fall at home in which he injured his upper back (Appellant's Appendix, 50a). This incident, however, was characterized as not significant in light of plaintiff's total back pathology by defendant's expert witness, Dr. Glessner: "I'm not stating that the fall (of January 9, 1970) couldn't have had something to do with it, but I think the fall had less to do with it than the lifting activities." (Quoted in the opinion of the WCAB, Appellant's Appendix, 124a).

48a). Plaintiff later admitted during testimony that he knew this answer to be untrue, and that he gave it for the purpose of obtaining a job (Appellant's Appendix, 48a-49a). He began work on August 11, 1969, as a "racker," lifting bumpers off a rack and polishing them.

Approximately a week after the fall, there was a layoff at Michigan Plating and plaintiff was not called back to work until March of 1970. After resuming work, plaintiff began to be absent frequently, and did not return to work after April, 1970. On May 15, 1970, he was formally discharged by Michigan Plating (Plaintiff's Brief, p. 11).

On June 8, 1970, plaintiff filed his petition for hearing alleging that he was disabled due to a fall in 1968 and the "repeated trauma in the course of his employment" at Michigan Plating (Appellant's Appendix, 6a).

The hearing referee found that plaintiff had suffered a personal injury aggravated to the point of total disability while in the employ of Michigan Plating and awarded compensation to be paid by appellant as the last employer. The Appeal Board unanimously affirmed on April 6, 1976 and the Court of Appeals denied leave to appeal on July 29, 1976. Leave to appeal was granted by this Court on April 22, 1977.

II STANDARD OF REVIEW

Findings of the Worker's Compensation Appeal Board regarding whether a disability exists, Barrett v. Bohn Aluminum & Brass Co., 69 Mich.App. 636, 639-640, 245 N.W.2d 147 (1976), and whether a particular employment has aggravated a condition to the point of disability are findings of fact. Gilbert v. Reynolds Metals Co., 59 Mich.App. 62, 65, 228 N.W.2d 542 (1975). If supported by competent, material and substantial evidence in the record, such findings are conclusive. Carter v. Kelsey-Hayes Co., 386 Mich. 610, 615, 194 N.W.2d 326 (1972); Coates v. Continental Motors Corp., 373 Mich. 461, 466-467, 130 N.W.2d 34 (1964). ¹ This Court must therefore examine the issues raised on appeal under the above standard of review.

III DATE OF DISABILITY

Defendant Michigan Plating asserts that plaintiff was " * * * disabled from carrying on his employment at Grand Rapids Die Casting Corporation (his original employer) and accordingly was thereafter disabled from heavy work", and that therefore Grand Rapids Die Casting should be held liable for the payment of compensation. (Defendant-Appellant's Brief, 17).

If plaintiff were disabled from the time of his employment at Grand Rapids Die Casting, and this same disability continued through the time of his subsequent employment at Michigan Plating, defendant's assertion would be correct, Mullins v. Dura Corp., 46 Mich.App. 52, 207 N.W.2d 404 (1973). However, the meaning of "disability", in conjunction with the facts of this case, establishes that there was competent evidence by which the WCAB could find that plaintiff was disabled on the last day of his employment with Michigan Plating.

Although what constitutes compensable disability is a factual determination and can vary with the circumstances of a particular case, of interest is Larson's Treatise on worker's compensation which describes compensable disability as the " * * * inability, as the result of a work-connected injury, to perform or obtain work suitable to the claimant's qualifications and training". 2 Larson, Workmen's Compensation Law, § 57.00. Larson goes on to explain " * * * that the distinctive feature of the compensation system * * * is that its awards (apart from medical benefits) are made not for physical injury as such, but for 'disability' produced by such injury". Larson, supra, § 57.10 (authority omitted).

There is no question that plaintiff sustained a physical injury to his back while in the employ of Grand Rapids Die Casting, and according to the opinion of the WCAB, this " * * * single-event traumatic injury * * * resulted in immediate disability thereafter" (Appellant's Appendix, 125a). However, the facts as reasonably accepted by the WCAB demonstrate that within a short time of the fall plaintiff was able to perform his regular duties at Grand Rapids Die Casting. Further, within a short time from termination of his employment at Grand Rapids Die Casting, plaintiff was not only able but did in fact obtain work suitable to his qualifications and training, and was able to perform such work, albeit with various degrees of discomfort from his pre-existing back condition.

According to defendant's own statement of the facts of this case, plaintiff did the same type of work at Apex as he had done at Grand Rapids Die Casting (Appellant's Brief, 3). The termination of that employment was due to a layoff and not inability to perform the required work. The same pattern of employment, ability to perform and economic layoff occurred at Ronel's. These facts support a finding by the WCAB that plaintiff was not disabled during this period. ²

Further, although plaintiff suffered pain during substantially all of his employment from the time of his initial injury, the existence of an injury and pain therefrom do not necessarily create disability. As quoted above, " * * * the distinctive feature of the compensation system * * * is that its awards (apart from medical benefits) are made not for physical injury as such, but for 'disability'...