Farrington v. Total Petroleum, Inc.

• Decision Date: 07 May 1991
• Docket Number: Docket No. 113332
• Citation: 472 N.W.2d 60,189 Mich.App. 298
• Parties: Richard FARRINGTON, Plaintiff-Appellee, v. TOTAL PETROLEUM, INC., Defendant-Appellant, and Hartford Insurance Company, Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 60

472 N.W.2d 60

189 Mich.App. 298

Richard FARRINGTON, Plaintiff-Appellee, v. TOTAL PETROLEUM, INC., Defendant-Appellant and Hartford Insurance Company, Appellant.

Docket No. 113332.

Court of Appeals of Michigan.

Submitted March 13, 1990, at Lansing.

Decided May 7, 1991, at 10:50 a.m.

Released for Publication July 29, 1991.

Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. by Angela J. Nicita and Douglas Merrow, Detroit, for plaintiff-appellee.

Ryan, Jamieson, Hubbell & Morris by Christopher D. Morris, Kalamazoo, for defendant-appellant.

Before HOOD, P.J., and MAHER and CYNAR, JJ.

PER CURIAM.

Defendant Total Petroleum, Inc., and its workers' compensation insurer, Hartford Insurance Company, appeal by leave granted from a November 21, 1988, decision of the Workers' Compensation Appellate Commission, which affirmed a magistrate's award of benefits to plaintiff for a period of disability following a heart attack.

The workers' compensation magistrate awarded plaintiff benefits at the rate of $284.72 a week for a closed period between February 27, 1986, and April 21, 1986, finding as fact that plaintiff had a preexisting coronary artery disease, that this disease was aggravated by work to the point of onset of symptoms of the disease, and that plaintiff's work activities were causally related to his subsequent heart attack.

The pertinent facts are as follows. Plaintiff was employed as the manager at defendant's self-service gas station in Comstock, Michigan. His duties included scheduling, payroll, inventory control, and minor maintenance activities such as stocking shelves and soda pop coolers and shoveling snow in areas where the station's snow plow could not reach. On February 25, 1986, at about 6:15 a.m., plaintiff experienced chest pains, dizziness, and shortness of breath while carrying cases of soda pop weighing approximately thirty pounds in order to refill the pop coolers at the station. The forty-nine-year-old plaintiff had no history of cardiac problems before that time. When the chest pains started, plaintiff stopped his work and rested for a while. The chest pains stopped after thirty to forty minutes, but plaintiff continued to have a little discomfort in his chest and felt tired. Plaintiff continued to wait on customers at the service station, but went home an hour early at 12:30 or 1:00 p.m.

The following morning, plaintiff returned to work. Around 11:00 a.m., plaintiff went outside to shovel snow and experienced severe chest pain with dizziness and sweating after shoveling for about fifteen minutes. Plaintiff took the remainder of the day off.

On the following day, February 27, 1986, plaintiff returned to work. At approximately 6:00 a.m., he again experienced chest pain when loading soda pop into the coolers. Plaintiff continued to wait on customers until approximately 9:00 or 9:30 a.m., when he left to be examined by his family doctor. Plaintiff was subsequently admitted to a hospital and treated by Dr. Zegerius.

Upon admission to the hospital, plaintiff was diagnosed as having unstable angina. Although it was first thought that plaintiff had suffered a heart attack, Dr. Zegerius testified that plaintiff's initial EKG's did not show evidence of a definite myocardial infarction. Also, plaintiff's initial blood enzyme tests indicated no damage to plaintiff's heart muscle at the time of admission. However, plaintiff continued to experience chest pain and remained in the hospital for further cardiac evaluation.

Dr. Zegerius testified that, although plaintiff's condition was initially stabilized with oxygen and nitroglycerin treatments, the condition again became unstable during plaintiff's stay at the hospital. On February 28, 1986, the day following admission, plaintiff was given a treadmill test at the hospital for about two minutes, until he began to experience tightness in his chest.

On March 1, 1986, plaintiff suffered a myocardial infarction at approximately 10:00 a.m., following a sponge bath. He then underwent successful percutaneous balloon angioplasty. According to Dr. Zegerius, an EKG showed actual damage to the tissues of plaintiff's heart following the March 1 infarction.

Plaintiff was discharged from the hospital on March 8, 1986. Plaintiff returned to work on April 21, 1986, and, on the date of the hearing, had not missed any more work on account of his heart condition.

In a 2-1 decision, the WCAC affirmed the decision of the magistrate, concluding that the magistrate's findings were supported by competent, material, and substantial evidence on the whole record. The dissent, while agreeing that the magistrate's findings were supported by substantial evidence on the whole record, opined that the applicable standard of review required that the magistrate's findings be supported by a preponderance of the evidence. Under the preponderance standard, the dissent concluded that plaintiff failed to establish that his heart attack was work-related. Defendant and its insurer filed an application for leave to appeal in this Court, and leave was granted.

On appeal, the findings of fact made by the WCAC acting within its powers, in the absence of fraud, are conclusive; however, questions of law involved with any final order of the WCAC may be reviewed by this Court. M.C.L. Sec. 418.861a(14); M.S.A. Sec. 17.237(861a)(14).

On appeal, defendant contends that the WCAC utilized improper legal standards. First, agreeing with the WCAC's dissent, defendant argues that the WCAC applied the incorrect standard for reviewing the magistrate's findings. Second, defendant claims that the WCAC applied the wrong legal standard in determining whether plaintiff's heart attack was work-related.

I

Regarding the standard by which the WCAC is required to review the findings of the workers' compensation magistrate, M.C.L. Sec. 418.861a; M.S.A. Sec. 17.237(861a) provides in pertinent part:

(1) Any matter for which a claim for review under section 859a has been filed shall be heard and decided by the appellate commission.

(2) Until October 1, 1986 findings of fact made by a worker's compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and a preponderance of the evidence on the whole record.

(3) Beginning October 1, 1986 findings of fact made by a worker's compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, "substantial evidence" means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion. [Emphasis added.]

Defendant contends that the WCAC dissent was correct in concluding that the determinative event in deciding whether a given case falls within the pre-October 1, 1986, period is the date on which the initial application for hearing is filed, which in this case was September 19, 1986. We disagree.

While the filing of an initial application for hearing invokes the jurisdiction of a workers' compensation magistrate, see M.C.L. Secs. 418.206 and 418.847; M.S.A. Secs. 17.237(206) and 17.237(847), it is the filing of a claim for review that invokes the jurisdiction of the WCAC. See M.C.L. Sec. 418.859a(1); M.S.A. Sec. 17.237(859a)(1). Subsections 861a(2) and (3) both govern the standard by which the WCAC is to review a magistrate's decision; they do not govern the standard relating to a claimant's burden of proof before the magistrate. Accordingly, because Secs. 861a(2) and (3) relate only to the WCAC's standard of review, we conclude that the operative event for determining which standard to apply is the date on which a claim for review invoking the WCAC's jurisdiction is filed, which in this case was after October 1, 1986.

We believe our conclusion is supported by the context in which the relevant statutory provisions appear. Section 861a starts out by first indicating in subsection 1 that the commission's power to hear and decide a case extends only to those matters for which a claim for review has been filed. The remaining subsections then purport to clarify how this power is to be exercised. Thus, until a claim for review has been filed, the provisions of Secs. 861a(2)-(14) are neither relevant nor operative. Moreover, a plain reading of the actual language used in Secs. 861a(2) and (3) fails to suggest that the determinative event in deciding which standard of review to apply is the date on which the initial application for hearing was filed. Had this in fact been the intent of the Legislature, such intent could have easily been specified through appropriate language.

While the WCAC dissent argues that it would be unreasonable to construe the October 1, 1986, date as referring to the date on which a claim for review was filed, because no magistrate or commissioner had in fact been appointed as of October 1, 1986, this situation does not appear to have been contemplated by the Legislature in that, under M.C.L. Sec. 418.274(1); M.S.A. Sec. 17.237(274)(1), the Governor was required to appoint the initial members of the WCAC not later than January 1, 1986.

We conclude, therefore, that because defendant filed its claim for review after October 1, 1986, the WCAC properly determined that the appropriate standard for reviewing the magistrate's findings is the standard set forth in Sec. 861a(3).

II

Finally, defendant argues that the WCAC applied the wrong legal standard in determining that plaintiff's heart attack was work-related. We disagree.

Before 1982, an employee's entitlement to compensation in...