Feldbauer v. Cooney Engineering Co.

• Decision Date: 16 May 1994
• Docket Number: Docket No. 157659
• Citation: 205 Mich.App. 284,517 N.W.2d 298
• Parties: Edward J. FELDBAUER, Plaintiff-Appellee, v. COONEY ENGINEERING COMPANY and Sentry Insurance Company, Defendants-Appellants, and All Seasons Heating & Cooling Company and Ohio Casualty Insurance Company, Defendants-Appellees. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 298

517 N.W.2d 298

205 Mich.App. 284

Edward J. FELDBAUER, Plaintiff-Appellee, v. COONEY ENGINEERING COMPANY and Sentry Insurance Company Defendants-Appellants and All Seasons Heating & Cooling Company and Ohio Casualty Insurance Company, Defendants-Appellees. (On Remand)

Docket No. 157659.

Court of Appeals of Michigan.

Submitted Feb. 16, 1994, at Detroit.

Decided May 16, 1994, at 9:25 a.m.

Released for Publication June 30, 1994.

Kelman, Loria, Downing, Schneider & Simpson by Ann Curry Thompson, Detroit, for Edward J. Feldbauer.

MacArthur, Murray & Associates, P.C. by Paula M. Murray, Royal Oak, for Cooney Engineering Co. and Sentry Ins. Co.

Conklin, Benham, Ducey, Listman & Chuhran, P.C. by Martin L. Critchell, Detroit, for All Seasons Heating & Cooling Co. and Ohio Cas. Ins. Co.

Before CORRIGAN, P.J., GILLIS, ^* and C.H. STARK, ^** JJ.

CORRIGAN, Presiding Judge.

After this Court denied defendants-appellants' application for leave to appeal, the Supreme Court remanded the case for consideration as on leave granted. 441 Mich. 852, 489 N.W.2d 474 (1992). In its order of remand, the Supreme Court did not specify the issues warranting plenary consideration. ¹ Consistent with our original disposition by order on the application for leave, we affirm.

Plaintiff fractured his right thighbone in a work-related automobile accident on October 20, 1970, while he was employed by Cooney Engineering Company. The employer paid plaintiff partial disability compensation benefits. The fracture never healed completely. Plaintiff again fractured the same bone in an accident unrelated to work when he tripped over a chair in a bar eleven years later on December 27, 1981. At that time, he was employed by All Seasons Heating & Cooling Company. A worker's compensation hearing referee awarded plaintiff disability compensation benefits for total disability. The Worker's Compensation Appeal Board affirmed the award. Both the referee and the board attributed the current disability to the original work-related injury and assigned liability to the original employer, Cooney Engineering Company.

I. CAUSATION

Defendants contend that plaintiff is not entitled to further disability compensation benefits because he reestablished a wage-earning capacity in regular work with Cooney Engineering Company and other employers in the eleven years after his initial injury and the injury did not arise out of or in the course of any employment, but only from an accident that was not related to work. Defendants argue that compensation liability should arise only if the original injury plays some part in the occurrence of the subsequent injury, and not merely affects its results.

Plaintiff argues that the bureau properly held that where a work-related injury is aggravated to the point of total disability by a subsequent injury that occurs as a consequence of the original injury, liability attaches to the original injury and the original employer.

We reject as incorrect defendants' proposed distinction between "injury" and "results of that injury." Michigan follows the view of Professor Arthur Larson in 1 Larson, Workmen's Compensation Law, § 13.11, as relied upon by this Court in Schaefer v. Williamston Community Schools, 117 Mich.App. 26, 37, 323 N.W.2d 577 (1982):

[W]here the primary compensable injury arises out of and in the course of employment compensability may be extended to a subsequent injury or aggravation of the primary injury where it has been established that the subsequent injury or aggravation is the direct and natural result of the primary injury and the claimant's own conduct has not acted as an independent intervening cause of the subsequent injury or aggravation.

The Larson rule states:

A distinction must be observed between causation rules affecting the primary injury ... and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. As to the primary injury, it has been shown that the "arising" test is a unique one quite unrelated to common-law concepts of legal cause, and it will be shown later that the employee's own contributory negligence is ordinarily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of "direct and natural results," and of claimant's own conduct as an independent intervening cause.

The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. [Larson, supra, pp 3-502--3.503.]

In Schaefer, the plaintiff "seriously injured and weakened" his back while he was employed as a bus driver. 117 Mich.App. at 31, 323 N.W.2d 577. The plaintiff received compensation benefits while he was off work for about a month following his injury. More than a year later, he reinjured his back in moving a household. The plaintiff proved that his "primary injury" arose out of and in the course of his employment.

The Schaefer Court accepted the two-part test suggested by Larson. That test requires a showing that (1) the subsequent injury was the "direct and natural result" of the primary injury and (2) that the claimant's own conduct did not act as an independent intervening cause. 117 Mich.App. at 35, 323 N.W.2d 577.

In this case, no one suggested, and even defendants do not argue, that plaintiff was negligent when he tripped over the chair in the bar. Accordingly, the only inquiry is whether competent evidence supports the board's finding that plaintiff's second injury was the direct and natural result of the primary injury. Ample evidence, especially the testimony of the treating orthopedic surgeon, Dr. Herbert Mendelson, and that of Dr. Frank Cullis, supports the finding. The second break and the surgery it required have "resulted in problems of a permanent nature, diminished range of motion, diminished muscle strength and shortening of the limb and a walk that is a rolling gait because of the shortened limb." Both physicians found plaintiff to be severely restricted in his ability to perform common labor.

Defendants' reliance on Brinkert v. Kalamazoo Vegetable Parchment Co., 297 Mich. 611, 298 N.W. 301 (1941), to discredit cases cited by the appeal board majority is misplaced. Brinkert was not a case involving a subsequent injury. The Court observed:

The case under consideration, however, does not, in our opinion, belong in this classification. The plaintiff had returned to work and was performing his regular duties when struck by and thrown across the dolly with his present total disability as a result. The previous accidental injury in no way contributed to or brought about the accident which occurred on September 14, 1939. The injury he received on that date was caused by the action of an independent intervening force, which became operative without relation to the previous injury. [297 Mich. at 615, 298 N.W. 301.]

Also distinguishable is Adkins v. Rives Plating Corp., 338 Mich. 265, 61 N.W.2d 117 (1953), upon which defendants rely. The plaintiff in that case suffered a compensable broken arm at work. Five months later he returned to favored work. Three months after that, the plaintiff broke his arm while riding a bicycle in an accident not related to his work. Medical examination revealed that the plaintiff's arm had not properly healed from his initial work-related injury and therefore it was much easier for him to break the arm again during the bicycle accident. The Adkins Court concluded that the proximate cause of the second injury was plaintiff's riding a bicycle. The Court noted that even though the plaintiff's right arm might not have been completely healed, "the first injury did not prevent Adkins from working." 338 Mich. at 271, 61 N.W.2d 117.

Schaefer v. Williamston Community Schools, supra, reads Adkins as turning on the question whether the plaintiff's second injury was the result of his own independent, intervening negligent conduct. As noted, this case poses no issue concerning whether the plaintiff's second injury arose from an independent intervening cause attributable to the plaintiff. Schaefer explains:

We do not read Adkins as standing for the principle that because the claimant's second injury occurred on a Sunday and not at work, that, in and of itself, is enough to conclude that the claimant is not entitled to compensation. Rather, we view Adkins as standing for the principle, consistent with Larson's view, that to be entitled to compensation under the facts of that case the claimant had to prove that his subsequent injuries were the direct and natural result of his primary injury and that his own conduct did not act as an independent intervening cause which defeated the causal nexus between the primary and subsequent injuries. The Adkins Court concluded that the claimant did not establish the requisite relationship between the primary and subsequent injuries. [117 Mich.App. at 35, 323 N.W.2d 577. Emphasis in original.]

Competent evidence sustains the appeal board's finding that plaintiff's second injury, which led to total disability, is the direct and natural result of plaintiff's earlier work-related injury.

II. ONE-YEAR-BACK RULE

The one-year-back rule of § 833(1) of the Worker's Disability Compensation Act, M.C.L. § 418.833(1); M.S.A. § 17.237(833)(1) provides: "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 such application." It does not apply to these facts.

The hearing referee did not discuss this point....