Johnson v. Vibradamp Corp.

• Decision Date: 11 November 1968
• Docket Number: No. 21,21
• Citation: 162 N.W.2d 139,381 Mich. 388
• Parties: Gearold JOHNSON, Plaintiff and Appellant, v. VIBRADAMP CORP. et al., Defendants, and Presstite Division of Inter-Chemical Corp. et al., Defendants and Appellees.
• Court: Michigan Supreme Court

Page 139

162 N.W.2d 139

381 Mich. 388

Gearold JOHNSON, Plaintiff and Appellant, v. VIBRADAMP CORP. et al., Defendants and Presstite Division of Inter-Chemical Corp. et al Defendants and Appellees.

No. 21.

Supreme Court of Michigan.

Nov. 11, 1968.

Kelman, Loria, Downing & Schneider, by George L. Downing, Detroit, for plaintiff-appellant.

Troff, Lilly, Bonow, Piatt & File, by John D. Doyle, Kalamazoo, for defendants-appellees.

Before DETHMERS, C.J., and KELLY, BLACK, KAVANAGH, O'HARA, ADAMS, and BRENNAN, JJ.

PER CURIAM.

The decisive facts appear comprehensively in the opinion below. 6 Mich.App. 713, 150 N.W.2d 514.

We said unanimously, in Mitchell v. Metal Assemblies, Inc., 379 Mich. 368, 370, 151 N.W.2d 818, 819:

'The sole question on review by the Court of Appeals, and in turn here, is 'whether there is any evidence to support the award.' Meyers v. Michigan Central R. Co., 199 Mich. 134, 137, 138, 165 N.W. 703, 704; Thornton v. Luria Dumes Co-Venture, 347 Mich. 160, 162, 79 N.W.2d 457; Coates v. Continental Motors Corp., 373 Mich. 461, 467, 130 N.W.2d 34. 'Our obligation is to accept, without question, findings that are certified here if there be any evidence whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof.' (Thornton, 347 Mich. at 162, 79 N.W.2d at 458).'

Neither the Court nor the Court of Appeals may rightfully override findings of fact made by the appeal board, when those findings are supported by proof. Nor may either Court make new findings of fact. Here the appeal board found, citing particularly the testimony of medical witness Stolberg:

'Plaintiff's examining physician found a hernia in 1964, which plaintiff alleged was due to the September 1963 work since he had done nothing since that could be reasonably appointed as the cause thereof. He also argued that this proved the nature of the work and was an indicator that the work did cause back aggravation. We have already dismissed this second contention on the basis of the medical testimony but do accept the argument that the work in September is the logical precursor of the hernia, plaintiff having begun work with a relaxed ring and not having been active thereafter. Present disability is not attributable to this hernia, and the referee is correct in assessing responsibility as may become necessary. Besides finding a personal injury of September, 1963, based on the hernia, the referee also attributed a present functional overlay to Presstite and Liberty Mutual. Dr. Stolberg testified: (Here follows extended quotation of Dr. Stolberg's testimony).

'To our reading, and from the abovequoted testimony of Dr. Stolberg, we find that plaintiff did suffer an aggravation of his back injury on and after January 14, 1964, when the overlay began. Although physical and neurological symptoms were constant, as was his heart condition, plaintiff was not returned to work and deteriorated rapidly thereafter from an increase in subjective symptoms due to the overlay. To us it seems logical that if the doctor released plaintiff in December to return to light work, he was at the stage he was when he returned to work September 11. The testimony indicates to back change nor heart worsening. However, he was not returned to work by Presstite and disability benefits are assessible therefor.

'Since plaintiff was not returned to work in December, 1963, we conclude his wage loss was due to the 1956 injury. The mistake made here is that failure to return plaintiff to work caused the new...