Leaveck v. General Motors Corp.

• Decision Date: 21 March 1986
• Docket Number: Docket No. 81583
• Citation: 383 N.W.2d 154,147 Mich.App. 781
• Parties: K. Sue LEAVECK, Widow of Samuel M. Leaveck, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Hydra-Matic Division, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 154

383 N.W.2d 154

147 Mich.App. 781

K. Sue LEAVECK, Widow of Samuel M. Leaveck, Deceased Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Hydra-Matic Division, Defendant-Appellee.

Docket No. 81583.

Court of Appeals of Michigan.

Submitted June 6, 1985.

Decided Oct. 28, 1985.

Released for Publication March 21, 1986.

Egnor, Hamilton & Muth by Andrew S. Muth, Ypsilanti, for plaintiff-appellant.

Conklin, Benham, McLeod, Ducey & Ottaway, P.C. by Ronald A. Weglarz, Detroit, for defendant-appellee.

Before J.H. GILLIS, P.J., and BRONSON and KELLY, JJ.

PER CURIAM.

Plaintiff applied for workers' compensation benefits on the ground that her husband's death was caused by a heart condition and emphysema aggravated by his working conditions. Hearing examiner Ray Ravary, by decision mailed August 21, 1980, awarded plaintiff $101 per week for up to 500 weeks. Defendant appealed to the Workers' Compensation Appeal Board, which issued its decision October 14, 1983. In reversing the hearing examiner's award, the board stated in part:

"It is clear to us as fact finders that decedent worked in a deleterious atmosphere which aggravated his pulmonary disease and most likely made him more susceptible to his arteriosclerotic heart disease and death sooner than would otherwise have been the case. Although there is expert testimony to support this finding, our judicial superiors have usurped our right to so find. Miklik v. Mich Special Mach Co, 415 Mich 364 (1982)."

The plaintiff filed a delayed application for leave to appeal to this Court which was denied on February 28, 1984. Upon plaintiff's application for leave to appeal, the Supreme Court remanded the case to this Court "as on leave granted". Leaveck v. General Motors Corp., 419 Mich. 950, 357 N.W.2d 321 (1984).

Mr. Leaveck worked for General Motors Corporation for 24 years before his death at the age of 58. He operated a cutting machine called an Ex-Cell-O. He was required to load approximately 1,000 eight- or nine-pound parts into the machine daily. There was testimony that the air around the machine was dusty and smelled oily. Mr. Leaveck wore a mask on the job. Plaintiff testified that her husband's work clothes smelled oily and were covered with a graphite-like substance and little pieces of metal.

Mr. Leaveck suffered from cardiac problems beginning in 1967. His physician, Dr. Rhoda M. Powsner, testified that he suffered from severe pulmonary disease and severe arteriosclerotic heart disease. Dr. Powsner believed that there were several causative factors for the pulmonary disease, including smoking (Mr. Leaveck quit smoking in 1967), and allergy to dust at work. Dr. Powsner testified that people with pulmonary disease are less able to tolerate heart disease because the lungs are unable to deliver as much oxygen as normal lungs.

After reviewing Mr. Leaveck's medical reports, Dr. Clyde Wu testified on behalf of General Motors that plaintiff's decedent died as a result of arteriosclerosis, that arteriosclerosis is an ordinary disease of life, and that the patient's death, occurring two days after his last working day, was not work related.

The WCAB found that the decedent worked in a deleterious atmosphere which aggravated his pulmonary disease and "most likely" contributed to his death. However, the board stated that the recent Supreme Court decision in Miklik v. Michigan Special Machine Co., 415 Mich. 364, 329 N.W.2d 713 (1982), restricted its findings of fact and precluded an award. We disagree.

Findings of fact in a workers' compensation proceeding are conclusive in the absence of fraud. Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 418.861; M.S.A. Sec. 17.237(861). This Court reviews such findings only to determine whether there is any evidence to support them. Aquilina v. General Motors Corp., 403 Mich. 206, 213, 267 N.W.2d 923 (1978). On the other hand, the WCAB's application of legal standards is properly reviewable by an appellate court. Stover v. Midwest Tank & Fabrication Co., Inc., 87 Mich.App. 452, 456-457, 275 N.W.2d 15 (1978), lv. den. 406 Mich. 926 (1979); Ratliff v. General Motors Corp., 127 Mich.App. 410, 414, 339 N.W.2d 196 (1983). The WCAB's application of Miklik in this case is, therefore, reviewable.

M.C.L. Sec. 418.401(2)(b); M.S.A. Sec. 17.237(401)(2)(b) provides in part:

" 'Personal injury' shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. An ordinary disease of life to which the public is generally exposed outside of the employment is not compensable." ¹

Michigan courts have, on earlier occasions, considered the compensability under the workers' compensation statute for injuries and death due to heart disease. Five such cases were analyzed in Kostamo v. Marquette Iron Co., 405 Mich. 105, 274 N.W.2d 411 (1979). All five plaintiffs were victims of arteriosclerotic heart disease (hardening of the arteries).

The Court first held that arteriosclerosis is an "ordinary disease of life" which is not caused by work or aggravated by the stress of work. However, the Court also found that a person suffering from arteriosclerosis might well be more susceptible to a heart attack caused by stress, including work-related stress. The Court stated:

"Unless the work has accelerated or aggravated the illness, disease or deterioriation and, thus, contributed to it, or the work, coupled with the illness, disease or deterioration, in fact causes an injury, compensation is not payable." 405 Mich. 116, 274 N.W.2d 411.

Thus, the Court envisioned two routes to compensation: (1) the work aggravates the illness, or (2) the work precipitates an injury in a person weakened by the illness. Since the Court found arteriosclerosis not to be aggravated by work, plaintiffs in the cases considered had to meet the conditions of the second test. In the case of two of the plaintiffs, the WCAB had found no heart damage. Although the plaintiffs were disabled by arteriosclerosis, the Court held that there was no compensable injury, since arteriosclerosis itself is not a work-related disease. 405 Mich. 116-118, 274 N.W.2d 411. Where, however, there was a showing of incidents of work-related stress which contributed to heart damage in an arteriosclerotic individual, the Court held that compensation is appropriate.

Although the three remaining plaintiffs in Kostamo all had heart attacks while on the job or within several hours of leaving work, the Court did not specifically state...