Lizut v. Peerless Novelty Co.

• Decision Date: 28 February 1977
• Docket Number: Docket No. 28015
• Citation: 74 Mich.App. 199,255 N.W.2d 637
• Parties: Lois LIZUT, Plaintiff-Appellant, v. PEERLESS NOVELTY COMPANY and Allstate Insurance Company, Defendants-Appellees. 74 Mich.App. 199, 255 N.W.2d 637
• Court: Court of Appeal of Michigan — District of US

Page 637

255 N.W.2d 637

Lois LIZUT, Plaintiff-Appellant, v. PEERLESS NOVELTY COMPANY and Allstate Insurance Company,

Defendants-Appellees.

Docket No. 28015.

74 Mich.App. 199, 255 N.W.2d 637

Court of Appeals of Michigan.

Feb. 28, 1977.

Released for Publication July 20, 1977.

[74 MICHAPP 200] McCroskey, Libner, VanLeuven, Kortering, Cochrane & Brock by Timothy J. Bott, Muskegon, for plaintiff-appellant.

Smith, Haughey, Rice, Roegge & Gould by Charles F. Behler, Grand Rapids, for defendants-appellees.

Before BEASLEY, P. J., and R. B. BURNS and J. H. GILLIS, JJ.

BEASLEY, Presiding Judge.

Plaintiff appeals from a decision of the Workmen's Compensation Appeal Board denying her benefits for an alleged back injury received on or about November 16, 1970.

The decision of the appeal board reversed findings of an administrative law judge which granted benefits to plaintiff.

[74 MICHAPP 201] This is the kind of close case where the temptation is great to substitute the judgment of an appellate court for that of the Workmen's Compensation Appeal Board. This is particularly so where, as here, the appeal board voted 3-2 to reverse the administrative law judge. But to substitute our judgment would be contrary to the law.

The 1963 Michigan Constitution provides:

"Findings of fact in workmen's compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law." Const.1963, art. 6, § 28.

This is strong, unequivocal language. This constitutional provision is implemented by Section 861 of the workmen's compensation statute which provides:

"The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state." M.C.L.A. § 418.861; M.S.A. § 17.237(861).

In the case at bar, the appeal board found that the claimant did not sustain a work-related injury on November 16, 1970, and, therefore, denied benefits to her. There was substantial conflict in the evidence. The appeal board has recited the testimony they choose to believe and upon which their decision is based. The test is not whether we, sitting as a fact-finder, would find to the contrary; rather, the test is whether the appeal board correctly understood the law and whether there is evidence to support their findings of fact. DeGeer v. [74 MICHAPP 202] DeGeer Farm Equipment, 391 Mich. 96, 100, 214 N.W.2d 794 (1974).

The appeal board interpreted the law correctly; if no work-related injury occurred on or about November 16, 1970, plaintiff was not entitled to benefits. No purpose would be served by our reciting the testimony included in the 43 pages comprising a decision of the majority. We would be doing exactly what we are precluded from doing, namely, evaluating and weighing the facts. The appeal board chose to believe evidence which indicated that a work-related injury did not occur on November 16, 1970. It was a permissible finding on this record.

AFFIRMED.

R. B. BURNS, Judge (dissenting).

Plaintiff appeals from the reversal by the Workmen's Compensation Appeal Board of an administrative law judge's decision granting her benefits for a back injury received at work on November 16, 1970.

Plaintiff claimed to have been injured while lifting several 150 to 200 pound barrels with her foreman. She continued to work off and on for about two weeks, and finally quit work and sought medical attention about December 4, 1970.

Plaintiff was referred by the company physician to Dr. TenPas, an orthopedist. Dr. TenPas initially diagnosed plaintiff's injury following an examination on February 8, 1971 as follows: "Impression: Acute paravertebral muscle strain, healing. Low-back strain, with possible incomplete rupture of lumbosacral disc."

Plaintiff's employer, Peerless Novelty Company, filed a Form 100, Report of Injury, dated December [74 MICHAPP 203] 15, 1970 on January 4, 1971. It listed date of injury as approximately 11/16/70, last day worked as 12/4/70, nature of injury as "strained back muscles", "right side of back", caused by "lifting barrels of Ford buckets with foreman". Compensation was paid voluntarily from November 24, 1970.

Dr. TenPas saw plaintiff on numerous occasions after the February 8, 1971 diagnosis. Her condition fluctuated between better and worse. On October 14, 1971, she was so improved that the doctor recommended that she return to work but not lift over 20 to 30 pounds. Plaintiff had a recurrence of back pain after that visit and saw the doctor again on November 1, 1971, stating that she had spent the previous week or two in bed. On December 6, 1971, the orthopedist recorded a "degeneration of a lumbosacral disc, which was improving". He saw her on December 27, 1971, and recommended that she return to light work on January 10, 1972. Plaintiff's condition recurred and steadily worsened until her January 28, 1972 visit to the doctor, at which time she reported an inability to do usual housework. At this appointment the doctor suggested that she consult another orthopedist and that she consider corrective disc surgery.

On April 24, 1972, an investigator hired by the defendant insurance carrier informed Dr. TenPas...