Maxwell v. Procter & Gamble Co., Inc.

• Decision Date: 01 April 1991
• Docket Number: Docket No. 118475
• Court: Court of Appeal of Michigan — District of US
• Parties: Alexander G. MAXWELL, Plaintiff-Appellee, v. PROCTER & GAMBLE CO., INC., Defendant, and Florists Mutual Insurance Co., Defendants-Appellees, and Alfred F. Bouchard & Son Greenhouse and Accident Fund of Michigan, Defendants-Appellants.

Page 921

468 N.W.2d 921

188 Mich.App. 260

Alexander G. MAXWELL, Plaintiff-Appellee, v. PROCTER & GAMBLE CO., INC., Defendant, and Florists Mutual Insurance Co., Defendants-Appellees,

and

Alfred F. Bouchard & Son Greenhouse and Accident Fund of

Michigan, Defendants-Appellants.

Docket No. 118475.

Court of Appeals of Michigan.

Submitted Oct. 11, 1990, at Lansing.

Decided April 1, 1991, at 10:05 a.m.

Released for Publication May 17, 1991.

Nelson, Petruska & Allen, P.C. by Michael D. Nelson, Gaylord, for Alexander G. Maxwell.

Bensinger, Combs & Cotant, P.C. by Steven C. Byram, Gaylord, for Florists Mut. Ins. Co.

James R. Piggush, P.C., Lansing, for Alfred F. Bouchard & Son Greenhouse and the Accident Fund of Michigan.

Before J.H. GILLIS, P.J., and MICHAEL J. KELLY and NEFF, JJ.

NEFF, Judge.

A.F. Bouchard & Son Greenhouse and the Accident Fund of Michigan appeal by leave granted from an opinion and order of the Workers' Compensation Appeal Board affirming with modification the decision of a hearing referee awarding benefits to plaintiff Alexander G. Maxwell. We affirm in part, reverse in part, and remand.

I

On July 31, 1967, while working for Bouchard, plaintiff suffered an injury to his lower left leg while operating a Rototiller. The injury resulted in the amputation of plaintiff's left leg three inches below the knee. Plaintiff did not work for six or seven weeks, then returned to his regular work, wearing an artificial limb. He received specific-loss benefits. Plaintiff was able to perform all the duties required of him. During approximately six months of each year, he drove a truck and made deliveries. During the other six months, he worked in the greenhouse. This work required him to walk, climb, bend, twist, lift, and push a wheelbarrow. Plaintiff experienced very few problems with his leg during this period. He left his employment with the greenhouse on July 22, 1977, apparently because he developed an adverse reaction to a chemical substance used in its operations.

In October 1978, plaintiff began working for Procter & Gamble as a member of its labor pool. In April 1979, he began working as a convenience-pack helper in the Pampers division. In July 1980, he became an operator in the Attends division. This job involved packing the product in boxes that moved along a conveyor line, then manually pushing the boxes onto another line. Plaintiff could sit part of the time while performing this job. Initially, plaintiff had no difficulty with this work. However, at some point, production levels increased dramatically. Plaintiff had to perform a twisting motion and shift his weight to his artificial limb to move the cases along the line. Plaintiff began experiencing problems, including swelling, with his stump. He had to soak the stump in the mornings and put ice on it in order to be able to put on his prosthesis. He developed sores on his leg and experienced swelling and drainage.

In September 1982, plaintiff had surgery on his stump. He returned to work in November 1982. At Procter & Gamble's request, in anticipation of a layoff, plaintiff did not return to the packing job, but instead worked by training other employees. This job was easier on his leg. However, the soreness and drainage never ceased completely. On March 4, 1983, plaintiff was laid off by Procter & Gamble for economic reasons.

Plaintiff's petition named Procter & Gamble and claimed personal injury and occupational disease dates of September 1982 and March 4, 1983. The petition alleged an aggravation of his preexisting condition by repetitive walking, pushing, standing, bending, twisting, climbing, and lifting. Plaintiff's amended petition added Bouchard and claimed injury dates of July 31, 1967, resulting from injury to the lower left leg, and July 22, 1977, resulting from aggravation of a preexisting condition.

Two physicians testified by deposition. Dr. Klaus Hergt, board certified in general surgery and plaintiff's witness, began treating plaintiff in March 1983 and last saw him on October 27, 1983. At the time of his deposition, Dr. Hergt diagnosed chronic infective skin process with the presence of a sebaceous cyst. He attributed the condition to pressure on the stump from the prosthesis. He recommended the use of powder and a stockinet to reduce friction. Dr. Hergt would not have immediately restricted plaintiff from anything he felt able to do, but left that determination to plaintiff. Dr. Hergt also stated that he considered plaintiff to be reliable in determining how well he could tolerate being on his feet. Dr. H. Ross Hume, a board-certified orthopedic surgeon and defendant's witness, examined plaintiff on July 25, 1983. He opined that plaintiff was experiencing recurring sebaceous cysts and that the condition could be related to some problems with the prosthesis or the components of the prosthesis. He did not believe that the problem was related to plaintiff's work capacity or that plaintiff's work needed to be restricted.

At a hearing held on February 9, 1984, plaintiff testified that he was still having problems with his leg and that he had had additional surgery in December 1983 and on January 25, 1984, to remove cysts. Plaintiff did not think that he could return to the packing job at Procter & Gamble. He also testified that he would have trouble doing the greenhouse work he had performed for Bouchard.

In a decision mailed on May 2, 1984, the hearing referee found plaintiff to be disabled. Procter & Gamble was ordered to pay benefits from September 15, 1982, to November 14, 1982, and from March 5, 1983, to October 27, 1983. The hearing referee found that plaintiff's work for Procter & Gamble had aggravated his condition during these periods, but that he had recovered as of October 27, 1983. The hearing referee further found that plaintiff was still partially disabled from the injury and the amputation on July 31, 1967, and that his work for Procter & Gamble did not reestablish a wage-earning capacity at common labor. Bouchard's workers' disability compensation carrier, the Accident Fund of Michigan, was ordered to pay benefits from October 28, 1983, until further order.

All parties appealed, and, in an opinion and order entered on May 26, 1989, the WCAB affirmed with modification the decision of the hearing referee. The WCAB accepted plaintiff's testimony that he could not return to the packing job he had performed for Procter & Gamble. The WCAB found that the increased production work plaintiff did for Procter & Gamble aggravated his condition and resulted in "cystomatology [sic]," which disabled him for two periods, from September 15, 1982, to November 14, 1982, and from March 5, 1983, to October 27, 1983. The WCAB found that, after October 27, 1983, plaintiff's disability was the same as it had been following the amputation in 1967 and, therefore, Bouchard's workers' disability compensation carrier was liable for continuing benefits.

II

The sole issue on appeal is whether the WCAB erred in finding that Bouchard's workers' disability compensation carrier is liable for continuing benefits because plaintiff was disabled as a result of his original injury and amputation.

This Court's review of a decision by the WCAB is limited. Absent a showing of fraud, findings of fact by the WCAB are conclusive and may not be set aside if they are supported by evidence in the record. Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 418.861; M.S.A. Sec. 17.237(861). However, this Court may reverse a decision of the WCAB if it operated within the wrong legal framework or based its decision on erroneous legal reasoning. Flynn v. General Motors Corp., 162 Mich.App. 511, 513-514, 413 N.W.2d 444 (1987).

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