Medacco v. Campbell, Wyant & Cannon Foundry Co., Division of Textron, Inc.

• Decision Date: 28 June 1973
• Docket Number: Docket No. 14931,No. 3,3
• Citation: Medacco v. Campbell, Wyant & Cannon Foundry Co., Division of Textron, Inc., 210 N.W.2d 360, 48 Mich.App. 217 (Mich. App. 1973)
• Parties: Steven MEDACCO, Plaintiff-Appellant, v. CAMPBELL, WYANT & CANNON FOUNDRY CO., DIVISION OF TEXTRON, INC., et al., Defendants-Appellees
• Court: Court of Appeal of Michigan

Page 360

210 N.W.2d 360

48 Mich.App. 217

Steven MEDACCO, Plaintiff-Appellant, v.CAMPBELL, WYANT & CANNON FOUNDRY CO., DIVISION OF TEXTRON INC., et al., Defendants-Appellees.

Docket No. 14931.

Court of Appeals of Michigan, Division No. 3.

June 28, 1973.

Released for Publication Sept. 20, 1973.

Benjamin Marcus, Marcus, McCroskey, Libner, Reamon & Williams, Muskegon, for plaintiff-appellant.

Robert J. Eleveld, Varnum, Riddering, Wierengo & Christenson, Thomas R. Tasker, Smith, Haughey, Rice, Roegge & Gould, Grand Rapids, Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., A. C. Stoddard, Asst. Atty. Gen., for defendants-appellees.

Before HOLBROOK, P.J., and T. M. BURNS and CHURCHILL, ^* JJ.

HOLBROOK, Presiding Judge.

This is an appeal from a decision of the Workmen's Compensation Appeal Board, which reversed a referee's decision granting plaintiff continuing compensation based on a November 23, 1964 hand injury, and denying compensation for alleged work-related back and heart conditions.The opinion of the Workmen's Compensation Appeal Board states in pertinent part the facts of the case:

'After working for defendant for more than 30 years plaintiff became totally disabled on January 21, 1968, by a heart problem.His primary occupation was that of a lift truck driver involving some lifting.At the time of the hearing he was a 56-year old married man with his wife and three children as dependents.

'On October 11, 1968, a Petition for Hearing was filed alleging disability due to a hand injury in November of 1964, a back injury in 1965 and a heart attack on January 21, 1968.

'A hearing was held on October 13, 1969, before Referee Erwin K. Johnson who issued a decision dated September 14, 1970, awarding continuing compensation based on the hand injury of November 23, 1964, and an average weekly wage of $126.62 ordering as follows:

"IT IS FURTHER ORDERED that the plaintiff did have an injury 10/29/65 for which compensation has properly been paid.It is further ordered that the employee did not have an injury in the summer of 1965 nor did he have an injury arising out of his employment on 1--21--68.

"The fact that the employee has a compensable and a non-compensable disability at the same time, does not mean he cannot draw compensation benefits.'

'Defendant appeals from that decision 'on the grounds that there were no proofs that the claimant was disabled as a result of an industrially related injury, but by a heart attack which was found not to be related to employment.'

'Plaintiff cross-appeals seeking the reversal of the referee's decision urging us to find an injury date of January 21, 1968, when he was disabled from a coronary condition

'The record contains ample competent proof supporting the referee's finding that plaintiff's heart condition did not arise out of and in the course of his employment.* * *

'Turning to plaintiff's hand problem we note that the trauma he allegedly suffered on November 23, 1964, was not serious enough to require more than the routine taking of x-rays or to cause him any wage loss for he continued his work as a life driver.However, plaintiff constantly complained of numbness in his hand and the first aid records substantiate the difficulties he experienced after his 1964 injury.

'Plaintiff himself testified that the hand problem did not prevent him from working and that the real reason for quitting his job was not his hand or his back but his heart trouble.He further admitted that he did not consult a doctor or treat his hand problem other than to complain at first aid department until after his final disabling heart condition and that he'worked right along with it,' despite the numbness he felt and the absence of full use of his hand.

'A careful review of the record leads us to the inescaptable conclusion plaintiff's non-compensable heart condition and not his hand problem accounts for his wage loss and that the referee erred in finding that plaintiff is totally disabled as a result of his 1964 hand injury.

'However, the medical proofs show that plaintiff's right hand was injured on November 23, 1964, and that whatever difficulties he continued to have with his hand during the intervening years are directly traceable to that traumatic incident.

'Therefore, the referee's decision shall be modified to find an injury date of November 23, 1964, which did not result in wage loss at this time but may require medical care to which plaintiff is entitled.'(Emphasis supplied.)

Plaintiff does not now object to the finding that his back condition and heart condition were not compensable.Essentially three issues are raised on appeal.

I

Does the fact that plaintiff continued working after the hand injury preclude a finding of disability and granting of compensation benefits?

Preliminarily we note that the determinations of fact of the appeal board, absent fraud, are conclusive.M.C.L.A. § 418.861;M.S.A. § 17.237(861);Lyczynski v. Mohawk Lumber & Supply Co., 33 Mich.App. 433, 190 N.W.2d 328(1971).Our task is solely one to examine the board's application of legal standards.Const.1963, art. 6, § 28.Also, as a prefix to our main discussion, we note the rule that where an employee is injured but not immediately disabled, and keeps on working, and a disability slowly evolves from the injury, the fact that the employee continued to work does not establish his capacity to earn.Grodzicki v. Revere Copper & Brass, Inc., 268 Mich. 143, 255 N.W. 742(1934);Brown v. Warren Iron & Metal Co., 44 Mich.App. 458; 205 N.W.2d 276(1973).

The board decided that the plaintiff's noncompensable heart condition and not his hand injury accounted for the post-January 22, 1968 wage loss and therefore the referee erred in determining that plaintiff was totally disabled as a result of his 1964 hand injury.The rule is that '(I)t is loss of wage earning Capacity--not actual loss of wages--which is compensable'.Sims v. R. D. Brooks, Inc., 389 Mich. 91, 93, 204 N.W.2d 139, 140--141(1973);M.C.L.A. § 412.11;M.S.A. § 17.161(now M.C.L.A. § 418.371;M.S.A. § 17.237(371)).The Workmen's Compensation Appeal Board found that plaintiff's wage loss was due to his noncompensable heart condition, but made no specific finding as to the effect of the hand injury on plaintiff's earning Capacity, other than implying that since there was no apparent wage loss until the heart attack, there could be no compensable disability from the hand injury.The board's legal reasoning was erroneous.It apparently felt that because there was no wage loss there was no 'impairment of his earning capacity in the employment in which he was working at the time of the injury'.M.C.L.A. § 412.11;M.S.A. § 17.161.While an actual wage earning differential may be considered evidence of capacity, it cannot alone be considered determinative.For were it otherwise, if an employee somehow adjusted and mitigated the effect of an injury to continue working at his full pre-injury performance level, he would be punished by a denial of compensation for his injury since he had suffered no wage loss.In short, by the reasoning of the appeal board, an injured worker who quits his job or seeks easier work at less pay from his employer could get compensation, but a stalwart employee who adjusts to the injury and stays on his job is left without a remedy for his condition.We cannot see how such reasoning would be consistent with the policy objective behind the wage-earning capacity proviso of M.C.L.A. § 412.11;M.S.A. § 17.161.'The proviso was adopted to relieve the employer of the payment of compensation pro tanto, If and while the employee has capacity to earn sufficient wages in the same or another occupation.'(Emphasis supplied.)Markey v. S.S. Peter & Paul's Parish, 281 Mich. 292, 298, 274 N.W. 797, 800(1937).Medacco seeks compensation for an injury of a character, according to the referee, that is totally disabling.His post-injury earnings do not necessarily determine the fact of his disability.

We see nothing contrary to our conclusion in the cases.In Hirschkorn v. Fiege Desk Co., 184 Mich. 239, 150 N.W. 851(1915);Kaarto v. Calumet & Hecla, Inc., 367 Mich. 128, 116 N.W.2d 225(1962);andPulley v. Detroit Engineering & Machine Co., 378 Mich. 418, 145 N.W.2d 40(1966), the Supreme Court held that since the injured employee returned to work that was identical to his old job or to a regularly recognized occupation at wages equal to or greater than that paid to the employee prior to the injury, the employee had established a post-injury wage-earning capacity equal to or greater than the preinjury capacity, such that it justified a denial of compensation benefits for the injury under M.C.L.A. § 412.11;M.S.A. § 17.161.On their face these cases could be argued in support of defendants' claim and the ruling of the Workmen's Compensation Appeal Board.However, to the extent that the cases can be read to pivot on the fact of an actual loss of wages rather than wage-earning capacity as determinative of the Right to compensation, it would seem they are contrary to the recent pronouncement that wage-earning capacity is the key focal point of analysis.Sims, supra.

A closer examination of these cases also demonstrates that they are not necessarily inconsistent with the result we reach here.(For a contrary conclusion see2 Larson's Workmen's Compensation Law, § 57.22, pp. 29--55.)In Pulleythe Court stated 378 Mich. at p. 423, 145 N.W.2d at p. 43:

'Presumably and actually, an employee can be injured, disabled to a degree and yet suffer no weekly wage loss because he is shown to be able to earn, an amount equal to or greater than that which he was earning at the time of his injury.In many instances from the highest motives of desire to rehabilitate the employee and restore him as a wage-earning member of society, some employers have retained injured employees in new jobs within their capacity to perform.It is not...