Michales v. Morton Salt Co.

• Decision Date: 28 August 1995
• Docket Number: No. 98648,No. 6,98648,6
• Citation: 450 Mich. 479,538 N.W.2d 11
• Parties: Joseph F. MICHALES, Plaintiff-Appellant, v. MORTON SALT COMPANY, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 11

538 N.W.2d 11

450 Mich. 479

Joseph F. MICHALES, Plaintiff-Appellant, v. MORTON SALT COMPANY, Defendant-Appellee.

No. 98648.

Calendar No. 6.

Supreme Court of Michigan.

Argued May 3, 1995.

Decided Aug. 28, 1995.

Bott & Spencer, P.C. by Timothy J. Bott, Muskegon, for plaintiff.

Charters, Heck, O'Donnell, Petrulis & Zorza, P.C. by Margaret A. O'Donnell, Troy, for defendant.

Opinion

RILEY, Justice.

In this case we must determine whether plaintiff's high-frequency, work-related hearing loss establishes a limitation of his "wage earning capacity in work suitable" to his "qualifications and training," where plaintiff continued to perform his preinjury job until he left because of a noncompensable, supervening illness. M.C.L. § 418.401(1); M.S.A. § 17.237(401)(1). We hold that plaintiff has not met his burden of establishing a limitation of wage-earning capacity in work suitable to his qualifications and training and is therefore not compensably disabled within the definition of the statute. We affirm the decision of the Court of Appeals.

I

Plaintiff began his employment with Morton Salt Company in March, 1968. He was initially employed in the chemical department and remained there until he was transferred to the powerhouse in 1974. During his thirteen years in the powerhouse, plaintiff advanced from a trainee to an assistant operator and finally to an operator. While an assistant operator in the powerhouse, plaintiff was responsible for running the boiler. As a powerhouse operator, plaintiff's responsibilities shifted to monitoring an electrical turbine to ensure the continuing operation of the powerhouse. In performing both jobs, however, he was responsible for periodically checking a series of gauges and reporting or repairing any potential problems.

While in the powerhouse, plaintiff was exposed to significant noise levels, first as an assistant operator, where he was exposed to shrill noises from the boiler, and then later as an operator where his work station was located adjacent to the large, noisy turbine. As a result of the prolonged exposure to these noises, he began experiencing a ringing or humming in his ears. He was examined in February, 1988, by an otolaryngologist, Dr. Charles Henry, who later testified by deposition that plaintiff had sustained a hearing loss and related tinnitus as a result of noise exposure. Dr. Henry advised plaintiff not to work in a noisy environment unless adequately protected.

In 1987, before learning about plaintiff's hearing loss, defendant enclosed plaintiff's work station by installing insulated walls with acoustical ceiling tile in order to reduce the noise levels. Additionally, the company provided the operators with earplugs.

During much of his time with Morton Salt, plaintiff was also battling manic depression. He was originally diagnosed with the illness in 1972, and underwent treatment without significant absence from work. The disorder remained under control for many years until 1986 when plaintiff's symptoms elevated, causing him to miss considerable time from work. His prolonged bouts with depression often prohibited him from working until he ultimately quit on October 23, 1987.

However, on June 9, 1987, more than four months before his last day of work, plaintiff filed an application with the bureau of worker's disability compensation, alleging a work-aggravated manic-depressive disorder and a noise-induced, high-frequency hearing loss. Plaintiff was not, however, diagnosed or treated for hearing problems until he saw Dr. Henry, approximately 3 1/2 months after his last day of work on October 23, 1987. Additionally, plaintiff continued working without change as an operator with Morton Salt for four months, until he was unable to continue work because of his manic depressive illness.

After a hearing, the magistrate denied both claims and ruled that "[w]hile there is no question but that plaintiff is disabled, the proofs fail to support a finding of an employment-related disability within the meaning of the Act." ¹ Specifically, with regard to plaintiff's hearing loss, the magistrate ruled that the proofs failed to establish that the modifications in the powerhouse did not accommodate plaintiff's acknowledged restrictions. ²

Plaintiff appealed the decision to the Worker's Compensation Appellate Commission, arguing that notwithstanding the magistrate's determination that his manic depressive illness was nonwork-related, he was entitled to benefits for his hearing disability stemming from a noisy environment. He alleged that his potential for favored work, because of his partial disability, was terminated by a supervening, noncompensable total disability, i.e., his manic depressive disorder. The WCAC reversed and entered an open award, stating that the hearing loss constituted an impairment of wage-earning capacity and was therefore a compensable, partial disability. ³ The Court of Appeals granted defendant's application for leave to appeal and reversed the decision of the WCAC. The majority held that there was not competent evidence to support the WCAC conclusion that plaintiff suffered a loss in wage-earning capacity. ⁴ The Court noted that plaintiff continued to perform his regular job after sustaining the hearing loss. Plaintiff appealed in this Court, and we granted leave. ⁵ Plaintiff no longer contests the finding that his manic-depressive illness is a noncompensable injury within the definition of the Worker's Disability Compensation Act.

II

Findings of fact by the magistrate are conclusive on review by the WCAC if they are supported by competent, material, and substantial evidence on the whole record. M.C.L. § 418.861a(3); M.S.A. § 17.237(861a)(3); Holden v. Ford Motor Co., 439 Mich. 257, 261, 484 N.W.2d 227 (1992). Moreover, review by the Court of Appeals or this Court is limited because "findings of fact made by the WCAC are conclusive if there is any competent evidence to support them." Id. at 263, 484 N.W.2d 227. Finally, this Court has the power to review questions of law of any final order of the WCAC. M.C.L. § 418.861a(14); M.S.A. § 17.237(861a)(14).

A

The applicable statute in this case is M.C.L. § 418.401; M.S.A. § 17.237(401), defining disabilities arising out of occupational diseases. ⁶ The current definition of a compensable disability is the result of a significant modification engendered by 1987 PA 28, § 401(1). ⁷ Even though the revised statute became effective May 14, 1987, it has not to date been applied by this Court. ⁸ Under the previous definition, an employee was disabled if there was personal injury or work-related disease that resulted in a "limitation of an employee's wage earning capacity in the employee's general field of employment...." M.C.L. § 418.401(1); M.S.A. § 17.237(401)(1) (emphasis added). The current definition limits compensable disability to those employees experiencing a limitation of wage-earning capacity in work suitable to the employee's "qualifications and training" resulting from a personal injury or work-related disease. ⁹

In accordance with the current definition of disability, plaintiff maintains that he has suffered a limitation of his wage-earning capacity in work suitable to his qualifications and training as a result of his work-related hearing loss. In support, plaintiff alleges that the measures taken by defendant to reduce the noise levels at plaintiff's work station in the powerhouse essentially rendered his job "favored work," which evidences a limitation of wage-earning capacity. ¹⁰ The magistrate determined that plaintiff had not sustained a limitation of his wage-earning capacity and was therefore not disabled. ¹¹ However, the WCAC concluded that, as a matter of law, plaintiff's hearing loss was a compensable injury under either the present or previous statutory definitions of disability. We have reviewed the legal conclusion of the WCAC and hold that although plaintiff did suffer a work-related hearing loss, the WCAC incorrectly concluded that the injury was a compensable disability under the act.

Favored work entails the modification of an employee's duties that in some manner accommodates the employee's injury. ¹² In the present case, defendant did not change plaintiff's duties in any manner. ¹³ In fact, it is uncontested that plaintiff continued to perform his exact job until he left Morton Salt because of manic depression.

Moreover, in the present case, there is no connection between plaintiff's injury and defendant's decision to install sound absorbent walls, nor is there any connection between plaintiff's injury and the company's policy of providing its employees with earplugs. These modifications were an effort to improve the work environment. Such modifications do not transform regular employment into favored work. We, therefore, reject expansion of the favored-work doctrine beyond recognition to include situations in which the employer merely improves the work environment.

The present case is distinguishable from Powell v. Casco Nelmor Corp., 406 Mich. 332, 279 N.W.2d 769 (1979), in which an employee injured her thumb at work and was unable to resume her job for a two-month period. She returned to work, but could no longer perform her job because of her injury. When the plaintiff finally returned, she was only able to perform work that the Worker's Compensation Appeal Board concluded was favored. The plaintiff continued the favored work until sometime after she was diagnosed with cancer of the larynx.

The Powell Court stated that "[t]here is no dispute that the performance of post-injury work at no wage loss precludes payment of disability benefits while that work continues." Id. at 347, 279 N.W.2d 769. The WCAB determined that the employee was performing "favored work," which limited her wage-earning capacity. Id. In reaching this result, the Court stated that " 'disability' is defined as the 'inability to perform the work claimant was doing...