Mitchell v. General Motors Corp., Fisher Body Division

• Decision Date: 16 April 1979
• Docket Number: No. 78-1159,78-1159
• Citation: 280 N.W.2d 594,89 Mich.App. 552
• Parties: Ernest MITCHELL, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION, Defendant-Appellant. 89 Mich.App. 552, 280 N.W.2d 594
• Court: Court of Appeal of Michigan — District of US

Page 594

280 N.W.2d 594

Ernest MITCHELL, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, FISHER BODY DIVISION,

Defendant-Appellant.

No. 78-1159.

89 Mich.App. 552, 280 N.W.2d 594

Court of Appeals of Michigan.

April 16, 1979.

Released for Publication July 12, 1979.

[89 MICHAPP 553] Otis M. Smith, General Counsel by Francis S. Jaworski, Detroit, for defendant-appellant.

A. Donald Kadushin, Detroit, for plaintiff-appellee.

Before ALLEN, P. J., and R. B. BURNS and KAUFMAN, JJ.

R. B. BURNS, Judge.

Defendant appeals from an order of the Workmen's Compensation Appeal Board affirming the decision of the referee ordering payment of compensation benefits to plaintiff.

Plaintiff worked for defendant in an automobile [89 MICHAPP 554] body construction plant as a laborer from 1946 until January 24, 1974. There was evidence from which it may be inferred that plaintiff developed asthma, bronchitis, and emphysema from exposure to dust, smoke fumes, and other pulmonary irritants in the plant. Plaintiff testified that he decided to retire early, because his breathing problems had progressed to the point where he had great difficulty getting through a day's work. Defendant sought to establish that plaintiff's breathing problems were not severe and were under control and that plaintiff actually retired early in order to obtain the higher pension benefits until age 65 which would apply before a pending change in the pension plan took effect. Medical testimony concerning disability and work relatedness was conflicting. After weighing the testimony, the board concluded that plaintiff became disabled from exposure to pulmonary irritants in the workplace. In the course of its opinion, the board referred to the controversy concerning the reason for plaintiff's early retirement, stating:

"Be that as it may, it is immaterial why plaintiff left his job and the real issue is whether or not he suffered a work-related disability. Perry v. Standard Automotive Parts, 392 Mich. 756 (1974); Ward v. Detroit Bd. of Education, 399 Mich. 879 (251 N.W.2d 850) (1977)."

It is not disputed on appeal that there exists competent evidence in the record to support the findings of fact made by the board. Rather, defendant argues that the board made an error on a question of law, see, E. g., Aquilina v. General Motors Corp., 403 Mich. 206, 213, 267 N.W.2d 923, 926 (1978), by concluding that it was immaterial why plaintiff left his job. Assuming defendant is correct, we may infer that the board might have [89 MICHAPP 555] reached a contrary conclusion had it not erroneously excluded from its consideration material evidence. Consequently, plaintiff's argument that we may not, or need not, reach the question of law because there exists competent evidence to support the board's findings of fact is without merit. If, having found evidence to have been improperly excluded from consideration, we were to nonetheless affirm because other competent evidence supports the conclusion of the board, we would be improperly substituting our discretion for that of the board as to the weight to be given the excluded evidence vis-a-vis the remaining evidence. See, E. g., Pulley v. Detroit Engineering & Machine Co., 378 Mich. 418, 424, 145 N.W.2d 40, 43 (1966).

Although the board correctly recognized that the real issue was whether or not plaintiff suffered a work-related disability, rather than why plaintiff left his job, the board erred in concluding that the reason plaintiff left his job is immaterial.

Whether a worker has a compensable disability depends upon whether his injury resulted in a loss in wage earning capacity. See, E. g., Sims v. R. D. Brooks, Inc., 389 Mich. 91, 93, 204 N.W.2d 139, 140-141 (1973); Pulley v. Detroit Engineering & Machine Co., supra ; Medacco v. Campbell, Wyant & Cannon Foundry Co., 48 Mich.App. 217, 210 N.W.2d 360 (1973). Loss of wage earning capacity is a complex fact issue...