Morgan v. Win Schuler's Restaurant

• Citation: 234 N.W.2d 885,64 Mich.App. 37
• Decision Date: 28 August 1975
• Docket Number: Docket No. 21610
• Parties: Bobbye MORGAN, Plaintiff-Appellee, v. WIN SCHULER'S RESTAURANT and Aetna Life & Casualty Insurance Company, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 885

234 N.W.2d 885

64 Mich.App. 37

Bobbye MORGAN, Plaintiff-Appellee, v. WIN SCHULER'S RESTAURANT and Aetna Life & Casualty Insurance

Company, Defendants-Appellants.

Docket No. 21610.

Court of Appeals of Michigan.

Aug. 28, 1975.

Released for Publication Nov. 17, 1975.

Cholette, Perkins & Buchanan by Kenneth L. Block, Grand Rapids, for defendants-appellants.

Robert L. Piatt, Kalamazoo, for plaintiff-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

McGREGOR, Presiding Judge.

On June 29, 1970, the plaintiff received third-degree burns to various parts of her body as she was lighting floating brandy on top of coffee in her capacity as a waitress with Win Schuler's Restaurant. She was physically incapacitated, incurred various medical and hospital expenses, and was voluntarily paid compensation benefits by defendant Aetna Casualty & Surety Company for 44 weeks. At that time, payments were discontinued by Aetna, who contended that plaintiff was able to return to work. Plaintiff, however, claimed a disabling injury continuing beyond that period of time by petition filed in June, 1971. This petition subsequently was amended to include a claim of disabling neurosis alleged to be the result of these injuries. The hearing referee and the Workmen's Compensation Appeal Board both found that plaintiff was totally disabled on the basis of a psychiatric condition which was precipitated by the accident, and awarded compensation accordingly.

Their application for leave to appeal having been granted, the defendants now appeal this adverse decision of the appeal board and raise three issues for our consideration.

The first issue raised by defendants relates to the following finding made by the appeal board:

'On the basis of Dr. Payne's testimony and review of the facts, we find that plaintiff is totally disabled on the basis of a psychiatric condition precipitated by the accident. Chapter IV, § 431 provides no right to apportion disability in cases arising ut of Chapter III injuries.'

Defendants first contend that the plaintiff's disability should be characterized as an occupational disease rather than a single-event injury and that, therefore, apportionment should have been granted under Chapter IV, § 431 of the Workmen's Compensation Act of 1969. ¹ This contention is untenable. There is no doubt that plaintiff's difficulties arose from a single-event injury and not as a result of an occupational disease. See 1A Larson, Workmen's Compensation Law, § 37.20, Adams v. Acme White Lead and Color Works, 182 Mich. 157, 148 N.W. 485 (1914). Additionally, the clear implication of the appeal board's finding is that they considered plaintiff's disability as arising from a single-event injury. A finding of facts made by the appeal board is usually immune from review. Babcock v. General Motors Corp., 340 Mich. 58, 64 N.W.2d 917 (1954); Skowronski v. Ajax Forging and Casting Co., 54 Mich.App. 136, 220 N.W.2d 725 (1974). We find that the appeal board's ruling that plaintiff's disability arose from a singleevent injury is supported by competent evidence and, therefore, cannot be attacked.

Secondly, defendants argue that the apportionment provision of § 431 can be interpreted to cover Chapter III singleevent injuries. We disagree.

First, the apportionment provision of Chapter IV is clear and there is no corresponding provision in Chapter III. The entire Workmen's Compensation Act was rewritten in 1969 with the obvious intent to clarify the act. It is highly unlikely that the Legislature would provide for apportionment specifically limiting it to disabilities from 'occupational diseases' and not provide a corresponding section in Chapter III if they so intended. As stated in Skowronski, supra:

'Having gone to such lengths to maintain this distinction throughout the new act, the Legislature was obviously aware of it when it approved an apportionment section that mentioned only diseasecaused disabilities. The legislative failure to specifically include the other kinds of disabilities, which had been repeatedly distinguished from diseases, must be viewed a deliberate exclusion from the coverage of the apportionment section. Therefore, it would be improper to consider plaintiff's injury covered by the apportionment section.' (Emphasis added.)

The second reason for not interpreting the statute to mandate apportionment of single-event injuries is that apportionment is disfavored in workmen's compensation law. See 1 Larson, Workmen's Compensation Law, § 12.20, and 2 Larson, Workmen's Compensation Law, § 59.20.

Having found that the Workmen's Compensation Act does not allow apportionment of an employee's disability arising from a single-event injury, we are squarely faced with defendants' third contention. The defendants argue that the act is unconstitutional as it allows apportionment in cases of occupational diseases but not in cases of single-event injuries, thus denying the defendants equal protection of the law.

The function of the equal protection clause under Federal and state constitutions is stated in Fox v. Employment Security Commission, 379 Mich. 579, 153 N.W.2d 644 (1967):

'There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found.'

Thus, when a classification is alleged to deny an individual equal protection of the law, such classification as a general rule must be shown to be unreasonable. The test of reasonableness is satisfied and the statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify it.

It would appear that a reasonable basis exists for the distinction allowing for apportionment in Chapter IV of the Workmen's Compensation Act dealing with occupational diseases and not allowing apportionment in Chapter III regarding singlevent injuries, at least as far as employers are concerned.

A possible rationale for the distinction is that occupational diseases, by their nature, are caused by harmful conditions characteristic of particular industries while singleevent injuries can occur in any occupation. Thus, the Legislature, in formulating the classification, may have felt that employers who engage in particular industries which have inherent harmful conditions need preferential workmen's compensation treatment. If these employers were not given this preferential treatment, conceivably they would not enter such industries since their workmen's compensation insurance would undoubtedly cost more. Therefore, the classification can be considered as an inducement for persons to engage in these industries with their characteristic harmful conditions. As the classification can reasonably be justified upon this state of facts, the defendants are not denied equal protection.

The second issue raised by the defendants relates to the following finding of the appeal board:

'In its second argument, defendant claims error in the use of plaintiff's unreported tips as one determinant utilized in arriving at plaintiff's average weekly wage. The thrust of the argument is that undeclared tips should not be permitted when failure to report all tips was in direct violation of defendant's written policy and the IRS rules. This Board has stated the following in reference to this issue:

"Inquiry as to whether Plaintiff has paid income tax on tips was proper at least to the extent that the question...