Nezdropa v. Wayne County

• Decision Date: 16 October 1986
• Docket Number: Docket Nos. 85065,85066 and 87823
• Citation: 152 Mich.App. 451,394 N.W.2d 440
• Parties: Francis A. NEZDROPA, a/k/a Fred Nezdropa, Plaintiff-Appellant, v. WAYNE COUNTY, and Second Injury Fund, Defendants-Appellees, and Michigan State Accident Fund, Defendant. Francis A. NEZDROPA, a/k/a Fred Nezdropa, Plaintiff-Appellee, v. WAYNE COUNTY and Wayne County Probate Court--Juvenile Division, Defendant- Appellant, and State of Michigan--Michigan Judiciary, Michigan State Accident Fund and Second Injury Fund, Defendants-Appellees. Earl W. BUSH, Deceased, and Mary Bush, Widow, Plaintiffs-Appellees/Cross- Appellants, v. CITY OF DETROIT, Defendant, State of Michigan--Michigan Judiciary, Defendants-Appellees, and County of Wayne, Defendant-Appellant, and Michigan State Accident Fund, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 440

394 N.W.2d 440

152 Mich.App. 451

Francis A. NEZDROPA, a/k/a Fred Nezdropa, Plaintiff-Appellant, v. WAYNE COUNTY, and Second Injury Fund, Defendants-Appellees, and Michigan State Accident Fund, Defendant.

Francis A. NEZDROPA, a/k/a Fred Nezdropa, Plaintiff-Appellee, v. WAYNE COUNTY and Wayne County Probate Court--Juvenile

Division, Defendant- Appellant,

and

State of Michigan--Michigan Judiciary, Michigan State

Accident Fund and Second Injury Fund,

Defendants-Appellees.

Earl W. BUSH, Deceased, and Mary Bush, Widow, Plaintiffs-Appellees/Cross- Appellants, v. CITY OF DETROIT, Defendant, State of Michigan--Michigan Judiciary, Defendants-Appellees, and County of Wayne, Defendant-Appellant,

and

Michigan State Accident Fund, Defendant.

Docket Nos. 85065, 85066 and 87823.

Court of Appeals of Michigan.

Submitted March 4, 1986.

Decided June 16, 1986.

Released for Publication Oct. 16, 1986.

John L. Salter, and William G. Wolfram, Detroit, Franklin, for Francis A. Nezdropa.

Conklin, Loesch & Caravas (by Robert L. Loesch and Michael C. Olson, Troy, for Mary Bush.

John D. O'Hair, Corporation Counsel, and Mary S. Rowan, Asst. Corporation Counsel, for Wayne County in Docket Nos. 85065 and 85066.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Joseph M. Binno, Asst. Atty. Gen., for State of Michigan-Michigan Judiciary, Michigan State Accident Fund, and Second Injury Fund in Docket No. 85066 and for State of Michigan-Michigan Judiciary in Docket No. 87823.

Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell), Detroit, for Michigan State Accident Fund in Docket No. 85065.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Caleb B. Martin, Jr., Asst. Atty. Gen., for Second Injury Fund in Docket No. 85065.

John D. O'Hair, Corporation Counsel, and Douglas B. Dimitry, Asst. Corporation Counsel, for Wayne County in Docket No. 87823.

Before J.H. GILLIS, P.J., and GRIBBS and NICHOLAS J. LAMBROS ^*, JJ.

NICHOLAS J. LAMBROS, Judge.

Three cases have been consolidated on appeal in this matter. Case No. 85065 was remanded to this Court for consideration as on leave granted by the Supreme Court and deals with plaintiff-appellant Francis Nezdropa's appeal from a Workers' Compensation Appeal Board (WCAB) decision that he was not entitled to total and permanent disability benefits for the loss of industrial use of both legs and that his attorney was entitled to an attorney fee on amounts reimbursable by Wayne County to Blue Cross/Blue Shield, to be paid by either Blue Cross/Blue Shield or Wayne County. Case No. 85066 was also remanded to this Court by the Supreme Court, 422 Mich. 895, 367 N.W.2d 332. It concerns defendant-appellant Wayne County's appeal from the same WCAB opinion which determined that, for purposes of the Worker's Disability Compensation Act, Wayne County was plaintiff's employer and that plaintiff was disabled. Case No. 87823 is unrelated to the first two and concerns Wayne County's appeal by leave granted of an August 30, 1985, opinion and order of the WCAB which determined that Wayne County was plaintiff Earl Bush's employer. Plaintiff Mary Bush filed a cross-appeal contesting the findings that she was not entitled to a penalty for late payment of benefits and that she was only entitled to 10% interest on overdue awards.

85065 and 85066

The facts of these cases are not in dispute. Plaintiff Nezdropa first experienced gastrointestinal problems during the early 1950's while serving in the U.S. Army. After he left the service in 1954, plaintiff began work on a bachelor's degree at the University of Detroit and worked for the Detroit Police Department on a probationary basis. Plaintiff continued to experience gastrointestinal problems, and, as a result, he had surgery to remove his gall bladder in 1955. Plaintiff terminated his employment with the police department. After he received his degree, he began to work for the County of Wayne as a probation worker intern while pursuing graduate studies in social work.

When he was hired in September of 1958, plaintiff was qualified for temporary light duty based upon a letter from the Veteran's Administration relating to plaintiff's gastrointestinal problems. At that time, plaintiff was taking medication and characterized his health as fairly good. Plaintiff completed his master's degree in 1959. He passed Civil Service and physical examinations administered by the county and began to work for the County of Wayne full time as a probation officer. In 1965, plaintiff was promoted to the newly created position of administrative assistant to Judge James Lincoln of the probate court.

In 1970, Judge Lincoln appointed plaintiff Nezdropa to the position of Director of Case Work Services for the Wayne County Juvenile Court. In this capacity, plaintiff supervised the staff of 150 and worked about 60 hours per week. In 1971, Judge Lincoln discharged the Director of the Wayne County Clinic for Child Studies and added the responsibilities of that position to plaintiff's duties as Director of Case Work.

On or about November 11, 1977, plaintiff filed a petition for hearing with the Bureau of Workers' Disability Compensation, claiming that his position as Director of Case Work Services for the Wayne County Probate Court--Juvenile Division had aggravated, accelerated, and combined with his internal weaknesses and diseases to produce a disablement from occupational disease in January of 1976. On June 4, 1980, hearing referee James V. Lemhagen issued a memorandum opinion finding that plaintiff was totally and permanently disabled by reason of loss of the industrial use of both legs as of January 15, 1976, that the State of Michigan was plaintiff's employer and that it was responsible for payment of weekly benefits and medical/hospital benefits ordered, paid or reimbursed, and that Wayne County was not liable to plaintiff, and ordered that an appropriate attorney fee be paid to plaintiff's attorney pursuant to Rule 14 of the Bureau of Workers' Disability Compensation, 1972 AACS R 408.44.

The WCAB affirmed the award with modifications, holding that, while plaintiff did not have the reasonable use of his legs in industry, he was not entitled to compensation for total and permanent disability based on the loss of the industrial use of his legs, that plaintiff was an employee of the County of Wayne and that plaintiff's employment aggravated his pre-existing Crohn's disease from a dormant stage to a stage of devastating disability, and that the work-related disability precipitated a disabling depression, and required defendant to pay plaintiff's attorney an amount equal to 30% of the amount paid to Blue Cross/Blue Shield by defendant for reimbursement of advance payments made by Blue Cross/Blue Shield to plaintiff.

Findings of fact made by the WCAB are conclusive absent a showing of fraud and may not be set aside if they are supported by record evidence. Spencer v. Clark Twp., 142 Mich.App. 63, 66, 368 N.W.2d 897 (1985); M.C.L. Sec. 418.861; M.S.A. Sec. 17.237(861). Although findings of fact by the WCAB are subject to limited judicial review, where the board miscontrues the law the appellate court is free to overturn its interpretation. Tew v. Hillsdale Tool & Mfg Co., 142 Mich.App. 29, 32, 369 N.W.2d 254 (1985).

Defendant argues that the WCAB erred in determining plaintiff Nezdropa to be disabled due to the aggravation of his Crohn's disease by his employment. We disagree. Workers' compensation benefits are payable where work has accelerated or aggravated a worker's illness, disease, or deterioration and thus contributed to it, or the work, coupled with the illness, disease, or deterioration, causes the illness in fact. Kostamo v. Marquette Iron Mining Co., 405 Mich. 105, 116, 274 N.W.2d 411 (1979). Findings of fact by the WCAB that there was a causal nexus between plaintiff's job and his illness or injury will not be disturbed on appeal where the findings are supported by competent evidence and the board applied the correct legal standard. Kain v. Michigan, 109 Mich.App. 290, 297-298, 311 N.W.2d 351 (1981), lv. den. 413 Mich. 910 (1982). The credibility of medical and lay witnesses is for the determination of the WCAB, Sanford v. Ryerson & Haynes, Inc., 396 Mich. 630, 635, 242 N.W.2d 393 (1976), reh. den. 397 Mich. 956 (1976). Causation is a factual question beyond the scope of review of appellate courts. Scroggins v. Corning Glass Co. 382 Mich. 628, 630, 172 N.W.2d 367 (1969). The question of whether plaintiff is disabled is also a question of fact. Dressler v. Grand Rapids Die Casting Corp., 402 Mich. 243, 251, 262 N.W.2d 629 (1978).

The WCAB's determination was amply supported by the evidence produced. Plaintiff Nezdropa testified that he believed that his employment contributed adversely to his physical and mental disability. Dr. Lawrence H. Warbasse testified that emotional stress may exacerbate Crohn's disease. He noted that while there is a controversy as to whether Crohn's disease is made worse by stress, there is no doubt that the symptoms of the disease are made worse by it. In his opinion, plaintiff was disabled by the symptoms of the disease. Dr. Joel S. Dreyer testified that plaintiff's work caused depression, anxiety, and a diminished ability to function. Dr. William U. Reid, who examined plaintiff at the county's request, testified that plaintiff's employment had little effect on the course of the disease, although it could have affected his symptoms. He admitted that, occasionally, the symptoms of Crohn's disease can be disabling and maintained that stress could have contributed to the severity of plaintiff's symptoms, but not to the underlying pathology. Dr. Aubrey Goldman testified that stress can exacerbate the symptoms of Crohn's disease, although it is doubtful that the disease process itself is affected. Dr. Goldman noted that the symptoms of the disease could prevent an individual from working or even...