Nunn v. George A. Cantrick Co., Inc.

• Decision Date: 06 April 1982
• Docket Number: Docket No. 56743
• Citation: 317 N.W.2d 331,113 Mich.App. 486
• Parties: Velma E. NUNN, Plaintiff-Appellee, v. GEORGE A. CANTRICK COMPANY, INC., and American Mutual Liability Insurance Company, Defendants-Appellants. 113 Mich.App. 486, 317 N.W.2d 331
• Court: Court of Appeal of Michigan — District of US

Page 331

317 N.W.2d 331

Velma E. NUNN, Plaintiff-Appellee, v. GEORGE A. CANTRICK COMPANY, INC., and American Mutual Liability Insurance Company Defendants-Appellants.

Docket No. 56743.

113 Mich.App. 486, 317 N.W.2d 331

Court of Appeals of Michigan.

Submitted Oct. 21, 1981.

Decided Feb. 18, 1982.

Released for Publication April 6, 1982.

[113 MICHAPP 487] Pianin, Graber & Paull, P. C. by Michael Sugar, Southfield, for plaintiff-appellee.

Conklin, Benham, McLeod, Ducey & Ottaway, P. C. by Martin L. Critchell, Detroit, for defendants-appellants.

Before T. M. BURNS, P. J., and CAVANAGH and BENSON ^*, JJ.

CAVANAGH, Judge.

By leave granted, defendants appeal from an order of the Workers' Compensation[113 MICHAPP 488] Appeal Board (WCAB) finding plaintiff to be partially disabled and directing payment of weekly benefits to her.

Plaintiff was employed by defendant George A. Cantrick Company from 1973 until 1976. She worked as a stock roller and cutter (a position which required that she pull materials through rollers and, while holding the material taut, that she cut the material and then pile it in stacks) until the summer of 1975, when she began experiencing difficulty with this job. After complaining to supervisors, she was sent to the Detroit Industrial Clinic and given x-rays, therapy and medicine. She was off the job 13 days, after which time she returned and continued to experience pain and difficulty performing her duties. From this time on, plaintiff experienced a series of periods in which she would be off work and undergoing treatments at different medical institutions. Upon her return to the job (even when assigned to do light work rather than her original job) she would experience pain and difficulty.

A hearing referee conducted hearings on the issue of plaintiff's work-related disability. The referee's decision stated in toto that a hearing was held and:

"It is further found that plaintiff has failed to sustain her burden of proof with regard to her entitlement to benefits under the Workers' Disability Compensation Act."

Plaintiff filed a claim for review with the WCAB. That Board issued a unanimous decision reversing the hearing referee, finding a work-related partial disability and granting plaintiff continuing benefits. The WCAB's decision states in toto :

[113 MICHAPP 489] "Plaintiff gave unrebutted testimony to the onset of upper extremity problems as a result of strenuous work involving her arms. Plaintiff's job description was substantially corroborated by defendant's superintendent with the exception that he did not perceive the work to be as strenuous as did plaintiff. On July 1, 1975, plaintiff was taken by defendant to Detroit Industrial Clinic. Thereafter followed several periods of treatment while off work and unsuccessful attempts by plaintiff to return to work. Defendant subsequently refused to provide further treatment and thereafter plaintiff initiated continuing treatment on her own behalf. Plaintiff has not worked at defendants since July 1976. Plaintiff testified that she was not 'paralyzed,' that she could perform, and had sought light work but that she was unable to constantly use her arms as was required on her job with defendant.

"Expert medical testimony was submitted via deposition by Dr. Howard B. Schwartz & Dr. James J. Horvath; this testimony was diametrically opposed. We accept Dr. Schwartz's diagnosis of inflammation of the left elbow, strain of the left shoulder, and cervical spine strain due to muscle spasms resulting from work as being based on a more thorough examination and more consistent with the entire record. We also find plaintiff's testimony and conduct of continuing treatment, including submission to a myelogram, as credible and a sufficient basis to support the award. Sanford v. Ryerson & Haynes, Inc., 396 Mich. [630,] 631 (1976), and Kostamo v. Marquette Iron Mining Co., 405 Mich. 105 (1979).

"We therefore find that plaintiff has sustained her burden of proof to establish a continuing partial disability as a result of the July 1, 1975 work injury."

Defendants argue that the opinion of the WCAB was too brief to allow for appellate review of the reasoning of the Board. Defendants contend that M.C.L. Sec. 418.859; M.S.A. Sec. 17.237(859), which authorizes abbreviated decisions of the WCAB, violates Const.1963, art. 3, Sec. 2, which provides for the separation [113 MICHAPP 490] of powers between the judiciary and the executive branch, and Const.1963, art. 6, Sec. 28, which provides for judicial review of all final decisions, findings, rulings and orders of any administrative office or agency. Defendant contends that M.C.L. Sec. 418.859; M.S.A. Sec. 17.237(859) violates these constitutional provisions by allowing the WCAB to issue decisions which set out merely conclusive findings and thereby preclude effective judicial review.

M.C.L. Sec. 418.859; M.S.A. Sec. 17.237(859), as amended by 1980 P.A. 357, provides:

"If a claim for review is filed, the board shall promptly review the order, together with the records of the hearing. The board may hear the parties, together with such additional evidence as it in its discretion may allow them to submit and shall file its order with the records of the proceedings. It shall be the duty of the board to announce in writing its findings of fact and conclusions of law. The issuance of written opinions giving reasons therefor shall be at the discretion of the board and individual members thereof * * *." (Emphasis added.)

The people of this state, in their charter of government, have provided both general and specific grants of power to the legislative branch, subject to the gubernatorial veto power, to create administrative agencies and tribunals within those agencies to address the manifold problems of modern society. In addition, that same charter subjects the actions of those agencies and tribunals to judicial review, without exception. Const.1963, art. 6, Sec. 28. The requirement in workers' compensation cases that the WCAB facilitate judicial review by means of a written decision which reveals "the path the board has taken through the conflicting evidence, * * * the testimony adopted, the standard followed and the reasoning it used in reaching[113 MICHAPP 491] its conclusion" was, when first enunciated by this Court in McClary v. Wagoner, 16 Mich.App. 326, 327-328, 167 N.W.2d 800 (1969), quoted with approval DeGeer v. DeGeer Farm Equipment Co., 391 Mich. 96, 101, 214 N.W.2d 794 (1974), specifically correlated to the constitutional provision for judicial review of administrative action. Therefore, legislation which purports to relax those requirements implicates constitutional considerations, which this Court must address. Const.1963, art. 3, Sec. 2; art. 6, Sec. 1.

Fundamentally, we begin our analysis with the assumption that the Legislature did not intend to pass an unconstitutional enactment, Automotive Service Councils of Michigan v. Secretary of State, 82 Mich.App. 574, 267 N.W.2d 698 (1978); lv. den. 403 Mich. 810 (1978); app. dis. 439 U.S. 973, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), and cognizant of our duty to construe the statute, here section 859 of the act as amended, so as to avoid constitutional difficulties and in a manner which comports with an ultimate finding of constitutionality. Schwartz v. Secretary of State, 393 Mich. 42, 222 N.W.2d 517 (1974); Tilmon v. Kaye, 46 Mich.App. 63, 207 N.W.2d 467 (1973).

With the foregoing principles to guide us, we note that section 859 is functionally equivalent to legislative pronouncements in related areas. Thus, section 85 of the Administrative Procedure Act of 1969, 1969 P.A. 306; M.C.L. Sec. 24.285; M.S.A. Sec. 3.560(185), provides:

"A final decision or order of an agency in a contested case shall be made, within a reasonable period [of time], in writing or stated in the record and shall include findings of fact and conclusions of law * * *. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. * * * Each conclusion[113 MICHAPP 492] of law shall be supported by authority or reasoned opinion."

This requirement has been held applicable to a variety of agencies, including some not generally subject to the APA: Northwood Apartments v. City of Royal Oak, 98 Mich.App. 721, 296 N.W.2d 639 (1980) (tax tribunal); Great Lakes Steel Division of National Steel Corp. v. Public Service Comm., 94 Mich.App. 694, 290 N.W.2d 54 (1980) (interim rate increases granted by Public Service Commission); Consumers Power Co....