Paulson v. Muskegon Heights Tile Co.

• Decision Date: 10 October 1963
• Docket Number: No. 76,76
• Citation: 371 Mich. 312,123 N.W.2d 715
• Parties: Guy G. PAULSON, Plaintiff-Appellee, v. MUSKEGON HEIGHTS TILE COMPANY, Indemnity Insurance Company, Defendants-Appellants, State of Michigan, Second Injury Fund, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 715

123 N.W.2d 715

371 Mich. 312

Guy G. PAULSON, Plaintiff-Appellee, v. MUSKEGON HEIGHTS TILE COMPANY, Indemnity Insurance Company Defendants-Appellants State of Michigan, Second Injury Fund, Defendant-Appellee.

No. 76.

Supreme Court of Michigan.

Oct. 10, 1963.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for appellants Muskegon Heights Tile Co. and Indemnity Ins. Co.

Marcus, McCroskey, Finucan & Libner, Muskegon (Robert Libner, Muskegon, of counsel), for appellee Paulson.

Frank Kelley, Atty. Gen., Gerald J. O'Reilly, Asst. Atty. Gen., Lansing, for appellee State of Michigan Second Injury Fund.

Before the Entire Bench.

SMITH, Justice.

On June 17, 1949, plaintiff was seriously injured in an automobile accident sustained in the course of his employment. Among other injuries, he suffered a punctured bladder and a fractured pelvis. In uncontested proceedings he was awarded compensation benefits for the period from June 18, 1949, through January 16, 1959, a period of 500 weeks after injury. However, actual benefits were paid for only 193 weeks of this period, plaintiff supporting himself for the remainder of the time through his earnings as a tile setter.

On March 5, 1959, plaintiff filed an application for an adjustment of his claim against defendant for 'permanent and total disability benefits beyond the 500 week period', and also against the second injury fund for differential benefits. Testimony disclosed that plaintiff experienced extreme pain in the lower abdomen at the base of the penis resulting from a tear in the urinary tract system permitting urine to escape into surrounding tissues. It appears that plaintiff was given medical treatment for various maladies growing out of his injuries at regular intervals from August, 1949, through July, 1953. In November, 1957, plaintiff suffered such intense pain from a granuloma (growth of abnormal tissue stimulated by irritating substances) at the base of the penis that surgery was performed to remove this growth. During this operation, plaintiff was found to suffer constant urine drainage from the bladder through sinus tracts in this area of his body.

The treating physician testified as follows:

'A. His disability results from the presence of the fistulous tract, the fistulous sinus, with pain resulting from any pressure being borne by either leg, especially his right leg, so that even walking after a period of time or for short distances of a half a block will prevent him or cause him to stop and rest, shifting his weight primarily to the left side, to the left leg.' (Emphasis supplied.)

Plaintiff testified that he cannot walk very far before his right leg becomes numb, causing him to stop and rest. The physician testified further:

'A. If he is lying quietly, apparently there is no occurrence of pain. On examination on April 13th, there was a suggestion that any weight-bearing on either leg alone caused enough torsion on the joint to give him or cause him pain, apparently because of the presence of a sinus tract which then because of its inflamed nature would further be inflamed by this torsion effect of standing.

'Q. Is this man, in your opinion, doctor, able to perform any active type of employment at this time?

'A. At the present time, under the present circumstances, no.'

The referee entered an award finding that plaintiff was totally and permanently disabled and therefore was entitled to benefits, not exceeding a period of 750 weeks from the date of injury. Another order was entered denying plaintiff's claim for differential payments from the second injury fund 'for the reason that he does not come within the class of people defined as permanently and totally disabled.' Immediately, plaintiff filed with the appeal board an application for review of the order denying relief against the second injury fund. Likewise, defendant-employer filed an application for a review of the order entered against it; later, however, defendant dismissed its request for review.

In view of a case then pending before this Court, Verberg v. Simplicity Pattern Co., 357 Mich. 636, 99 N.W.2d 508, posing a similar question, plaintiff's attorneys requested by letter that the appeal board defer consideration until a decision in that case. The decision in Verberg was adverse to plaintiff's position at that time. Plaintiff then argued for the first time that he had sustained the loss of industrial use of his two legs and therefore was entitled to differential payments. Plaintiff was advised that a majority of the members of the appeal board thought that his claim for the loss of industrial use of his legs should be asserted against defendant-employer rather than against the second injury fund. Plaintiff then filed application for delayed appeal against defendant-employer. The petition for delayed appeal was grounded upon the effect of this Court's decisions in Verberg, supra, and in Lahti v. Fosterling, 357 Mich. 578, 99 N.W.2d 490, upon plaintiff's claim in this case. The appeal board was asked by plaintiff to rescind its stipulated dismissal of defendant-employer and its insurer, thereby reinstating them as defendants in order to prevent a multiplicity of suits. Defendant tile company and its insurer filed their objections to the petition for delayed appeal. However, the appeal board granted the petition and remanded the case to the hearing referee for the taking of additional testimony. Stipulated into the record was certain evidence of medical expenses incurred by plaintiff, without prejudice, however, to defendants' position on the question of delayed appeal.

The appeal board found that plaintiff had suffered loss of industrial use of both legs and entered an award accordingly. A majority of the board held that the plaintiff was entitled to recover against defendant-employer, with no entitlement of differential payments from the second injury fund. One member of the board dissented, finding no loss of industrial use within the meaning of the act. Upon application by defendant-employer and insurer, leave to appeal was granted by this Court.

I. Discretion in Granting Late Appeal

Appellants contend that the appeal board had no authority to grant plaintiff delayed appeal. Between members of the appeal board there was a difference of opinion as to whether permission for delayed appeal was necessary: 2 members contending that there was, and a 3rd member claiming that jurisdiction over the entire matter and the parties thereto was retained by the appeal board until the end of the compensable period, obviating the necessity for delayed appeal. So far as this opinion is concerned, we address ourselves to the issue of whether the appeal board abused its discretion in granting delayed appeal. Based upon the facts alleged in the petition, it is our opinion that the board did not abuse its discretion, in view of prior holdings of this Court. In the case of Zielke v. A. J. Marshall Company, 306 Mich. 474, 11 N.W.2d 209, this Court held that a defendant-employer was entitled to delayed appeal upon the claim that because of 'an error in dictation' appeal was not filed within the normal 10-day period allotted by statute. The opinion in the Zielke Case is quoted, in part, herewith:

'Lumbermen's Mutual ascribed the reason for failure to file its claim for review within the ten days to 'an error in dictation.' Considerable latitude is given the department in determining the sufficiency of a reason for not promptly filing...