Peck v. General Motors Corp.

• Decision Date: 21 January 1988
• Docket Number: 87825,Docket Nos. 85239
• Citation: 417 N.W.2d 547,164 Mich.App. 580
• Parties: Frank PECK, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. Peter PANKOW, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 547

417 N.W.2d 547

164 Mich.App. 580

Frank PECK, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

Peter PANKOW, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Docket Nos. 85239, 87825.

Court of Appeals of Michigan.

Submitted Aug. 26, 1986.

Decided Dec. 7, 1987.

Released for Publication Jan. 21, 1988.

Levine, Benjamin, Tushman, Bratt, Jerris & Stein, P.C. by Barrie R. Bratt, Detroit, for Frank Peck.

Bockoff & Zamler, P.C. by Daryl Royal, Southfield, for Peter Pankow.

Evans & Nelson, P.C. by John J. Hays, and Willard W. Wallace, Troy, in Docket No. 85239, and John Rahie, in docket No. 87825, Detroit, for defendant-appellee/appellant.

Before MacKENZIE, P.J., and BRONSON and BENSON, ^* JJ.

BENSON, Judge.

These two cases have been consolidated for appeal. In Peck v. GMC, the plaintiff was granted leave to appeal from a determination by the Workers' Compensation Appeal Board that he did not meet the new burden in proving disability placed on him by M.C.L. Sec. 418.373; M.S.A. Sec. 17.237(373). In Pankow v. GMC, the defendant, GMC, was granted leave to appeal from a decision by the Workers' Compensation Appeal Board that allowed plaintiff to recover by denying retroactive effect to M.C.L. Sec. 418.373; M.S.A. Sec. 17.237(373).

Statement of Facts: Peck v. GMC

On November 14, 1983, a hearing referee determined that plaintiff, Mr. Peck, did not sustain his burden of proving that he is unable to perform work suitable to his qualifications, including training and experience. This decision was affirmed by the WCAB on April 26, 1985. Leave to appeal was granted by this Court.

Before the hearing referee, plaintiff testified that he began to work for defendant on February 22, 1960, as a millwright, a skilled trade. On June 1, 1982, plaintiff retired and received a nondisability retirement from GMC. On September 7, 1982, the bureau received plaintiff's petition for disability benefits. Plaintiff stated he retired because, due to previous injuries, he couldn't handle the job anymore.

At the administrative hearing, plaintiff testified that a millwright was required to be able to read schematic sketches; to be proficient in the use of all metalworking hand tools; to be able to operate heavy equipment including trucks, cranes and bulldozers; to be able to do some welding; and to be able to operate some machine tools including saws, drill presses and grinders. The job also required the ability to use and read a micrometer. Testimony showed that the job also required plaintiff to work with other trades, hang steel, help build items made from steel and repair equipment. The evidence showed that plaintiff typically had to crawl up on machines, lift and replace guards, and lift pieces of steel weighing from seventy to one hundred pounds.

The medical testimony and examination of plaintiff by Edward S. Maxim, M.D., showed that in 1969 plaintiff fractured his right femur while on the job and has since had problems regaining movement in his right knee. In 1973, after suffering from back pains, a myelogram was done and subsequently plaintiff had a partial laminectomy and lost time at work. In 1982, plaintiff again lost time at work due to low-back pain and pain in his right leg. Plaintiff suffers from tenosynonitis of his left wrist as a consequence of a work-related injury which occurred while driving a lift truck.

Dr. Maxim stated that the combination of problems presented would, for all practical purposes, make plaintiff incapable of working as a millwright and probably would preclude most types of factory work. Specifically, the doctor indicated that plaintiff had marked restriction in bending and twisting his back, in placing any pushing or pulling strain on his back, and that lifting in excess of fifteen pounds is probably not possible. Plaintiff is only capable of limited standing and walking on an alternative basis. Plaintiff should avoid squatting, kneeling and climbing, and is unable to use his left arm for any repetitive or forceful movements.

The testimony of Dr. Bernard J. Harris, M.D., was received by the hearing referee. Dr. Harris' testimony showed that plaintiff exhibited a slight limp due to discomfort in the right thigh, discomfort in the lower back in the midline with radiation into the right side and posterior aspect of the right knee and a thickness and an irregularity in the left wrist. Dr. Harris testified that Mr. Peck was partially disabled in the wrist and summarized that plaintiff has a moderate degree of disability, but further added, "If he had not retired, I feel his ability to continue at a millwright job was diminishing." The doctor further testified that he felt that Mr. Peck could do any kind of administrative job, sitting at a desk or doing a job that could be part-time standing or sitting, or a job restricting weight of lifting to twenty pounds or any type of bench work.

The hearing referee determined that plaintiff did not meet his burden and denied benefits. The WCAB held that plaintiff had met the evidentiary standards for proving a work-related disability within his skill based on the standard of physical inability to perform all the jobs within his skilled trade; however, the WCAB also held that plaintiff had failed to sustain the burden provided by M.C.L. Sec. 418.373; M.S.A. Sec. 17.237(373) which applies to retired employees collecting a nondisability pension. Accordingly, plaintiff was denied benefits.

Statement of Facts: Pankow v. GMC

On February 27, 1981, a hearing referee found that plaintiff had established by a preponderance of the evidence that he was disabled as a result of injuries arising out of, and during the course of, his employment with defendant. Except for a modification not pertinent to this case, that decision was affirmed by the WCAB. At the administrative hearing, the testimony showed that Mr. Pankow was hired by the defendant in 1954, that he retired on December 21, 1979, and that, at the time of the hearing in 1980, he was drawing a nondisability pension. The evidence further established that plaintiff was a skilled tradesman, i.e., a toolmaker. Mr. Pankow's normal skilled trade required that he work with heavy weights, some weighing in the neighborhood of four hundred to five hundred pounds. Although the evidence showed that normally a chain fall was used to lift these weights, it was often the case that three or four men would use brute strength to work with such heavy weights. Plaintiff also testified that, at times, he was required to lift weights up to eighty pounds without any help.

Plaintiff's first back problems started in 1963 and as a result of that injury he was on sick leave for some four months. He returned to the same job and, within three days, reinjured his back. He was again placed on sick leave for an additional two months. When he returned to work, he was placed on the same job.

He continued to have back problems and wore a back brace. In May of 1979, after lifting an eighty-pound tie bar fixture, plaintiff reinjured his back and was on sick leave for four months. He returned to work only when he was notified by defendant that his benefits would be discontinued. He returned to work, was put on the same job and, within three days, reinjured his back and was again on sick leave for an additional two months. When he returned, he was placed on the same job with no job restrictions. Plaintiff then told his supervisor that he was going to retire because his back was bad and he could not stay on the job any longer. Plaintiff testified that his original plan was to retire at age sixty-five with full pension, but that he felt, under the circumstances, that was not possible.

An osteopathic doctor who testified for Mr. Pankow at the administrative hearing diagnosed Mr. Pankow as suffering from a chronic lumbar-sacral strain and S-1 radiculopathy. This doctor concluded that Mr. Pankow was disabled and that any continuation of his regularly assigned work would further accelerate the pathological process. A medical doctor also testified and indicated that plaintiff was suffering from osteoarthritis of his third, fourth, and fifth lumbar vertebrae with some signs of nerve pressure on the fourth and fifth nerve roots. This doctor also testified that Mr. Pankow was disabled. However, this doctor opined that the osteoarthritis was not due to his employment but was due to a metabolic process of aging. This doctor stated that plaintiff's problems were ones of aging and not of employment. Furthermore, this medical doctor concluded that plaintiff could return to his job since plaintiff had been working with this particular back condition for thirteen years. However, it would be advisable to restrict plaintiff to light bench work. As indicated earlier, the hearing referee found Mr. Pankow to be disabled and the WCAB affirmed this decision in part.

Discussion

One of the first issues to be decided is whether the provisions of M.C.L. Sec. 418.373; M.S.A. Sec. 17.237(373) should be given retroactive effect and thus be applied to persons injured before January 1, 1982. We note that our Supreme Court has granted leave to appeal in White v. General Motors Corp., 428 Mich. 873, 402 N.W.2d 468 (1987), to consider this issue. The general rule is that the law in effect at the time of the injury controls. "It has long been the rule in Michigan that in workers' compensation cases the law in effect at the time of the relevant injury must be applied unless the Legislature clearly indicates a contrary intention." Nicholson v. Lansing Bd. of Ed., 423 Mich. 89, 93, 377 N.W.2d 292 (1985). However, there are exceptions to the general rule of prospective application. One exception, obviously, is when the new legislation clearly indicates an intention to be given retroactive effect. That is not the case with Sec. 373. Another exception to the general rule is where the change in the law is procedural. A remedial or...