Rice v. Michigan Sugar Co.

• Decision Date: 23 May 1978
• Docket Number: Docket No. 77-551
• Citation: 83 Mich.App. 508,269 N.W.2d 202
• Parties: Vern RICE, Plaintiff-Appellee, v. MICHIGAN SUGAR COMPANY and American Mutual Liability Company, Defendants, and Second Injury Fund, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 202

269 N.W.2d 202

83 Mich.App. 508

Vern RICE, Plaintiff-Appellee, v. MICHIGAN SUGAR COMPANY and American Mutual Liability Company, Defendants and Second Injury Fund, Defendant-Appellant.

Docket No. 77-551.

Court of Appeals of Michigan.

May 23, 1978.

Released for Publication Sept. 7, 1978.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard F. Zapala, Asst. Atty. Gen., for defendant-appellant.

Marston, Sachs, Nunn, Kates, Kadushin & O'Hara by A. Donald Kadushin, Detroit, for plaintiff-appellee.

Thomas J. McNally, Detroit, for Michigan Sugar et al.

Before BRONSON, P. J., and T. M. BURNS and ALLEN, JJ.

BRONSON, Presiding Judge.

Plaintiff suffered a back injury in 1969, while employed by defendant, for which he was compensated under the Workmen's Compensation Act. On September 5, 1973, plaintiff filed a petition for a hearing against defendant-employer and the Second Injury Fund for total and permanent disability benefits, claiming the loss of industrial use of both legs. Plaintiff claimed that the total and permanent disability was caused by the original injury and subsequent deterioration of his condition. The Workmen's Compensation Appeal Board unanimously found that plaintiff had established loss of industrial use of both legs as of April 22, 1971, as a result of a deterioration of a condition caused by the original injury. The board also held that the "one- year-back" rule M.C.L. § 418.833(1); M.S.A. § 17.237(833)(1), did not apply.

The Second Injury Fund appeals by leave granted the board's determination that the one-year-back rule does not apply to the case at bar. ¹

M.C.L. § 418.833(1); M.S.A. § 17.237(833)(1) (the one-year-back rule) provides:

"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application."

Some discussion of prior cases dealing with this provision is necessary for a complete understanding of the complex issue before us.

A reading of these cases discloses initially that the term "further compensation", as used in M.C.L. § 418.833(1); M.S.A. § 17.237(833)(1), is a term of art. It is given meaning by the cases interpreting it and, contrary to the dissent's approach, is not susceptible to interpretation based on its common meaning.

The first case construing the term "further compensation" in the context of the Workmen's Compensation Act was Palchak v. Murray Corp. of America, 318 Mich. 482, 28 N.W.2d 295 (1947).

In Palchak, plaintiff suffered an eye injury in 1943 and was compensated for the injury. Plaintiff filed a petition in 1945 based on the deterioration of the 1943 injury. The defendant asserted that it had not received proper notice and that a proper claim had not been made. The Court affirmed an award for plaintiff, stating:

"The case at bar does not involve distinct injuries sustained in an accident, but rather two results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff's claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply." 318 Mich. at 493-494, 28 N.W.2d at 300.

This language was interpreted in Morgan v. Lloyds Builders, Inc., 344 Mich. 524, 73 N.W.2d 880 (1955), to mean that a claim based on a deteriorated condition is not a petition for "further compensation". ²

Morgan also involved an eye injury. Plaintiff was compensated for his loss caused by the injury, and later filed an application for an adjustment because of a subsequent difficulty, which resulted in loss of vision of that eye. Defendant raised the defense of lack of notice. ³ The Court concluded that the one-year-back rule did not apply.

After quoting the previously quoted language in Palchak, the Court said:

"We find that the petition entitled, 'application for hearing and adjustment of claim,' filed by the plaintiff, dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye." 344 Mich. at 528-529, 73 N.W.2d at 882.

Morgan was discussed in Loucks v. Bauman, 356 Mich. 514, 97 N.W.2d 321 (1959). In Loucks plaintiff received compensation for an amputation of his right leg. He later filed for an adjustment due to total disability based on the unstable condition of his remaining leg, which had been injured in the same accident.

After citing the one-year-back rule, three justices wrote:

"In the instant case, plaintiff speaks of a further development, after loss of the left leg, in that the 'increased weight-bearing due to the loss of Louck's left leg directly contributed to and aggravated the unstable condition of his right leg.' The appeal board made no such finding of fact that the disability of the right leg was a further development, and there is no testimony to support such theory in the appendix. On the contrary, the appeal board expressly found that plaintiff's total disability resulted from both the amputation of the left leg and the unstable condition of the right leg which had existed since the date of his accidental injury on June 20, 1947. This is, then, according to the finding of fact of the appeal board, not a case of a further development, resulting in a disability which did not exist when compensation was allowed for the loss of the left leg, but, rather, an application for further compensation for a disability existing from the date of injury, on which an award of compensation may not, under the quoted language of the statute, be made for any period more than 1 year prior to filing the application on November 12, 1954." (Emphasis added.) 356 Mich. at 516-517, 97 N.W.2d at 323. ⁴

The one-year-back rule was applied in Loucks because plaintiff's application was for "further compensation" for a separate and distinct injury rather than a further development from a single injury. We deduce from the above-discussed cases the general rule that "further compensation" is a term of art, as used in the act, meaning compensation for separate and distinct injuries, but not including compensation for injuries resulting or developing from a single original injury.

More recent cases are by and large in accordance with this general rule.

In Adcox v. Northville Laboratories, Inc., 381 Mich. 600, 166 N.W.2d 460 (1969), the one-year-back rule was applied because:

" 'In our opinion, this testimony supports the finding that plaintiff did not sustain the burden of proving a "further and subsequent development," that is, one injury with 2 distinct results. See Palchak v. Murray Corporation of America (1947), 318 Mich. 482, 493, 28 N.W.2d 295.' " 381 Mich. at 610, 166 N.W.2d at 464, fn., quoting Adcox v. Northville Laboratories, 11 Mich.App. 13, 18, 160 N.W.2d 587 (1968).

I. e., because the WCAB found as a fact that the plaintiff's condition was not a result of the original injury, his petition was one for "further compensation" which was subject to the one-year-back rule.

Drake v. Norge Division, Borg-Warner Corp., 48 Mich.App. 88, 210 N.W.2d 131 (1973), is additional authority for our interpretation of the term "further compensation".

Plaintiff in Drake suffered a heart attack and was awarded compensation for total disability. He then filed a petition seeking additional benefits, alleging total and permanent disability due to the loss of industrial use of both arms and legs as a result of the heart attack. The WCAB granted additional compensation, finding that plaintiff had lost the industrial use of his legs as a consequence of his work-related heart attack. This Court affirmed, noting that there was evidence in the record to support that claim, quoting the language from Palchak which we quote above and stating:

"Plaintiff in the case at bar is not alleging a second and separate injury sustained at the time of the first injury. There was but a single injury in this case." 48 Mich.App. at 95, 210 N.W.2d at 135.

Thus, on facts almost identical to the case at bar this Court has held that the one-year-back rule did not apply.

To repeat, the cases above consistently hold that "further compensation" means compensation for a distinct injury; "further compensation" does not encompass a petition for compensation based on separate results or consequences of a single injury.

Appellant relies heavily on Baldwin v. Chrysler Corp., 67 Mich.App. 61, 240 N.W.2d 266 (1976). This reliance is misplaced.

In Baldwin, plaintiff had lost the use of his right leg due to polio. He then lost his left leg in a work-related injury for which he received specific loss benefits. Twenty-five years after those benefits expired, plaintiff petitioned for total and permanent disability benefits. The Court of Appeals applied the one-year-back rule without citation of any authority or discussion. Baldwin should probably be confined to its facts because of the lack of discussion of this issue as well as the unusual circumstances under which it arose. However, Baldwin also is distinguishable from the case at bar because there plaintiff's claim does not appear to have been based on a result or development from the original injury, but was a request for additional benefits based solely on the original injury. ⁵ In contrast, the case at bar is squarely within the holding of prior cases that a claim based on a separate result...