Samels v. Goodyear Tire & Rubber Co.

• Decision Date: 08 April 1947
• Docket Number: No. 21.,21.
• Citation: 26 N.W.2d 742,317 Mich. 149
• Parties: SAMELS v. GOODYEAR TIRE & RUBBER CO. et al.
• Court: Michigan Supreme Court

317 Mich. 149

26 N.W.2d 742

SAMELS

v.GOODYEAR TIRE & RUBBER CO. et al.

No. 21.

Supreme Court of Michigan.

April 8, 1947.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act on the claim of John D. Samels for compensation for total disability resulting from an industrial injury. From an order determining that plaintiff was entitled to total disability compensation, Goodyear Tire & Rubber Company, employer, and Hartford Accident & Indemnity Company, insurance carrier, appeal.

Affirmed.

SHARPE and CARR, JJ., dissenting.

Before the Entire Bench.

Mitts & Smith, of Grand Rapids, for defendants and appellants.

H. H. Warner, of Lansing (Raymond H. Rapaport, of Lansing, of counsel), for plaintiff and appellee.

REID, Justice.

Defendants on leave granted took and appeal in the nature of certiorari from an award of the department of labor and industry in which it was determined that plaintiff is entitled to $21 per week from January 29 to February 26, 1945, and from October 5, 1945, to January 18, 1946, and until further order of the commission, based on the department's finding that plaintiff's average weekly wage at the time of the injury was in excess of $75, that his wage loss due to injury based upon his then present weekly earnings of $50 at common labor is $25, and that plaintiff was entitled to total disability compensation since he was totally disabled from doing the work he was doing at the time of the injury. The real question involved is whether the nature of plaintiffs injury was such as to entitle him to compensation.

Plaintiff went to work for the defendant company as a truck tire builder some seven months prior to the time of his alleged injury. In performing his work the tire builder first affixes a corded base by hand, stretching it taut as it winds on the rotating drum. This is followed in succession by three corded rubber bands, the bead, and finally the green rubber. The bands are then driven by force onto the drum and lined up by pounding them down with a wooden mallet. The rubber is then heeled down by a downward pressure with the palms of the hands and is forced over the bead with a pulling motion. Excess rubber is trimmed off by exerting pressure on the rotating tire with a curved knife and the tire is finally removed from the drum by removing the sections of the drum from the interior, these individual sections weighing between 50 and 60 pounds. The job also required plaintiff to lift tires weighing approximately 105 pounds. The entire process involves intense physical exertion of primarily the muscles of the arms. The department of labor and industry found as a matter of fact that this was skilled labor.

Plaintiff testified that the tire building operation cannot be described by words and has to be seen to be understood; that the operation first produced extreme numbness in his hands, and caused stiffness in his finger joints; this gradually worked out and the condition later reappeared in his elbows; the elbow condition failed to disappear as he assumed it would, and became severe, with a tendency to swell up. Plaintiff further testified this condition did not prevent him from using his arms in the ordinary sense, but he could not do his particular work without extreme pain; that the condition became so painful that on January 27, 1945, he reported to the nurse at defendants' hospital, and that he left work on that day. He also reported to Dr. Don Kudner, one of defendants' physicians, who diagnosed the condition as epicondylitis and who told plaintiff to do only very light work for a while.

Dr. Kudner testified he first examined plaintiff on January 29, 1945, and that:

‘A. He was suffering from a pain in the region of the elbow joint, with a marked tenderness over the external epicondyle. * * *

‘Q. What is epicondylitis? A. Inflammation of the epicondyle. There are a bunch of muscles attached to the bone at that site and it becomes inflamed and tender from over-use of that set of muscles, from strain of that set of muscles.

‘Q. Will any over-use of any kind-use of muscles cause an epicondylitis? A. Yes. * * *

‘Q. If it gets into a chronic stage they form a bursa at the point of the inflammation? A. Yes.

‘Q. Can that condition exist in anybody, in any type of work or play that requires an exertion of the muscles? A. Yes, the old name was tennis elbow, because it occurred in tennis players.

‘Q. Occur in baseball players? A. Sometimes. * * *

‘Q. Does this occur to everybody or peculiar to some people? A. Peculiar to some people.

‘Q. Are there people that can do the same exertion without developing this condition? A. Yes, many of them.

‘Q. With reference to the place where Mr. Samels works, are there people employed in this department who have never developed this condition in any form? A. Yes, only a very few of the entire number of tire builders develop it, of course. * * * It is a fairly common complaint among industrial workers.’

Plaintiff at one place in his testimony summarizes the development of the condition in his elbows by saying that it ‘was the culmination of seven months of strain’ and he nowhere describes any one particular event or strain which precipitated the condition or made it markedly worse.

The department found ‘that the plaintiff sustained a personal injury on January 27, 1945, not attributable to a single event but to repeated events and strain which brought about an unexpected result; that the injury arose out of and in the course of his employment.’

The department based its ruling on sec. 1 of part 2 of the workmen's compensation act, 2 Comp.Laws 1929, § 8417, as amended by Act No. 245, Pub.Acts 1943, effective July 30, 1943, Comp.Laws Supp.1945, § 8417, Stat.Ann.1943, Cum.Supp. § 17.151:

‘Sec. 1. An employe, who receives a personal injury arising out of and in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, shall be paid compensation in the manner and to the extent hereinafter provided, or in case of his death resulting from such injuries such compensation shall be paid to his dependents as hereinafter defined. The term ‘time of injury’ or ‘date of injury’ as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employe was last subjected to the conditions resulting in disability or death.'

Plaintiff in his claim states,

‘1. That this claim relates to a personal injury which occurred on or about _____ or to a disablement from occupational disease which occurred on or about January 27, 1945. * * *

‘3. Nature of disability-A severe pain and stiffness in elbows. The bone seems to be sore and extremely sensitive to slightest touch. Date of recovery-Condition remains. Date of return to work-First of March.’

The defendant employer's basic report of industrial injury states, ‘Describe nature and location of injury or disease-Epicondylitis left elbow.’

The testimony plainly indicates that it is the occupational disease, epicondylitis, which is the cause of the disablement. The report of the defendant employer admits that fact. The department awarded for a personal injury under part 2, but quoted with apparent approval the testimony of two doctors, witnesses for defendants, who testified that the disablement was due to epicondylitis. Can the award be left to stand as though made under sec. 1 part 7?

Defendants state in their brief:

‘If we are correct in our conclusion that the tribunal erred in finding a ‘personal injury’ within sec. 1, part 2, of the workmen's compensation act, we still concede that their findings could be upheld if sustained by sec. 1, part 7, of the act, supra. The issue, therefore, becomes material on this appeal even though it was not decided below.'

See Kasarewski v. Hupp Motor Car Corp., 315 Mich. 225, 228, 23 N.W.2d 689.

So far as pertinent to this case, sec. 1, part 7, of the act, Comp.Laws Supp.1945, § 8485-1, Stat.Ann.1943 Cum.Supp. § 17.220, now reads as follows:

‘Sec. 1. Whenever used in this act:

‘(a) The word ‘disability’ means the state of being disabled from earning full wages at the work in which the employe was last subjected to the conditions resulting in disability;

‘(b) The word ‘disablement’ means the event of becoming so disabled as defined in subparagraph (a);

‘(c) The term ‘personal injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.'

The applicable part of sec. 3, part 7, of the act, Comp.Laws Supp.1945, § 8485-3, Stat.Ann.1943 Cum.Supp. § 17.222, is as follows:

‘Sec. 3. If an employe is disabled or dies and his disability or death is caused by a disease and the disease is due to the nature of the employment in which such employe was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for his disablement.’

It is of importance to consider whether epicondylitis is an ordinary disease of life and therefore noncompensable under sec. 1(c), part 7. Few of the persons who are subjected to severe and repeated strains of the muscles at the elbow ever develop epicondylitis. Certain activities as for example, tennis and baseball playing, sometimes cause the disease in some individuals. We conclude that the great majority of persons are not engaged in activities such as could cause the disease, and among those who are engaged in such activities as could cause epicondylitis, only a few develop the disease. So far as the record shows in this case, epicondylitis is not an ordinary disease of life to which the public is generally exposed outside of the employment, and is not...