Sanders v. General Motors Corp., Chevrolet Assembly Plant

• Decision Date: 09 November 1984
• Docket Number: Docket No. 68064
• Citation: 137 Mich.App. 456,358 N.W.2d 611
• Parties: Evelyn M. SANDERS, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, CHEVROLET ASSEMBLY PLANT, Defendant-Appellee. 137 Mich.App. 456, 358 N.W.2d 611
• Court: Court of Appeal of Michigan — District of US

Page 611

358 N.W.2d 611

Evelyn M. SANDERS, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, CHEVROLET ASSEMBLY PLANT,

Defendant-Appellee.

Docket No. 68064.

137 Mich.App. 456, 358 N.W.2d 611

Court of Appeals of Michigan.

Submitted March 9, 1984.

Decided Sept. 17, 1984.

Released for Publication Nov. 9, 1984.

[137 MICHAPP 457] Rosenberg & Vigiletti, P.C. by Susan A. McCrandall, Grand Blanc, for plaintiff-appellant.

Munroe & Nobach, P.C. by Cameron C. McComb, East Lansing, for defendant-appellee.

Before CYNAR, P.J., and R.B. BURNS and TAHVONEN, ^* JJ.

TAHVONEN, Judge.

Plaintiff, Evelyn M. Sanders, appeals by leave granted a decision of the Workers' Compensation Appeal Board. The facts are not in dispute.

On October 24, 1955, plaintiff injured her knee when she was struck by a frame at work. Dr. Franklin Wade diagnosed plaintiff as having a dislocated kneecap and performed a "closed reduction" at McLaren Hospital. Plaintiff returned to work but had a problem with repeated dislocation of the left kneecap. She was paid workers' compensation benefits for the considerable time she missed from work between 1955 and 1960. Dr. Wade determined that plaintiff would benefit from a tibial tubercle transplant, known as the Hauser operation. This operation was performed on July 29, 1960. Plaintiff did well at first but thereafter developed severe fever, extreme pain and marked swelling. Dr. Wade testified that plaintiff developed severe hematoma (swelling filled with blood) and virulent, secondary infection. Plaintiff remained in the hospital until October, 1960.

[137 MICHAPP 458] Plaintiff was readmitted to the hospital in 1961 because of recurring swelling, pain and infection. Plaintiff's condition did not clear up until sometime in 1963 or 1964. At that time, she was taken off all antibiotics and medication and was able to walk without external support.

Plaintiff never returned to work at General Motors after the operation, and was paid workers' compensation benefits for the statutory period of 500 weeks from 1955 through 1966.

Plaintiff filed a petition for benefits on October 12, 1977. The petition was amended February 10, 1978. A hearing was held before a hearing referee on February 23, 1979. At that hearing, the parties agreed to the facts and plaintiff's counsel stated plaintiff's position as follows:

"[I]t is our allegation that the operation in 1960 and the resulting constitutes a new injury.

"This new injury would be the 1960 date of injury and would entitle her to five hundred weeks of compensation beginning as of the time of the operation extending to approximately 1970 which means that--and also paid at the 1960 rate--this would mean, it is our contention, that from 1960 to 1966 Mrs. Sanders should have been paid at the 1960 rate and then continuing until approximately in 1970, the full five hundred weeks."

On March 19, 1979, the hearing referee found that plaintiff was not entitled to a new date of injury. Appeal was taken to the Workers' Compensation Appeal Board and, in a split decision dated October 22 1982, the decision of the hearing referee was affirmed. The majority opinion stated:

"Larson specifically finds the original injury date to be the basis of that plaintiff's future entitlement (Mullins [v. Dura Corp.] [46 Mich.App. 52] at 55 ).

[137 MICHAPP 459] "Additionally, Bullard v. Mult-A-Frame, 33 Mich.App. 678, 190 N.W.2d 559 (1971) describes that plaintiff's attempt to have further consequences characterized as a new injury to be an 'unnatural meaning', adding:

" 'The injuries to plaintiffs were inflicted when they were on their jobs and not when they were receiving subsequent medical care.' (Bullard, at 683-4, 190 N.W.2d 559).

"So too here, plaintiff was injured in fact on one occasion, in 1955, with her 1960 surgery and resulting disability compensable--but based solely on the single injury. The decision is affirmed."

One member of the board dissented, believing that the appropriate date of injury should be no earlier than plaintiff's last day worked.

The issue before us is whether surgical intervention to resolve a continuing partial disability which results instead in leaving a plaintiff totally disabled constitutes a new injury arising out of and in the course of employment.

There is no question that defendant is liable for benefits. Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719 (1922). The question relates to the date of injury that is to be applied. 1 Larson, Workmen's Compensation Law, Sec. 13.11, p. 3-365, states that consequential injuries of this nature do not, in a strict sense, arise out of the course of employment.

"[I]t becomes necessary to contrive a new concept, which we may for convenience call 'quasi-course of employment.' By this expression is meant activities undertaken by the employee following upon his injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury." Larson, supra.

[137 MICHAPP 460] Larson speaks in terms of a "chain of causation" to relate the subsequent quasi-course-of-employment injury back to the compensable injury that occurred in the course of employment. In Larson's view, surgical complications that may develop, as in this case, do not break the chain of causation.

"It is only when we come to cases involving the conduct of the claimant himself that the possibility of a break in the chain of compensable consequences is encountered. Under the analysis suggested in Sec. 13.11, conduct of the employee related to the treatment of a compensable injury would clearly be in the quasi-course-of-employment category and, therefore, in line with the reasoning there put forward, should not break the chain of causation unless it amounted to an intentional violation of an express or implied prohibition." 1 Larson, Workmen's Compensation Law, Sec. 13.21, pp. 3-392 - 3-393.

Although no Michigan case is directly on point, analogies can be drawn to cases involving successive insurers and cases involving plaintiffs seeking a later date of injury when the Worker's Disability Compensation Act is amended. Thick v. LaPeer Metal Products Co., 103 Mich.App. 491, 302 N.W.2d 902 (1981), dealt with a conflict between the defendant's successive insurers. The plaintiff was injured in the course of her employment on April 17, 1969. Transamerica was the defendant's insurance carrier on that date. The plaintiff underwent back surgery and returned to favored work until December 7, 1973, when she suffered a sharp pain in her back where the surgery had been performed. The later injury was also work-related. Great American Insurance was the carrier on the later date of injury. This Court stated:

"If a new injury or aggravation of the original injury [137 MICHAPP 461] in fact occurred, then liability would fall on Great American and not on Transamerica. Kubicsek v. General Motors Corp., 57 Mich.App. 517, 226 N.W.2d 546 (1975). Conversely, if petitioner's disability resulted from the April, 1969, injury, even though her condition progressively deteriorated, Transamerica alone would be liable for compensation benefits. Mullins v. Dura Corp, 46 Mich.App. 52, 207 N.W.2d 404 (1973)." 103 Mich.App. 496, 302 N.W.2d 902.

In Thick, Transamerica would be liable because the disability was traceable to the work-related date of injury when it was at risk, even though it was not the carrier when plaintiff became disabled due to that injury.

In Bullard v. Mult-A-Frame Co., 33 Mich.App. 678, 190 N.W.2d 559 (1971), relied on by defendant, the four plaintiffs were all injured in the course of their employment before September 1, 1965. On September 1, 1965, the workers' compensation...