Thick v. Lapeer Metal Products Co.
Decision Date | 04 February 1981 |
Docket Number | Docket No. 48019 |
Citation | 103 Mich.App. 491,302 N.W.2d 902 |
Parties | Marilyn THICK, Petitioner-Appellee, v. LAPEER METAL PRODUCTS COMPANY, Respondent, and Transamerica Insurance Group, Respondent-Appellant. 103 Mich.App. 491, 302 N.W.2d 902 |
Court | Court of Appeal of Michigan — District of US |
[103 MICHAPP 493] Douglas I. Buck, Flint, for respondent-appellant.
Jerome H. Solomon, Southfield, for petitioner-appellee.
Before T. M. BURNS, P. J., and ALLEN and WALSH, JJ.
Respondent, Transamerica Insurance Group (Transamerica) appeals by leave granted from a September 27, 1979, opinion and order of the Worker's Compensation Appeal Board (Appeal Board), Chairman Gillman dissenting, finding (1) Transamerica liable for compensation payments for an injury sustained by petitioner in April, 1969, and (2) refusing to credit Transamerica for $20,000 paid pursuant to a redemption agreement made by Great American Insurance Company, the carrier on December 7, 1973, the last day of petitioner's work. The second finding presents an issue of first impression.
Petitioner was employed, primarily as a press operator, by respondent Lapeer Metal Products for a ten-year period from 1963 to 1973. On April 17, 1969, petitioner's right leg was smashed between two bins when her foreman drove a hi-lo truck into a scrap bin. Petitioner was standing between the two bins when the incident occurred. She returned to work the next day and asked to be seen by doctors because the injury was bothering her "severely". She was treated by plant physicians for six months but experienced progressively increasing pain. She consulted her own doctor who, following a myelogram, found a herniated [103 MICHAPP 494] disc. In May, 1970, she was hospitalized, and, on June 1, 1970, the disc was removed by Dr. Herzog, an orthopedic surgeon. Petitioner was off work from April, 1970, until November, 1970, during which time Transamerica voluntarily paid compensation benefits. Petitioner returned to "very light work" in November, 1970, and, except for six weeks in February and early March, 1973, continued working under restrictions of no bending or heavy lifting until December 7, 1973, when she felt a sharp pain in the same area of her back where surgery had been performed. Petitioner has not been regularly employed since December 7, 1973.
On March 4, 1974, petitioner filed a petition for workers' compensation benefits. The petition named both Transamerica and Great American Insurance as respondents and claimed personal injury dates of February 17, 1969, March 17, 1969, and December 7, 1973, as well as an occupational disease date of December 7, 1973. On March 19, 1976, seven weeks prior to the hearing before the administrative law judge, petitioner entered into a redemption agreement for $20,000 with Great American Insurance for the period Great American was on the risk. 1 Following the hearing on May 6, 1976, the administrative law judge found petitioner was totally disabled as a result of the accident on April 17, 1969, and ordered Transamerica, the carrier at the time of the accident, to pay workers' compensation benefits.
Transamerica appealed to the Appeal Board which, on September 28, 1979, in a two-to-one decision, sustained the administrative law judge's finding that petitioner was disabled as a result of the April 17, 1969, accident but modified the award by finding that petitioner was only partially [103 MICHAPP 495] disabled and that Transamerica was entitled to receive credit for the benefits paid voluntarily by Great American Insurance prior to the redemption agreement, but was not to receive any credit for the $20,000 redemption. One member of the Appeal Board disagreed, finding that on December 7, 1973, petitioner's wrenching of her back was a work-related incident which contributed to her disability and thus the case was one of aggravation of the original injury, making the injury date December 7, 1973, the last day worked, but that because Transamerica was not on the risk on that date and Great American had redeemed its liability, petitioner was barred from recovery. 2 Transamerica's application for leave to appeal to this Court was granted on May 22, 1980. Two grounds for reversal of the majority opinion are raised on appeal.
It is first contended that the Appeal Board majority erroneously applied legal principles "inconsistent with the general principle that work-related aggravation of a pre-existing condition is compensable with liability fixed at the last day of work". The flaw in this argument is the assumption that petitioner's injury in April, 1969, was in [103 MICHAPP 496] fact aggravated during the three-year period she was on favored work. Whether events subsequent to June 30, 1969, the date Great American Insurance became the insurer, constituted an "aggravation" of the April, 1969, injury or a new injury is a question of fact. If a new injury or aggravation of the original injury 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). The Appeal Board majority found that petitioner's disability was caused by the April, 1969, injury and further found that subsequent work incidents neither aggravated the injury nor resulted in a new injury. In the absence of fraud, findings of fact in workers' compensation hearings may not be set aside if such findings are supported by substantial, competent and material evidence. M.C.L. § 418.861; M.S.A. § 17.237(861). Dressler v. Grand Rapids Die Casting Corp., 402 Mich. 243, 262 N.W.2d 629 (1978). The majority opinion carefully sets forth the facts upon which the majority's conclusion is predicated. Our review of the transcript discloses that the findings are based on substantial, competent and material evidence. We find no error on issue I.
Having determined that only one injury for which benefits are payable is involved, we turn to the question of whether the $20,000 paid petitioner by the subsequent insurer, Great American [103 MICHAPP 497] Insurance, must be credited to the payments...
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Thick v. Lapeer Metal Products Co.
...plaintiff was "not twice recovering for liability for the injury which occurred on April 17, 1969". Thick v. Lapeer Metal Products Co., 103 Mich.App. 491, 498, 302 N.W.2d 902 (1981). Thus, Transamerica was denied credit notwithstanding the factual finding that only one "injury" had occurred......
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Bullard v. Titus Const. Co., Docket No. 56153
...on the question of whether an employee aggravated a pre-existing injury or condition is a finding of fact. Thick v. Lapeer Metal Products Co., 103 Mich.App. 491, 302 N.W.2d 902 (1981). On this issue the appeal board "The record, in plaintiff's candid testimony in particular, persuades us th......
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Sanders v. General Motors Corp., Chevrolet Assembly Plant
...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......
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Johnson v. Depree Co.
...Zurich, rather than Travelers, is on risk for providing plaintiff benefits for this disability. See, Thick v. Lapeer Metal Products Co., 103 Mich.App. 491, 495-496, 302 N.W.2d 902 (1981). Whether there was work-related aggravation of the original injury is a question of fact for the WCAB. T......