Thomas v. Griffin Wheel Co.

• Decision Date: 27 October 1967
• Docket Number: No. 1,Docket No. 1450,1
• Citation: 153 N.W.2d 387,8 Mich.App. 35
• Parties: Oscar THOMAS, Plaintiff-Appellee, v. GRIFFIN WHEEL COMPANY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 387

153 N.W.2d 387

8 Mich.App. 35

Oscar THOMAS, Plaintiff-Appellee, v. GRIFFIN WHEEL COMPANY, Defendant-Appellant.

Docket No. 1450.

Court of Appeals of Michigan, Division No. 1.

Oct. 27, 1967.

George C. Tilley, Grosse Pointe, for appellant.

Robert L. O'Connell, George R. Lewis and A. Donald Kadushin, of Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for appellee.

Before LESINSKI, C.J., and HOLBROOK and LEVIN, JJ.

LEVIN, Judge.

Plaintiff-appellee, Oscar Thomas, filed an application for hearing and adjustment of claim with the workmen's compensation department. Within the time provided by law for making a claim for compensation upon defendant-appellant, Griffin Wheel Company, a copy of the application was mailed by the department to Griffin Wheel at the address shown for Griffin Wheel on the application. Griffin Wheel had long since departed that address, and notice of the claim was not in fact received by Griffin Wheel until after the expiration of the time for goving notice prescribed by the governing statute.

The appeal board ¹ concluded that Thomas was relieved of the obligation to give Griffin Wheel timely notice of his claim because (i) Griffin Wheel had been in hiding and (ii) the department had assumed responsibility for delivery to Griffin Wheel of a copy of the application, and the department's efforts to do so had been frustrated by Griffin Wheel's failure to keep the department aware of its new mailing address.

The relevant statutory provisions ² have been construed to require that notice of disability due to occupational disease ³ and notice of claim for compensation ⁴ be given the employer within 120 days after the employee has reason to believe ⁵ a disablement has occurred; disablement being statutorily defined to mean the 'event' of being disabled. C.L.1948 § 417.1, as amended by P.A. 1964 No. 63 (Stat.Ann.1965 Cum.Supp. § 17.220).

In July, 1963 Thomas consulted a physician and first became aware he was disabled by silicosis and emphysema as a result of his employment with Griffin Wheel. On July 15, 1963 he signed, and his attorneys mailed to the department, an application for hearing and adjustment of claim showing as his employer Griffin Wheel Company, 2270 Beecher, Detroit, Michigan. An attempt was made by the department to serve Griffin Wheel with a copy of the application by letter dated September 6, 1963, which was addressed to the Beecher Street address and returned with the notation, 'Moved, left no address.' No further effort was made by the department to serve Griffin Wheel until after the expiration of the 120 day period.

In an effort to sustain Thomas' right to compensation, multiple theories have been advanced which we now consider.

I

The referee found that Thomas was relieved of the failure to give timely notice by Griffin Wheel's failure to comply with section 4, part IV of the act (C.L.1948, § 414.4 (Stat.Ann.1960 Rev. § 17.198)) which provides a method whereby an employer may, with the approval of the department, be relieved from liability under the act.

The appeal board disagreed with the referee, concluding that 'this provision is not mandatory, but is purely discretionary with the Workmen's Compensation Department.'

Thomas' brief states he agrees 'with the appeal board that this is not an issue here.'

II

The appeal board found:

'With regard to the case at issue the bare argument of defendant seems to be that they hid, maybe inadvertently, long enough to frustrate service of process; therefore, no timely notice. To accept such an argument would be doing violence to the Act.

'I think it is fair to say that defendant hid in that it is common knowledge the change of address with the Post Office Department is only good for two years and not renewable. It is not evident, on the record before me, that the Department was given a change of address by defendant.' (See Part VI of this opinion for a further discussion of the finding that it is not evident the department was given a change of address by Griffin Wheel.)

While our review of findings of the appeal board is limited both by constitutional (Const.1963, art. 6, § 28) and statutory (C.L.1948, § 413.12, Stat.Ann.1960 Rev. § 17.186) provisions, we are not bound by findings unsupported by any evidence. Armstrong v. Oakland Vinegar & Pickle Co. (1917), 197 Mich. 334, 337, 163 N.W. 897; LaRosa v. Ford Motor Co. (1935), 270 Mich. 365, 369, 259 N.W. 122; Thornton v. Luria-Dumes Co-Venture (1956), 347 Mich. 160, 162, 79 N.W.2d 457; Coates v. Continental Motors Corp. (1964), 373 Mich. 461, 466, 130 N.W.2d 34.

Thomas was employed by Griffin Wheel until December 3, 1957. Shortly thereafter, Griffin Wheel wound up its operations in the State of Michigan and surrendered the authority which it--a foreign corporation--had been granted to do business in Michigan. Griffin Wheel notified the post office of its change of address to 445 North Sacramento Boulevard, Chicago, Illinois. On December 3, 1958 Griffin Wheel wrote the department that it had closed its plant in Michigan and believed its liability as a workmen's compensation self-insurer could be considered terminated. It inquired whether there were any further reports needed to remove its name from the list of self-insurers. The department did not respond to this inquiry. ⁶

Griffin Wheel was eventually notified of Thomas' claim by letter from Thomas' attorneys in March, 1964 addressed to the North Sacramento Boulevard, Chicago, Illinois address. It is not contended that Griffin Wheel had actual notice of the claim prior to the receipt of such letter.

We are not confronted with a situation such as intimated by the board, of an employer who disappears during the period the employee is obliged to give notice. During the period in question Griffin Wheel was operating a substantial business with headquarters in a neighboring state.

There is no evidence of efforts, other than the sending of the September 6, 1963 letter, to locate Griffin Wheel, prior to the expiration of the 120 day period, or that any such other efforts were fruitless.

On the record before us, we must conclude the appeal board's finding that Griffin Wheel was in hiding is unsupported by any evidence.

III

Thomas states that Griffin Wheel was aware of his injury and nevertheless failed to file reports required by departmental rules ⁷ and that by reason of that alleged failure, as provided in the penultimate sentence of section 15, part II of the act, ⁸ the statutory time limitations were tolled. ⁹

Thomas was employed by Griffin Wheel over an extended period of time as a shake-out man and later as a pit crane operator in a factory where there were large quantities of dirt and dust in the air. He claimed that he was transferred from the shake-out to the crane (a less strenuous job) after he complained on several occasions to a foreman that the shake-out was hurting his chest, and that he was short of wind. Thomas' testimony as to his job assignments was disputed by Griffin Wheel. There is testimony that on occasions when he showed up for work he was not able to work, but the record was unclear whether this was because of a shortage of work or because of the chest difficulty of which he was complaining. He also testified that due to his chest difficulty at times he found himself unable to keep up with the work.

At the hearing Griffin Wheel conceded the disease and that it resulted in a disability related to his employment, but, as aforesaid, denied notice of disease/disability or claim until after the conclusion of the 120 day statutory period for giving notice.

No findings of fact were made by the appeal board as to Griffin Wheel's compliance with departmental injury reporting requirements.

Thomas invites us to make findings of fact as to whether the department's reporting requirements have been complied with on the basis of the following statement:

'It is well settled that if the department fails to make a finding upon a material issue, we may examine the testimony taken at the hearing to determine whether there is any competent evidence to support the award.' Banks v. Packard Motor Car Company (1950), 328 Mich. 513, 517, 44 N.W.2d 166, 168.

It appears that at one time the Supreme Court was willing to review awards made by the board unaccompanied by findings of fact. See Harris v. Castile Mining Co. (1923), 222 Mich. 709, 711, 193 N.W. 855; Foley v. Detroit United Railway (1916), 190 Mich. 507, 515, 157 N.W. 45. We doubt it would be willing to do so today.

In Johnson v. Cleveland-Cliffs Iron Company (1959), 356 Mich. 387, 389, 96 N.W.2d 750, 752, the Supreme Court remanded, after reversing a holding against the employee on the merits, for determination whether the employer had received timely claim or had filed required reports.

'The questions as to plaintiff's failure to make timely claim and defendant's failure to file proper report of injury not having been passed on by the appeal board, the case is remanded for determination thereof.'

In Whitley v. Chrysler Corporation (1964), 373 Mich. 469, 476, 130 N.W.2d 26, 29, the appeal board made no specific finding as to notice or knowledge by the employer of plaintiff's injury in the mistaken belief that the same had been stipulated to. The Supreme Court observed that the matter was in dispute and stated:

'It would seem to be questionable procedure, therefore, for this Court to enter upon a determination of the issue of notice or knowledge where there is reason to believe that proofs as to this material issue are incomplete. Without attempting to determine the issue at this point, it is better that we remand for additional proofs, as the parties may desire. This is the kind of order under the circumstances, which the statute suggests and our inherent responsibility requires.'

It is one thing to search the record for evidence to support a finding necessarily made by the board as we did in Clark v. Apex Foundry (1967), 7 Mich.App. 684, ...