White v. Michigan Consol. Gas Co.

• Decision Date: 01 June 1957
• Docket Number: No. 52,52
• Citation: 352 Mich. 201,89 N.W.2d 439
• Parties: Albert WHITE, Plaintiff and Appellee, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 439

89 N.W.2d 439

352 Mich. 201

Albert WHITE, Plaintiff and Appellee, v. MICHIGAN CONSOLIDATED GAS COMPANY, Defendant and Appellant.

No. 52, June Term, 1957.

Supreme Court of Michigan.

April 14, 1958.

Dyer, Meek, Ruegsegger & Bullard, Detroit, for appellant.

Dann, Rosenbaum & Bloom, Detroit, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

This is the second time plaintiff's claims of disability have been before this Court for adjudication.

Defendant in this proceeding appeals on leave granted from a workmen's compensation award entered by the workmen's compensation appeal board. The award ordered payment of compensation at the rate of $21 per week for disability resulting from an injury to his right knee received by plaintiff in the employment of defendant on August 27, 1949. The award provided weekly payments from November 7, 1952, to the last date of hering on October 20, 1955, with the exclusion of a total of 5 weeks when plaintiff was temporarily employed on 2 occasions. The award also found plaintiff disabled from his previous occupation on the last date of hearing and ordered continuing compensation until further order of the department.

This plaintiff had previously been paid compensation for disability from the same injury up to November 7, 1952, under another award by the appeal board, which had likewise been appealed to this Court. See White v. Michigan Consolidated Gas Co., 342 Mich. 160, 69 N.W.2d 160. In that case, this Court disapproved an award of continuing compensation beyond November 7, 1952, apparently on the basis of extended delay in the appeal process and on the finding that the record then submitted did not contain competent evidence to sustain a finding of continuing disability beyond November 7, 1952.

In rejecting that portion of the appeal board's award which contemplated continuing compensation, this Court said:

'The order of the commission awarding compensation must be based upon competent evidence. In Foley v. Detroit United Railway, 190 Mich. 507, 516, 157 N.W. 45, 48, this Court asid:

"To sustain its award the board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident." White v. Michigan Consolidated Gas Co., 342 Mich. 160, 163, 69 N.W.2d 160, 161.

The order entered by the Court did not remand the case for further proceedings. As a consequence, plaintiff, claiming disability from the same injury subsequent to November 7, 1952, filed application for hearing and adjustment of claim for further compensation on June 28, 1955. After hearings extending between September 20, 1955, and October 20, 1955, a workmen's compensation department referee denied further compensation. When plaintiff appealed, on October 15, 1956, the appeal board reversed the referee's finding and entered the award from which defendant brings the instant appeal to this Court.

Plaintiff's original injury, according to his testimony, occurred August 27, 1949. He was at that time employed as a common laborer by defendant on maintenance work involving defendant's gas mains. Plaintiff testified that he suffered an injury to his knee when he slipped in the mud while carrying pipe to a truck. Plaintiff also reported to defendant's doctor, Dr. Carpenter, who entered a notation at that time:

'Torn internal lateral ligament? Possible cartilage injury?'

A report of the original injury was filed by defendant and 1 day's compensation was voluntarily paid.

On September 13, 1949, plaintiff left the employ of defendant, according to his testimony, because he requested from his foreman a job assignment where he would not have to bend his knee so much, and was told there were no such assignments available.

In the period following plaintiff's departure from the employment of defendant, his testimony indicated recurring difficulty with his knee, but he worked at various types of jobs until April 28, 1952, when he returned to defendant to request medical treatment for his knee. On this day, on referral by defendant, he was seen by Dr. Carpenter. Concerning the visit of April 28, 1952, Dr. Carpenter testified:

'Well, he came in at that time and reported that he was having trouble with his knee. I think probably the company sent him in to me, but that's what he came in for. I had his knee X-rayed and I examined his knee and I felt he had an injury to the internal meniscus of the right knee and I advised him to have an operation.'

The operation was performed on May 13, 1952, by defendant's surgeon and with defendant voluntarily assuming the medical costs. Dr. Carpenter's notes showed in relation to the operation:

'A Smiley type of incision was made about 2 inches long extending at an angle from the lower border of the patella posteriorally but avoiding the collateral ligament. The knee joint was opened, the meniscus was found with considerable pathology at the right anterior horn, an old rupture and even granulation tissue was present at the area. The entire meniscus was removed with the Smiley technique. This operation of course was done under tourniquet with the knee flexed.'

Plaintiff left the hospital May 21, 1952, and was seen by Dr. Carpenter on August 18, 1952, who at that time felt that he had made a good recovery and was able to return to work.

At the original hearing the plaintiff gave testimony to the effect that he had been unable to find work which he was able to do. And, as we have previously indicated, the appeal board found a continuing disability, which was reversed for lack of competent evidence by this Court. White v. Michigan Consolidated Gas Co., supra.

The record of the subsequent hearing on September 20-22 and October 20, 1955, which is now before us contains testimony from plaintiff, his wife and 3 physicians. From the date of the operation referred to above down to the date of the second hearing, plaintiff indicated that he had been unable to work except for 2 brief periods:

'Q. All right. Now, what was the reason for your not working between November 7, 1952 and February of 1954? A. Well, I wasn't able to work, my leg was bad.

'Q. What do you mean your leg was bad? A. Well, it gives away and it swells up and it stays sore just about all of the time.

'Q. What do you mean by gives away? A. Well, it gives away when I'm walking or whatever I'm doing at the time it gives away unexpected.

'Q. Does it lock on you at any time? A. Yes, it does. If I squat down and stoop, and if I don't get up just right it will lock.

'The Referee: What leg is that?

'Q. (By Mr. Kaufman) What leg is that, Mr. White? A. It is my right leg.'

Concerning one of the employment episodes, plaintiff testified:

'Q. Now, did you do this without any distress? A. Well, I had very much trouble doing it.

'Q. What do you mean by very much trouble doing it, what gave you the trouble? A. My leg was weak, it wouldn't stand up under the weight of the wheelbarrow.

'Q. Did you have any episodes while working for Glenn Long in which your leg gave out from under you? A. Yes, I did.

'Q. Could you describe them? A. Well, one particular time I was wheeling the cement, he told me to put it in 1 place and before I got to that place my leg gave way and I spilled it all over his legs.

'Q. Who is that? A. The boss, Glenn Long.

'Q. Your leg gave way while you were wheeling a wheelbarrow full of cement? A. Yes.

'Q. And the cement went on Mr. Long's legs? A. Yes.'

During this entire period, however, plaintiff did not seek further medical attention, and his only treatment was the application of liniment and heat pads. Dr. Raymond F. Lipton, an orthopedic surgeon, testified without objection concerning an examination of plaintiff on September 20, 1955, as follows:

'A. I obtained a history from this man of previous injury and surgery, I listened to his complaints and then I examined him. This was a 30-year-old white male weighing 215, pounds, who is 5 foot 8 inches tall. He is quite hard of hearing and brought his wife as an interpreter with him.

'In examining the right knee, there was a 2-inch anterior medial scar vertically which was somewhat tender. There was tenderness to pressure over the lateral side of the joint, and over the posterior medial aspect of the joint there was exquisite tenderness. There was another 2-inch rounded scar in the middle third of the thigh anterionally which was the result of a boil which he had many years before. There was no atrophy of the muscles of the thigh or of the leg, and there was no ligamentous instability of the knee joint itself. He was able to sequat and rise unassisted. He was able to stand on his toes and his heels without assistance. On checking the knee joint, I performed the Murray test, which consists of acute flexion of the joint and straightening out the knee, with the knee pushed first from one side to the other. That is putting tension on the joint and I elicited a loud snapping sound on one occasion. At the same time the patient complained of pain. Other than that there was no other significant physical findings. His general physical condition was good, and blood pressure was 140 systolic and 80 diastolic.'

'What diagnosis, if any, did you make at that time, Doctor? A. The diagnosis that I made was internal derangement of the right knee joint.

'Q. Now, Doctor, this exquisite tenderness at the posterior medial aspect of the knee, as well as this loud snapping sound with accompanying pain elicited after the Murray test, would that be indicative of any particular derangement in the knee, any specific derangement? A. Well, it is necessary to use the history that I obtained along with it to make a diagnosis. The sign and the tenderness in itself is not significant without the history.'

Another surgeon called by plaintiff gave a similar diagnosis, also without objection, of 'internal derangement of the right knee joint.' Both...