Opinion
Docket No. 54024.
Decided October 27, 1981.
Sablich, Ryan, Rapaport, Bobay Pollok, P.C., for Edsell Reames.
Cholette, Perkins Buchanan (by Edward D. Wells), for Continental Can Company and American Motorists Insurance Company.
Lilly, Piatt Doyle (by Timothy C. Liggett), for Liberty Mutual Insurance Company.
This appeal arises out of the following findings by the Workers' Compensation Appeal Board:
"* * * All parties express support for their respective arguments by trying to establish that plaintiff's employment duties subsequent to the last specific event injury, November 16, 1968, either aggravated the condition created by this event and entitle plaintiff to the last day of work date of injury sought by plaintiff and Liberty Mutual or did not aggravate demonstrating that the award should be affirmed per American Motorists position. Neither of the defendants have expressed disagreement with the judge's finding of disability nor have they argued that plaintiff did not sustain the injury of November, 1968.
"The disposition of this cause is much simpler than the briefs of the parties would indicate. The decision of the judge is modified to reflect a last day of work injury. Given the uncontested facts, no other decision is legally possible under MCLA 418.301(1).
"It is uncontested that plaintiff suffered a work related back injury in 1962 that ultimately required back surgery in 1963. Plaintiff was off work approximately one year post surgery and returned to restricted employment. In 1968 plaintiff was still on this favored work when he was requested to return to his former unrestricted duty. Plaintiff protested yet did as he was instructed. Within three hours plaintiff was once again injured, when he and a co-employee were removing a housing that slipped and fell against plaintiff who was on a ladder at the time. Plaintiff was knocked from the ladder and fell to the floor once again injuring his back. As a result of this incident, plaintiff was hospitalized for 10 days and lost approximately 5 weeks work. Plaintiff then returned to the favored employment and remained so employed until 1975. In June of 1975 plaintiff was informed that his favored work was no longer available and that he would have to return to his past unrestricted duties. Plaintiff refused stating that his physical condition still required the restricted work and that he could not perform the available job offered. Plaintiff's last day of work was June 6, 1975.
"Given the above facts and noting medical support for the proposition that all of plaintiff's residuals stem from the 1962 injury (Drs. Schimnoski and McColl) and alternately supporting the proposition that plaintiff suffered a recurrent disc problem as a result of the 1968 injury (Dr. Badgley), we make a reasonable inference that plaintiff's uncontested disability is the result of both the 1963 and 1968 injuries and we find this to be fact. Inferentially, the judge's decision found this same, unappealed, fact when he found the 1968 injury and awarded benefits based upon this date."
The employer's workers' compensation insurance carrier was Liberty Mutual Insurance Company until July 1, 1973, when it was replaced by American Motorists Insurance Company. American Motorists appeals by leave granted and argues that the board committed an error of law in its interpretation of MCL 418.301(1); MSA 17.237(301)(1). The section provides in relevant part:
"Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death."
In Gibbs v Keebler Co, 56 Mich. App. 690, 693-696; 224 N.W.2d 698 (1974), the Court explained the operation of the foregoing section as follows:
"Logic discloses that the cause of disability, in this case, could be due to four distinct and different situations, each with differing operational definitions and which could lead to differing conclusions as to which carrier is liable for the compensation award.
"The first possible cause of disability in this case is the first traumatic injury. This is the obvious workmen's compensation claim where there is a clearly specifiable injury, occurring on a given date, i.e., attributable to a single event. See, for instance, Schinderle v Ford Motor Co, 316 Mich. 387; 25 N.W.2d 568 (1947).
"The second situation is where a single distinguishable traumatic injury and the working conditions cause disability. This may be said to be the situation where a preexisting injury, condition, or infirmity is aggravated to disability, or where the injury is not attributable to a single event. See, for instance, Sheppard v Michigan National Bank, 348 Mich. 577, 585; 83 N.W.2d 614, 617 (1957), where it is said:
"`[W]e clearly established at an early date that disability caused by an aggravation of a pre-existing condition by a compensable event was compensable. We were not concerned with the nature of the pre-existing condition. Our attention, rather, went to the nature of the event causing the final disability.'
"This situation may also include the so-called occupational disease cases. See Smith v Lawrence Baking Co, 370 Mich. 169; 121 N.W.2d 684 (1963), Sosnowski v Dandy Hamburger, 384 Mich. 221; 180 N.W.2d 761 (1970), and generally, 25 Callaghan's Michigan Civil Jurisprudence, Workmen's Compensation, § 49, pp 404-405.
"The third possibility is that there have been two successive traumatic injuries from which either the first or both in combination have caused disability. In this regard, in 3 Larson's Workmen's Compensation Law, § 95.12, pp 508.130-508.133, Professor Larson has written:
"`The Massachusetts-Michigan rule in successive-injury cases is to place full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.
"` If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. In this class would fall most of the cases discussed in the section on range of consequences in which a second injury occurred as the direct result of the first, as when claimant falls because of crutches which his first injury requires him to use. This group also includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
"`On the other hand, if the second incident contributes independently to the injury, the second insurer is solely liable, even if the injury would have been much less severe in the absence of the prior condition, and even if the prior injury contributed the major part to the final condition. This is consistent with the general principle of the compensability of the aggravation of a preexisting condition.' (Emphasis supplied.)
"The fourth situation, which is conceivably applicable in the present case, is where the two single traumatic injuries in combination with the working conditions cause disability. This is, in the factual context of this case, the situation outlined as number 2 above.
"Of the two carriers here in conflict, under the foregoing situations, in the first, the first carrier is liable; in the second, the second carrier is liable; in the third, either the first or second could be liable depending upon the causal relationship between injuries and disability; and, in the fourth, the second carrier is liable." (Footnotes omitted.)
The facts of this case presented either the third or the fourth situation discussed in Gibbs. If the third situation was presented, then Liberty Mutual was liable since it was the carrier at the time of both traumatic injuries. If the two traumatic injuries in combination with working conditions produced the disability, then the fourth situation was presented and American Motorists was liable. Since the board declined to decide whether Reames's condition was aggravated by working conditions apart from the two traumatic injuries, the cause must be remanded to the board for further findings of fact.
Reversed and remanded for further proceedings in accordance with this opinion. This Court retains no jurisdiction.