Docket No. 78-3787.
Decided November 14, 1979.
Benjamin Goldfine, for plaintiff.
Patrick J. Dugan, for Monarch Stamping Company and Employers Mutual Liability Insurance Company.
Sommers, Schwartz, Silver Schwartz, P.C. (by John F. Vos, III), for Townsend Bottum, Inc. and Michigan Mutual Insurance Company.
Conklin, Benham, McLeod, Ducey Ottaway, P.C. (by Martin L. Critchell), for Ralph M. Parsons Company and American Motorists Insurance Company.
Plaintiff appeals from a Worker's Compensation Appeal Board ruling denying him benefits for failure to comply with the 120-day notice requirement of MCL 418.441; MSA 17.237(441).
Plaintiff was employed by defendant Townsend Bottum from May 1970 to April 1974 as a carpenter's helper. He was also employed by the defendant Monarch from 1965 to June 1973 as a press operator and parts finisher.
In April of 1974, plaintiff suffered a hernia. Compensation benefits were paid through September of 1974, however, plaintiff never returned to work due to a layoff. It was during treatment of the hernia that plaintiff's physician discovered he had emphysema.
On September 16, 1974, plaintiff filed a petition with the Bureau of Workmen's Compensation claiming a personal injury against Townsend and a lung disability against Monarch. The petition was not mailed to the defendants by the bureau until December 17, 1974.
Testimony indicated that plaintiff had conferred with his attorney concerning his lung problems and the working conditions at both Monarch and Townsend one month prior to filing the petition. However, plaintiff's counsel avers that the date was September 10, 1975.
At the hearing, the administrative law judge disallowed any further compensation for the hernia with respect to Townsend, and found no personal injury arising from the course of employment with Monarch.
The appeal board reversed the decision as to Monarch, finding that plaintiff's lung condition constituted a work-related disability, but ruled that plaintiff was not entitled to benefits for failure to comply with the 120-day notice requirement.
Plaintiff argues that such a ruling violates his fundamental due process rights since it was the procrastination of the Bureau of Workmen's Compensation which was responsible for the late notice.
The question of notice of injury is one of fact and the findings of the appeal board are binding on this Court if there is evidential support. Smith v Kelsey-Hayes Co (After Remand), 404 Mich. 70, 73; 273 N.W.2d 1 (1978).
Plaintiff's uncontradicted testimony at the hearing was that he conferred with his attorney approximately a month before the petition was filed.
This Court cannot consider the sworn affidavit of counsel since it was filed for the first time on appeal. Spartan Asphalt Paving Co v Tri-Cities Construction, Inc, 68 Mich. App. 305, 309; 242 N.W.2d 565 (1976).
Plaintiff's argument that a timely claim submitted pursuant to MCL 418.381; MSA 17.237(381) satisfies the notice requirement is also without merit. Section 381 provides that no proceeding for compensation shall be maintained unless notice has been given to the employer within three months and unless the claim is made within six months.
The burden to send notice within the requisite time period is that of the plaintiff-employee. Lewis v Chrysler Corp, 394 Mich. 360; 230 N.W.2d 538 (1975), Ramos v Production Steel Co, 87 Mich. App. 30; 273 N.W.2d 578 (1978).
Employees cannot rely on the Bureau of Workmen's Compensation to discharge what has traditionally been a claimant's responsibility. Thomas v Griffin Wheel Co, 8 Mich. App. 35, 55; 153 N.W.2d 387 (1967).