Lyczynski v. Mohawk Lumber & Supply Co. ( 1971 )

V. J. Brennan, P. J.

Defendants were granted leave to appeal from an October 22, 1969, order of the Workmen’s Compensation Appeal Board which had affirmed an order of a referee awarding compensation benefits to plaintiff from September 11, 1966, “until further order of the department”.

Plaintiff, at age 17, was hired by the Mohawk Lumber Company on November 13, 1965. On November 15, he was injured when he fell from a lift truck on which he was riding and it ran over his foot. Defendants paid compensation benefits from November 16, 1965 to January 9, 1966. Plaintiff returned to work on January 10, 1966, and worked part-time until the summer when he switched to full-time work. In September, 1966, he quit work.

On November 7, 1966, plaintiff applied for a hearing, claiming he was again disabled due to his 1965 injury. The hearing was held in June, 1967, and on July 3, 1967, the referee held that plaintiff was disabled as alleged and awarded compensation from September 11, 1966, until further order.

Defendants appealed the matter to the appeal board and on February 15, 1968, the parties argued the case. Twenty months later and more than two years after the original hearing, the appeal board affirmed the referee’s order for payment of compensation “until further order of the department.” By leave granted, defendants now appeal the board’s decision.

Defendants do not contest the findings of disability and the award of compensation through the time of the referee’s decision in 1967. Defendants, however, complain that the order requiring payment of compensation during the more than two years that the case was in appellate deliberation and to date is unsupported by any evidence of continued disability during that time. We agree.

Since the board was faced with a claim for temporary total disability, it is clear that they could, in a proper case, award compensation until further order. White v. Michigan Consolidated Gas Company (1958), 352 Mich 201.¹ Such order does not finally determine rights to compensation; a petition to modify or stop is permissible where a claimant’s physical condition has changed. Goines v. Kelsey Hayes Wheel Co. (1940), 294 Mich 156. A prerequisite to making this type of order would be the existence of competent evidence upon which the appeal board can make a finding of continuing disability as a matter of reasonable prediction. See the second White case, supra, 211.

The only findings made by the referee and the appeal board were: (1) the plaintiff suffered an injury arising out of and in the course of his employment; (2) the injury encompassed both his ankle and his great toe; and (3) that plaintiff again became disabled on September 11, 1966, and was still disabled when the proofs were closed. Since the board made no finding concerning continued disability, this Court may examine the testimony taken at the hearing to determine whether there is any competent evidence to support the award. Goines v. Kelsey Hayes Wheel Co., supra.

Virtually all of the testimony on plaintiff’s prognosis came from Dr. Kaplan, who was treating him at the time. He stated that he had surgically removed the nail on plaintiff’s toe, that plaintiff would not be able to wear a regular shoe² on his foot for a couple weeks, and that it would heal completely in six weeks. The doctor said that he didn’t expect any trouble with the toe after that. On the subject of defendant’s ankle, Dr. Kaplan felt that defendant had suffered a severe sprain with ligamentous tear resulting in traumatic arthritis. He further testified that while this condition is disabling and takes a long time to mend, he could not say whether plaintiff was presently disabled, since he hadn’t treated the ankle since July of 1966.

When the referee handed down his decision four weeks after the close of proofs, it is a reasonable inference from the proofs that plaintiff’s toe was not infected and that he could wear a regular shoe on his right foot.

The scope of review in workmen’s compensation cases is extremely limited; the sole question on review is whether there is any evidence to support the award. Mitchell v. Metal Assemblies, Inc. (1967), 379 Mich 368; Maki v. Hanna Ore Division (1970), 24 Mich App 258; Scroggins v. Corning Glass Company (1969), 382 Mich 628; MCLA § 413-.12 (Stat Ann 1968 Bev § 17.186). Applying this test to the facts, we find that there was absolutely no competent evidence that plaintiff would continue to be disabled after June 7, 1967. The plaintiff himself testified only that he was not able to work at the time of the hearing. Dr. Kaplan, who was then his doctor, testified that he didn’t expect plaintiff to have any more trouble with his toe and that he could not give an opinion as to plaintiff’s ankle. Nor do we feel that this is the type of case where the board would be justified in concluding that the injury was a continuing one on the basis of the nature of the injury.³

Thus, this ease is analogous to the first White case wherein the Court reversed an award of benefits “until further order” due to a complete lack of evidence on the continuance of the claimant’s disability. A mere finding that the claimant was disabled at the date of the hearing is insufficient.

Furthermore, we do not feel, as plaintiff suggests, that the second White ease has changed the holding in the first. In Hollingsworth v. Auto Specialties Manufacturing Company (1958), 352 Mich 255, 267, 268, the Court said:

“While we think there are situations where our holding in the first White case may properly apply, and we do not seek to overrule that case, this is not to subscribe to the evidently growing notion in some quarters that our decision in that case means that the appeal board in workmen’s compensation cases must, henceforth, in every instance have spanking-fresh testimony before it before it dare make any findings or reach a contrary award. We find nothing in the White case or the act to sustain any such necessity and we do not want lightly to get abroad the notion that the appeal board must in every case resort to the cumbersome and delaying (and expensive) expedient of taking or permitting the taking of additional testimony in order either to affirm or upset any findings or awards made by the referee.”

In view of the nature of the illness, the lack of testimony concerning the claimant’s prognosis, and the more than two-year delay between the hearing and the decision of the appeal board, we feel that this is a situation where the first White case may properly be applied.

Insofar as the order of the appeal board requires payment of compensation benefits for periods after June 7,1967, the order is reversed without prejudice to the right of plaintiff to later make a claim for and submit proofs of disability after that date.

Reversed in part; affirmed in part.

Fitzgerald, J., concurred.

1 This case was twice before the Supreme Court of Michigan. The first White case is reported at 342 Mich 160.

2 At the time of the hearing, plaintiff wore an open-toed shoe.

3 In Redfern v. Sparks-Withington Co. (1958), 353 Mich 286, the Court felt that an award of compensation until further order was justified because of the nature of the injury. There the claimant suffered a psychological disorder described as conversion hysteria; it had not been responsive to any treatment. Here, as in the first White case, the injury is organic in nature. The only medical testimony on the subject is that the injury should mend without complication.