English v. Lescoa, Inc. , 67 Mich. App. 403 ( 1976 )

67 Mich. App. 403 (1976) 241 N.W.2d 225

ENGLISH
v.
LESCOA, INCORPORATED

Docket No. 23612.

Michigan Court of Appeals.

Decided February 11, 1976.

Reamon, Williams & Klukowski, for plaintiff.

Cholette, Perkins & Buchanan (by Sherman H. Cone), for defendants Lescoa, Incorporated and Liberty Mutual Insurance Company.

Hillman, Baxter & Hammond, for defendants Red Line Restaurant and Aetna Casualty and Surety Company.

Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendants Teledyne Electro Finishing and Argonaut Insurance Companies.

Before: DANHOF, P.J., and QUINN and D.E. HOLBROOK, JR., JJ.

PER CURIAM.

Beverly English contracted dermatitis while employed by Lescoa during approximately a 2-1/2 year period. After several attacks of dermatitis she left Lescoa and eventually went to work for Red Line. While employed there the dermatitis showed some signs of reappearing. She then went to work for Teledyne where she was employed for a period of approximately 6 to 7 months. While working for Teledyne the dermatitis reappeared and she was forced to stop working. Since leaving Teledyne, Mrs. English has been unable to work.

At that point Mrs. English applied for workmen's compensation benefits. Following a hearing she was awarded disability benefits against the defendants. The hearing examiner fixed the liability of each of the defendants and determined that this was not a case for apportionment of the continuing benefits. The Workmen's Compensation Appeal Board affirmed the hearing examiner with a lengthy opinion. From this adverse decision Teledyne appeals by leave granted presenting two issues for review.

First, Teledyne claims that the appeal board erred in holding it liable rather than one of her prior employers. However, the general rule is if there is competent evidence to support the appeal board's findings of fact, we are not at liberty to disturb their ruling absent allegations of fraud. Const 1963, art 6, § 28. MCLA 418.861; MSA 17.237(861). Shepard v Brunswick Corp, 36 Mich. App. 307, 310; 193 NW2d 370 (1971). Our review of the record reveals that there is evidence to support all of the appeal board's findings of fact. Since there is no allegation of fraud raised by Teledyne we affirm the decision of the appeal board finding Teledyne liable for benefits.

Second, Teledyne argues that the appeal board should have granted its motion for apportionment pursuant to MCLA 418.435; MSA 17.237(435). While we can not review the appeal board's findings of fact we may determine if they applied the correct legal standard. Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich. App. 217, 220-221; 210 NW2d 360 (1973). It is well established that dermatitis is an occupational disease. See Sosnowski v Dandy Hamburger, 384 Mich. 221; 180 NW2d 761 (1970). Consequently, Teledyne is entitled to apportionment if it is shown that her prior employment contributed to the disease. Mundy v Detroit Grey Iron Foundry, 57 Mich. App. 331, 335; 225 NW2d 754 (1975), Goodman v Bay Castings Division of Gulf & Western Industries, 49 Mich. App. 611, 617; 212 NW2d 799 (1973).

Our review of the record as established by the appeal board leads us to conclude that this is a proper case for apportionment. MCLA 418.435; MSA 17.237(435). The appeal board specifically found that the dermatitis contracted while Mrs. English was employed at Teledyne was an aggravation of a pre-existing condition. As a matter of law, the appeal board should have granted Teledyne's request for apportionment.

Affirmed in part and remanded to the Workmen's Compensation Appeal Board for apportionment in accordance with the apportionment statute.