Gomez v. Campbell, Wyant & Cannon Foundry , 78 Mich. App. 145 ( 1977 )

78 Mich. App. 145 (1977) 259 N.W.2d 400

GOMEZ
v.
CAMPBELL, WYANT & CANNON FOUNDRY

Docket No. 30122.

Michigan Court of Appeals.

Decided September 7, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eileen D. Zielesch and Patrick E. Kowaleski, Assistants Attorney General, for defendant Self-Insurer's Security Fund.

Cholette, Perkins & Buchanan (by Sherman H. Cone), for defendant Campbell, Wyant & Cannon Foundry.

Before: M.J. KELLY, P.J., and M.F. CAVANAGH and J.R. ROOD,^[*] JJ.

J.R. ROOD, J.

This workers' compensation appeal raises an issue of first impression as to whether the provisions of 1972 PA 337, MCLA 418.435; MSA 17.237(435), permitting an injured worker's last employer to seek apportionment of damages from the Self-Insured Security Fund (hereinafter SISF), are to be given retroactive effect to a claim filed prior to the January 4, 1973, effective date of 1972 PA 337. We hold that they are to be given retroactive effect.

Plaintiff Gomez was employed for over 26 years by the now insolvent Lakey Foundry and less than 4 weeks by the Campbell, Wyant & Cannon Foundry (hereinafter CWC). As a result of this work, the Workmen's Compensation Appeal Board (hereinafter WCAB) found plaintiff to be disabled by injury to his back caused by heavy lifting and by injury to his lungs caused by dust. Plaintiff petitioned for workers' compensation on April 21, 1972. Subsequently plaintiff went to work for CWC on May 15, 1972, but after a few weeks on the job plaintiff found himself unable to perform the labor and quit on June 9, 1972. Plaintiff then filed an amended petition for workers' compensation on July 25, 1972, adding CWC as a respondent. The referee rendered a decision on August 14, 1973, ordering Lakey and SISF to accept full liability for the lung condition and the back condition. On August 27, 1976, the WCAB modified the order, ordering CWC to pay benefits and ruling that CWC is not entitled to reimbursement from SISF. CWC appeals to this Court on leave granted.

The Self-Insurers' Security Fund was created by amendment of MCLA 418.501; MSA 17.237(501) in 1971. The purpose of the fund is to provide a source of compensation benefits following insolvency of an employer. See MCLA 418.537(1); MSA 17.237(537)(1). Since December 31, 1969, MCLA 418.435; MSA 17.237(435), has permitted the last employer of an injured worker to proceed against prior employers for apportionment of damages for injury caused by more than one employer. By the 1973 amendment to this latter statute and MCLA 418.537(4); MSA 17.237(537)(4), the last employer may seek apportionment of damages against SISF if a prior employer that would otherwise be liable is insolvent.

The SISF argues that the 1973 amendment brought about by 1972 PA 337 should be given prospective effect only. We disagree. The SISF is a creature of the Legislature, and thus the sole issue on appeal is legislative intent and does not concern constitutional questions regarding contracts and due process. Workers' compensation legislation has long been regarded as remedial and hence an exception from the general rule of prospective application of legislation in the absence of expressed prospective provisions. See, e.g., Turner v General Motors Corp, 70 Mich. App. 532, 542; 246 NW2d 631 (1967), lv granted, 397 Mich. 866 (1976). See also Lahti v Fosterling, 357 Mich. 578; 99 NW2d 490 (1959). SISF relies on Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich. App. 204; 139 NW2d 336 (1966), affirmed, 379 Mich. 160; 150 NW2d 752 (1967). Briggs, however, treated the subject workmen's compensation statute as new legislation. The present case is distinguishable as amendatory legislation expanding an existing remedy. Lahti, supra. See also Rookledge v Garwood, 340 Mich. 444, 453; 65 NW2d 785 (1954).^[1] In Rookledge, the Court held an amendment to the Workmen's Compensation Act to be retroactive, noting that the Legislature "intended to remedy an existing injustice". Likewise we find the amendments in 1972 PA 337 to be remedial, intended to remedy an injustice, and thus to be applied retroactively.^[2]

CWC raises as a second issue its liability for plaintiff's back injury, claiming that the evidence did not support the WCAB finding that plaintiff's employment at CWC contributed to the back injury. Our review is to determine whether there is any evidence, direct or circumstantial, to support the award. Thornton v Luria-Dumes Co-Venture, 347 Mich. 160, 162; 79 NW2d 457 (1956). The medical testimony was that plaintiff's back was slowly injured by the many years of heavy lifting while employed. While defense counsel chose to characterize plaintiff's work at CWC as equivalent to "throwing a bucket of water in Lake Michigan", the evidence was sufficient for the WCAB to find plaintiff's injury was contributed to by the work at CWC, based on the similarity of tasks and the slow but certain nature of the development of the injury.

The remaining issues were not raised in the application for leave to appeal nor in the proceedings below and are not properly before this Court. Ludwick v Hendricks, 335 Mich. 633, 639; 56 NW2d 409 (1953).

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] In Briggs the Court in passing upon the retroactive application of the apportionment statute (1962 PA 189), points out that this act was new legislation. The prior act providing for apportionment of compensation liability was declared unconstitutional in Trellsite Foundry & Stamping Co v Enterprise Foundry, 365 Mich. 209, 211; 112 NW2d 476 (1961). The Court on page 219 says:

"We conclude that Trellsite, supra, destroyed CL 1948, § 417.9 (Stat Ann 1960 Rev § 17.288) ab initio and that no right of contribution (apportionment under the 1962 act) accrued in favor of Textron and Liberty Mutual nor Gale Manufacturing Company, Corporate Service."

On page 220 the Court says:

"In both the Rookledge Case and the Lahti Case, the Court emphasized the public aspect of holding the amendments involved to be retroactive. In Rookledge, the Court recognized (p 454) ``remedying a situation which had become detrimental to the public interest,' and in Lahti, the Court said that the amendment was (p 587) ``intended to remedy an existing injustice.'

"In the matters at hand, neither the general public nor any employee in particular will be in any way adversely affected by holding the new apportionment statute prospective."

In the instant case to hold the amendment prospective only would impose a hardship on subsequent employers, by denying them an opportunity to recover an apportionment to which the law entitles them.

[2] We believe that any doubt in this regard is resolved by the Legislature's approach in 1977 PA 9, MCLA 418.537; MSA 17.237(537), making all such payments retroactive to November 16, 1971.