Dixon v. Coldwater State Home , 59 Mich. App. 701 ( 1975 )

59 Mich. App. 701 (1975) 229 N.W.2d 893

DIXON
v.
COLDWATER STATE HOME

Docket No. 17838.

Michigan Court of Appeals.

Decided March 24, 1975.

Rapaport, Siegrist, Sablich & Mitchell, for plaintiff.

Ward F. Ellison, for defendant.

Before: BRONSON, P.J., and D.E. HOLBROOK and V.J. BRENNAN, JJ.

Leave to appeal denied, 394 Mich. 789.

D.E. HOLBROOK, J.

The plaintiff was injured in a fall on June 14, 1966, in the course of her employment with the defendant Coldwater State Home. Benefits were awarded and paid from June 15, 1966 to April 15, 1967. The plaintiff returned to work on June 19, 1967, and continued in the defendant's employ until December 5, 1968. On that day, she left work complaining of headache, backache, and nausea. The plaintiff has not returned to work since that incident.

A workmen's compensation referee heard the plaintiff's petition for benefits on April 9, 1970. Although he ruled that she had not suffered a compensable injury on December 5, 1968, he did hold that her disability was a residual effect of the earlier incident and concluded that it was total. On July 10, 1973, however, the Workmen's Compensation Appeal Board reversed. It held "no continuing disability from time of injury to the present time that provides a clear trail of causal relationship" and denied benefits. The plaintiff appeals that decision to this Court.

The standard of review is well settled; this Court will not disturb findings of fact made by the board as long as there is record support. Lemanski v Frimberger Co, 31 Mich. App. 285; 187 NW2d 498 (1971), Litwin v Difco Laboratories, Inc, 28 Mich. App. 132; 184 NW2d 318 (1970). See also Carter v Kelsey-Hayes Co, 386 Mich. 610, 615; 194 NW2d 326, 328 (1972), Thornton v Luria-Dumes Co-Venture, 347 Mich. 160, 162; 79 NW2d 457, 458 (1956). This Court does, however, examine the appeal board's application of legal standards. See, for instance, Moore v Gundelfinger, 56 Mich. App. 73, 223 NW2d 643 (1974), and Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich. App. 217, 220-221; 210 NW2d 360, 363 (1973).

That work-related aggravation of a preexisting ailment is compensable is not seriously open to question. Sheppard v Michigan National Bank, 348 Mich. 577; 83 NW2d 614 (1957), cf. Gibbs v Keebler Co, 56 Mich. App. 690; 224 NW2d 698 (1974). Neither is an award for resurgence of a work-related injury after an inert period. White v Michigan Consolidated Gas Co, 352 Mich. 201, 211; 89 NW2d 439, 445 (1958). Although the board could have sustained continuing benefits it was not obligated to do so. The weight and credibility afforded both lay and witnesses' testimony in such proceedings are matters left solely to the board for determination. White, supra, 352 Mich at 210; 89 NW2d at 444, and cases cited therein.

A review of the evidence in this case reveals some conflict. Plaintiff testified that she felt as if she got progressively worse after she fell and then returned to work, and that her headaches, backaches and cramps in her left leg grew worse. She further testified that she didn't have this difficulty before her accident in 1966. She said she had had headaches almost continuously since the fall.

Plaintiff presented the testimony of Walter W. Sawyer, M.D. who treated her for some time. To some extent he relied upon the findings of doctors at the University Hospital in Ann Arbor. There a finding of degenerative arthritis of the cervical spine was made. Sawyer stated that slipping on a floor would aggravate an arthritic back condition and that heavy lifting could likewise aggravate the condition. As to her background of arthritis he said:

"Yes, she's been treated for arthritis a long time before the injury, but it was a more or less generalized arthritis you have in your arms and legs and back and all over like a lot of us have, nearly everyone has some of that. I have in my notes I treated her for generalized arthritis, that would include the back."

As to the plaintiff's alleged disability, he said:

"A. Well, that's a difficult question, as all I have to go pretty much is what the patient tells me. I don't know how much pain she has in her back, there is no way to see pain.

"Q. [Mr. Ellison, defendants' attorney] When I asked you if she was physically disabled, are you aware of any physical condition you would testify to which would prevent her from doing the work, do you believe she could have done this work if she wanted to?

"A. Well, going back a ways, I released her to go back to work, quite a ways back."

He did say that he had released her for work on September 6, 1966. As to the possible interrelation of conditions, the following colloquy took place:

"Q. [Mr. Sablick, plaintiff's attorney] So it is possible the fall had an effect on several conditions Mrs. Dixon has, is that not true?

"A. Yes.

"Q. So in addition to the arthritis it could have affected the ulcer and the tension headaches?

"A. Yes.

"Q. Do you think that happened here — aside from possibility?

"A. I'm not sure. I didn't see her fall — maybe she didn't fall at all. I am not going to say one way or other. Assuming she fell, yes.

"Q. What could, what effect would this have on these conditions then?

"A. Well, I think probably the tension and the worry and perhaps the pain for which she was given certain medications, would probably have aggravated.

"Mr. Elliston: Aggravated what?

"A. I forgot what the question was.

"Q. Aggravated the ulcer?

"A. Yes.

"Q. What about the headaches?

"A. Yes."

Defendants presented the deposition of Dr. Charles T. Vear, who never physically examined plaintiff.

"Q. [by Mr. Elliston]: In your opinion, Doctor, based on your conversations with Mrs. Dixon, and your examination, limited as it may be, of her, do you have an opinion as to whether or not she is physically able to carry on normal activities for a woman of her age?

"A. In my opinion based on my previous contacts with her, she is able.

* * *

"Q. You have no opinion then with regard to her ability of working or not working?

"A. I have an opinion depending on the job. As long as it didn't require an excessive amount of lifting at her age, if it was appropriate for a woman her age, I think if she wanted to she probably could handle it."

These conclusions notwithstanding, he prescribed Darvon, Tylenol, Indocin, Choloral Hydrate and Seconal.

Plaintiff's exhibit No. 1 is Dr. Sawyer's statement of disability to Aetna Life and Casualty Company, dated April 9, 1969. The report stated that plaintiff's osteoarthritis "was aggravated by a fall which she sustained at the Coldwater State Home and Training School * * *". Plaintiff's exhibit No. 2 is a letter dated April 1, 1969, from Sawyer to defendant Coldwater State Home stating that she could not return to work for an undetermined amount of time "due to the seriousness of her condition".

Defendants' exhibit A is dictation of Dr. Sawyer on plaintiff's admission to the Hillsdale Hospital, December 13, 1968. The diagnosis thereupon appearing is, Cephologia (or "head pain"), chronic duodenal ulcer and retinitis. The report states in pertinent part:

"This 61 year old woman has been having occipital headaches for several years. These headaches seem to vacillate from mild to severe and this seems to be associated somewhat with nervous tension and stress. She claimed before admission to the hospital that the headaches were unendurable and it was decided to admit her to the hospital for an attempt to improve the situation. She has had an old choreo-retinitis of the left eye but it is felt that this probably has no bearing on her symptoms at the present time as far as the headaches are concerned. She also has a conronic duodenal ulcer but this has not been bothering recently. During her stay in the hospital, the headaches improved somewhat but were still with her." Defendants' exhibit B was Sawyer's personal history of plaintiff. This states that plaintiff had "severe and long standing occipital headaches". It also states that an X-ray after the fall in 1966 showed no fracture but did show "considerable arthritis of the spine". Further, the following appears: "Apparently the back is not bothering her very much any more."

The evidence in this case would have supported a board determination of total, compensable injury. Also there may have been facts present for the board to conclude otherwise. In finding the facts, we rule that the board applied an incorrect legal standard.

The appeal board in its opinion stated: "There has been no continuing disability from time of injury to the present time that provides a clear trail of causal relationship." We read this as the legal standard applied to the case. This, in effect, provides that, to justify compensation being ordered, the plaintiff would have had to clearly demonstrate that she was disabled from the date of the fall until the date of the appeal board decision. This is not the case. A disability may be dormant and then "flare up" again. The proper legal standard in this case mandates only that plaintiff demonstrate that the disability is a function of aggravation of her arthritic condition, or its contingent infirmities, by the fall alone or in conjunction with the conditions at her place of work. Because the inappropriate legal standard was overly burdensome to plaintiff, as applied, this case must be remanded for further proceedings, including a proper determination under the correct legal standard, and the taking of further evidence if needed. We point out that it might be helpful to the appeal board to have the University of Michigan Hospital report and the hospital's examining doctor's testimony, which appear to us to be of importance.

We again lament the fact of unduly lengthy delay in workmen's compensation cases. Here, excluding the injury of 1966 and payments accorded as a function thereof, this matter has taken over five years to this date. The petition for hearing was dated October 2, 1969; the hearing was held on April 9, 1970, but left open to allow the taking of a deposition of a second doctor completed on June 1, 1970, followed by the referee's decision on October 7, 1970; the application for review was dated October 22, 1970; the appeal board took until July of 1973 to complete its decision; and at this late date we complete our review of the case. Five years is too long and the case is not complete yet. See generally Morris v Baker Auto Parts, 57 Mich. App. 65; 225 NW2d 179 (1974).

Reversed and remanded for further proceedings in accord with this opinion. We do not retain jurisdiction. Costs to plaintiff.