Peterson v. White Pine Copper Co. , 93 Mich. App. 742 ( 1979 )

Bronson, J.

Plaintiff appeals by leave granted from the opinion and order of the Worker’s Compensation Appeal Board (WCAB) denying him benefits.

Plaintiff worked for only about two hours on March 28, 1962, his last day of work. After moving some heavy pumps and hoses, he was forced to leave work and was hospitalized. Previous to this date plaintiff had experienced chest pains which were diagnosed as pleurisy, a respiratory ailment. The evidence also indicated that plaintiff had fainted on previous occasions while working for defendant, that on the weekend prior to his last day of work he had experienced some fainting, chest pain, and shortness of breath, and that the chest pains he suffered on his last day of work were qualitatively different from those experienced on previous occasions.

There is no question that the plaintiff is disabled. His ailment has most often been diagnosed as myocardial ischemia, apparently produced by the progressive disease arteriosclerosis. The issue is whether his disability arose out of and in the course of his employment, so that he might be awarded worker’s disability compensation benefits. The WCAB found that his disability was not employment related. Plaintiff contends that there was no evidence on which the WCAB could base such a finding, and that as a result the WCAB has drawn an inference contrary to the undisputed evidence.

Worker’s disability compensation benefits may be awarded for disabling heart ailments when the work has caused, accelerated, or aggravated the disability. Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966). The WCAB apparently recognized this as the correct legal standard, but relied on the fact the plaintiff had experienced physical symptoms prior to his last day of work as grounds for denying him benefits. This analysis brushes over the crucial question of whether the work accelerated or aggravated the plaintiff’s condition. While plaintiff’s arteriosclerosis was apparently far advanced, that does not mean that it could not have been affected by the strenuous work effort of March 28, 1962. The depositions of two physicians were used in the hearing on this matter, and both testified that the plaintiff’s work efforts did accelerate his ischemia. The fact that plaintiff may have suffered symptoms that could be equated with ischemia prior to his last day of work does not detract from this testimony. We have searched the record for evidence that contradicts the testimony to the effect that plaintiff’s injury was work-related and have found none. The factual findings of the WCAB are conclusive if supported by competent, material, and substantial evidence in the record. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978). The WCAB may not, however, draw factual inferences contrary to the undisputed evidence in the record. White v Revere Copper & Brass, Inc, 383 Mich 457; 175 NW2d 774 (1970). Accordingly, we reverse and hold plaintiff established a work-related injury.

This cause is remanded to the WCAB for a determination of whether plaintiff is barred from receiving benefits by a failure to give timely notice of injury or to file timely a claim. See MCL 412.15; MSA 17.165, the applicable provision in effect at the time of plaintiff’s injury.

Reversed and remanded.

T. M. Burns, J., concurred.