Mullins v. DURA CORPORATION , 46 Mich. App. 52 ( 1973 )

O’Hara, J.

(dissenting). I think it should be mentioned that this is an appeal and cross-appeal from a split decision of the Workmen’s Compensation Appeal Board.

Initially it involved which of two compensation insurers would be liable for payments to an injured employee of Dura Corporation. More importantly to plaintiff-appellant* ¹ it involves the extent of compensation benefits he will receive. If his present disability, which is not questioned, was found as a fact by the majority to have resulted from his original injury in 1964 or the natural worsening thereof, his entitlement is limited to the 500 weeks provided for in the act. Per contra if the services he performed after his return to production work resulted in a new injury and his admitted disability is consequential thereof, his entitlement continues so long as the disability persists.

The holding here is of no precedential value to the profession or the trial bench. The legal principle that the appeal board’s findings of fact supported by competent testimony are sacrosanct and beyond judicial review absent fraud is so well settled that any citation to the point is superfluous.

Thus, the question becomes whether or not the majority opinion reflects an error of law.

The majority opinion of the appeal board as relevant here holds:

"Plaintiffs present disability is clearly traceable back to the 1964 injury, and the work plaintiff performed for the defendant after the 1964 injury, and the testimony of the plaintiff and other witnesses, both lay and expert, falls short of meeting the burden of proof necessary to find an occupational disease injury as found by the Referee.”

I now quote from the order which was entered pursuant to the above finding of fact.

"This cause having come before the Appeal Board on appeal by defendant, Aetna Casualty and Surety Company, for the decision, mailed April 24,1967, of Hearing Referee Huber, granting compensation benefits to plaintiff; after due consideration of the evidence taken and the briefs of counsel (the Board having made a finding of facts and law), and it appearing to the undersigned members of the Board that the Decision made as aforesaid should be reversed, Now, Therefore;

"IT IS ORDERED, That the decision of the Hearing Referee in this cause shall be and it hereby is reversed as to the defendant’s carrier, Aetna Casualty and Surety, Company, and its insurer, Liberty Mutual Insurance Company, is ordered to continue its payments as provided in the Workmen’s Compensation Act beyond January 14, 1966, and until further order of the Bureau.”

The finding of fact and the order issued are totally irreconcilable. Obviously the majority cannot find that "Plaintiffs present disability is clearly traceable back to the 1964 injury, and the work plaintiff performed for the defendant after the 1964 injury, * * * ”² (emphasis supplied) and then enter an order limiting compensation to that payable as a result of the 1964 injury alone, thus reversing the referee. By its terms the majority finding of fact is identical with that of the minority which affirmed the referee as to this issue. I quote from the minority:

”1 would affirm the Referee’s fading of new injury. I would also concur that loss of leg was not shown. While plaintiff had debilitating back pain, he uses his leg regularly, although admittedly he cannot stand over half hour periods without sciatica, and his walking is similarly restricted. But within those limits he has individual use that compels further affirmance of the Referee.” (Emphasis supplied.)

For the error of the application of law to the finding of fact by the majority, I would reverse and remand to the board with directions to enter an order awarding plaintiff compensation on the basis of the new injury resulting from the work plaintiff performed for the defendant "after the 1964 injury³

2 It is to be noted carefully that the phrase "and the work plaintiff performed for the defendant after the 1964 injury” is set off in its entirety by commas both at the beginning and end of the phrase.

3 1 am well aware of the vigorous arguments of both counsel addressed to what the appeal board majority meant by what is said in the finding of fact. I deem it unwise to speculate on what the majority may have meant and confine myself to review of what it did say.