Underwood v. National Motor Castings Division, Campbell, Wyant & Cannon Foundry Co. , 329 Mich. 273 ( 1951 )

329 Mich. 273 (1951) 45 N.W.2d 286

UNDERWOOD
v.
NATIONAL MOTOR CASTINGS DIVISION, CAMPBELL, WYANT & CANNON FOUNDRY COMPANY.

Docket No. 8, Calendar No. 44,579.

Supreme Court of Michigan.

Decided January 8, 1951.

Marcus & McCroskey, for plaintiff.

L.J. Carey & Geo. J. Cooper, for defendants.

SHARPE, J.

Upon leave granted, defendants appeal from an award of the department of labor and industry in which it was determined that plaintiff is entitled to compensation at the rate of $21 per week from September 15, 1948, until the further order of the commission.

Plaintiff, 30 years of age, is a factory worker. She was first employed by defendant company in May, 1945, on a core carrying job for a few months and was then transferred to core cleaning which did not require any heavy lifting. Plaintiff kept this job until there was a work stoppage in the plant in 1948. In August, 1948, she was returned to her old job of core carrying. When plaintiff first did this work in 1945 she was required to lift and carry 40 pounds in weight. In 1948, the same job was more strenuous in that it required more stooping to put the cores in an oven. After working at this job for a few weeks, she developed a painful back condition resulting in her quitting work September 15, 1948. Previously, plaintiff had back aches prior to her menstrual periods, but these back aches did not prevent her from working.

For 3 or 4 years prior to September, 1948, plaintiff was treated by Dr. Keithly for back aches. On November 17, 1948, she was examined by Dr. Stryker who stated on the hearing that he made a diagnosis of lumbosacral strain with some evidence of herniated disc at the fifth lumbosacral joint space at the right.

In plaintiff's application for hearing and adjustment of claim, we find the following: "That this claim relates to a personal injury which occurred on or about September 15, 1948, or to a disablement from occupational disease which occurred on or about September 15, 1948." It is noted that the commission did not expressly state whether the award was made under part 2 of the workmen's compensation act^[*] or part 7 of the act,^[†] but from a reading of its opinion it conclusively appears that the award was made under the occupational disease amendment (part 7, § 1). Under this part of the act "The term ``personal injury' shall include a * * * disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment."

In an opinion the commission stated as follows:

"The plaintiff had had some previous difficulty with her back but the previous difficulty had been entirely different in nature and character and had never been disabling. Her previous difficulty had generally occurred prior to her menstrual periods. * * *

"We do not believe there is any room to doubt the clear relationship between the plaintiff's back disability and the heavy and strenuous nature of her employment. We, therefore, believe it to be a compensable condition. Her work presented a substantial hazard of back injury which was far in excess of that attending employment in general. The heavy and strenuous nature of her employment constituted causes and conditions which were characteristic of and peculiar to the defendant's business. She is entitled to compensation at the rate of $21 per week from September 15, 1948, and until the further order of the commission."

Defendants appeal and urge that plaintiff did not receive a personal injury within the meaning of the workmen's compensation law in that plaintiff was not subjected to any greater hazard of injury by her work than would be found in employment in general; and that there is only a possibility that the lifting she did while employed is the cause of her present condition.

The term "peculiar to the occupation" is defined in Glodenis v. American Brass Co., 118 Conn 29 (170 A 146), and quoted in Mr. Justice REID'S opinion in Samels v. Goodyear Tire & Rubber Co., 317 Mich. 149, as follows:

"The phrase, ``peculiar to the occupation,' is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations." (Italics supplied.)

The commission found that plaintiff's work presented a substantial hazard of back injury which was far in excess of that attending employment in general. There is competent testimony to support this conclusion. The bending and twisting that plaintiff was required to do in order to place the cores in the oven was a part of her job and peculiar to defendant's business. In the absence of fraud the findings of the commission are conclusive.^[**] See Bederin v. Ex-Cell-O Corp., 311 Mich. 334.

For other cases in this field see Hagopian v. City of Highland Park, 313 Mich. 608; Samels v. Goodyear Tire & Rubber Co., supra; Carter v. International Detrola Corp., 328 Mich. 367; Croff v. Lakey Foundry & Machine Co., 320 Mich. 581.

Defendants also urge that there is no competent evidence to prove that plaintiff's present condition is due to the lifting and stooping she was required to do while employed for defendant company. There is evidence that plaintiff had previous difficulty with her back prior to her menstrual periods, but such back aches were not disabling.

Dr. Stryker testified:

"A. Well, I would think that the carrying of the cores, as the patient described it was a combination of twisting and bending, could have been the probable cause of her pain and disability and the condition as I later found it.

"Q. In your opinion could this be a new development, particularly drawing your particular attention to the sharp pain in her back and the sharp pain radiating down her side which had never occurred in that vicinity before?

"A. I believe that it is possible that this was a new development inasmuch as her previous back ache had been always premenstrual which is rather common in women and had never been disappearing and had never been associated with pain radiating into the leg."

In our opinion there is competent testimony to support the finding of the commission that plaintiff's present condition is due to the strain she suffered while in defendant's employ.

The award is affirmed, with costs to plaintiff.

REID, C.J., and BOYLES, NORTH, DETHMERS, BUTZEL, CARR, and BUSHNELL, JJ., concurred.

NOTES

[*] CL 1948, § 412.1 et seq. (Stat Ann and Stat Ann 1949 Cum Supp § 17.151 et seq.).

[†] CL 1948, § 417.1 et seq. (Stat Ann 1949 Cum Supp § 17.220 et seq.).

[**] See CL 1948, § 413.12 (Stat Ann 1949 Cum Supp § 17.186). — REPORTER.