Lopez v. Flower Basket Nursery , 122 Mich. App. 680 ( 1982 )

122 Mich. App. 680 (1982) 332 N.W.2d 630

LOPEZ
v.
THE FLOWER BASKET NURSERY

Docket Nos. 54451, 54472.

Michigan Court of Appeals.

Decided November 5, 1982.

Williams, Klukowski, Wood, Drew & Fotieo, P.C. (by Paul A. Williams), for appellee.

Anderson, Green & Vincent, P.C. (by Adrian R. Vincent), for defendants The Flower Basket Nursery and Michigan State Accident Fund.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Patrick O. Landy, Assistant Attorney General, for defendant Second Injury Fund.

Before: M.F. CAVANAGH, P.J., and ALLEN and E.C. PENZIEN,^[*] JJ.

PER CURIAM.

The plaintiff, Julio Lopez, petitioned for a hearing before the Bureau of Workers' Disability Compensation on July 30, 1975, asserting that he was permanently and totally disabled by virtue of the loss of the industrial use of both hands. A hearing was held on October 28, 1976, resulting in a finding that plaintiff was permanently and totally disabled. Defendants appealed to the Workers' Compensation Appeal Board (WCAB) which affirmed the hearing referee's decision with certain modifications. Additional facts will be discussed in this opinion as necessary to resolution of the various issues raised by the appellants.

Issue I: Did the Workers' Compensation Appeal Board err in using an "any reasonable employment" standard in finding that plaintiff had lost the industrial usefulness of his hands?

The WCAB ruled that the proper standard to be applied in determining the loss of industrial use of an organ is whether the "injury has precluded the employee from use of the member or organ in performing ``any reasonable employment'". Using this standard, plaintiff was found to have lost the industrial usefulness of his hands.

In Pipe v Leese Tool & Die Co, 410 Mich. 510, 527; 302 NW2d 526 (1981), the Supreme Court stated:

"For purposes of determining an award of specific-loss benefits for the loss of a hand, there must be a showing of either anatomical loss or loss of the industrial use of the hand as determined by the loss of the primary service of the hand in industry." (Emphasis changed.)

Appellants claim that since the WCAB used the "any reasonable employment" standard rather than a "loss of primary service of the hand in industry" standard, the case must be remanded for application of the latter standard to the facts of this case. We disagree.

It is important to note that the Supreme Court did not enunciate a new standard in Pipe. In Pipe, the Court was concerned that one of its earlier decisions, Hutsko v Chrysler Corp, 381 Mich. 99; 158 NW2d 874 (1968), was being misinterpreted as requiring a "showing of complete amputation or its equivalent". Pipe, supra, p 525. The Court in Pipe sought to correct this misinterpretation of Hutsko, and specifically stated that:

"The fact that Hutsko may have been subject to misinterpretation does not require that we establish a new test for determining qualification for specific-loss benefits for the loss of a hand." Pipe, supra, p 527.

In the instant case, the WCAB properly declined to apply the "amputation equivalent" standard. Rather, it drew language from DeGeer v DeGeer Farm Equipment Co, 391 Mich. 96, 102; 214 NW2d 794 (1974), in which the Supreme Court stated:

"If appellant DeGeer, on remand, establishes that the use of his legs produces such disabling back pain that he is no longer able to use his legs to perform any reasonable employment, then he will clearly be eligible for permanent and total disability benefits under the above discussed section of the Workmen's Compensation Act."

The terms used in Pipe and DeGeer are virtually the same. An employee cannot be precluded from performing "any reasonable employment" with his hands and yet still have the use of "the primary service of his hands in industry".

Issue II: Is the decision of the Workers' Compensation Appeal Board that plaintiff suffered a loss of the industrial usefulness of his hands supported by the evidence?

Plaintiff testified that on October 27, 1962, while he was attempting to start the engine of a truck through the use of a crank, the engine backfired causing the crank handle to spin and strike both the plaintiff's wrists, breaking his left wrist and injuring his right wrist. Plaintiff said he had been unemployed since the date of his injury, that he always had pain and that he could not use his right hand and arm for more than 10 or 15 minutes at a time due to pain. He further testified that he could not use his left hand, wrist or arm at all due to pain. He further testified that it was necessary for his wife to button his shirts and tie his shoes and that he could not pick fruit because he could not hold things in his hands. The plaintiff presented medical testimony essentially supporting the plaintiff's testimony and, further, indicating that the plaintiff's wrist-hand problems "are permanent and will progress".

Findings of fact by the WCAB are conclusive if supported by any competent evidence in the record and there is an absence of fraud. MCL 418.861; MSA 17.237(861); Const 1963, art 6, § 28; Derwinski v Eureka Tire Co, 407 Mich. 469; 286 NW2d 672 (1979); Lopucki v Ford Motor Co, 109 Mich. App. 231; 311 NW2d 338 (1981). Defendants do not allege the existence of fraud and it is clear that there was sufficient evidence to support the WCAB's findings in this regard.

Issue III: Is there competent evidence to support the WCAB's finding that plaintiff was totally and permanently disabled prior to September 1, 1965?

Appellants Flower Basket Nursery and Michigan State Accident Fund argue that there is no basis in the record for the WCAB's findings that plaintiff was totally and permanently disabled prior to September 1, 1965. The time when plaintiff became totally and permanently disabled is a question of fact, and, therefore, the WCAB's findings on this issue may not be overturned if there is competent evidence to support its findings. See Lopucki, supra. The WCAB noted that plaintiff had testified that he had been unable either to work or drive an automobile since his injury, that his condition had deteriorated since his injury and that he had been unable to use either of his hands for more than 15 minutes since 1964. The board also noted that there was medical testimony consistent with plaintiff's testimony regarding the onset of his disability. One of the doctors had testified that "back in 1964, I felt that the future was rather dim if he would do certain types of work with his hands". The doctor further testified that, at that time, he would have advised plaintiff not to do any work. The examination with regard to which the doctor was testifying occurred on April 9, 1965.

Thus, there was competent evidence on the record to support the WCAB's finding of fact in this regard.

Issue IV: Does the "one-year-back" rule apply to defendants' liability?

MCL 418.833(1); MSA 17.237(833)(1), provides:

"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application."

Defendants Flower Basket Nursery and Michigan State Accident Fund argued that the WCAB erred in refusing to apply the above section of the statute in this case. They argue that since they paid the plaintiff 500 weeks of benefits earlier on a voluntary basis, plaintiff's present application is for "further compensation" and that accordingly, permanent and total disability benefits can be ordered to be paid by the defendant-employer only from August 4, 1974, one year prior to the date of filing the plaintiff's present petition.

In refusing to apply the one-year-back rule, the WCAB cited Martin v Somberg-Berlin Metals, Co, 407 Mich. 737; 288 NW2d 574 (1980). In that case, the plaintiff had been receiving total disability benefits from his employer from the time that he injured his back on November 11, 1963. On December 11, 1972, the plaintiff filed a petition seeking differential benefits from the Second Injury Fund. He asserted that his condition had worsened and that he had become totally and permanently disabled from the back injury due to the industrial loss of the use of both legs. The Supreme Court in that case held that no compensation had been paid for the "total and permanent" disability resulting from the loss of industrial use of claimant's legs and, hence, the award of differential benefits is not "further compensation" subject to the one-year-back rule.

In Piwowarski v Detroit Sulphite Pulp & Paper Co, 412 Mich. 716; 316 NW2d 719 (1982), the plaintiff in 1948 had lost his right hand and three fingers of his left hand in an industrial accident. He received specific-loss benefits for his injuries. In 1970, he filed a petition claiming total and permanent disability as a result of the loss, in the 1948 accident, of the industrial use of both hands. The Supreme Court in that case said that specific-loss benefits and total and permanent disability benefits are not for the same category of disability and that, accordingly, the "one-year-back" rule did not apply.

In our opinion, the statute contemplates, as separate categories of injuries, those injuries which are totally disabling and those injuries which are totally and permanently disabling. Accordingly, the WCAB did not err in refusing to apply the "one-year-back" rule.

Issue V: Did the WCAB err in not applying the age 65 reduction in benefits provided by MCL 418.357; MSA 17.237(357)?

Plaintiff was 56 years old at the time of his injury in April, 1962, and was approximately 70 years of age at the time of the hearing. He also is qualified to receive social security benefits.

MCL 418.357; MSA 17.237(357) provides:

"(1) When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following a sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-fifth birthday, the weekly payments shall have been reduced by 50%; after which there shall not be a further reduction for the duration of the employee's life. Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act.

"(2) Subsection (1) shall not apply to a person 65 years of age or over otherwise eligible and receiving weekly payments who is not eligible for benefits under the federal social security act, 42 U.S.C. sections 301-1396i."

The WCAB refused to apply this provision for the reason that it was not in effect at the time of the plaintiff's injury.

In Welch v Westran Corp, 45 Mich. App. 1, 5; 205 NW2d 828 (1973), aff'd on other grounds 395 Mich. 169; 235 NW2d 545 (1975), the Court was faced with whether the statute, amended in 1968, operated "retroactively to reduce the weekly benefits of a plaintiff who suffered a compensable injury after his sixty-fifth birthday but prior to July 1, 1968, the effective date of the amendment". The Court held that the statute was not to be applied retroactively to reduce the plaintiff's benefits in that case prior to July 1, 1968. The Court did state, however:

"Since the section as amended provides that when the employee is either receiving or entitled to receive payment and reaches or has reached or passed age 65 his benefits will be reduced, it is clear that the Legislature intended that subsequent to July 1, 1968, all persons over the age of 65 are subject to the reduced-benefit provision, no matter when the injury was incurred." Welch, supra, p 5.

In this case, the plaintiff reached the age of 65 years after July 1, 1968. Accordingly, the WCAB erred in failing to allow for reduction in plaintiff's benefits pursuant to this statute.

Affirmed in part, reversed in part, and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.