Carter v. Kelsey-Hayes Company , 386 Mich. 610 ( 1972 )

386 Mich. 610 (1972) 194 N.W.2d 326

CARTER
v.
KELSEY-HAYES COMPANY

No. 20. October Term 1971, Docket No. 52,870.

Supreme Court of Michigan.

Decided February 25, 1972.

Kozlow, Jasmer & Woll (by John L. Crowley), for plaintiff.

Lacey & Jones (by F.L. Sylvester), for defendant.

T.M. KAVANAGH, C.J.

Plaintiff was employed by defendant from November 11, 1935, until July 1, 1966, during which time, as conceded by both parties, plaintiff was exposed to foundry dust. Beginning as early as 1947, plaintiff periodically received X-ray examinations which in later years revealed that plaintiff had developed silicosis. He was apparently so advised in 1960 by defendant's clinic. Plaintiff nevertheless continued doing the same type of work.

In May of 1966, plaintiff requested early retirement and at his retirement interview on May 11, 1966, he cited as his reasons for submitting such request the factors of his age of 62, his known silicosis condition and his desire to add a year or two to his life by leaving the dusty work environment to which he had been subjected. He, however, indicated that otherwise he felt fit to continue working. Plaintiff was thereupon allowed early retirement effective July 1, 1966.

On November 1, 1966 (124 days after plaintiff's last day of work), the Workmen's Compensation Department received plaintiff's application for compensation. Plaintiff therein claimed disablement due to silicosis contracted from years of exposure to foundry dust.

The hearing referee found disablement as of plaintiff's last day of work (June 30, 1966) and awarded compensation accordingly. Defendant appealed the award, contending plaintiff had not established disability and further that his claim was barred by the provisions of MCLA 417.10; MSA 17.229^[1] requiring that notice be given the employer within 120 days after disablement. The Workmen's Compensation Appeal Board affirmed the hearing referee's award in a 4-3 decision, the dissenters discussing principally the issue of timely notice.

Defendant's application for leave to appeal was denied by the Court of Appeals on May 11, 1970. Appellant is here on leave granted. 384 Mich 769.

We now review the one issue raised:

Whether plaintiff gave timely "notice" to his employer of disablement or disability within the meaning of the Workmen's Compensation Act^[2] by advising his employer that he desired early retirement due to his silicosis condition?

As we said in Whitley v Chrysler Corp, 373 Mich 469, 472 (1964), this right of the employer to timely notice is a substantial right, the purpose of which is to provide an opportunity to inquire into the alleged injury while the facts are accessible. See, also, Banks v Packard Motor Car Co, 328 Mich 513 (1950).

However, as indicated in Krzewinski v Robert Gage Coal Co, 304 Mich 63, 68 (1942), "no niceties of expression are required, provided the employer has actual notice". Further, in Littleton v Grand Trunk R Co, 276 Mich 41 (1936), we held that though such notice may be oral or written, it must reasonably inform the employer of the compensable incident. It is not sufficient that the employee states in casual conversation that he does not feel well and wonders if an injury, vaguely referred to, might be the cause. There must be more. The employer must be informed not only as to the incident (whether injury by accident or disease), but also that disability has resulted therefrom.

Defendant maintains that Tomasini v Youngstown Mines Corp, 366 Mich 503 (1962), is controlling here. We do not agree.

In Tomasini we vacated a compensation award because there was no evidence of any notice given the employer within the applicable period of limitations. Thus, mindful of the legislative restraint imposed upon our review of such cases,^[3] we found a clear error of law; there was no factual basis for the award.

We have specifically held that a finding of timely notice by the Appeal Board, supported by a factual basis on the record, will be binding upon us even if our perspective of the facts would lead us to a contrary result. Coates v Continental Motors Corp, 373 Mich 461, 466 (1964).

We now reiterate the characterizations of our appellate function in such cases, as set forth in Thornton v Luria-Dumes Co-Venture, 347 Mich 160, 162 (1956), initially quoting from Meyers v Michigan Central R Co, 199 Mich 134, 137, 138 (1917):

"``[T]his Court does not review the findings of fact of the board, except to determine whether there is any evidence to support the award. The evidence may not be direct; it may be circumstantial. The board not only passes on the credibility of witnesses, but draws its inferences from the circumstances and the facts which it finds established. We may reverse awards for a failure of evidence to support them, but we are not the triers of the facts. With this view in mind, we approach the consideration of this case.'

"Our jurisdiction, invoked upon issuance and return of certiorari to the workmen's compensation department, is markedly limited. The writ brings us questions of law only. It does not permit scale-weight of evidence and inference here, as on appeals from circuit court judgments, to determine whether administrative findings of fact offend rules governing clear weight and preponderance. Our obligation is to accept, without question, findings that are certified here if there be any evidence whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof."

In the instant case, unlike Tomasini, supra, we do find from the facts and circumstances, and permissible inferences drawn therefrom, a basis for the conclusion of the Appeal Board. The factors of premature retirement, knowledge of plaintiff's medical history, and plaintiff's explicit citation of silicosis as the basis for his request for premature retirement, constituted notice to defendant and provided an adequate basis for the Appeal Board's finding that defendant was timely notified of plaintiff's disability.

Having so found, we exhaust our power of review here.

Accordingly, plaintiff's award is affirmed.

ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred with T.M. KAVANAGH, C.J.

BLACK, J. (concurring in affirmance).

I agree that this case is, to some extent, factually distinguishable from Tomasini (366 Mich 503); also that there is some evidence in the record which tends to justify the specific conclusion reached by a majority of the appeal board:

"Having in mind that the proofs before us show that the employer knew from annual examinations of plaintiff's chest that he did have silicosis and that the employer obviously knew about the dust conditions which the unrebutted evidence presented here shows that plaintiff was subjected to during the course of his employment, we then ask, what more could plaintiff have told his employer at the time that he left their employ other than he was leaving because he had silicosis and was attempting to protect himself so that he might live as long as he could with the employment incurred disease? Plaintiff was not required to claim compensation at that time but did have to make his claim in six months for it to be valid. Thus he did, well within six months."

Proof in Tomasini, no counterpart of which appears in this record, was quoted by footnote on page 505 of Tomasini's report:

"Plaintiff testified:

"``Q. We have to ask you these questions for the record. During the time before you quit the mine did you ever talk to Mr. Purpich [plaintiff's foreman] about having these troubles, you yourself?

"``A. No. I didn't mention to nobody. I going to quit I tell them, that's all.'

"The testimony of Mr. Purpich was to the identical effect; that plaintiff quit without complaint and ``told me he was going on pension.'"

This is not all. In Tomasini the plaintiff's medical witness, Dr. Martinetti, did not come through for him on the pivotal issue, that is, the "date of disablement". For details, see Tomasini at 508.

For these reasons I concur in affirmance.

NOTES

[1] Now MCLA 418.441; MSA 17.237(441), which embodies the same provision.

[2] 1912 PA (1st Ex Sess) 10, as amended (MCLA 411.1 et seq.; MSA 17.141 et seq.). — REPORTER.

[3] MCLA 418.861; MSA 17.237 (861) provides: "The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state." (Substantially the same as former MCLA 413.12; MSA 17.186.)