Croff v. Lakey Foundry & MacHine Co.

Defendant appeals from the department of labor and industry's award granting compensation to plaintiff, under part 2 of the workmen's compensation act,^* for disability resulting from a personal injury which arose out of and in the course of his employment without the happening of an accident or fortuitous event.

Employed by defendant as a core setter for over two years immediately preceding his injury, plaintiff was accustomed to setting from 90 to 125 jacket cores, weighing around 80 or 90 pounds, and lifting possibly two boxes of Hubbard cores, weighing close to 150 pounds, per day. On February 5, 1946, he engaged in the usual amount of lifting. At about 1:30 p.m. he lifted a box of Hubbard cores from a line approximately two feet above the floor, swung it around to one side and set it down upon the floor. As he did so, he felt a click and a sharp pain in his back, the pain shooting down through his lower left hip. He continued work until his usual quitting time at 3:30 p.m., but has been unable to work since then. About a year before plaintiff had felt a little kink in his back while working, and previously had complained about the work being too heavy and hurting his back, but never prior to February 5th had he felt the same pain in his back experienced that day.

A doctor, called as defendant's witness, testified that X-ray pictures of plaintiff's back, taken eight months after the injury, disclose a destructive lesion involving the fifth lumbar vertebra, and that the most probable diagnosis as to cause thereof is infection, with a possibility of cancer or malignancy of the vertebra; that the period of time during which this destructive process had been going on could not be determined (thus failing to indicate whether it ante-dated the injury of February 5th or not); that when such destructive process exists in a vertebra, heavy lifting could cause the vertebra to quash down or crumble and give the appearance which he testified was presented by the X-ray pictures. Accordingly, defendant urges that plaintiff's disability results from a pre-existing diseased condition aggravated by a nonfortuitous happening and that it is, therefore, under the holding of this Court in Hagopian v. City of Highland Park,313 Mich. 608, noncompensable.

Plaintiff's doctor, on the contrary, testified that X-ray pictures disclose a compression fracture of the spine; that this could result from weight lifting, particularly while the body was being turned to one side; that, based upon his examination of the pictures and of plaintiff and his knowledge of the history of the case, it was his opinion that plaintiff's injury and resulting disability were due to plaintiff's lifting the 150-pound box and swinging it to one side as he was setting it down.

The department found that plaintiff's disability did not arise from an aggravation of a pre-existing condition, but stemmed directly from lifting the 150-pound box on February 5th. In this it is supported by the testimony of plaintiff's doctor. We do not disturb the department's findings of fact which are supported by competent evidence.^**

In consequence, there remains for consideration the question of whether a disability resulting from a personal injury which arose out of and in the course of employment, after the effective date of Act No. 245, Pub. Acts 1943, is compensable under part 2 of the workmen's compensation act when such injury was not occasioned by an accident or fortuitous event.

This question was duly considered and answered in the affirmative in an opinion written by Mr. Justice BUSHNELL inAnderson v. General Motors Corp., 313 Mich. 630, signed by three members of this Court and approved by the three additional members who signed the concurring opinion of Mr. Justice NORTH, in which concurrence was predicated on no different grounds than an affirmative answer to this question.

Subsequently, the continued adherence of a majority of this Court to the majority view in the Anderson Case has been brought into question in Kasarewski v. Hupp Motor Car Corp.,315 Mich. 225, and in Samels v. Goodyear Tire Rubber Co.,317 Mich. 149. The instant case affords an opportunity for clarification.

Defendant quotes language from Mr. Justice BUTZEL'S opinion inHagopian v. City of Highland Park, supra, indicating that it was therein held that the 1943 amendment did not remove the element of accident or fortuitous event as a prerequisite to the right to recover for a disability resulting from personal injury. It should be noted that this opinion was signed by but four members of this Court, with a fifth concurring in the result. Furthermore, the precise question before the Court in that case must be borne in mind. It was found, as a matter of fact, that plaintiff's claim was based on the aggravation of a pre-existing disease. The majority holding is well epitomized in Justice BUTZEL'S opinion as follows:

"The amended act itself was not intended to cover aggravation of pre-existing disease without an accident or fortuitous event."

The opinion concludes by quoting from the 1943 amendment the following:

"``Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.'"

The observation follows that, with the inclusion of this language, it can hardly be said that the 1943 amendment broadens the act to allow an award in a case of aggravation of a pre-existing disease without an accident or fortuitous event. That the Hagopian Case decides no more than this is clearly stated, by three of the five justices who composed its majority, in the concurring opinion written by Mr. Justice NORTH in theAnderson Case.

But the decision in the Hagopian Case has no application, as explained in Justice NORTH'S concurring opinion in the AndersonCase, in instances involving a disability which is due solely to a nonaccidental or nonfortuitous personal injury arising out of and in the course of employment, as in the instant case.

Mr. Justice BUSHNELL'S opinion in the Hagopian Case directs attention to the number of instances in which the words "accident" and "accidental" were eliminated from the act by the 1943 amendment and the term "injury" substituted for the terms "accident" and "accidental injury." His opinion in the AndersonCase points out that this was not done inadvertently or merely for the purpose of substituting a term which would have equal application to accidental injury and occupational disease, but rather that the legislature acted in response to a specific committee recommendation to abolish the requirement that an injury must be accidental to make a resultant disability compensable. For these and other reasons advanced in these two opinions, which need not be repeated here, I am persuaded that it was the legislative intent, in enacting the 1943 amendment, that disabilities resulting from personal injuries (as distinguished from disabilities resulting from the aggravation of pre-existing disease or condition) which arise out of and in the course of employment should thereafter be compensable, even though not occasioned by accident or fortuitous event.

The award of the department granting plaintiff compensation, therefore, is affirmed, with costs to plaintiff.

BUSHNELL, C.J., and REID and NORTH, JJ., concurred with DETHMERS, J.

^* 2 Comp. Laws 1929, § 8407 et seq., as amended by Act No. 245, Pub. Acts 1943, and as last amended by Act No. 325, Pub. Acts 1945 (Comp. Laws Supp. 1940, 1945, § 8408 et seq., Stat. Ann. and Stat. Ann. 1945 Cum. Supp. § 17.141 et seq.).

^** See 2 Comp. Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8451, Stat. Ann. 1947 Cum. Supp. § 17.186). — REPORTER.