Combs v. Michigan Mobile Homes

406 Mich. 507 (1979) 280 N.W.2d 451

COMBS
v.
MICHIGAN MOBILE HOMES

Docket No. 61877.

Supreme Court of Michigan.

Decided July 12, 1979.

Sablich, Ryan, Dudley, Rapaport & Bobay, P.C., for plaintiff.

Anderson, Green, McKay & Roberts, P.C. (by Richard J. Anderson and David L. Ingram), for defendants.

PER CURIAM:

This worker's disability case involves issues concerning notice, the taking of additional testimony, and the causal relationship between the plaintiff's disability and his employment. The Workmen's Compensation Appeal Board said the plaintiff's claim was barred because of its resolution of the issue of notice. We disagree with that conclusion, as did the Court of Appeals, and so remand the case to the appeal board.

The record shows that, in early April of 1975, the plaintiff told Jerry King, one of defendant's managers, he was having chest pains at work. King gave the plaintiff permission to leave work. The record also shows that the plaintiff's wife, also in early April, notified the defendant's office that the plaintiff was in the hospital. The record further shows that the president of Michigan Mobile Homes, just before the plaintiff's open-heart surgery in May, 1975, talked twice to the plaintiff about the plaintiff's medical condition and salary and health insurance matters. This is abundant evidence that Michigan Mobile Homes had notice of the plaintiff's heart problems.

The appeal board, however, has concluded that there was insufficient notice of a specific injury under MCL 418.381; MSA 17.237(381) and that there was insufficient notice of an occupational disease under MCL 418.441; MSA 17.237(441). In so concluding, the appeal board implied that the plaintiff had to make the company aware of the connection between the plaintiff's work and the plaintiff's occupational disease; at least, aware enough to put the defendant "upon inquiry and require the filing of a report". The appeal board also said the plaintiff knew or reasonably should have known of the connection (between work and disease) at least by the date of surgery, May 20, 1975. Since the plaintiff's petition for benefits was not filed until October 6, 1975, it was too late to afford notice within the statutory period, according to the appeal board.

Because of Krol v Hamtramck, 398 Mich. 341; 248 NW2d 195 (1976), and Norris v Chrysler Corp, 391 Mich. 469; 216 NW2d 783 (1974), we reach a different conclusion. As in Krol and Norris, the employer in this case knew of the employee's health problem and of absence from work. Both the employer and employee may have been unaware of a causal connection between the work and the disability, but this does not mean there has not been notice. See West v Northern Tree Co, 365 Mich. 402; 112 NW2d 423 (1961); the notice, in this case, given by the plaintiff to Jerry King, a manager, is the same kind of notice given by plaintiff West to his foreman. See 365 Mich. 404. Accordingly, plaintiff Combs's case is not to be rejected for want of notice.

The case is to be remanded to the appeal board. Since that board's and the Court of Appeals original decisions in this case, we have resolved five cases involving heart and circulatory problems in deciding Kostamo v Marquette Iron Mining Co, 405 Mich. 105; 274 NW2d 411 (1979). On remand, the appeal board should take Kostamo into account on the issue of causation.

On remand, in accord with the reasoning set forth in the administrative law judge's decision, the appeal board shall allow for the taking of additional medical proofs.

Accordingly, the application by plaintiff-appellant for leave to appeal is considered, and, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we modify the Court of Appeals order^[1] and remand the case to the Workmen's Compensation Appeal Board for further proceedings consistent with this opinion.

Costs to appellant.

COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.

NOTES

[1] The second, dispositive, paragraph of the Court of Appeals order in this case was:

"It is ordered that the application be, and the same is hereby denied for lack of merit in the grounds presented. Although plaintiff may well have provided adequate notice to defendants as required by § 381 of the act, the appeal board's finding that plaintiff's disability did not arise out of and in the course of his employment is within the scope of the proofs, and constitutes an adequate ground for refusing an award."