Lamb v. John's Tavern

37 Mich. App. 678 (1972) 195 N.W.2d 278

LAMB
v.
JOHN'S TAVERN

Docket No. 10691.

Michigan Court of Appeals.

Decided January 19, 1972.

Sloan & McCarthy and O'Connor & Feldman, for plaintiff.

Lynn H. Kanaga, for defendants.

Before: DANHOF, P.J., and BRONSON and TARGONSKI,^[*] JJ.

BRONSON, J.

On or about January 19, 1968, plaintiff, while performing her normal duties at John's Tavern, where she was employed as manager and waitress, felt a soreness in her arm. Several days later she saw Dr. Schimnoski, who prescribed medication. Plaintiff was admitted to the hospital February 5, 1968. She gave a history showing no known injury or strain, but did remember lifting a beer keg on the day she felt the soreness. Such lifting was in the normal course of her duties. Her history also indicated that she had been unconscious for eight hours following a fall in 1966, and had undergone surgery on two occasions. On plaintiff's discharge from the hospital, Dr. Schimnoski diagnosed her problem as a shoulder-hand syndrome and commented that her job was related to her symptom.

Subsequent evaluations failed to establish a physical cause for plaintiff's disability. A Dr. Kingsley, however, felt that there was "marked emotional overlay" and recommended a psychiatric examination. Plaintiff was then examined by a Mayo Clinic psychiatrist, Dr. Moore. His evaluation, related in a letter from Dr. A.B. Hagedorn of the Mayo Clinic, was that plaintiff was suffering a "conversion reaction". Dr. Moore also suggested that plaintiff return to work and that all legal matters pending be settled. The Workmen's Compensation Referee found for plaintiff. The Workmen's Compensation Appeal Board reversed. The majority found:

"Based upon the inability of a number of attending physicians to diagnose the nature and cause of plaintiff's symptomatology and in agreement with Dr. Moore's diagnosis it is our opinion that Mrs. Lamb's pain which has persisted unabated since January 19, 1968, had its origin in a pre-existing emotional distress which manifested itself in her present symptomatology. We find no evidence in the file of this case which would allow us to determine that Mrs. Lamb's emotional distress either had its origin or was aggravated in any manner by her work at John's Tavern. We therefore find that any disability that Mrs. Lamb may presently suffer is not causally related to her work. We therefore, reverse the referee's decision."

This Court must affirm if there is any evidence in the record to support findings made by the Workmen's Compensation Appeal Board. Lemanski v. Frimberger Co. (1971), 31 Mich App 285; Litwin v. Difco Laboratories, Inc. (1970), 28 Mich App 132; Clark v. Apex Foundry, Inc. (1967), 7 Mich App 684. In exercising our appellate function, however, we must have more than conclusionary statements to review. We must know how the board reached its conclusions. This Court has stated that "the appeal board should indicate the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion". McClary v. Wagoner (1969), 16 Mich App 326, 328.

The appeal board majority opinion is based on conclusions without reasons. It accepts Dr. Moore's diagnosis without explanation and then concludes that there is "no evidence in the file of this case which would allow us to determine that Mrs. Lamb's emotional distress either had its origin or was aggravated in any manner by her work at John's Tavern". (Emphasis added.) The record indicates that such evidence does exist. Dr. Schimnoski thought the plaintiff's soreness was work related; plaintiff to the same effect; and Dr. Moore's evaluation indicates the problem could be related to plaintiff's work and to this litigation. If the board had chosen to accept this evidence, it could have found that the emotional distress was work related. While it is not our function to weigh evidence before the appeal board, we believe the board should attempt to explain its decisions based on all the evidence before it. See 3 Larson, The Law of Workmen's Compensation (1971), § 80.20, p 264.

It seems to us that the standard used by the majority to determine whether plaintiff's injury is compensable is unclear. The majority seems to assume that a finding of conversion reaction necessarily precludes a finding that plaintiff's pain is work related. This is not necessarily so. Redfern v. Sparks-Withington Co. (1958), 353 Mich 286. An injury is compensable when it is "the unexpected result attending the operation or performance of a usual or necessary act or event". Sheppard v. Michigan National Bank (1957), 348 Mich 577, 580. This includes injury to the body and/or nervous system which produces a disabling neurosis. Such injury is compensable even when a plaintiff is predisposed towards it if the injury aggravates a pre-existing condition to the disability or precipitates disability. Redfern v. Sparks-Withington Co., supra, at 299.

In returning this case to the Workmen's Compensation Appeal Board, we are not unmindful of our proper function as an appellate court. But in any appeal from an administrative board to our Court where conclusions are stated without reason, we should never hesitate to remand.

The order of the appeal board is vacated and the cause remanded for reconsideration consistent with this opinion.

TARGONSKI, J., concurred.

DANHOF, P.J. (dissenting).

I must respectfully dissent from the opinion of the majority because I believe they have misunderstood the function of the appellate court in reviewing decisions of the Workmen's Compensation Appeal Board. MCLA 413.12; MSA 17.186, states:

"The findings of fact made by the compensation commission acting within its powers, shall, in the absence of fraud, be conclusive, but the supreme court shall have power to review questions of law involved in any final decision or determination of said compensation commission."

Recently the Supreme Court in Koschay v Barnett Pontiac, Inc, 386 Mich 223 (1971), carefully restated the function of an appellate court. They said at p 225: "The question whether a workman is injured by an accident arising out of and in the course of his employment may be a question of law or one primarily of fact, or a mixed question of law and fact." Applying that standard to the instant case, we find that whether plaintiff suffered a compensable injury became, by the proofs, a question of fact. In Koschay, supra, the Supreme Court said at p 226:

"The appeal board therefore, depending upon its view of such proofs, was entitled to conclude either way; that the claimant's disability was compensable, that is, work-connected, or that it was not. The board found against the burden-bearing claimant. Now that he is here for judicial review, he must to sustain his appeal establish to our satisfaction that there was no question of fact and that the proof entitled him to an award as a matter of law. There is no alternative; no room as we shall see for contention that the appeal board reached its conclusion without supporting proof or permissible inference from proof.

"In that regard his situation is much more difficult on appeal than it would have been had the board found factually what it expressly said it could not."

The Supreme Court then recited the decision of the appeal board in Koschay. The last two paragraphs of said decision are of particular importance. Koschay, p 229.

"`The record does not adequately establish plaintiff's continued disability and we find that whatever disability he may still have is not causally connected with his employment. We say this whether approached as a Part VII injury or under Sec. 1, Part II with application of Zaremba v Chrysler Corporation, 377 Mich 226 (1966), because we cannot find that plaintiff was doing normal work in a normal way and that particular work activity precipitated the heart attack. No condition of employment here occasioned injury and disability.

"`After careful review of the entire voluminous record we are unable to find that plaintiff-appellee received a personal injury arising out of and in the course of his employment by the defendant-appellant on May 18, 1966.'"

Note the similarity to the instant case where the majority of the appeal board said:

"Based upon the inability of a number of attending physicians to diagnose the nature and cause of plaintiff's symptomatology and in agreement with Dr. Moore's diagnosis it is our opinion that Mrs. Lamb's pain which has persisted unabated since January 19, 1968, had its origin in a pre-existing emotional distress which manifested itself in her present symptomatology. We find no evidence in the file of this case which would allow us to determine that Mrs. Lamb's emotional distress either had its origin or was aggravated in any manner by her work at John's Tavern. We therefore find that any disability that Mrs. Lamb may presently suffer is not causally related to her work."

In Koschay, supra, p 230, the Supreme Court said further,

"The primary function of the appeal board is that of finding what to it are the controlling facts. It is plain from its opinion that the board reached understandable conclusion that there was no proof persuasive enough to sustain the plaintiff's burden of making a prima facie case of right to an award. * * * Too, the board must have known that it, the appointed fact-finder in workmen's compensation cases, was not obliged to accept or extend verity to any expert opinion and that all it needed to say about Dr. Winkler's opinions was that the facts offered to support them were too weak."

Applying the above to the instant case I discern no distinguishing features which will allow us to remand this matter for further determination by the appeal board. While the facts could have been set forth in more detail,^[1] it is my opinion that the appeal board made a factual determination and that there was no proof persuasive enough to sustain the plaintiff's burden of making a prima facie case of a right to award.

I would therefore affirm.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] See Koschay, p 230, wherein the Supreme Court advised the appeal board to concentrate on its fact-finding duties.