DocketNumber： Docket 29797
Citation Numbers： 264 N.W.2d 102, 81 Mich. App. 21, 1978 Mich. App. LEXIS 2101
Judges： Holbrook, Allen, Freeman
Filed Date： 1/24/1978
Status： Precedential
Modified Date： 10/19/2024
Michigan Court of Appeals.
MacDonald, FitzGerald & MacDonald, for plaintiff.
Munroe & Nobach, P.C. (by Richard R. Weiser), for defendant.
Before: D.E. HOLBROOK, JR., and ALLEN and D.R. FREEMAN,[*] JJ.
PER CURIAM.
Plaintiff appeals to this Court from an adverse decision entered by the Workmen's Compensation Appeal Board barring the plaintiff from relief under the Worker's Disability Compensation Act because he had failed to give timely and *23 sufficient notice of his disability to his employer under MCLA 418.441; MSA 17.237(441).
It is undisputed that the plaintiff was disabled as a result of an occupationally-related emphysematous condition. Plaintiff testified before the hearing referee that the had been employed at the Buick Motor Division of General Motors from 1955 to 1958, during which time he worked in the area of heat treatment and assembly. After a long layoff, the plaintiff returned to work in 1967, and from then until February 29, 1970, worked in the Buick Motor foundry, principally as a grinder. While working in the foundry he found the grinding machine dirty and dusty and filed a grievance complaining about dust emissions. He also complained to his foreman who advised plaintiff to wear a mask. Plaintiff tried wearing a mask but gave it up when he found he could not work with a mask, and informed his foreman. After working in the foundry for a year, plaintiff developed a shortness of breath, finding it generally difficult to breathe.
On February 27, 1970, plaintiff was transferred to the transmission plant where he was assigned to assembly and sub-assembly. On March 1, 1971, the appellant resigned his employment due to breathing difficulties and pains in his back and chest. On March 3, 1971, the plaintiff was medically informed by his own doctor of his emphysematous condition and its work-related nature. On March 9, 1971, the appellant submitted to the defendant an application for accident and sickness benefits. In the application form, the applicant was asked the question: "Do you claim that this disability was caused by your work for General Motors?" The plaintiff responded "No" to this question. When asked at the time of hearing why he had denied work relation of his disability, the *24 plaintiff stated that he did not know why he had so answered the form.
On appeal, the plaintiff contends that complaints as to dust levels made by plaintiff to his employer during his foundry employment constituted sufficient notice, as a matter of law, to satisfy the requirements of MCLA 418.441; MSA 17.237(441). This contention lacks support in the record. Although the plaintiff made various complaints about the dust conditions in the foundry to supervisory personnel during his employment at the foundry, the record does not reveal that the plaintiff ever informed supervisory personnel that the dust conditions were causing him injury or were disabling him. In the absence of such notice, we hold that complaints by an employee about the dust conditions in foundries are not sufficient to give an employer notice of an employee's injured or disabled condition under the test enunciated by the Supreme Court in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974). Contrast West v Northern Tree Co, 365 Mich 402; 112 NW2d 423 (1961). As such, the board's finding in this regard was not lacking in evidentiary support and cannot be questioned upon appeal by this Court.
The board's decision was nonetheless erroneous in that it failed to appreciate the significance of the sickness and accident benefit information submitted by the plaintiff to the defendant on March 9, six days after the plaintiff had been informed of his disability by his own doctor. This notice of the fact of disability (as distinguished from notice of the cause of disability) was clearly timely under MCLA 418.441; MSA 17.237(441), which provides that an employee must inform the employer of his disability within 120 days after he learns of his disability and of its work-related nature. Lewis v *25 Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975). The fact that the employee-plaintiff indicated therein that the injury was not work-related did not make this notice "insufficient" under the test of sufficiency enunciated in Norris, supra. Under Norris, notice is sufficient if the employer is informed thereby of the fact of disability or injury. Under the Norris test, sufficiency of notice does not turn upon whether the employer is or is not informed of the cause of disability. A determination of work relation is to be made by the hearing referee and not by the employer. Norris, supra, at 480.
Under Lewis, supra, the notice was timely, and under Norris, supra, the notice was sufficient; therefore, the board erred, as a matter of law, in holding the plaintiff barred from obtaining relief under the act. Accordingly, we reverse the decision of the Workmen's Compensation Appeal Board and reinstate the decision of the hearing referee awarding plaintiff benefits under the act.
We reached an opposite result in Meads v General Motors Corp, 78 Mich App 494; 260 NW2d 143 (1977), a case presenting very similar facts. However, in Meads, the plaintiff took normal retirement at age 65 and never complained to anyone about the poor air quality or its effects on his lungs. By contrast, this plaintiff repeatedly complained about the conditions, quit his job at age 50, and almost immediately filed a request for sickness disability benefits. Given these additional factors, we believe that Norris, supra, and the recently released Krol v Hamtramck, 398 Mich 341; 248 NW2d 195 (1976), require reversal of the appeal board's decision.
Reversed, costs to plaintiff.
[*] Circuit judge, sitting on the Court of Appeals by assignment.