Felcoskie v. Lakey Foundry Corp.

Per Curiam.

In this action the workmen’s compensation hearing referee held that plaintiff, Henry Felcoskie, suffered a personal injury resulting in the loss of bilateral vision arising out of and in the course of his employment. Under the order entered, plaintiff was to receive $36 per week from the defendant Lakey Foundry Corporation and concurrent differential payments in the amount of $27 per week from the Second Injury Fund.

Defendant Lakey Foundry Corporation appealed the order. The workmen’s compensation appeal board, in an order and opinion dated June 1, 1987, determined that the compensation to be paid by the employer should be limited to the sum of $10,500 as provided in part 7, § 4 of the workmen’s compensation act, (CL 1948, § 417.4, as amended by PA 1965, No 44 [Stat Ann 1968 Cum Supp § 17.223]) and that the Second Injury Fund should pay the plaintiff compensation pursuant to the provision of part 2, §9, as amended (CL 1948, §412.9, as amended by PA 1965, No 44 [Stat Ann 1968 Cum Supp § 17.159]). This, in effect, would make the Second Injury Fund totally responsible for all payments for this occupational injury after $10,500. In appealing the decision of the appeal board to this Court, the Second Injury Fund raises the following issue:

If an employee is totally and permanently disabled from an occupational injury due to causes and conditions characteristic of and peculiar to the business of the employer, and thus entitled to compensation including differential payments from the Second Injury Fund as provided in part 2 of the workmen’s compensation act, is the employer’s obligation to pay compensation limited to a total of $10,500 as provided in part 7, § 4 of the act?

The hearing referee found that plaintiffs blindness was traceable to a nasal infection which was not “silicosis or other dust disease” within the scope of part 7, § 4 of the act. The appeal board’s majority opinion affirms this finding but modified the hearing referee’s order because of the following statement appearing in Nuyen v. U. S. Foundry Corporation (1955), 342 Mich 70, 73:

“For are we impressed with any merit in counsel for appellee’s argument that there is a distinction to be made between ‘disease’ and ‘disability’ in section 3, part 7, of the act.”

A dissenting opinion was filed in the case by Member Mahinske of the appeal board which dealt in part with the applicability of the Nuyen Case and we set forth a pertinent portion of his dissenting opinion as follows:

“I do not agree that the case of Nuyen v. U. S. Foundry Corporation (1955), 342 Mich 70, controls the outcome of the instant case, as counsel for appellee there was attempting to argue the distinction between words ‘disability’ and ‘disease’ as found in part 7, § 3 of the workmen’s compensation act as said section therein read. In my opinion the problem here is not one of attempting to distinguish between qualifying words in sections 3 and 4 of part 7 (as Member Storie states), but to maintain clearly in mind the requirement that a ‘disability’ or ‘death’ must be derived from a traditional part 7 dust disease or silicosis to apply the $10,500 limitation. Such requirement is strongly imposed in part 7, § 4, and not in part 7, § 3. In section 4 direct reference is made to ‘silicosis or other dust disease’ as a condition precedent.

“The basic statutory terminology in sections 3 and 4 are not identical and do not to me convey the same intent. If they did we would have a surplus section between these two. Section 3 merely states that a disease caused by employment is compensable.

“Section 4 (not under consideration in Nuyen) in my mind is jurisdictional, so to speak, with regard to the application of the part 7 limitational amount and was not intended to tie specific losses, directly or remotely connected to a disease, to the $10,500 limitation.

“Furthermore, I feel it is incumbent upon the party arguing for application of the $10,500 limitation of compensation in a case such as we have before us to show clearly that disability (or death) was due to ‘silicosis or other dust disease.’

“In the face of a disability finding and an absence of persuasive evidence that silicosis or other dust disease caused such disability, then it is my opinion that the legislature intended that part 2 of the workmen’s compensation act govern benefits due claimant.

“In the case at issue I feel the proofs at best establish that the environmental atmosphere at defendant’s plant only caused a condition in plaintiff which resulted in total blindness. In my opinion the record clearly reflects that plaintiff’s exposure to dust or fumes while in defendant’s employ and in the course of such employ, did not result in silicosis nor did it result in plaintiff at any time having a dust disease as that term was intended by the legislature when enacting part 7 of the workmen’s compensation act.

“I cannot agree that simply because plaintiff’s ultimate disability was brought about by causes and conditions characteristic of and peculiar to the business of defendant, the plaintiff’s award is tied to a $10,500 limitation in part 7.”

We agree that Nuyen v. U. S. Foundry Corporation, supra, is not applicable herein. We conclude that inasmuch as the referee and the majority opinion, as well as the dissenting opinion of the appeal board determined that plaintiff Henry Felcoskie suffered a personal injury resulting in the loss of bilateral vision arising out of and in the course of his employment that part 7 § 4 of the workmen’s compensation act is also not applicable.

The order of the appeal hoard is vacated and the order of the hearing referee reinstated.

Costs to appellant.

McGregor, P. J., and Holbrook and C. Kaufman, JJ., concurred.