Monti v. Burroughs Corp.
Monti v. Burroughs Corp.
Concurring Opinion
(concurring). The application by appellant for leave to appeal is considered and in
Plaintiff was first employed by defendant corporation in 1952. She sustained a personal injury on March 9, 1959, when she fell on her back in the plant. Her subsequent jobs all involved bending, stretching and lifting, and she experienced increasing amounts of back pain until she was laid off for economic reasons on April 30, 1971. Plaintiff drew unemployment compensation for about a year thereafter. In July of 1972, plaintiff consulted a physician about severe pains she was having in her legs. Her petition for workmen’s compensation benefits was filed in September of 1972. The hearing referee found total disability and ordered benefits to be paid from April 30, 1971, the last day worked. The appeal board affirmed and the Court of Appeals denied leave. We issue this opinion because our review of the record leads us to believe that the hearing referee and the Workmen’s Compensation Appeal Board may have misunderstood the law.
The date of injury is set by statute.
"Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability”. MCLA 418.301; MSA 17.237(301).
The date of disablement is determined by another statute, which reads:
"For the purposes of this chapter [occupational diseases] the date of disablement shall be such date as the*499 hearing referee may determine on the hearing of the claim.” MCLA 418.425; MSA 17.237(425).
The Legislature has not provided for awards for partial occupational disease disabilities; an employee who is partially incapacitated by an occupational disease but who remains capable of earning full wages at the work at which he was employed when last subjected to the conditions resulting in that disability is not entitled to receive workmen’s compensation benefits. In determining the date of disability, the hearing referee must apply the appropriate test of disability, i.e., whether the employee is able to earn full wages at the work in which the employee was employed when last subjected to the conditions resulting in disability. In some cases, the date of injury (last day worked) coincides with the date of disablement. However, this need not always occur. See Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420; 102 NW2d 584 (1960).
The hearing referee set the date of disablement as April 30, 1971 (the last day of work). The WCAB affirmed that decision but did not discuss the date of disability but only the date of injury. It appears from the record that plaintiff was laid off for reasons unrelated to her health. She received unemployment compensation benefits for about a year after the layoff. The WCAB said:
"Concerning her back condition at that time, plaintiff said — 'That’s the first year I was off I was fine I wasn’t —it wasn’t giving me any trouble then.’ She said she could have worked until July, 1972, when she 'started with awful bad pains in my right hip and I went to the doctor with it.’ ”
We find nothing in the record to support a finding
We remand this case to the Workmen’s Compensation Appeal Board for finding of fact as to the date of disablement.
Opinion of the Court
Plaintiff suffered an industrial injury when she fell on her back. She continued to work, experiencing increasing back pain, until laid off for economic reasons. More than a year later, after consulting a physician, she applied for worker’s disability compensation benefits.
The referee found her totally disabled and ordered that benefits be paid from the last day worked. The appeal board affirmed, and the Court of Appeals denied leave to appeal.
We agree that this case should be remanded for a further hearing and determination of the date of disability. Since plaintiff was laid off for economic reasons and did not consult a physician for over a year, the last day of work was not necessarily the date of disability.
My colleague predicates that conclusion on the provisions of the statute applicable to occupational disease or disability, which suggests that the conclusion depends on categorizing plaintiffs claim as an occupational disease or disability and that the result might be different if her claim were categorized as an industrial injury.
Disablement is defined in that chapter as the event of becoming disabled, which in turn is defined as "the state of being disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability”.
The concept that entitlement to benefits depends on disablement from earning full wages is expressed in the occupational injury chapter in establishing the rate of benefits.
Whether plaintiffs incapacity is compensable as an occupational disease or disablement or as an occupational injury, she was not entitled to benefits until her condition incapacitated her for work.
We should not implicitly decide as a matter of law whether plaintiffs present disability is attributable to the fall, or is an aggravation of the injury suffered at that time, or constitutes an occupational disease.
The categorization may affect the time when the right to benefits accrues and the act under which they are to be computed, and consequently the rate and duration of benefits.
Compare Braxton v Chevrolet Grey Iron Foundry Division of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976), where plaintiff was injured in an industrial accident but the appeal board did not specifically find that the disability was due to that injury. We re
1948 CL 417.1, 417.2; now MCLA 418.401, 418.411; MSA 17.237(401), 17.237(411).
These provisions are also made applicable to claims for occupational disease or disablement, MCLA 418.401-418.441; MSA 17.237(401)-17.237(441).
MCLA 418.351; MSA 17.237(351).
MCLA 418.361; MSA 17.237(361).
Reference
- Full Case Name
- MONTI v. BURROUGHS CORPORATION
- Status
- Published