Chambers v. Automatic Retailers of America

341 N.W.2d 136, 129 Mich. App. 344
CourtMichigan Court of Appeals
DecidedAugust 22, 1983
DocketDocket No. 62785
StatusPublished
Cited by1 cases

This text of 341 N.W.2d 136 (Chambers v. Automatic Retailers of America) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chambers v. Automatic Retailers of America, 341 N.W.2d 136, 129 Mich. App. 344 (Mich. Ct. App. 1983).

Opinion

Per Curiam:.

Plaintiff appeals by leave granted from an order of the Workers’ Compensation Appeal Board (WCAB) modifying the decision of the hearing officer. Plaintiff was injured within the course of her employment with defendant Automatic Retailers of America (ARA) on October 8, 1965, when part of a machine struck her on the back of her head, neck, and shoulders. Plaintiff continued her employment until March 16, 1968. Following a hearing in 1971, the hearing officer found that plaintiff had suffered the October 8, 1965, injury and granted an open award of benefits. No appeal was taken from that decision.

On July 27, 1976, defendants filed a petition to stop compensation and recoup overpayment, alleging that plaintiff had recovered as of April 1, 1974. On April 11, 1977, while defendants’ petition was pending, plaintiff filed a new petition for hearing, [347]*347alleging an occupational lung disability with a March 16, 1968, date of injury. Following a hearing the hearing officer denied defendants’ petition to stop benefits, finding that defendants had failed to prove plaintiff’s recovery. Additionally, the hearing officer found March 16, 1968, as the date of the injury in the nature of a lung disorder, specifically, chronic bronchitis and pulmonary emphysema. Disability from that injury was found to have occurred in 1973. Continuing benefits were not ordered for the previously adjudicated October 8, 1965, cervical injury, since the benefits for the lung disorder were at the higher rate for a total disability.

The WCAB affirmed the hearing officer’s finding with regard to defendants’ petition to stop compensation. However, it found that plaintiff was not entitled to compensation for the alleged lung disability, because plaintiff had failed to comply with the notice provisions of §§441 and 381 of the Worker’s Disability Compensation Act, MCL 418.441; MSA 17.237(441), MCL 418.381; MSA 17.237(381).1 Accordingly, the WCAB reversed the [349]*349hearing officer’s decision awarding plaintiff benefits for the lung disability and reinstated continuing benefits for her 1965 cervical injury.

Plaintiff first contends that the WCAB exceeded its authority by raising, sua sponte, the issue of whether she had complied with the act’s notice provisions. This Court has examined the pertinent authorities and concludes that the WCAB, pursuant to its power and responsibility to review the hearing officer’s decision de novo, has authority to raise and rule on issues presented by the record and is not limited to considering only those issues raised by the appealing party. Margenovitch v Newport Mining Co, 213 Mich 272; 181 NW 994 (1921); Thompson v Continental Motors Corp, 320 Mich 219; 30 NW2d 844 (1948); Fawley v Doehler-Jarvis Division of National Lead Co, 342 Mich 100; 68 NW2d 768 (1955); Bacic v General Motors Corp, 90 Mich App 40; 282 NW2d 1 (1979); Nelson v General Motors Corp, 122 Mich App 499; 332 NW2d 514 (1983); Kowalske v General Motors Corp, Fisher Body Division, 126 Mich App 252; 337 NW2d 54 (1983); MCL 418.859; MSA 17.237(859). Even were we to adopt a contrary interpretation, we believe defendants’ brief before the WCAB implicitly raised the notice issue. We conclude that the WCAB did not err in ruling on the notice issue.

Plaintiff next contends that the WCAB erred in finding that plaintiff had failed to comply with the notice requirement. The question of notice is one of fact and the WCAB’s findings are binding on this Court if there is evidentiary support. Smith v Kelsey-Hayes Co (After Remand), 404 Mich 70, 73; 273 NW2d 1 (1978), reh den 406 Mich 1102 (1979). The statutory notice period commences only after the employee has knowledge or reasonable grounds for knowledge of the disability and after [350]*350he discovers or by reasonable diligence could have discovered that the disability may have been work-related. Lewis v Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975). The WCAB found that plaintiff had reason to know that her lung disability was work-related no later than September, 1973. There is clear evidentiary support for that conclusion.2 It is undisputed that plaintiff failed to give her employer notice of the lung disability prior to the time that she filed the petition for hearing on April 11, 1977, and there is no question that the notice period had expired long before that time.

Plaintiff argues, however, that notice was not required because, at the time she learned of the work-related lung disability in 1973, she was already receiving weekly benefits for her cervical injury. Relying on Girlish v Acme Precision Products, Inc, 404 Mich 371; 273 NW2d 62 (1978), reh den 406 Mich 1103 (1979), plaintiff asserts that considerations of equity and fairness preclude the lack of timely notice from operating as a bar to recovery. Plaintiff contends that notice of a second [351]*351disabling condition is not required during the time the employee is receiving workers’ compensation benefits, because the recipient has no reason to believe that there is any further need to act to preserve the right to compensation.

In Girlish the plaintiff sustained a back injury in February, 1971, during the course of her employment with the defendant. Plaintiff ceased work on February 28, 1971, due to an attack of influenza. On March 1, 1971, plaintiff visited her doctor for treatment of her influenza. On March 8, she filed a claim under her employer’s group insurance plan for health and accident benefits for her influenza condition. Plaintiff first received treatment for her back injury on March 10, 1971. The plaintiff received health and accident benefits during March and April, 1971, but these benefits were terminated on April 30, 1971, because the carrier determined that plaintiff was not disabled for purposes of health and accident benefits. The plaintiff subsequently filed a claim for workers’ compensation benefits, but the hearing referee and the WCAB denied benefits, finding that plaintiff had failed to give the required notice of injury within three months as required by statute. The Supreme Court held that an employer impliedly waives its right to notice during the period when the employer’s group health and accident insurance carrier voluntarily furnishes alternative medical benefits to an employee who has suffered an otherwise compensable injury. The Court stated:

"It would be an ironic and inequitable rule of law if this Court were to deny an employee, who has suffered an otherwise compensable injury, compensation benefits because an employer or his sickness and accident carrier voluntarily paid alternative benefits during the three-month notice period. This is especially true be[352]*352cause the unsophisticated employee, possibly on the advice of the employer or union representative, is usually operating on the justifiable belief that the alternative benefits received are the correct benefits. The employee, who is receiving benefits, has no reason to believe there is any further need to act to preserve his light to compensation.” 404 Mich 381.

The Girlish

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Bluebook (online)
341 N.W.2d 136, 129 Mich. App. 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-v-automatic-retailers-of-america-michctapp-1983.