Coombe v. Penegor

83 N.W.2d 603, 348 Mich. 635, 1957 Mich. LEXIS 453

Opinions

Black, J.

This is another case where right to compensation is claimed by the employee and denied by the employer on strength or weakness of facts showing that the employee sustained internal injury while on the job. Plaintiff claims under part 7 of the workmen’s compensation act (CL 1948, § 417.1 ei seq. [Stat Ann 1950 Rev § 17.220 et seqJ]). We proceed to determine whether the appeal board was justified in awarding him compensation thereunder.

Footnotes

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The appeal board found, on supporting evidence, as follows:

“On or about February 17, 1953, plaintiff, while employed as a truck driver for defendant logging company, suffered an injury and ensuing total disability for which he claims compensation. Application for hearing was filed on May 15, 1953. Hearing was held on July 22, 1953, and on December 31, 1953, the hearing referee entered an award denying compensation.

“Plaintiff was about 26 years old at the time of injury. He was living with and supporting his wife, Charlotte, and 2 children, Peter James, born May 24, 1949, and Douglas Herald, born December 2, 1952. Plaintiff’s average weekly wage was $56.23.

“Plaintiff had been in the employ of Penegor for about 2 years up to the date of injury. He worked in a small crew usually consisting of 5 men. Two trucks were normally used. At times extra trucks were added. The men helped each other in the work of making up loads of logs preparatory to hauling from the woods. Fellow workers testified that prior to February 17, 1952, plaintiff had been a good, steady, reliable worker and that he had never complained of headaches, dizziness or any physical disability.

“A regular and necessary part of the work of plaintiff and his associates was to securely bind the logs on the trucks before commencing to haul. Each load was bound in more than 1 place. In performing this operation a long safety chain was attached by a hook to the right side of a bunk on the truck and was thrown over the load of logs to the left side. A shorter chain was affixed to the left side of the bunk. The 2 chains were brought together and tightened by means of a load binder, which is a sort of lever to each end of which short pieces of chain with hooks are attached.

“The undisputed testimony of the crew boss, Donald Kangas, and 2 crew members, Neilo Maki and Fabian G-odell, is to the effect that the fastening and tightening of the load binder took a great deal of physical effort. Kangas testified that the work took a lot of work and energy. Godell testified that it took very much effort every time and that he had difficulty very many times performing this operation and had to have help. Maki testified it ‘takes very much pounds of exertion to pull it down and bind the chain around the load.’ On some occasions the ]ob was so difficult as to require the use of a pipe as an extension lever. Kangas, Maki and Godell all had personal experience in fastening load binders. # # *

“On the morning of February 17, 1953, plaintiff, pulled himself up a little on a load of logs to get the top hook of the binder caught on the safety chain. He had his feet back on the trailer wheel and pulled himself up. When affixing the top part of the binder to the safety chain, plaintiff was 2 to 2-1/2 feet off the ground. Maki saw plaintiff hook the binder. Maki then started to walk away. Godell was standing nearby making a record of the logs. Neither saw plaintiff descend from the truck. Seconds later plaintiff was seen by both Maki and G-odell 4 to 6 steps from where hé had affixed the binder. Plaintiff had his hands on his head, exclaimed, ‘What’s that, what’s that’, twisted and fell unconscious to the ground- on his back. Maki went for help and then checked the binder and found that it was in place. No pipe was seen in the vicinity and it appears that none was used by plaintiff as a lever and that plaintiff had no assistance from anyone else on this occasion.”

Plaintiff was immediately taken to a hospital. It was shown that his left side became and yet remains paralyzed and that he is still suffering from impairment of memory. Dr. Aldrich, the first physician in charge of the case, treated plaintiff until March 1, 1953. He-found plaintiff suffering from severe headaches, nausea and a stiff neck, followed almost immediately by progressive paralysis of the left arm and leg. His diagnosis of cause was subarachnoid hemorrhage, explained as follows:

“There are 3 coverings of the brain and the arachnoid covering is the covering that includes the blood- vessels of the brain. And when we say subarachnoid hemorrhage we mean 1 of the blood vessels in this covering has ruptured and allowed the blood to enter the arachnoid space which produces the symptoms that this man had.”

Dr. Aldrich testified that strenuous physical exertion elevates blood pressure and that such could have caused the rupture of brain covering and disabling results shown here. In answer to the cross-examiner’s question, “Is the blood pressure always raised when you exert yourself he said this:

, “It depends on your exact position. For instance, or in explanation, the liver is a reservoir for possibly a third of the blood in your body, and if you should'bend or change your position in such a way as to constrict the liver you will force possibly another quárt of blood into the peripheral circulation and the brain is most affected by the change of blood volume and that will produce a marked change of blood pressure.”

The appeal board, finding for plaintiff under said part 7, said:

“Plaintiff’s regular and daily work in fastening load binders required that he exert very great and unusual effort, sometimes, as on February 17, 1953, in an awkward and disadvantageous position. Plaintiff had been engaged in this work for about 2 years. Plaintiff’s work presented a substantial hazard of injury which was far in excess of that attending employment in general. The work described caused the subarachnoid hemorrhage which totally disabled plaintiff. The injury and disability resulted from causes and conditions characteristic of and peculiar to the business of the employer and arose out of and in the course of employment.”

First: In opinions aimed toward defeat of conn pensation under part 7 as well as part 2 of the act, our favorite expression is that the given claimant at most was doing work “which required a degree of physical exertion not shown to have been unusual to or greater than that ordinarily experienced in the general field of common labor” (McGregor v. Conservation Department, 338 Mich 93, 101; Nichols v. Central Crate & Box Company, 340 Mich 232; Simpson v. Matthes, 343 Mich 125). Defendants ask that we apply such rule.

In opinions aimed toward upholding compensation under part 7, we have announced and followed a broader interpretation of the statute, that is to say, the legislative purpose is said to be one of providing compensation (if other essentials be present) where the conditions of employment “result in a hazard which distinguishes it in character from the gen eral run of occupations” (Samels v. Goodyear Tire & Rubber Co., 317 Mich 149, 156; Underwood v. National Motor Castings Division, Campbell, Wyant & Cannon Foundry Company, 329 Mich 273, 276; Gibbs v. Motor Wheel Corp., 333 Mich 617; Kepsel v. McCready & Sons, 345 Mich 335). Plaintiff asks that we apply this latter test.

"Who is to say, until we do, which of these warring-groups of decisions shall determine applicability of part 7 ? The department below, as is manifest from successive opinions brought here on certiorari, stands utterly bewildered. Kepsel puts Underwood on top for the moment, but for how long? No one-has known, since McGregor snubbed Underwood in 1953, whether we will choose McGregor’s rule in a given case or whether the favor of the day will go to> Underwood. When one is applied the other is ignored, and so we leave legislation heralding prompt administrative determination of compensation cases in a state of litigious and expensive uncertainty.. No wonder the moccasin telegraph brings to this claustral tower occasional tidings of guarded comment that the state of majority judicial dyspepsia on opinion day is more apt than not to be controlling-of case-choice when a part 7 ease is called up.

The bald situation being what it is, I propose timid inquiry into the fact-premise of McGregor’s quoted test. That test in my view stands as patent and unworkable judicial caprice. It should be cast out in favor of the better one Underwood gave us when the-Court was at least unanimous in support of a reasoned opinion.

What, indeed, is the McGregor-proclaimed “degree of physical exertion” mankind ordinarily experiences in the general field of common labor? Is it judicially noticed in these part 7 cases? If so, by what authority or known experience? If not, how must a claimant of compensation under part 7 go about proving such degree of exertion, according to rules of evidence, that his record may supply the comparison said, in above cases, to be lacking? Should he prove up the foot-pound units of energy one must apply to boxcar freight handling or piano moving, or such as are known to paper-pickers in public parks? Where, indeed, did this Court obtain the facts on which it has declared and created such exertive degree-standard ? They — I repeat the word “facts” — cannot be found in the printed records of McGregor, Nichols, or Simpson. And the vagaries of veteran judges, whose sedentary lives have long since become dissociated from physical labor and exertion-degrees thereof, give us no aid. Or, perhaps, do they? Will someone rise here and say — of personal experience or otherwise — that the head-to-toe muscular effort of clinging by one hand to the side of a huge truckload of logs,* †meanwhile applying with outstretched remaining hand the straining power-effort requisite to safe lever-tightening of statutory log-binding chains,† is not apt to throb the temples and thus produce distinguishable risk of the very circulatory rupture Coombe suffered? I think not. We must, perforce, accept what men better equipped to know have placed in this record on corporal oath. By the same token, we should have done with further assumption of omnicompetent knowledge of the degree or degrees of physical exertion common labor applies to its varied tasks.

The views just stated lead to consideration of defendants’ sole contention in this case. They say we should hold, as a matter of law by force of McGreg- or, that Coombe failed to show the work regularly performed by him did require a degree of physical exertion in excess of that ordinarily experienced in the general field of common labor. I think we must agree that Coombe failed of such proof because he did not establish such exertive degree-criterion of common labor. But we should, at the same time, confess that no one could hope to bear such an evidence-burden absent assembly of testimony covering the field of general common labor, and the diversity of tasks thereof, with experts providing (if at all) the fancifully average degree-standard Mc-Gregor exacts. I reject then, McGregor’s test as decisive'here. It is unworthy of proof, and worthless if proved.

Second: I turn from McGregor to the statute itself. It says that a disabling personal injury sustained as in present circumstances is compensable if such be “due to causes and conditions which' are characteristic of and peculiar to the business of the employer” (CL 1948, §417.1 [Stat Ann 1950 Rev ,§17.220]), and directs the department below to ascertain, when called upon, presence or absence of causes arid conditions characteristic of and peculiar to the work being done. This means, as declared in our more enlightened decisions, that a claimant under part 7 is obligated to establish no more than that the conditions of his employment “result in a hazard which distinguishes it in character from the general run of occupations” (Underwood v. National Motor Castings Division, Campbell, Wyant & Cannon Foundry Co., supra; Gibbs v. Motor Wheel Corp., supra; Kepsel v. McCready & Sons, supra). .

Undenvood’s test of applicability of part 7 is simple and comparatively more understandable. Instead of an impossible-of-proof exertive degree-standard, it requires only that some proof be made of special and distinguishing hazards — something out of the ordinary in the way of duty-risk according to fair view of reasonable men — before an award can be ordered under part 7. There is an abundance of such proof here, and so ends the purpose of this writ of certiorari.

When all is said, this case presents certain fairly-established facts of decisive moment. Coombe enjoyed the health and vigor of a young man, experienced and used to the manual work his employer engaged him to do. He was doing that work, right well according to the foreman in charge, until arrival of the very moment of distress. He then became and remained seriously disabled. Immediately prior to such distress and disability, he was performing for his employer a special and out-of-the-ordinary task, the distinctive nature of which reasonably accounts for the finally diagnosed rupture and disabling hemorrhage.

Such an assembly of facts should be, and in my view is, sufficient to sustain this award. I therefore vote to affirm on strength of Underwood’s construction and application of part 7. I vote also to inter the herein criticized rule of McGregor, Nichols, and 'Simpson. Plaintiff should recover costs.

Addendum (June 10, 1957).

This case was duly assigned to the writer, preceding submission during our October term last year. In pursuance of such assignment the foregoing opinion was prepared and distributed for consideration of my Brothers on October 29,1956. As is disclosed therein by quotation, the appeal board upheld .Coombe’s claim for compensation solely on authority of part 7 of the compensation act. On review here, Coombe urged affirmance exclusively under part 7 and so informed the court during oral argument. So far as the writer is concerned Coombe and the appeal board were right in such regard — hence, tenor of the foregoing opinion.

Justices Dethmers, Carr, Edwards, Smith and Kelly have now written in the case and, in belated interim, our decision in Sheppard v. Michigan National Bank, 348 Mich 577, has been handed down. Sheppard holds that a disabling injury sustained as in this case of Coombe is compensable under part 2 of the act. Accordingly, that which hitherto was not sustainable under part 2 is now amply supported by part 2 and there is no occasion for resort to war over relevant construction of part 7. In these circumstances I vote to affirm Coombe’s award under part 2 and join Mr. Justice Smith in his compendious summary of Coombe’s case.

No intimation is made that claim for compensation under part 7 precludes an award under part 2 or vice versa. That question is neither before us nor necessary to decision.

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This particular load consisted of between 30 and 40 hardwood logs.

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It is in order, here, to refer to the rigid requirements of the log-binding statute. It specifies that logs shall be securely fastened to the body or frame of the vehicle by means of toggle and wrapping chains “having a breaking strength of not less than 8,000 pounds” (CLS 1954, § 257.720 [Stat Ann 1952 Rev § 9.2420]).