Cox v. Schreiber Corp.

469 N.W.2d 30, 188 Mich. App. 252
CourtMichigan Court of Appeals
DecidedApril 1, 1991
DocketDocket 118774
StatusPublished
Cited by6 cases

This text of 469 N.W.2d 30 (Cox v. Schreiber Corp.) 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
Cox v. Schreiber Corp., 469 N.W.2d 30, 188 Mich. App. 252 (Mich. Ct. App. 1991).

Opinion

Neff, J.

Plaintiff sustained an injury while working as a roofer for defendant Schreiber Corporation and has not been able to return to roofing work. He was awarded workers’ compensation benefits until January 24, 1981. The Workers’ Compensation Appeal Board granted benefits until July 29, 1982. Plaintiff filed a motion for leave to appeal to this Court, which was denied. By order dated June 27, 1989, our Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. 432 Mich 916 (1989). Plaintiff argues that the wcab erred in not awarding him a continuing benefit for disability due to the aggravation of a preexisting condition. We agree and reverse.

i

On January 7, 1981, plaintiff, a journeyman roofer, was working for Schreiber Corporation on a metal surface. Because it had snowed the night before, plaintiff worked shoveling snow off the slippery surface. He fell several times. About IV2 hours after starting work, he started experiencing *254 back pain that grew progressively worse. By 4:30 p.m. he could barely stand erect. Plaintiff had not been experiencing pain before this date.

After work, plaintiff visited his physician, Dr. Anderson, who recommended moist heat. Plaintiff testified that the pain was throughout his lower pelvic area, including both hips, although he did not remember specifically mentioning the hip pain to Dr. Anderson or the Maybury Clinic, which he visited the following day. However, the Maybury Clinic report states: "Pain is mostly localized but at times radiates to both buttocks.”

After about three weeks of treatment, plaintiff asked to be returned to work, and Dr. Anderson consented. However, because of weather conditions, no work was available. On February 20, 1981, plaintiff returned to Dr. Anderson, complaining that the pain in the lower pelvic area was worse. Dr. Anderson, who testified that this was the first complaint of right hip pain, referred plaintiff to Dr. Najarian, an orthopedist.

Dr. Najarian treated plaintiff for about three weeks, during which time the pain increased so much that plaintiff had to start using crutches. Plaintiff was then referred to an orthopedic surgeon, Dr. O’Hara, who performed surgery on the right hip in May 1981 and on his left hip in January 1982.

Dr. O’Hara diagnosed plaintiff’s hip condition as aseptic necrosis of both femoral heads or hip joints. Aseptic, or avascular, necrosis is a condition in which the ball of the joint loses blood supply and dies. The cause of the condition is unknown. As a result of the bone death, the bone margins break under stress, causing pain.

Dr. Newman testified that repetitive activity involving the hips would aggravate the aseptic necrosis condition. The onset of problems would *255 normally take many months or years to appear, but, with heavy activities, problems could appear in a matter of a few months. However, if activities such as kneeling were having an effect on the hip bones, a patient would be symptomatic. The condition is permanent and progressive. Surgery for revascularization, the surgery performed on both of plaintiff’s hips, may arrest softening of the bone.

Defendants’ witness, Dr. Horvath, an orthopedic surgeon, testified that repetitive bending activities could cause a deterioration of the femoral heads in someone with aseptic necrosis, but if this had been occurring with plaintiff, he would have experienced symptoms. He further testified that if the January 7, 1981, trauma had caused the aseptic necrosis problems, plaintiff would have experienced hip pain immediately. He did not believe that plaintiff’s disability was related to his roofing job.

Although the surgery was successful and plaintiff was making a good recovery, Drs. Newman, O’Hara, and Horvath each stated that plaintiff could not return to employment such as roofing. Dr. Horvath’s opinion upon examining plaintiff on June 21, 1982, was that plaintiff’s disability from the hip condition would end when he was able to stop using crutches. On July 29, 1982, Dr. O’Hara directed plaintiff to undertake weight-bearing activities on both hips.

Following a hearing on January 19, 1983, at which plaintiff testified and the doctors’ depositions were entered into the record, the hearing referee awarded benefits to plaintiff from January 8 to January 24, 1981, finding that plaintiff did not establish a disability beyond that date. On appeal, the wcab extended the benefits to July 29, 1982, finding that the work injuries aggravated and accelerated plaintiff’s aseptic necrosis.

*256 ii

Plaintiff contends that he has had a legal disability ever since his last date of employment with defendant, a disability attributable to the January 7, 1981, injury, and that he is entitled to a further award of benefits.

This Court’s review of a wcab decision is limited. The wcab’s findings of fact are conclusive, absent fraud, if there is any support in the record evidence. Const 1963, art 6, §28; MCL 418.861; MSA 17.237(861); Coleman v General Motors Corp, 166 Mich App 784, 789; 421 NW2d 295 (1988). This Court may reverse the wcab’s decision if it operated within the wrong legal framework or its decision is based upon erroneous legal reasoning. Id.; Flynn v General Motors Corp, 162 Mich App 511, 514; 413 NW2d 444 (1987).

A review of the record shows support for the wcab’s finding that plaintiff’s aseptic necrosis was a preexisting condition that exhibited symptoms from the time of the January 7,' 1981, injuries. The wcab had evidence from plaintiff, whom they found credible, of the complaints of hip pain stemming from January 7, as well as the Maybury Clinic’s note of pain extending into the buttocks. Nezdropa v Wayne Co, 152 Mich App 451, 461; 394 NW2d 440 (1986).

Although the factual basis of the wcab decision should not be faulted, the legal reasoning must be examined. Workers’ compensation benefits are payable for an illness, disease, or deterioration not caused by working conditions, i.e., a preexisting condition, only if the work has accelerated or aggravated the preexisting condition and has thus contributed to it, or if the work, coupled with the preexisting condition, caused an injury. Kostamo v *257 Marquette Iron Mining Co, 405 Mich 105, 116; 274 NW2d 411 (1979); Nezdropa, supra, p 460.

In Kostamo, supra, p 116, our Supreme Court stated:

The workers’ compensation law does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Nor is a different result required because debility has progressed to the point where the worker cannot work without pain or injury. Accordingly, compensation cannot be awarded because the worker may suffer heart damage which would be work-related if he continued to work.

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Bluebook (online)
469 N.W.2d 30, 188 Mich. App. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-schreiber-corp-michctapp-1991.