Kepsel v. McCready & Sons

76 N.W.2d 30, 345 Mich. 335, 1956 Mich. LEXIS 392

• Court: Michigan Supreme Court
• Decided: April 2, 1956
• Docket: Docket 63, Calendar 46,653
• Status: Published

Opinions

Smith, J.

The working conditions out of which •claimant’s injuries grew are described in the words of the'appeal board as follows:

“His regular and customary work required that he perform heavy and- strenuous duties, that he lift heavy articles and that in doing certain masonry work he reach around behind him, grab with 1 hand a cement block weighing as much as 60 pounds, swing it around in front of him and then with 2 hands lift and lay it in place. This was an unusual procedure performed in an awkward and difficult position. It was- regular and customary work which required very strenuous and unusual physical exertion. Plaintiff’s work presented a substantial hazard of back injury which was far in excess of that attending employment in general. The work described caused the back condition which incapacitated plaintiff after June 25, 1954, from doing the work he was performing on and prior to May 17, 1954. The causal connection is clear. 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.”

The facts, above recited, have support in the record; though the support is not as ample or artistic as it might have been. The evidence is scant. The claimant did not employ counsel to represent him.. He simply appeared at the hearing with his wife,, and without doctors, and told his story: of his coming home (the day of the injury) in such condition that “I couldn’t hardly walk,” of his wife’s efforts to ease the pain, by borrowing “a heat lamp from the neighbors” and of greasing his back and putting “the heat lamp on it.” The home treatments continued, apparently without success. “I tried to talk him out of going back to work, but I couldn’t. So he went to work the next day, and every night that week I put the heat lamp on. That is all I could do for him. He wouldn’t stay home from work.” Husband and wife testified, without objection, of consulting various doctors, and what was said and what was done by them. Dr. Mateskon, the bone specialist, thought there was a ruptured disc: “He said it (the second myelogram) didn’t show any ruptured disc, which he figured it would, but he still thought there was one, even though it didn’t show.”

It was conceded, in fact, at the hearing, that plaintiff was suffering from back trouble and that hospitalization and medical care were necessary. The issue was whether or not he sustained his injury on the job. The commission concluded that he had and it is my opinion that we are bound by its determination of this issue. As we said in Shaw v. General Motors Corporation, 320 Mich 338, 345:

“The scope of the review by this Court in cases of this character is limited. CL 1929, § 8451, as amended by PA 1943, No 245 (CLS 1945, § 8451 [Stat Ann 1947 Cum Supp § 17.186] ), provides, in part, as follows:

“ ‘The findings of fact made by the compensation commission acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of said compensation commission.’

“Under the provisions of the workmen’s compensation law the department of labor and industry is charged with the duty of considering testimony offered by the parties, determining facts therefrom, and drawing legitimate inferences from the facts found to be established by competent proofs. Such findings and inferences, if supported by competent evidence, must be accepted by this Court. Graham v. City of Lansing, 303 Mich 98; Wolanin v. Chrysler Corp., 304 Mich 164; Holloway v. Ideal Seating Co., 313 Mich 267. Defendant’s claim that plaintiff failed to establish a compensable disability cannot be sustained.”

Defendants, however, urge upon us a host of possibilities. As Mr. Justice Reid points out, they “claim that it is entirely possible that plaintiff had an exacerbation of a pre-existing arthritis, or a tubercular spine or a cancerous condition.” The difficulty with the argument is that it is utterly without foundation. There is nothing in the record supporting the possibility of arthritis, tuberculosis, or cancer. Is a claimant to be required to negative all ailments, diseases, and abnormalities which, “it is entirely possible,” could cause the observed condition? Such a burden is without precedent and without justification. It is impossible to carry, because no matter how lengthy the ailments disproved by plaintiff, the imagination and ingenuity of counsel on appeal, can, without doubt, find others which, “it is entirely possible,” could have caused the condition then existing. If plaintiff is required to prove freedom from cancer, why not also freedom from multiple sclerosis? Did he overlook leprosy? Beri-beri? Where will this stop?

The compensation act contemplates no such absurdity. Its requirements are simple: The claimant must show a reasonable relation of causé and effect between work ánd injury. Other possible or probable causes of the injury do not have to be excluded beyond doubt. The argument thus made by defendant and accepted by my Brother has never heretofore, to my knowledge, been accepted as a principle of compensation law and counsel cites no pertinent case to us so holding. The authority per contra is, overwhelming. A very few cases will suffice.

“ 'Compensation claimant must connect .disability with accident by legal proof and with reasonable certainty, but need not produce such proof as would exclude entirely any other theory or hypothesis as to cause of disability.’ ” Dilley v. Phillips Petroleum Co. (La App), 36 So2d 59, 61.

“With respect to appellant’s contention that the employee’s total disability 'is the result of some cause unrelated to the accident, our courts have held that where this defense is asserted, the burden of establishing it is upon the one who alleges it.” Lilly v. Todd, 15 NJ Super 1, 6 (83 A2d 21).

The supreme court of Arizona is in accord :

“But where the accident is admitted, the disability is proved, there is evidence of some compensable injury causing the disability, and nothing in the evidence suggesting any noncompensable cause, the commission may not deny compensation on the theory the disability was caused by some unknown condition.” Krupp v. J. G. Penney Company, 51 Ariz 228 (75 P2d 692).

We could multiply citations but we will forbear. We remind ourselves again that our function here is not one of fact finding. That has been done for us. The commission finds the injury and the causation. It has ample grounds for so doing. Our words in Underwood v. National Motor Castings Division, Campbell, Wyant & Cannon Foundry Company, 329 Mich 273, 276, 277, are apt and applicable:

“The commission found that plaintiff’s work presented a substantial hazard of back injury which was far in excess of that attending employment in'general. There is competent testimony to ' support this conclusion. The bending and twisting that plaintiff was required to do in order to place the cores in the oven was a part of her job and peculiar to defendant’s business. In the absence' of fraud the findings of the commission are conclusive.”

The award is affirmed. Costs to appellee.

Sharpe, Boyles, Kelly, and Black, JJ., concurred with Smith, J.