Litwin v. Difco Laboratories, Inc.

184 N.W.2d 318, 28 Mich. App. 132, 1970 Mich. App. LEXIS 1131
CourtMichigan Court of Appeals
DecidedNovember 30, 1970
DocketDocket 6,827
StatusPublished
Cited by6 cases

This text of 184 N.W.2d 318 (Litwin v. Difco Laboratories, Inc.) 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
Litwin v. Difco Laboratories, Inc., 184 N.W.2d 318, 28 Mich. App. 132, 1970 Mich. App. LEXIS 1131 (Mich. Ct. App. 1970).

Opinions

Levin, P. J.

The plaintiff, Geraldine Litwin, contracted brucellosis (undulant fever) while employed in the serology laboratory of the defendant Difco Laboratories, Inc. She was off work for seven weeks beginning February 13, 1962 and Difco voluntarily paid her workmen’s compensation benefits. She returned to work and remained in Difco’s employ until August 9,1963 when she left because of the imminent birth of her baby, born September 27, 1963.

She filed an application for compensation on November 4, 1965. The referee found that she sustained a personal injury on February 9, 1962 and awarded compensation of $33 per week for total disability, based on an average weekly wage of $85.04 in unskilled labor with no dependents. The referee’s order required that compensation be paid during

(1) the period of voluntary compensation in 1962, and

(2) the period between November 4, 1964 and the date, February 6, 1966, preceding the date she obtained new employment, and

(3) the period beginning November 28, 1966 (a few days after the date, November 25, 1966, on which the period of renewed employment terminated) and ending on the date preceding the date, December 30, 1966, he made his findings, and

[135]*135(4) the period beginning the date he made his findings, December 30, 1966, until the further order of the department.

The Workmen’s Compensation Appeal Board in the main affirmed the referee’s findings; however, it reversed so much of his determination as allowed compensation for the period November 4, 1964 through February 6, 1966.

Difco appeals, contending that the finding that Mrs. Litwin was disabled from working and entitled to weekly benefits from November 28, 1966 until the further order of the department is not supported by competent evidence.

Mrs. Litwin cross-appeals, claiming that the appeal hoard erred

(a) in finding that she was not entitled to compensation from November 4, 1964 through February 6, 1966,

(b) in finding that her work was unskilled labor and in denying her claim for partial benefits as skilled labor while she was working at lower wages during the period February 7, 1966 through November 25, 1966, and

(c) in failing to find that the injury was a disease within the meaning of part VII of the act and in determining that the date of injury was February 9, 1962, rather than the last day that she was employed by Difco in August of 1963, by which time her wages had been increased from the $85.04, which she was paid in February 1962, to $106 a week.

We have concluded that the findings of the appeal board are evidentially supported and that its decision is in accordance with the law and, accordingly, we reject both the contentions of Difco and of Mrs. Litwin and affirm.

Upon an appeal from the Workmen’s Compensation Appeal Board our inquiry is limited to a con[136]*136sideration of whether there is “any evidence whatever” to support its determination. Clark v. Apex Foundry, Inc. (1967), 7 Mich App 684, 688.

A physician called by Difco testified that he examined Mrs. Litwin in November 1964 and May 1966, and that, while her brucellosis agglutinations titers were positive, they were not high enough to be disabling, and, in his opinion, her fatigue was due to anemia. Another physician, called by Mrs. Litwin, testified that she had “chronic smoldering brucellosis from the time that she was infected” and that this would definitely reduce her level of vital activity. Clearly there was evidence supporting the appeal board’s determination that her fatigue was attributable to brucellosis, not anemia.

Turning from the question of causation to that of disability, the appeal board observed that Mrs. Litwin made no effort to seek employment after the birth of her child on September, 27, 1963, until she became employed as a clerk in an accounting department of another employer on February 7, 1966. Based on Mrs. Litwin’s and the medical testimony, the board concluded that brucellosis can become a rationalization as to the basis for unemployment, not the causative factor, and concluded that she had not sustained her burden of proving that she was disabled in 1964, 1965, and in January 1966 from earning wages due to the brucella organism.

The physician called by Mrs. Litwin conceded that, except for the history related by her, he did not have a basis for forming an opinion whether she was disabled in 1964-1965 and the early part of 1966. We, therefore, think the appeal board was within its authority in concluding that she had not sustained her burden of proving that she was disabled during that period due to the brucella organism. Accordingly, we reject the cross-appeal seeking compen[137]*137sation for the period November 4,1964 through February 6, 1966.

Mrs. Litwin worked continuously from February 7, 1966 until November 25, 1966, except for a short time between two separate employments during that period. Her first job in that period of renewed employment required that she work over 40 hours a week. She quit in June 1966, because of fatigue and because she didn’t feel she could make it in to work. She, nevertheless, went to work for still another employer ten days or two weeks later, but quit November 25,1966, because her health would not permit her to continue working. She was hospitalized for a month beginning November 28, 1966. The record supports the appeal board’s determination that after working some 9-1/2 months she was forced to quit without regard to economic necessity because in November, 1966, she became totally disabled from working by the effects of the brucella organism.

After the referee made his determination, but before the appeal board’s decision, the physician who was called by Mrs. Litwin again examined her and his further findings were made a part of the record considered by the board. While he stated, based on an examination on May 8, 1967, that he thought he had sufficient evidence to conclude that she had recovered from her chronic brucellosis, he indicated that it would be worthwhile or advisable to have her titer repeated again, at a time at least six months after the completion on January 5,1967, of a course of therapy which he had prescribed, and that “if at this time it is still negative, I think we could forget about the episode of brucellosis in Mrs. Litwin forever.” (Emphasis supplied.)

The appeal board observed:

“If only the record showed a negative titer on July 5, 1967, or subsequent thereto, we could forget [138]*138about any further disability due to brucellosis; however, there is no such showing. In the absence of a negative titer six months or more after the completion of therapy, the record does not show recovery.”

We are persuaded that the appeal board did not err in not jumping to the conclusion that Mrs. Litwin had fully recovered from her disability without evidence of a negative titer on July 5, 1967, or on some date subsequent to July 5.1 Accordingly, we reject [139]*139Difco’s appeal and affirm the appeal board’s determination that on November 28,1966, Mrs. Litwin was totally disabled and its order directing that she be paid compensation from that date until a further order of the department.2

We also conclude that the record supports the appeal board’s findings that Mrs.

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Litwin v. Difco Laboratories, Inc.
184 N.W.2d 318 (Michigan Court of Appeals, 1970)

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Bluebook (online)
184 N.W.2d 318, 28 Mich. App. 132, 1970 Mich. App. LEXIS 1131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/litwin-v-difco-laboratories-inc-michctapp-1970.