Mansfield v. ENTERPRISE BRASS WORKS CORP.

295 N.W.2d 851, 97 Mich. App. 736, 1980 Mich. App. LEXIS 2709

• Court: Michigan Court of Appeals
• Decided: June 3, 1980
• Docket: Docket 78-5496
• Status: Published

Opinions

V. J. Brennan, P.J.

In this case plaintiff appeals from a unanimous opinion of the Worker’s Compensation Appeal Board affirming the administrative law judge’s denial of compensation benefits. The essential facts in this case are not in dispute and are ably put forth in the dissent.

Initially plaintiff contends that the board applied an incorrect standard in determining whether plaintiff’s condition of disability was caused or aggravated by his employment.

In the absence of fraud, this Court’s review is limited to whether the board applied the correct legal standard, Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973), Barrett v Bohn Aluminum & Brass Co, 69 Mich App 636, 640; 245 NW2d 147 (1976). A claimant in a worker’s compensation proceeding must prove that he is entitled to benefits by a "preponderance of the evidence”. Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978).

In the instant case, the board specifically recognized and applied this standard. In its opinion, the board stated:

"Plaintiff’s proofs failed to show to these reviewers work-related disability and we find that Referee Mikko properly dismissed the case by applying the preponderance of evidence test enumerated in Aquilina v General Motors Corp, 403 Mich 206 (1978).”

Plaintiff acknowledges that the board properly recognized the correct standard but claims that in actuality the board applied the "beyond the shadow of a doubt” standard. We disagree.

The threshold fact question was whether plaintiffs arthritic back condition was the result of his employment or was caused by the natural aging process to which everyone is exposed. The evidence offered by plaintiff to prove that his back condition was work-related and not caused by other factors consisted of the deposition testimony of Dr. James Glessner and Dr. Burton Onofrio, as well as plaintiffs own testimony before the administrative law judge. Dr. August Aardema was called as a third expert witness on behalf of the defendant and was also deposed. When asked if he believed there to be any connection between plaintiffs disability and his employment, Dr. Glessner stated:

"I think probably the progression of the arthritis has been over a period of years based on just aging, hereditary manifestations and so on. It’s conceivable that the kind of work he did may have hastened it, but I can’t say that with any degree of certainty.”

Dr. Aardema’s testimony was essentially the same:

"Q [by Benjamin Marcus, attorney for the plaintiff] Would constant intermittent stress over the past few years before he left the employment be considered an aggravating factor?

"A What type of stress are you referring to?

"Q Such as we discussed before — the lifting, traveling. He was on the road constantly, he had to get in and out of the automobile, he had long rides — that sort of activity, doctor?

"A It’s possible, yes.

"Q Possible or probable. 'Possibly’ meaning—

"A I can’t say that it’s probable or not. Many people have back problems and have x-rays that look quite bad, and I don’t think are necessarily aggravated by this type of thing.”

To prevail plaintiff must show by a preponderance of the evidence a reasonable likelihood of cause and effect between the work and the injury. Although the board inartfully characterized the doctors as being unable to "positively” or "categorically” link plaintiffs disability to his employment, our review of the testimony indicates that the doctors were unable to find with any degree of certainty a link between work and the injury. The most the doctors were able to say was that such a link was "conceivable” or "possible”. This is not enough evidence of a causal link to sustain the preponderance of the evidence test.

The board’s reliance on Powell v City of Saginaw, 46 Mich App 751, 753; 208 NW2d 557 (1973), further persuades us that it applied the correct legal standard. Faced with essentially the same question as is present in the instant case, the Powell Court affirmed the board’s denial of compensation benefits and held:

"Plaintiff offered medical testimony that the arthritic condition could have been aggravated by the working conditions. Such testimony, asserting possible causal connection between the work situation and the claimed disability was not conclusive on the appeal board. The board was within the scope of its exclusive function as determiner of fact in ruling plaintiff had failed to meet his burden of proof in establishing that his arthritic disability was work-related.” (Emphasis in original.)

Plaintiffs reliance on Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), as support for his argument that the board did not apply the proper standard in reaching its decision is misplaced. The board in this case rendered its decision on November 29, 1978, several months before the Supreme Court decided Kostamo in January of 1979. Notwithstanding this fact, Kostamo requires the appeal board to review de novo the hearing examiner’s decision. The board is obliged to consider the opinions of all medical experts as well as lay testimony and to examine the circumstances surrounding the disability and/ or injury in determining whether or not there is any causal link to the employment. In addition, the board must also provide the reviewing court with sufficient factual and legal support for its decision.

In the instant case, the board considered additional evidence beyond the medical decisions in reaching its decisions.

Since there are no allegations of fraud, and since it does not appear that the board applied an incorrect legal standard, we decline to reverse the board on this issue.

We also cannot agree with plaintiffs second assertion that the board’s finding of no work-related disability was not supported by the evidence. It is well established that this Court must affirm a decision of the board if there is any evidence of record to support its findings, since this Court is not a trier of fact in worker’s compensation cases but rather reviews the findings to determine whether there is evidence to support the giving or denial of an award. Moore v Gundelfinger, 56 Mich App 73; 223 NW2d 643 (1974). Epps v Mercy Hospital, 69 Mich App 1; 244 NW2d 340 (1976). Dixon v Coldwater State Home, 59 Mich App 701; 229 NW2d 893 (1975). Goodman v Bay Castings Division of Gulf & Western Industries, 49 Mich App 611; 212 NW2d 799 (1973).

An examination of the record supports defendants’ contention that there was evidence from which the board could have found that plaintiff’s injury was not work related. The board based its findings on the deposition testimony of Drs. Aardema and Glessner who stated that they could not find a causal relationship between plaintiff’s arthritic back and his work. The board also considered the deposition of Dr. Onofrio which was taken a year after the hearing before the administrative law judge and after the doctor had operated on plaintiff’s back. Dr. Onofrio testified as to the normal degenerative process which accompanies aging. This is more than sufficient evidence to support the "any evidence” standard described in Pastaleniec v The Great A & P Tea Co, Inc, 49 Mich App 702; 212 NW2d 734 (1973).

Affirmed.

Beasley, J. concurred.