Mullins v. DURA CORPORATION

207 N.W.2d 404, 46 Mich. App. 52, 1973 Mich. App. LEXIS 1169

• Court: Michigan Court of Appeals
• Decided: March 28, 1973
• Docket: Docket 14010, 14011
• Status: Published

Opinions

J. H. Gillis, P. J.

This is an appeal upon leave granted from a decision of the Workmen’s Compensation Appeal Board. Plaintiff, Erwin Mullins, injured his back during the course of his employment with defendant Dura Corporation. It is not disputed that he is entitled to benefits; the only question is which of the two defendant insurance companies must pay the compensation.

Plaintiff originally injured his back in 1964. He received benefits from defendant Liberty Mutual Insurance Company, who, at that time, carried the insurance for Dura Corporation. Following an operation, plaintiff returned to work in 1965. Dura Corporation was then insured by defendant, Aetna Casualty & Surety Company.

Upon returning to work plaintiff was given jobs requiring less strain on his back, although he still complained of back pain. In 1966, after a series of job placements, the pain became so great that he quit and has not been able to work since.

A hearing referee found plaintiff suffered a personal injury arising out of and in the course of his employment on January 14, 1966, the date plaintiff quit his job, noting the injury to be an aggravation of the 1964 disability. It was ordered that Aetna Casualty & Surety Company pay workmen’s compensation from and after that date.

The Workmen’s Compensation Appeal Board reversed the referee’s finding, and ruled:

"Plaintiffs present disability is clearly traceable back to the 1964 injury, and the work plaintiff performed for [Dura Corporation] after the 1964 injury, and the testimony of the plaintiff and other witnesses, both lay and expert, falls short of meeting the burden of proof necessary to find an occupational disease injury as found by the referee.”

Aetna Casualty & Surety Company was relieved of its responsibility for benefits; Liberty Mutual Insurance Company was ordered to pay compensation from and after January 14, 1966. Both plaintiff and Liberty Mutual Insurance Company appeal.

Review of a decision of the Workmen’s Compensation Appeal Board is limited to questions of law and a search for evidence supporting the board’s findings of fact. Couch v Saginaw Malleable Iron Plant, Central Foundry Division of General Motors Corp, 42 Mich App 223 (1972); Carter v Kelsey-Hayes Co, 386 Mich 610 (1972); MCLA 418.861; MSA 17.237(861).

The issue of which of two successive insurers is liable for compensation benefits in situations such as this is discussed in 3 Larson, Workmen’s Compensation Law, § 95.12, pp 508.130-508.133:

"The Massachusetts-Michigan rule in successive-injury cases is to place full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.

"If the second injury takes the form merely of a recurrence of the ñrst, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. In this class would fall most of the cases discussed in the section on range of consequences in which a second injury occurred as the direct result of the first, as when claimant falls because of his crutches which his first injury requires him to use. This group also includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.

"On the other hand, if the second incident contributes independently to the injury, the second insurer is solely liable, even if the injury would have been much less severe in the absence of the prior condition, and even if the prior injury contributed the major part to the final condition. This is consistent with the general principle of the compensability of the aggravation of a preexisting condition.” (Emphasis supplied.)

In the instant case the appeal board could reasonably find that after plaintiff returned to work in 1965 and until his disablement in 1966, he had continuing symptoms of pain stemming from his 1964 injury even though he was not performing heavy labor as before. That pain increased and culminated in disability.

The facts can be distinguished from Brinkert v Kalamazoo Vegetable Parchment Co, 297 Mich 611 (1941), where an independent intervening force caused a second disabling injury.

We are not unmindful of the line of cases indicating that aggravation of a preexisting condition which results in a disability can constitute a personal injury itself. See, e.g., Underwood v National Motor Castings Division, Campbell, Wyant & Cannon Foundry Co, 329 Mich 273 (1951); Fields v GM Brass & Aluminum Foundry Co, 332 Mich 113 (1952); Sheppard v Michigan National Bank, 348 Mich 577, 585 (1957). However, those cases involved employees performing their ordinary employment who suffered injuries which were treated as an occupational disease where no specific incident caused the disability. We have not found a Michigan case, nor are we. cited to one, where a continuous disability following a specific on-the-job traumatic incident has been treated as an occupational disease¹

Here, a finding that, since the 1964 injury, plaintiff has never been able to return to his prior occupation but has only been able to perform "favored” work with limited success, is not unwarranted by the record. We affirm the decision of the Workmen’s Compensation Appeal Board.

Affirmed. No costs.

Bashara, J., concurred.

1 This case can also be distinguished from Regis v Lansing Drop Forge Co, 25 Mich App 637 (1970), where a second injury led to a second claim of disability.

1 It should be noted that plaintiff-appellant suffered the amputation of his other leg in a totally unrelated accident.