Piwowarski v. Detroit Sulphite Pulp & Paper Co.

316 N.W.2d 719, 412 Mich. 716

• Court: Michigan Supreme Court
• Decided: March 9, 1982
• Docket: 64010, (Calendar No. 5)
• Status: Published

Opinions

Per Curiam.

The issue in this case is whether the "one-year-back rule”¹ limits the obligation of the Second Injury Fund² to pay this plaintiff benefits for the total and permanent disability of her decedent.³ To decide this question, we must first determine whether a request that benefits be paid for total and permanent disability is a request for "further compensation”, where the benefits previously paid were specific-loss benefits.⁴

I

In late 1948, plaintiff’s decedent lost his right hand and three fingers of his left hand in an industrial accident. He received specific-loss benefits for his injuries. In 1970, he filed a petition claiming total and permanent disability as a result of the loss, in the 1948 accident, of the industrial use of both hands.

After the hearing referee decided that plaintiffs decedent had not suffered the loss of the industrial use of his left hand, the case was taken to the Workers’ Compensation Appeal Board. The WCAB chose not to decide the factual issue of industrial use; instead, it sua sponte applied the one-year-back rule to deny payment of benefits for total and permanent disability. The Court of Appeals reversed and remanded, however, citing Kleinschrodt v General Motors Corp, 402 Mich 381, 384; 263 NW2d 246 (1978), in which we had said,

"We are of the opinion that the one-year-back provision is a defense, akin to the statute of limitations, which can be waived. It is not jurisdictional.”

On remand, the WCAB reversed the referee and found that plaintiff’s decedent had lost the industrial use of both hands. Benefits for total and permanent disability were awarded. The Court of Appeals denied the Second Injury Fund’s application for leave to appeal and the plaintiff’s delayed application for leave to cross-appeal. We subsequently granted leave to appeal.

In its brief to this Court, appellant fund now concedes that plaintiffs decedent suffered the loss of the industrial use of both hands in the 1948 accident. We are asked, though, to deny total and permanent disability benefits for plaintiffs decedent on the authority of the one-year-back rule.

II

In Martin v Somberg-Berlin Metals Co, 407 Mich 737, 740-742; 288 NW2d 574 (1980), we explained,

"The argument of the Second Injury Fund in essence is that the one-year-back rule admits of no exceptions and consequently every claim for compensation after compensation has once been paid is an application for 'further compensation’ subject to the rule.

"While it may be literally true that once a worker has received compensation any compensation paid to that worker thereafter may be termed 'further compensation’ that phrase in the one-year-back rule has not been so read over the years.

"In Morgan v Lloyds Builders, Inc, 344 Mich 524; 73 NW2d 880 (1955), the Court said:

" 'We find that the petition entitled, "application for hearing and adjustment of claim,” filed by the plaintiff dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye. Without any deduction for the compensation heretofore paid for loss of time or employment, plaintiff is entitled to receive compensation for specific loss of eye, according to [MCL 412.10; MSA 17.160] of $26 per week, for a total of 150 weeks from May 9, 1951.’ Id., 528-529,

"and refused to apply the one-year-back rule.

"The WCAB has correctly regarded Morgan as authority for distinguishing among 'categories’ of disability in determining whether an application is for 'further compensation’ within the rule.

"Resumption of payment for the same category of disability results in 'further compensation’ subject to the one-year-back rule. Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950).

"If compensation is paid for a particular disability (general on account of back injury) and subsequently another disability is determined (total and permanent on account of loss of industrial use of legs) compensation for the second disability is not 'further compensation’ subject to the one-year-back rule but is a separate 'category’ not so limited. Morgan, supra.

"In this case no compensation has been paid for the 'total and permanent’ disability resulting from the loss of industrial use of claimant’s legs and hence the award of differential benefits is not 'further compensation’ subject to the one-year-back rule.” (Emphasis in original.)

The petition in which plaintiffs decedent requested total and permanent disability benefits did not constitute an application for "further compensation” within the meaning of the one-year-back provision. Specific-loss benefits and total and permanent disability benefits are not for the "same category of disability” but rather are for distinct categories of disability. It follows from Martin that the one-year-back rule does not limit the obligation of the Second Injury Fund to pay this plaintiff benefits for the total and permanent disability of her decedent.

In light of this holding, it is unnecessary for us to determine whether the fund’s failure to assert the one-year-back rule defense at its first opportunity constitutes a permanent waiver of that defense.

Accordingly, we affirm, in part, the award of the WCAB and, for resolution of another issue framed by the fund,⁵ we remand the matter to the Court of Appeals for consideration as on leave to appeal granted.

Kavanagh, Williams, Levin, and Blair Moody, Jr., JJ., concurred.

1 In 1948, when plaintiffs decedent was injured, the one-year-back rule was found in 1948 CL 413.14; MSA 17.188. It read:

“If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.”

The present formulation of the one-year-back rule is found in MCL 418.833(1); MSA 17.237(833X1):

"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.”

2 See MCL 418.501(1) et seq.; MSA 17.237(501X1) et seq.

3 In our order granting leave to appeal, we directed the parties "to include among the issues to be briefed the question of whether the refusal to apply the provisions of MCL 418.833(1); MSA 17.237(833)(1), the 'one-year-back rule’, to the Second Injury Fund’s liability for the payment of accrued total and permanent disability benefits constitutes reversible error”. Piwowarski v Detroit Sulphite Pulp & Paper Co, 408 Mich 958 (1980).

4 For the provisions in effect at the time of the injury, see 1948 CL 412.10; MSA 17.160. The present provisions are found in MCL 418.361; MSA 17.237(361).

5 "Under the provisions of MCL 412.10; MSA 17.160, as amended by 1956 PA 195, effective August 1, 1956, and MCL 412.9; MSA 17.159, does the Court of Appeals failure to correct the appeal board’s order imposing on the Second Injury Fund 350 weeks of the employer’s liability for basic compensation and failure to limit the fund’s liability for differential benefits to August 1, 1956 constitute error and require modification?”