Reaves v. Acme Foundry Co.

164 N.W.2d 734, 13 Mich. App. 538, 1968 Mich. App. LEXIS 1090

Opinions

McG-regor, J.

Plaintiff-appellee, while employed by the defendant as a molder, suffered a shoulder sprain on December 6, 1957, for which he received six weeks’ compensation plus regular physiotherapy. Plaintiff returned to his job and was able to perform it for seven years, except for certain seldom required “close-up” work. Before the workmen’s compensation hearing referee, plaintiff testified that he had pain in his left shoulder when he used a sledge hammer, as required once a day.

At the time of his original return to work, plaintiff could raise his left arm 60 degrees. Although in the seven succeeding years, plaintiff’s ability to raise his arm slightly improved, his shoulder continued to worsen and the pain increased, accelerating his retirement. Plaintiff applied for and received voluntary retirement on April 1, 1964, according to defendant employer’s retirement program.

On April 10, 1964, plaintiff applied for disability benefits accruing because of the original accident of December 6, 1957, and for a personal work injury, allegedly occurring April 1, 1964. The workmen’s compensation hearing referee awarded benefits to plaintiff for the original injury, less credit for all compensation paid, and specifically found that “plaintiff did not suffer any additional injury as of April 1, 1964, as claimed.” The workmen’s compensation appeal board made findings of facts and law, affirming the hearing referee and relying on defendant’s doctor’s testimony.

Defendant contends that the appeal board did not make an administrative finding that the industrial injury caused a loss to the wage-earning capacity of plaintiff after the injury, as statutorily required.

Footnotes

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The appeal board’s opinion reads, in part:

“while plaintiff did his work with only minor restriction after the injury, his testimony was that the pain did begin to bother him more and accel erated his retirement. We can believe seven years of pain, as plaintiff aged, conld lead to snch a decision, which is supported by his immediate filing for benefits following retirement. It is our further opinion, therefore, that the referee was also correct to find further disability as of the retirement date and award benefits. In so saying this, we do note plaintiff was able to work seven years without significant restriction, but long endured pain and an attempt to avoid same by the rest envisioned by retirement is a clearly supportable basis to find renewed disability from the original injury. We affirm the decision of the referee.”

It is clear that the appeal board did rule on this issue, and consequently, there is no merit to defendant’s first contention.

The other question presented by this appeal is whether the finding of disability by the workmen’s compensation appeal board is supported by any evidence. It is not disputed that the plaintiff’s impaired physical condition in 1964 was a result of his injury of December 6, 1957. The dispute is whether or not the admitted impaired physical condition of the plaintiff constituted disability under the workmen’s compensation act. The appeal board found that it did. This Court may not reweigh the evidence before the appeal board and must affirm the board’s opinion if the record contains any competent evidence to support the finding upon which the opinion is based. CL 1948, § 413.12 (Stat Ann 1960 Rev § 17.186); Carter v. General Motors (1960), 361 Mich 577. From a careful reading of the record and the admitted facts, it is clear that the board’s finding has ample evidentiary support.

The weighing scale is not in our hands and, even if we think it out of balance, we cannot re-weigh. Hood v. Wyandotte Oil and Fat Company (1935), 272 Mich 190, quoted with approval in Pulley v. Detroit Engineering & Machine Co. (1966), 378 Mich 418, 424.

There was no cross appeal for plaintiff as to the denial of his claim for benefits from his alleged injury of April 1, 1964. We do not consider this matter ele novo.

Even if this Court should disagree with those findings it may not reverse the appeal board unless it concludes that those findings have no evidentiary support. The testimony of the plaintiff without more constitutes such evidentiary support.

On the record before this Court, the appeal board must be and is affirmed. Costs to appellee.

Fitzgerald, J., concurred with McGregor, J.

CL 1948, § 412.11 (Stat Ann 1960 Kev § 17.161).