White v. Michigan Consolidated Gas Co.

89 N.W.2d 439, 352 Mich. 201, 1958 Mich. LEXIS 434

• Court: Michigan Supreme Court
• Decided: April 14, 1958
• Docket: Docket 52, Calendar 47,067
• Status: Published

Opinions

Edwards, J.

This is the second time plaintiff’s claims of disability have been before this Court for adjudication.

Defendant in this proceeding appeals on leave granted from a workmen’s compensation award entered by the workmen’s compensation appeal board. The award ordered payment of compensation at the rate of $21 per week for disability resulting from an injury to his right knee received by plaintiff in the employment of defendant on August 27, 1949. The .award provided weekly payments from November 7, 1952, to the last date of hearing on October 20, 1955, with the exclusion of a total of 5 weeks when plaintiff was temporarily employed on 2 occasions. The award also found plaintiff disabled from his previous occupation on the last date of hearing and ordered continuing compensation until further order of the department.

This plaintiff had previously been paid compensation for disability from the same injury up to November 7,1952, under another award by the appeal board, which had likewise been appealed to this Court. See White v. Michigan Consolidated Gas Co., 342 Mich 160. In that ease, this Court disapproved an award of continuing compensation beyond November 7,1952, apparently on the basis of extended delay in the appeal process and on the finding that the record then submitted did not contain competent evidence to sustain a finding of continuing disability beyond November 7, 1952.

In rejecting that portion of the appeal board’s award which contemplated continuing compensation, this Court said:

“The order of the commission awarding compensation must be based upon competent evidence. In Foley v. Detroit United Railway, 190 Mich 507, 516, this Court said:

“ ‘To sustain its award the board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident.’ ” White v. Michigan Consolidated Gas Company, 342 Mich 160, 163.

The order entered by the Court did not remand the case for further proceedings. As a consequence, plaintiff, claiming disability from the same injury subsequent to November 7,1952, filed application for hearing and adjustment of claim for further compensation on June 28, 1955. After hearings extending between September 20, 1955, and October 20, 1955, a workmen’s compensation department referee denied further compensation. When plaintiff appealed, on October 15, 1956, the appeal board reversed the referee’s -finding and entered the award from which defendant brings the instant appeal to this Court.

Plaintiff’s original injury, according to his testimony, occurred August 27,1949. He was at that time employed as a common laborer by defendant on maintenance work involving defendant’s gas mains. Plaintiff testified that he suffered an injury to his knee when he slipped in the mud while carrying pipe to a truck. Plaintiff also reported to defendant’s doctor, Dr. Carpenter, who entered a notation at that time:

“Torn internal lateral ligament? Possible cartilage injury?”

A report of the original injury was filed by defendant and 1 day’s compensation was voluntarily paid.

On September 13, 1949, plaintiff left the employ of defendant, according to his testimony, because he requested from his foreman a job assignment where he would not have to bend his knee so much, and was told there were no such assignments available.

In the period following plaintiff’s departure from the employment of defendant, his testimony indicated recurring difficulty with his knee, but he worked at various types of jobs until April 28, 1952, when he returned to defendant to request medical treatment for his knee. On this day, on referral by defendant, he was seen by Dr. Carpenter. Concerning the visit of April 28,1952, Dr. Carpenter testified:

“Well, he came in at that time and reported that he was having trouble with his knee. I think probably the company sent him in to me, but that’s what he came in for. I had his knee X-rayed and I examined his knee and I felt he had an injury to the internal meniscus of the right knee and I advised him to have an operation.”

The operation was performed on May 13, 1952, by defendant’s surgeon and with defendant voluntarily assuming the medical costs. Dr. Carpenter’s notes showed in relation to the operation:

“A Smiley type of incision was made about 2 inches long extending at an angle from the lower border of the patella posteriorally but avoiding the collateral ligament. The knee joint was opened, the meniscus was found with considerable pathology at the right anterior horn, an old rupture and even granulation tissue was present at the area. The entire meniscus was removed with the Smiley technique. This operation of course was done under tourniquet with the knee flexed.”

Plaintiff left the hospital May 21, 1952, and was seen by Dr. Carpenter on Aug'ust 18, 1952, who at that time felt that he had made a good recovery and was able to return to work.

At the original hearing the plaintiff gave testimony to the effect that he had been unable to find work which he was able to do. And, as we have previously indicated, the appeal board found a continuing disability, which was reversed for lack of competent evidence'by this Court. White v. Michigan Consolidated Gas Co., supra.

The record of the subsequent hearing on September 20-22 and' October 20, 1955, which is now before us contains testimony from plaintiff, his wife and 3 physicians. From the date of the operation referred to above down to the date of the second'hearing, plaintiff indicated that he had been unable to work except for 2 brief periods:

“Q. All right. Now, what was the reason for your not working between November 7, 1952, and February of 1954!

“A. Well, I wasn’t able to work, my leg was bad.

“Q. What do you mean your leg was bad!

“A. Well, it gives away and’it swells up and it stays sore just about all of the time.

“Q. What do you mean by gives away?

“A. Well, it gives away when I’m walking or whatever I’m doing at the time it gives away unexpected.

“Q. Does it lock on you at any time?

“A. Yes, it does. If I squat down and stoop, and if I don’t get up just right it will lock.

“The Referee: What leg is that?

“Q. (By Mr. Kaufman) What leg is that, Mr. White ?

“A. It is my right leg.”

Concerning one of the employment episodes, plaintiff testified:

“Q. Now, did yon do this without any distress?

“A. Well, I had very much trouble doing it.

“Q. What do you mean by very much trouble doing it, what gave you the trouble?

“A. My leg was weak, it wouldn’t stand up under the weight of the wheelbarrow.

“Q. Did you have any episodes while working for Glenn Long in which your leg gave out from under you ?

“A. Yes, I did.

“Q. Could you describe them?

“A. Well, one particular time I was wheeling the cement, he told me to put it in 1 place and before I got to that place my leg gave way and I spilled it all over his legs.

“Q. Who is that?

“A. The boss, Glenn Long.

“Q. Your leg gave way while you were wheeling a wheelbarrow full of cement?

“A. Yes.

“Q. And the cement went on Mr. Long’s legs?

“A. Yes.”

During this enti-re period, however, plaintiff did not seek further medical attention, and his only treatment was the application of liniment and heat pads. Dr. Raymond F. Lipton, an orthopedic surgeon, testified without objection concerning an examination of plaintiff on September 20, 1955, as follows:

“A. I obtained a history from this man of previous injury and surgery, I listened to his complaints and then I examined him. This was a 30-year-old white male weighing 215 pounds, who is 5 foot 8 inches tall. He is quite hard of hearing and brought his wife as an interpreter with him.

“In examining the right knee, there was a 2-inch anterior medial scar vertically which was somewhat tender. There was tenderness to pressure over the lateral side of the joint, and over the posterior medial aspect of the joint there was exquisite tenderness. There was another 2-inch rounded scar in the middle third of the thigh anteriorally which was the result of a boil which he had many years before. There was no atrophy of the muscles of the thigh or of the leg, and there was no ligamentous instability of the knee joint itself. He was able to squat and rise unassisted. He was able to stand on his toes and his heels without assistance. On checking the knee joint, I performed the Murray test, which consists of acute flexion of the joint and straightening out the knee, with the knee pushed first from one side to the other. That is putting tension on the joint and I elicited a loud snapping sound on one occasion. At the same time the patient complained of pain. Other than that there was no other significant physical findings. His general physical condition was good, and blood pressure was 140 systolic and 80 diastolic.

“Q. What diagnosis, if any, did you make at that time, doctor?

“A. The diagnosis that I made was internal derangement of the right knee joint.

“Q. Now, doctor, this exquisite tenderness at the posterior medial aspect of the knee, as well as this loud snapping sound with accompanying pain elicited after the Murray test, would that be indicative of any particular derangement in the knee, any specific derangement?

“A. Well, it is necessary to use the history that I obtained along with it to make a diagnosis. The sign and the tenderness in itself is not significant without the history.”

Another surgeon called by plaintiff gave a similar diagnosis, also without objection, of “internal derangement of the right knee joint.” Both of them testified that the condition of the knee was disabling as to types of work involving knee bending, and could have been causally related to the injury previously referred to.

Defendant’s medical witness, Dr. Carpenter, on the contrary found no objective symptoms indicating-derangement of the knee, and felt that the operation for removal of cartilage had produced a good result. Dr. Carpenter indicated that he did not believe plaintiff’s history of repeated episodes when his knee would “lock” or “give away.”

The workmen’s compensation appeal board, having-weighed the conflicting- evidence pertaining to disability, unanimously agreed on a finding of fact that plaintiff was still disabled on October 20, 1955, from performing the work he was performing at the time of his injury, and entered the award which we have referred to above.

The first of the issues which we believe we should oeal with is, as stated by appellant:

“Was there any competent evidence in the record to sustain a finding by the appeal board that the appellee was totally disabled at any time since November 7, 1952?”

Whatever may have been the state of the record at the time this Court previously heard this matter, we are satisfied that the current record contains competent evidence from which the appeal board could have found plaintiff disabled as a result of his injury for the specific periods of the award. We also feel that there is competent evidence to support the finding that plaintiff was disabled on the last date of hearing- and the order for continuing compensation until further order of the department.

We are aware that 2 referees who have heard this plaintiff’s testimony have disbelieved him and agreed with Dr. Carpenter’s skepticism about his version of continuing trouble with his knee. This Court, however,- is not the trier of the facts. The appeal board is required by statute to undertake that responsibility. CL 1948, § 413.12 (Stat Ann 1950 Rev §17.186).

The appeal board in this matter apparently believed plaintiff’s positive testimony concerning his symptoms and inability to get work, as well as the supporting testimony of his medical witnesses. The weight and credibility of the testimony of lay witnesses and of medical witnesses in workmen’s compensation proceedings are matters for determination of the appeal board. Johnson v. Pearson, 264 Mich 319; Hood v. Wyandotte Oil & Fat Co., 272 Mich 190; Jesionowski v. Allied Products Corporation, 329 Mich 209; Alexander v. Covel Manfg. Co., 336 Mich 140.

We deal in this case With an instance of temporary total disability. In such a situation, the device employed by the appeal board in ordering payment of compensation until further order of the board, we have many times approved. Hovey v. General Construction Co., 233 Mich 531; Warner v. Michigan Electric Railway Co., 248 Mich 60; Pretzer v. State Psychopathic Hospital, 286 Mich 454; Lynch v. Briggs Manfg. Co., 329 Mich 168.

Such an order does not finally determine rights to compensation. A petition to stop, to decrease or to increase compensation is always permissible in order to show circumstances concerning a claimant’s physical condition which have changed from the last date of hearing. Hood v. Wyandotte Oil & Fat Co., supra; Catino v. Morgan & Wright Co., 272 Mich 154; Goines v. Kelsey Hayes Wheel Co., 294 Mich 156. Indeed, in view of plaintiff’s age and the nature of the injury, it is to be hoped that time or further medical treatment will occasion still further consideration of this case.

We believe that what has been said serves to answer appellant’s contention that the previous order of this Court in White v. Michigan Consolidated Gas Company, supra, was res judicata as to compensation claimed between the dates of November 7,1952 (the previous referee’s hearing date) and June 4,1954 (the previous appeal board order date). The doctrine of res jiidicata has been held to apply to'decisions of the workmen’s compensation department. Besonen v. Campbell, 243 Mich 209. However, for the doctrine of res judicata to bar a subsequent proceeding, the precise issue of fact or law must have been at issue and decided in the preceding adjudication. Jacobson v. Miller, 41 Mich 90; Estate of Beckwith v. Spooner, 183 Mich 323 (Ann Cas 1916 E, 886) Viaene v. Mikel, 349 Mich 533; annotation, 122 ALR 550; 58 Am Jur, Workmen’s Compensation, §§ 508, 510. Obviously, in the period between the referee’s hearing and appeal board decision, the crucial facts pertaining to disability could change to the advantage of either party without any adjudication upon such change. This was recognized in the order of the appeal board, ending “until the further order of the workmen’s compensation department.”

While this Court set aside the appeal board order as to continuing compensation beyond November 7, 1952, such an action did not finally determine the rights of the parties either. This Court held that the record then presented to it did not contain competent evidence upon which the appeal board could have made a finding of continuing disability as a matter of reasonable prediction. This Court’s order did not mean that in the event such disability did in fact occur that a subsequent showing and claim for compensation would be barred. Plaintiff’s claim based on actually accrued liability had nevqr been adjudicated before the instant proceeding. To the extent that language in Webber v. Steiger Lumber Company, 322 Mich 675, seems to stand for a contrary result as to the period between the dates of hearing and appeal board award, it is overruled.

Appellant presents 2 other questions which ap-pellee and the appeal board claim it waived in the proceeding below. Nonetheless, we will comment briefly on both.

Appellant claims that all liability prior to 1 year preceding the filing of the second application for hearing and adjustment of claim is barred by part 3, § 14, of the workmen’s compensation law (CL 1948, §413.14 [Stat Ann 1950 Rev §17.188]). We disagree. We hold that while a claim for continuing compensation applicable to the period in dispute was pending on appeal to this Court, the provisions of part 3, § 14, were tolled. 54 CJS, Limitations of Actions, § 248; 34 Am Jur, Limitation of Actions, § 237. Obviously this section was passed to guarantee a defendant prompt notice of claim for subsequent compensation, and to prohibit imposing on a defendant the burden of defending a stale claim.

If one thing is clear about this record, it is that plaintiff since May 20, 1952, has consistently and vigorously claimed compensation by every means at liis command. The notice of claim and litigation for it has been continuous. We do not believe the legislature could have intended the limitation to be effective in such a situation.

The public policy upon which the tolling of statutes of limitation by the commencement of litigation is based is illustrated by a provision of the Michigan judicature act:

“If, in any action, duly commenced within the time limited in this chapter, and allowed therefor, the writ or declaration shall fail of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ be abated or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause, at any time within 1 year after the abatement or other determination of the original suit, or after the reversal of the judgment therein; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence such new action within the said 1 year.” CL 1948, § 609.19 (Staff Ann § 27.611).

In this regard, a Federal district court has said:

“Statutes of journey’s account originated in England and have long existed, in varying forms, among the States. The courts have construed them liberally in furtherance of their purpose — to enable controversies to be decided upon substantive questions rather than upon procedural technicalities. Sachs v. Ohio Nat’l Life Ins. Co. (CCA), 131 F2d 134; Haught v. Continental Oil Co., 192 Okla 345 (136 P2d 691); Greulich v. Monnin, 142 Ohio St 113 (50 NE 2d 310, 149 ALR 477); Hayden v. Caledonia National Bank, 112 Vt 491 (28 A2d 389, 142 ALR 1178); People, ex rel. Jefferson Hotel Corp., v. Woodward, 178 Misc 397 (34 NYS2d 632); Johnston v. Sikes, 56 Conn 589; Coffin v. Cottle, 16 Pick (33 Mass) 383.” Wilt v. Smack, 147 F Supp 700, 702.

While we recognize that the statutory provision quoted is not specifically applicable to the limitation provision contained in the workmen’s compensation act, as indicated above we apply the same reasoning' to the situation currently before us.

As to the offset of court costs of the first proceedings, we believe this issue is moot since plaintiff under what we have written is entitled to costs in this appeal, and defendant is obviously entitled to offset his costs against those here awarded.

Affirmed. Costs to appellee.

Smith, Black, and Voelker, JJ., concurred with Edwards, J.