*1 Company v Eureka Tire 469 Derwinski 1979] v EUREKA DERWINSKI TIRE COMPANY 2). (Calendar 5, Argued 60751. June Docket No. 1979 No. Decided 27, 1979. December Eugene applied compensation for workers’ benefits employer, against Company, his last Eureka Tire for a back sought injury. apportionment prior employers. with Eureka judge administrative law awarded and The benefits ordered prior apportionment plain- Eureka between tiff, Hosking Company. Compensation Ap- Tire The Worker’s peal apportionment ground Board as to on reversed that disease, degenerative occupational disc disease not an apportionment. Appeals, statute allows The Court of P.J., Holbrook, Jr., JJ., Quinn, reversed,- and Bashara and D. E. holding plaintiff’s that the back condition was an meaning apportionment statute, within disease (Docket 77-987). there should be No. Defen- Hosking appeal. dants and American Insurance Co. Held: Compensation Appeal findings 1. Worker’s Board’s Thus, are fact conclusive the absence of fraud. the Court appeal accept
bound to board’s factual which has support plaintiffs in the record that the back condition was not [3] [2] [5] [7, [4, [13] [12] [11] [10] [14] [1] Jur Workmen’s 82 Am 81 Am Jur 82 Am Jur Workmen’s 82 Am Jur Workmen’s 81 Am Jur 82 Am Jur 6, 81 Am Jur Workmen’s 82 Am Jur Workmen’s 81 82 Am Jur Workmen’s 82 Am Jur Workmen’s 82 Am Jur 8] 81 Am Am Am 82 Am Jur Workmen’s Am Jur Jur Jur Jur 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, References 2d, Workmen’s Workmen’s Workmen’s Workmen’s Workmen’s 2d, Workmen’s Workmen’s Workmen’s for Points in Headnotes Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation Compensation § §§ § 289. §§ § §§ §§ 223. 409. 27 et § § § § § 631. 289-298. § 240, 79, 225. 225. 290 et 552. 2. §§ seq. 80. 409. 635. 289 et seq. seq., 298. Mich incident he suffered at Eureka result subsequent aggravation at result of incident Eureka, heavy lifting duties but instead result *2 employers. for both Appeal Compensation have 2. Board does not The Worker’s modify provision any the authority a of Worker’s to alter or otherwise, Act, interpretation by in Disability Compensation or appeal percep- square provision with the board’s to order Legislature’s solely good public policy. is That the tion of appor- language by Legislature prerogative. the in the used The straightforward. liability provision An clear is and tionment employee which is "due” to from a "disease” must be apportionment employment in order for the the "nature” of the provision apply. to ordinary plaintiffs the 3. condition falls within The back Legislature appor- meaning language by the used the of the abnormal, provision. is it was found to The condition tionment resulting consequence the of environmental stress be a impairs employment, it normal elements of his inherent by functioning, physiological is considered a disease the it Appeal Compensation profession; Board Worker’s medical the heavy lifting by the nature of his found that it was caused employers. with both duties Compensation Appeal argument by 4. the Worker’s that, only apportionment provision autho- the Board because apportionment or a and not for a "disease for "disease” rizes defining "personal phrase disability”, the used in act the provision apply apportionment to to injury”, the was not meant disability, plaintiffs condition is a disabil- that the back a disease, subject judicial ity legal to a conclusion and not a is a of fact. review rather than conclusive "disability” the as it is defined in Worker’s The term expression Disability Compensation the Act a shorthand for is personal injury. a class end a It does not connote result of Many personal injuries sections of distinct from disease. act, provision, “dis- including apportionment the term use Legislature ability” by as in the same sense defined give not intend to an inferential act. The did express meaning "disability” to the to the term addition Furthermore, statutory a even if there were distinc- definition. plaintiffs "disability”, back tion between "disease” and physiolog- abnormal "disease”. "Disease” includes condition a Both medical stress. iсal conditions caused environmental "degenera- diagnosed experts plaintiffs as back condition disease”, appeal it found that was tive and the board disc 1979] Eureka Tire v lifting heavy employers. Repeated result of his duties both with employment may supply with the strains associated the distinc- necessary injury occupational. tive element a back make distinguishable This case from those in which the back single-event injury condition was caused such an aggravation. subsequent apportionment provision purpose 6. The is to distribute equitably liability employ- for a disease caused similar among employers responsible ment conditions who were for provision interpreted those conditions. The should be with this purpose plaintiffs in mind. If back such conditions as the were apportionable, employers expected could be to refuse to persons previously occupations hire who have worked require repeated heavy lifting appropriate duties. It is not for statutory provisions Court excise back diseases from the governing occupational purposes diseases for easier adminis- Compensation Appeal tration. The Worker’s Board can fashion directing payment plaintiff during any appeal an order to a solely question apportionment among on the between or employers employees so successive need not wait question benefits while the is decided. *3 Levin, signing in addition Justice to Chief Justice Coleman’s opinion, separately history say occupa- wrote to that the of the chapter Disability Compensation tional of the disease Worker’s supports Act the conclusion that the did not create categories personal injury compensable chap- two of under that ter, occupational occupational disability, compensa- disease and being apportionable tion for the former and for the latter apportionable. chapter apparently The draftsman of the re- garded covering every "disease” as that disablement was com- pensable chapter, under new the or at least saw no need monotonously to reiterate or "disease condition”. The basic purpose chapter responsible industry of the is to an for make disablements which are characteristic of in it and responsibility among to industry allocate that in the who those employed injured distinguish the worker. To of between causes they disablement based on whether are diseases conditions purpose. would not serve that Appeals The decision of the Court of is affirmed and the apportioning liability order is reinstated. Williams, joined by Moody, dissenting, Justice Justice wrote: Appeals present 1. Court The of held that a disease is for purposes compensable of the a statute when disability protracted derives the of from effects continued and exposure employment. to the inherent of elements the 407 Mich first, grounds: categorizes unacceptable it two is on definition disability”, type "compensable particular as a of "disease” defining "personal injury”, in- Legislature, the whereas terms between the "disease” a clear distinction tended to make second, "disability”; definition is too broad and would the and injuries clearly as many types not diseases that term of include Supreme that Court has decided a is the act. The used under exposure of to the effects continued back condition derived from lifting, employment, heavy of the one of the inherent elements occupational concealment from an is not disease whose recovery compensation prevent benefits from of would employer. the easy the act is not an term to 2. "Disease” as used under specifically "occupational define, define Court cannot and the legislative guidance, but it can reach morе disease” without 1) injuries appear be do not to certain conclusions: back normally occupational type compensable events found to be 2) occupational diseases; Court definition of 3) appeal unacceptable; that it cannot be said disease is finding a error of law in board made definitional 4) disease; disability suffering a a and not generally is a is an disease whether an support question case in the record of fact and in this there appeal board. Under these circum- factual Appeal Compensation the Court finds the Workmen’s stances interpretation disability application its these Board’s facts not erroneous. among employers Apportionment authorized distinguishes only case The statute statute of disease. personal personal injuries which are diseases between disabilities, appor- injuries as to and the difference which are oversight part Legislature. on the tionment is not mere competent support the determination of There is evidence appeal from a board disease, apportionment was not and not a that therefore authorized. (1977) App 750; affirmed. Mich NW2d
Opinion Court *4 — Compensation Injury — Fact. 1. Back of Workmen’s Question Appeal supported finding Compensation Board A оf Worker’s by not the result record that a worker’s back condition was single-event injury or a at his last of he suffered subsequent aggravation last at his of that event and result lifting heavy employment, result of his but instead the v Eureka employer previous is a duties for his last and a (MCL418.861; finding of fact in the absence of fraud conclusive 17.237[861]). MSA Appeal — Compensation — — 2. Workmen’s Board Statutes Con- struction. Appeal Compensation Board does not have the The Worker’s modify provision authority to alter or of the Worker’s Disabil- Act, otherwise, interpretation ity Compensation by in order square provision appeal perception with the board’s of solely Legislature’s prerogative good public policy; that is (MCL seq.; seq.). 418.101 et MSA et 17.237[101] Compensation Occupational Appor- — (cid:127)— 3. Workmen’s Disease tionment. employee An must be from a "disease” which is "due” employment for of liabil- to the "nature” of his compensation payments among employers ity for workers’ (MCL418.435; 17.237[435]). MSA — Compensation Injury Occupational — 4. Workmen’s Back Dis- —ease Words Phrases. ordinary meaning A worker’s back condition falls within the by Legislature apportion- the term "disease” used Disability Compensa- liability provision ment of the Worker’s consequence tion Act where the condition is abnormal and a stress, impairs physiological environmental his normal func- tioning, degenerative and is considered a disc "disease” profession, Compensation medical and where the Worker’s Appeal Board found the back condition was caused heavy lifting nature of the worker’s duties for two successive (MCL 418.435; employers 17.237[435]). MSA Compensation Occupational — — 5. Workmen’s Disease Statutes — — Construction of Law. Question Compensation Appeal A conclusion the Worker’s Board as to meaning to define the of words used statutory provisions proper word "disease” in two is within the law, scope judicial question a conclusive review as a "disability” of fact that a worker’s condition is a rather (MCL 418.435; 418.401[c], than an disease 17.237[401][c],17.237[435]). Compensation Disability — — Phrases. Workmen’s Words and "disability”, Disability The term as defined in the Worker’s Act, Compensation expression is a shorthand for the end result *5 407 Mich personal injury; personal it does not connote a class of a (MCL 418.401; 17.237[401]). injuries MSA from disease distinct Apportionment — — Compensation — Statutes 7. Workmen’s Construction. authorizing apportionment of workers’ purpose The of the statute prior among compensation em- the last benefits equitably liability ployers for a disease is to distribute conditions; interpreted be the statute should similar caused (MCL 418.435; 17.237[435]). purpose mind MSA with that in
Concurring Opinion Levin, J.
See 1-7. headnotes Disability — Compensation Oсcupational — Disease 8. Workmen’s — and Phrases. Words Disability Compen- chapter of the Worker’s of the The draftsman apparently concerning re- diseases sation Act covering every garded disablement that was com- "disease” as chapter, pensable or at least saw no need under the new phrase monotonously condition" "disease or to reiterate (MCL seq.). seq.; et 418.401 et MSA 17.237[401] Legisla- Compensation Occupational — — Disease 9. Workmen’s Purpose. tive Disability chapter purpose of the Worker’s The basic concerning occupational Compensation is to make Act diseases industry responsible which are characteris- for disablements responsibility it and to allocate that tic of worker; injured among industry employed the those in the who distinguish whether between causes of disablement based on purpose they would not serve that are diseases or conditions (MCL seq.). seq.; et 418.401 et MSA 17.237[401] Dissenting Opinion Williams, J. — Compensation — (cid:127)— Statutes Construction Workmen’s Injury” "Disability” — — "Personal "Disease”. statutory disability” of the terms "disease or use "personal injury” indicates that definition terms between these two intended to make a clear distinction other, merely of the and this is and that one is not a form very treatment of disease further evidenced different (MCL 418.431, 418.401[c], subsequent sections of statute 17.237[435j). 418.435; 17.237[401][c],17.237[431], v Eureka — Compensation Occupational — Defini- Disease
11. Workmen’s tion. compensable occupational disease as a A definition protracted continued and from the effects of which derives employment is unac- exposure to the inherent elements type categorizes particular ceptable it disease as because harmony disability, compensable which is not with personal injury, statutory and because it is en- definition of *6 many types categorize tirely diseases of and would as too broad injuries clearly under the act not diseases as that term is used (MCL 17.237[401][cj). 418.401[cJ;MSA Occupational — Compensation — Disease Back 12. Workmen’s Injury. compensable appear type injuries events to be the Back do normally occupational diseases. found to be Compensation Occupational — — Disease Question 13. Workmen’s of Fact. generally occupational injury disease is a is an Whether an fact, support question there in the record for a and where Compensation Appeal finding by the Board factual Workmen’s plaintiff from a disabil- with a back that a (Const disease, 1963, ity art is conclusive and not a §28). Apportionment. Compensation — 14. Workmen’s among compensation Apportionment the last benefits only prior employers authorized statute in the case disability, a and this difference disease and not part statutory coverage oversight on the is not mere (MCL418.435; 17.237[435]). Paupore Ryan, & P.C. for defendant Eureka Tire Company. LaKritz, P.C., ff, Ross,
Ulano Summer & for de- American Hosking Company fendants Tire Insurance Co.
Amicus Curiae: Ottaway, Ducey
Conklin, Benham, McLeod, & 407 Mich Opinion of the Couet Chuhran), (by for Alliance of P. P.C. Thomas American Insurers. affirm). (to The worked
Coleman, C.J. Hosking recapper for defendant as a tire Company to 1971 and same from 1964 capacity Eureka Tire for defendant working for Eureka in He ceased 1971 to 1974. disabling degenerative disc dis- 1974 because of now entitled to and does ease for which he is ques- compensation benefits. The receive workers’ employer, presented the last tion is whether responsibility pay- Eureka, full should bear due or whether ment of the benefits employers. responsibility should be shared both plain- hearing factually found that referee repeated was caused tiff’s back condition lifting required bending he was to do employers. On the course of his work for both finding, the referee concluded that an basis of this required. liability The Work- *7 Appeal accepted Compensation Board er’s independently the referee’s factual find- verified legal appeal ings, rejected conclusion. The but his public policy, on the adminis- board ruled basis interpretation precedent statutory trative apportionment permitted in- in cases was volving suffered back conditions such as that plaintiff. Appeals reversed the The Court of of the ref- board and remanded reinstatement liability. original apportioning Defen- eree’s order Hosking appeals. now dant Appeals. I Given would affirm the Court of findings particular and the factual of the referee appeal case, was in this board (less public policy proper. issues to be If it is better WCAB) "occupa- to excise from decided v Eureka Opinion of the Court having back, to do with the those disease” tional proper Legislature is the forum.
I process recapping both defen- used The tire plaintiff Hosking required to and Eureka dants engage repetitious extremely and strenuous in plaintiff activity. physical that, testified The up recap tire, lift the tire he had to to one order ma- out of various molds and into and and down approximately 20 times. The a total of chines lifting to four feet. The varied from three distance weight pounds ranged to 150 from 30 tires plaintiff pounds did most of this more. The help lifting manually his co-workers. without from during years plaintiff’s seven at work demanding Hosking than his work much more was Hosking years during At he at Eureka. his three recap per day, requirеd while 50 to 60 tires recap only required 20 to 35 Eureka he was at per day. tires in the course minor back incidents
After several Hosking Eureka, of his work at both plaintiff another incident at Eureka suffered Although the rest of he worked December of day to work the thereafter, of this incident and continued pain. He
he remained in constant months until June of when worked six more great pain forced to too and he was became cease work. experts
Two medical examined of them con- connection with this case and both "de- cluded that experts, generative Dr. disease”. of these disc One *8 orthopedic surgeon Mayo Clinic, Sim, an "[b]asically lay as described this disease terms 407 Mich Opinion Court * * * responded a worn-out disc” and in the affir- mative when asked whether this disease was a "process type inju- rather than an occurrence ry”. expert, Roberts, The other Dr. stated that the plaintiff’s type back condition was of a that "re- quired prolonged taking stress, tear, wear and years develop”.
Because the had not been examined experts during years these the seven he had Hosking worked at and because there were no X- rays plaintiff’s dating period, back from that neither doctor could state with a reasonable de- gree certainty degenera- of medical whether begun Hosking tive disc disease had at and contin- sprung up solely ued at Eureka or whether it had during plaintiff’s years final three at Eureka. Based on the data them, available to the doctors only could present be certain that the disease had been
since the more serious incident suffered at Eureka in December of 1973. How- testify "quite proba- ever, Dr. Sim did it was plaintiff’s Hosking ble” that work at had ei- caused, ther to, contributed or accelerated the disease; and Dr. Roberts reiterated his view that degenerative changes plaintiff’s back, as X-rays, type evidenced current were of "a prolonged result of rather wear and tear”. hearing factually referee found that
plaintiff’s by any back condition "was not caused single repeated event but was the result of trauma by lifting bending caused in the course of his companies”.1 with the two defendant finding, On the basis of this the referee concluded liability required that an respective lengths plain- based on the of time the Hosking tiff had worked for and Eureka.
1Hearing Opinion, p Referee’s *9 v Eureka Opinion of the Court find- the referee’s Hosking appealed
Defendant Compensation the Worker’s and decision ings alia, that (WCAB) inter arguing, Board Appeal from the solely resulted condition back plaintiff’s at suffered incident single-event incident 1973 or from in December of Eurеka his contin- caused aggravation subsequent plus until June of Eureka at employment ued condition plaintiff’s Hosking contended Three of the Chapter virtue compensable by Because Act.2 Compensation Disability Worker’s any apportionment contain Three did not Chapter apportionment. no there could be provisions, the factual accept board did appeal The The Hosking. defendant urged by propositions board stated: accept the
"First, finding. fact We proceed to our we independently find that factual conclusion referee’s heavy lifting result of his disability is the plaintiff’s employers.”3 duties at both question pre- the legal then stated The board sented: plain- finding, directs that
"Having made that provi- compensable by virtue of tiff’s disablement * * * required apportion Chapter 4 are we sions of 435?”4 liability by application of Section 4355 to which pertinent portion states: board referred liability for hearing apportion
"The referee shall 3Appeal 4Ibid. MCL 418.301 et Board Opinion, p 2. seq.; 17.237(301) et seq. 17.237(435). 418.435; MSA MCL 407 Mich Opinion op the Court compensation among employers propor- several tion to service employee employed the time that the in the
of each to the nature of which the disease was due and in which it * * added.) (Emphasis was contracted
The board concluded that this statute should not require apportionment be read to in cases involv- ing degenerative by repeated disc disease caused lifting employers. duties at two or more The board candidly admitted that this conclusion was based *10 policy on a "conscious and its determination” the board predecessors not to treat back conditions as purposes diseases for under 435.6 primary given by reason the board for this policy possibility determination was the of an litigation increase and a concomitant increase length of time a claimant must wait for benefits if the statute were to be read so as to closing, include back conditions. In the board added: "Should our subject review, decision here be to Court and should the Court find argument insufficient the policy (which precedent urged administrative here
we sufficient), deem more urge than we the considera- tion of a statutory arising rationale out of definitional differences in Sections 401 435. In Section * * * 'personal term injury’ is [the defined 'include a to] disease or disability’. provides apportion- Section 435 for among prior ment employers only for 'disease’. Notwith- standing disease’, the medical term 'degenerative disc occupationally-weakened appropri- backs could more ately be described 'disability’ the term than term 'disease’ as the latter word is treated in common usage, and thus be provisions excluded from the Section 435.”7
6 Appeal Opinion, p Board 3. 7 Ibid.
1979] v Eureka Tire
Opinion of the Court
appealed
Eureka
Defendant
board’s decision
Appeals.
the Court of
That Court
reversed the
and remanded the
board
case for reinstatement of
original
apportioning liability.
the referee’s
order
(1977).
App 750;
79 Mich
opinion,
Defendant has now the Court decision to this Court.
II appeal findings The board’s of fact are conclu- sive in the absence of 418.861; fraud. MCL Mich op Opinion the Court 17.237(861). accept Thus, to we are bound (which support finding has factual WCAB’s record) plaintiffs was not condition back Eureka in at incident he suffered of the the result incident result of that or the of 1973 December plus aggravation subsequent Eureka, but was at lifting heavy duties for result of instead the employers. both legal generated this of fact
The issue recognized medically disease back is whether a by repeated course of in the normal duties caused daily employee’s a "disease” constitutes routine an meaning § 435. within the
Ill authority any appeal to not have does The board provision modify Disabil- of the Worker’s a alter or interpretation ity Compensation Act, or other- provision square with the wise, in order good public policy. perception That board’s prerogative. Legislature’s solely language § in 435 is The used requires appor- straightforward. It clear and length according liability to the tionment of employee for each has worked time the employment which the to the nature of "in the it was contracted”. due and disease was employee Thus, must be "nature” of his is "due” to the "disease” which apply. for the statute in order her plaintiffs falls within back condition meaning language ordinary used of the Heritage (cid:127)Legislature Dic- §in 435. The American College Language, English tionary New (1975), as: "disease” defines the word Edition *12 v Eureka Tire Opinion op the Court organism "An abnormal condition of part, infection, consequence as a especially inherent weak- ness, stress, impairs or environmental that normal functioning.” physiological dictionaries contain a similar Other definition.8 "abnormal”, plaintiffs The condition is it certainly * * * "consequence found to be a environ- mental it "impairs” stress” and his "normal physi- addition, ological functioning”. In the condition is "degenerative considered disc disease” disease — —by profession. the medical And appeal board found it was caused nature of his employ- ment at both employers du- "heavy lifting —his ties”.9
The board would have reject us the ordinary meaning the words used 401(c)10 435 by reference of the act which § § states:
"Whenever used this act: "(c) injury’ 'Personal shall include a disease or dis- ability which is due to causes and conditions which are peculiar characteristic of and to the businеss of the * * added.) (Emphasis *.” argues board 435 only because autho- rizes apportionment for a "disease” and not for a "disease or disability”, not meant to a apply Furthermore, "disability”. 8See, example, Dictionary Webster’s Third New International (1966 English Language, Unabridged ed), p questionable It by” is the disease than is "caused rather "aggravated by” fact-finding the hard labor but the WCAB final. Degenerative disc disease uncommon is found those who who perform any hard no labor —or labor —as well as those perform arduous tasks. 17.237(401)(c). 418.401(c); MCL Mich 469 op Opinion the Court *13 plaintiffs urges condi- the back that because board by "disability” the term tion could be described by "disease”, should term there be than the rather policy Ergo, if the in this case. no argument give simply fail, we the could should name. disease another argument by not the is a conclusive board
This plaintiffs back condition is fact the of that contrary, "disability” To the not a "disease”. a legal argument conclusion as to in a the couched Legislature meaning the the of the words used 401(c) bringing it the §§ thus within in proper
scope judicial review.
IV legal argument flaw in the board’s The first reading appear of the from a act it does phrase Legislature, by using the "disease that the 401(c), thereby disability” to cre- §in intended injuries. personal Sec- ate distinct classes two 401(a)11 "disability” in a the term tion defines meaning thе the board at odds with manner urges adopt. That section states: us to act: in this "Whenever used "(a) 'Disability’ being disabled means the state earning wages in which the from full at the work resulting in subject last conditions employee was ” added.) (Emphasis disability. "disability” represents defined, a term As so per- expression a shorthand for the end result per- injury. It does not connote class sonal Many injuries sections from diseases. sonal distinct including itself, act, § the term use 17.237(401)(a). 418.401(a); MSA MCL v Eureka Tire Opinion op the Court "disability” in the same sense as defined 401(a).12 §
Despite Legislature’s express definition of 401(a), "disability” term board would Legislature additionally have us infer designate that this term should intended a class of personal injuries distinct diseases. accepted interpretation
If we this and the plaintiff’s conclusion that board’s back condi- appropriately tion could more be described "disability” "disease”, term than the term no benefits could awarded in be this case. Based on its findings, properly factual Chapter the board concluded that Chapter
Four and not Three controlled. *14 Chapter Four, Section 41513of which delineates the circumstances awarded, under which benefits can be
only payment authorizes the of benefits the when claimant’s condition is "caused a phrase disability” disease”. The "disease or is not interpretation, Thus, used. under the § board’s 415 apply "disability”. would not to a Legislature I do believe that the intended such a result. Nor do I that in believe addition to express "disability” the definition of the term 401(a), Legislature § the also intended that this meaning term should have some other when used in another section.
Assuming arguendo that the did distinguish intend to between a and a "disease” "disability” purposes for under 435, § the board is also incorrect in its conclusion plaintiff’s ap- back condition could more propriately "disability” be described the term § 17.237[441]). [12] In MCL (MCL addition to 418.415; 418.431; § MSA 17.237(415). see 17.237[431]), § 415 (MCL 418.415; (MCL MSA 418.441; 17.237[415]), MSA 407 Mich Opinion of the Court as the latter word than the term "disease” usage. treated in common dictionary meaning of the above, the noted As physiological includes abnormal "disease” word plaintiff that suffered such as conditions found) (the by environmental caused board experts Also, who exam- both of medical stress. diagnosed his condition as "de- ined generative lay terms, "a worn-out disc disease”—in found that this condition was disc”. The board result of employers. lifting plaintiff’s heavy duties at both required duties Those year of tires each lift hundreds of thousands speaking years.14 Larson, Professor ten successive "occupational on diseases” in treatise about "repeated compensation law, states workers’ sup- employment may associated with the strains ply necessary make а the distinctive element injury occupational”.15 back permit too clear to These in toto are factors under to avoid Eureka’s claim obfuscation order §435.
V long with series This conclusion consistent Court, this course of cases interpreting act, has treated other sections of lifting by repeated heavy conditions caused back *15 constituting constituting possibly occu as or duties 14 testified, recap Assuming, had to as to one tire he that per recap required 50 to 60 tires it 20 times and that he was to lift per day during Hosking day years his at and 20 35 tires seven Eureka, per average during years lifts three number of at (20 264,000 working Hosking tires year lifts 55 240 at would be x X (20 132,000 average 27.5 days) lifts and the at Eureka would be X working days). 240 tires X (1979 41.33, 15 rev), pp Larson, Compensation Law § IB Workmen’s 7-377—7-378. 487 Eureka v Opinion op the Court (whether
pational degenerative diseases or disc involved). v See Underwood National disease was Division, Castings Campbell, Wyant Motor & Can Co, Foundry non 273; 329 Mich 45 286 NW2d (1951) , v Fields G M Brass & Aluminum Foundry
Co,
113;
(1952),
332 Mich
50
738
Gibbs v
NW2d
Motor Wheel
Corp,
617;
333 Mich
53
NW2d 573
(1952),
and Braxton
v
Grey
Chevrolet
Iron
16
Foundry Division
General Motors
Corp,
396
(1976).
685;
Mich
420
It
NW2d
is also consist
Co,
ent with Kalee v
Products
Dewey
Mich
540;
(1941),
Dressier Grand Die Corp, 243; (1978), Mich NW2d 629 inapposite the case at bar. Dressier In appeal board found factually the plaintiff’s problem back (a was the single-event result at fall work) subsequent aggravations thereof. theOn of this finding, basis the board concludéd that Chapter Three controlled. There was no question about under 435. The cases hold- ing that certain back disabilities occu- constituted pational distinguished diseases were by Justice Dressier on grounds those Williams "cases involve situations where the back plaintiff’s condition arose gradually long because repeated bending, twisting, though even lifting, there might also have been an incidental trauma”. added.) Id. at 257. (Emphasis bar, In the at case rejected board the conten- appeal opinion board’s it Gibbs makes clear that occupational 20, was awarded benefits 1950- disease. See (Docket 1951). 11505, July 1951 WCABO No. *16 Mich 469 Opinion of the Court was caused back condition plaintiffs that the tion at Eureka in December by single-event injury a plus subsequent aggrava- that by Instead, found that it was the board tions thereof. lifting heavy plaintiffs repetitive the by caused basis of this On the employers. duties for both Chapter that concluded finding, properly the board in Dressier Thus, fact-facting the Four controlled. pres- the the situation essentially opрosite opinion of the language us and the ently before distinguished The cases opinion. this supportive Dressier are particularly appli- the by majority fact-findings by case of the to this because cable the WCAB.
VI the at case bar failed even appeal board is to purpose to that the of 435 distrib- mention § liability the disease caused equitably ute among employ- conditions similar responsible for those conditions. We ers who were with the Court of should agree Indeed, with this in mind. interpreted purpose be appeal advocated board position (Hosking) the employer Justice insulates Williams operation placed plain- the most stress on whose tiff. the board also failed discuss
Unfortunately, if back conditions very possibility real as that were such suffered to refuse expected can be apportionable, employers persons previously to hire who have worked lifting heavy occupations require repeated duties.
Although the toward policy considerations docket crowded WCAB reduction issues understandable, it is not function of are 1979] v Eureka Opinion Levin, J. expressed
judiciary legislatively public to override implement policy in order its own views. Disability Compen- The drafters Worker’s *17 clearly multiple Act that sation intended similar through employments, occupational which dis- finally progressed compensable disability, ease to a proportionately payment should share of case, In this Mr. benefits. both the referee and WCAB Derwinski was found degener- to have a disc ative disease caused work the two employments. That is conclusive and re- quires apportionment liability. appro- of It is not priate for this Court excise back diseases from governing occupational the statute for diseases purposes of easier administration. argument employees might
The have to appealed for wait benefits while carriers the sole question apportionment of is without merit. Even employee case, as in this receiving in which the been has benefits, full the WCAB can fashion an directing payment worker, order to the with the orderly of issue to continue to an conclusion.17 adopt
I would therefore the Court of interpretation applies § of it as to the facts case this and would affirm the reversal of the appeal board and the remand for reinstatement hearing original apportioning the liability. referee’s order JJ.,
Kavanagh, Levin, Fitzgerald, Ryan, concurred with Coleman, C.J. (concurring). occupa- history J.
Levin, The chapter supports tional disease the conclusion opinion, signed, the Chief Justice’s I which have 17.237(862) minimum, 418.862; At a MCL em could be ployed. 407 Mich Opinion Levin, J. categories not create two did chapter compensable personal under that occupational disability, —occupational disease being apportionable compensation the former not. and for the latter chapter added disease
The "occupational term 1937 act defined 1937.1The generically2 a schedule also set forth disease” "occupational compensable disease[s] condit only right compensation where arose ion^]”.3 A 1 1937PA 61. used in this act: "Definition. Whenever "(a) being 'disability’ disabled means state word employe wages last earning employed; at at the work full "(b) becoming dis- the event of so means The word 'disablement’ (a); sub-paragraph abled as defined "(c) 'occupational due to means a disease which is disease’ The term peculiar to a *18 characteristic of and which are causes and conditions 61, trade, employment.” process PA occupation, 1937 particular or 417.1; 17.220. 1. 1948 CL § resulting employe an "The of described in disablement following be the schedule shall disease or condition treated as by the happening personal within of a accident practice provided meaning procedure in this and this act аnd of except proceedings part, apply this where under shall all act specifically provided herein: otherwise arising from Caused "Disabilities hair, bristles, wool, Handling of 1. Anthrax hides or skins. Any process involving the of poisoning use 2. or its Lead sequelae lead its contact with or or direct compounds. preparations or involving Any process the use of poisoning 3. Zinc or its sequelae zinc its direct contact with or or alloys. compounds preparations or or Any process involving Mercury poisoning its use 4. or mercury sequelae or or with of its direct contact compounds. preparations or process involving poisoning Any Phosphorus or the use of 5. phosphorus or sequelae with its or direct contact its compounds. preparations or (venenata) Any process involving the use of '27. Dermatitis acids, contact with or direct alkalies, oil, or or with acids 1979] v Eureka Tire Opinion by Levin, J. disability or
the death
was "caused
one of the
[emphasis supp
mentioned
the schedule
diseases
provision
apportionment
lied]”.4
sue here —also
is
—the
spoke only
"disease[s]”.5
of
apparent
expression
§
It is
"diseases
brick, cement, lime, concrete, or
capable
causing
mortar
dermatitis
Clearly
resulting
out
(venenata).
origin
"28. Hernia
recent in
strain,
arising
from a
in the
of and
course
employment
promptly reported
employer.
to the
Quarrying, cutting, crushing,
"29. Stone worker’s or
phthisis
stone,
grinder’s
grinding
polishing
or
grinding
polishing
or
or
of metal.
Mining.
Quarrying, cutting, crushing,
grinding
"30. Silicosis
"31. Pneumoconiosis
polishing
or
of metal.”
61,
1937 PA
17.221.
§ MSA
section,
quoted
To illustrate the content of the
I have
the first five
five
last
"disabilities”.
employe
"If an
is disabled or dies and his
or death is
caused
one of the diseases mentioned in the schedule contained in
part
section two of this
and the
is due to
disease
the nature of the
employment
employe
engaged
in which such
and was contracted
therein,
dependents
compensation
he
shall be entitled to
for his
disablement,
death or for his
and he shall be entitled to be furnished
services,
hospital
provided
part
with medical and
all as
two of this
* *
act,
417.3;
1937 PA
3. 1948 CL
MSA 17.222.
compensation
"The total
due shall be recoverable from the em
ployer
employed
employe
who
employment
last
in the
to the
nature of which the
If, however,
disease was due and which it was contracted.
employe
such disease was
while
contracted
such
was in
prior
employment
employer,
of a
who is made liable
compensation
provided
may appeal
for the total
as
this section
apportionment
compensation among
said board for an
of such
employers
several
have
who since the
contraction
such disease shall
employed
employe
such
to the nature of
proportioned
which the disease was due. Such
shall be
employe
to
employers,
employed
the time such
in the service of such
only
hearing,
and shall be determined
after
notice
*19
place
given
every employer
time and
of which shall
to
have been
alleged
finds that
portion
any
compensation.
to be liable for
of such
If the board
any portion
by
compensation
payable
such
an em
of
ployer prior
sation as
employer
compen
to the
who is
liable for the
made
total
provided
section,
this
he shall make an award accord
ingly
in
employer,
may
in
of
favor
the last
and
award
be enforced
such
61,
compensation.”
the same
PA
manner as an award for
1937
9.§
417.9;
1948 CL
MSA 17.228.
469
492
407
Mich
J.
Opinion
Levin,
in section
contained
in the schedule
mentioned
(emphasis supplied)
part”
to
referred
two of this
and conditions.
diseases
all scheduled
not "diseases”
which were
"conditions”
Otherwise
compensable
chap-
under the
not have been
would
having
plainly
their
with
ter,
inconsistent
a result
providing
Manifestly,
§in
in
been scheduled.
dependents
employee
enti-
shall be
or his
respect
compensation
men-
to "diseases
in
tled to
in section two of
contained
in the schedule
tioned
speaking
part”
of all
this
they
disablement, whether
be
scheduled causes
condition[s]”.
"disease[s] or
regarded
apparently
"disease” as
The draftsman
compensable
covering every
that was
disablement
beginning
chapter,
least,
in
or at
the new
under
monotonously
3,
to reiterate "dis-
§
no need
saw
appears
"condition”
condition”. The word
ease or
meaning given
§ 2.6
"disease”
in
nowhere but
presumptively
§in 3
reflects the
the draftsman
Legislature,
should
read into
and
be
intent of the
speaks
including
succeeding sections,
§ 9 which
apportionment.
making
suppose
no
There is
reason
1(c)
changes
subsequent
language
2,7
§§
and
(see
1(c) in
fn
in
MSA
another context
The word "condition”
used
§
17.225)
(1948
417.6;
supra)
context.
in still another
and
CL
present
again
took its
1943 PA
The act was
amended
pertinent
form. The
sections are:
this
1. Definition. Whenever used in
act:
"Sec.
"(a)
being
'disability’
disabled from
means the state
The word
employe
earning
wages
was last
the work in which
full
at
resulting
disability;
subjected
to the conditions
"(b)
becoming so dis-
The word 'disablement’ means
event
(a);
subparagraph
defined in
abled as
"(c)
disability
'personal injury’
or
include a disease
The term
shall
of and
which are characteristic
due to
and conditions
which is
causеs
peculiar
which arises out
the business
* * *
employment.
in the course of the
resulting
employe
such disease
2. The disablement of an
"Sec.
happening
personal
of a
treated as the
shall be
*20
1979] 493
Tire
v Eureka
Opinion by Levin, J.
including
"disability”
the substitution of
for "co
”,8 any change
intended
ndition
comprehensive meaning
of the word "disease”
succeeding
including
sections,
as used
3 and
§9.
chapter
The basic
of the
theme
is to cover
due
disablement
to "causes and conditions which
peculiar
employ-
are characteristic of and
to”9 the
distinguish
er’s
To
business.
between
causes
peculiar
disablement characteristic of and
to the
employer’s
upon
they
business based
whether
are
"di'sease[s]”
"condition[s]”
or
would
serve that
purpose. The construction set
forth
the Chief
opinion
Justice’s
is consonant with the basic con-
chapter,
cept
industry
of the
which is to make an
responsible for disablements which are character-
meaning
procedure
practice
within the
of this
and
act
and
provided
except
apply
proceedings
part,
in this act shall
to all
under this
specifically
provided
where
otherwise
herein.
employe
"Sec.
If
or
disabled
dies
his
or death
by a
is caused
employment
disease and the disease is due to the nature of the
emрloye
engaged
in which such
and was contracted
therein,
dependents
compensation
he
be
shall
entitled to
for his
* *
(Emphasis supplied
death or for his disablement
to indicated
language changes.)
unchanged;
subsequently
Section 9 was
it was
amended
PA
1962
provide
189
1965 PA to
employers
44
additional notice to former
injured
worker.
When the act was further amended in
the word "condition”
replaced by
“disability”,
possibly
the word
because “condition”
1(c)
already appeared
thought
in §
and the draftsman
it would be
say:
'personal
awkward
injury’
"The term
shall include a disease or
(Emphasis supplied.)
condition which is due to causes and conditions’’.
"9
phrase, "peculiar
occupation”,
'The
to the
is not here used in the
originates
sense that the
the
exclusively
disease must be one which
particular
employment
employee
engaged,
kind
in which the
but rather
employment
in the sense that the
conditions
must
distinguishes
result
in a hazard which
it
in character
from the
(Italics
general
occupations.’
supplied.)”
run
v
Underwood National
Castings Division, Campbell, Wyant
Foundry Co,
Motor
& Cannon
273, 276;
(1951), quoting
Goodyear
Mich
among who those in injured employed worker. reversal). (for appeal repre- This J. Williams, employers dispute as to two
sents a between *21 рlaintiff of a because due whether benefits compensation ac- in this workers’ back paid only the last be tion should previous among apportioned the last and should be employers. of reversed The Court (WCAB) Compensation Appeal Board Workmen’s injury should due for this back and found benefits apportioned. action unwarranted be We find that of the decision of remand for reinstatement and the WCAB.
I. Facts recapper employed a tire as at Plaintiff was (hereinafter Hosking) Company Hosking from Tire During employ- the course of this 1964 to 1971. lifting heavy tires, he ment, of which involved injury: specific one incidents back suffered two in two of which he lost of 1964 as result December days of work and another in 1967 or date). specific (plaintiff could not recall the quit wage job of 1971 he his over a In October dispute Tire Com- to work for Eureka went Eureka) (hereinafter capacity. pany At same incidents of back Eureka he also suffered two May injury: in no of 1973 which resulted one in 19, 1973. and another on December loss work "big plaintiff (during felt a This last rip” which back) plaintiff which left was one working. pain and unable to continue compensation petition was filed Plaintiff’s employer, against who Eureka, the last defendant 1979] v Eureka Dissenting Opinion by Williams, J. seeking
subsequently filed a motion any prior employers benefits between it and 17.237(435), ap- 418.435; MCL under plies only objection diseases.1 Over Hosking, thereby party it of defendant made a defendant.
Testimony plaintiffs experts, Dr. Franklin orthopedic surgeon Mayo Sim, an from the Clinic, orthopedic Roberts, and Dr. Warren J. surgeon, also an adduced that disability currently diagnosable degen-
a back aas erative disc disease but neither doctor could cor- particular malady roborate the existence of that prior injury. December, Sim, to the Dr. response hypothetical question describing to a injuries occurring prior three December, 1973, prior inju- indicated that if had suffered injuries degenerative signs ries, those were not plaintiffs disc disability Dr. disease. Sim concluded that December, stemmed from the 1973 in- *22 jury-_ 17.237(435) 418.435; MCL states: compensation "The total due shall be recoverable from the em- ployer employed employee employment who last the in the to the nature of which the disease was due and in which it was contracted. any dispute controversy payment If compensa- or arises as to the therefor, liability employee give tion or as to the shall notice to and upon employer only apply make claim hearing the last and for a against employer only. the employee employed prior last If by the was employers employment in an to the nature of which the disease was contracted, due and in hearing which it was referee to whom assigned case is employer motion, writing by or the director on motion in made the last join any prior employers, shall all or mentioned in the * * * parties-defendant. as hearing The referee shall enter an determining liability compensation order and the employee for as between employer. hearing apportion liability last The referee shall compensation among employers proportion for the several in to the employee employed time that employer was in the of each service
in the to nature of which the and disease due separate in which it was contracted and shall enter a order favor against prior of the last employers proportion- and for their liability, ate may share of which order be enforced the same added.) compensation.” (Emphasis manner as an award for Mich 469 Dissenting Opinion Williams, J. by on the his- testified based medical Dr. Roberts for the plaintiff, that but Decem- as related tory ber, incident, might working, still be prior showed X-rays no idea what and that he had disc disease "say degenerative he and could his examination. prior time present any” at law found disabil- judge The administrative trauma reрeated was caused ity appor- and ordered employments course of both to apportion- as The WCAB reversed tionment. it stated: ment, regard 540. In this 1977 WCABO apportioned, even been disabilities have never "[B]ack act) (old Part compensable virtue of VII tacit refusal when found or act). (current Chapter 4 Such failure by reviewers on policy a determination represents, I submit conscious judicial board, and our prior boards this courts, treat as not to back conditions present past apportionment.” of Section purposes for 'disease’ 1977 WCABO denying reasons practical policy explained were such cases
apportionment as follows: opinion WCAB understanding by good for this tacit "There is reason bar, back disa- board courts ought not be drawn. bilities a morass into which we virtually to the Such treatment would enure no would benefit system legislation, and participants in this of social our act. actually impede the administration would injured worker receive an additional No The total cost cent or dollar for his disablement. Michigan compensation in the State of workmen’s except nor would neither extent increase decrease — legal incurred that additional costs would be *23 over engaged in battles defendants internicine [sic] happen would liability. But what shares that litigated disputed, predictable increase in v Eureka Tire Dissenting Opinion by Williams, J. appealed further burden administrative cases would statutory system properly unable to meet its already (Section 859). cases obligation 'promptly to review’ such waiting eligibility of their Employees for determination benefits, disputed employers paying benefits appeals pend, under Section 862 while would both have longer.” 543. just to wait a little bit 1977 WCABO reversed, The Court of occupational from an dis- apportionable App statute, ease under Mich (1977). Hosking 750; 263 NW2d Defendant has applied appeal for leave to this Court.
II. Issue The issue is not whether is entitled to compensation, plaintiff’s but rather whether dis- ability is an within disease the con- templation 17.237(435), of MCL 418.435; MSA result should of benefits employers. between the two Apportionment III. findings WCAB, fact, in their stated: accept
"We the referee’s factual conclusion and inde- pendently his plaintiffs disability find that is the result of heavy lifting employers. duties at both Notwith- standing the best-remembered incident in December of 1973, we plaintiffs find heavy continued work thereaf- * * * aggravated ter and testifying condition found [the WCABO doctors].” Additionally, the WCAB came the conclusion plaintiff’s compensable by virtue of *24 407 Mich 469 498 Dissenting Opinion Williams, J. 17.237(401)(c),2 418.401(c); which defines MSA
MCL disability” "personal injury” and as а "disease a "[notwithstanding case, in this then found that 'degenerative disease’, disc occu- the medical term pationally-weakened appropri- more could
backs 'disability’ ately than the term be described * * 1977 WCABO Be- the term 'disease’ apportionment, providing for cause the statute 17.237(435), only to 418.435; refers MSA MCL there could be no "diseases”, found the WCAB apportionment. Appeals WCAB, and reversed
The Court plaintiffs a "dis- does constitute found condition apportionment. subject therefore to ease” and is App 750; Co, 79 Mich Eureka Tire Derwinski v (1977). NW2d presented fully case, in this the issue
To resolve analy- necessary into a twofold it to enter we find (1) Appeals reversal based on was the Court of sis: suffering that their determination (2) occupational warranted, not, if disease plaintiffs the fact that the WCAB found does disability 401(c) Chapter disability 4, § a to be necessitate a
applies? Disability
A. or Disease supra, specifically quoted found WCAB, as disability under that MCL disease. from a 17.237(401)(c), 418.401(c); not a panel Appeals However, the Court of 17.237(401)(c) 418.401(c); MSA states: MCL " injury’ which is due a disease or 'Personal shall include peculiar to of and to and conditions which are characteristic causes out of and in and which arises the business course of the public compensable. origin Ordinary employment. of life to which the disеases employment generally exposed shall not be outside of the clearly compensable recent must be A hernia to be arising course of the out of and in the and result from a strain employer.” promptly reported to the
1979] v Eureka Dissenting Opinion Williams, J. question treated the as one of law and fact. That legal definition of Court formulated proceeded analyze disease and then the facts as by the WCAB under its definition. found dispositive The Court of found the issue employment-related injury be, "whether an employee’s from the nature of an results work duties is a 'disease’ as that apportionment term is used in the supra,
statute”, Derwinski, *25 and defined the term "disease” as follows: present purposes apportion-
"A disease is for of the ment statute whenever the evidence establishes that compensable disability derives from the effects of protracted exposure continued and ments of the to the inherent ele- employee’s employment.” Derwinski, su- pra, 754. Appeals
The Court of held that since WCAB "plaintiffs disability had found heavy lifting is the result of his employers”, per-
duties at both sonal suffered in this case is a disease. reasoning Appeals We find the of the Court of unacceptable First, for two reasons. the definition categorizes of "disease” advanced that Court partiсular type "compensable disease as a dis- ability”. The use of the terms "disease or disabil- ity” injury”, statutory "personal within the definition of 401(c), Legis- however, indicates that the lature had intended to make a clear distinction between these two terms and that one is not merely Ajax form of the other. See Skowronski v Forging Casting App Co, & 54 136; Mich (1974). separate NW2d 725 That disease is a and compensable distinct condition from very further evidenced different treatment subsequent Chapter it receives in 4, sections of example, §§ III, B, see Part infra. 407 Mich Dissenting Opinion Williams, J. find the Court of
The second reason we unacceptable it is of "disease” definition entirely defined as too When "disease” is broad. pro- deriving "from of continued and the effects exposure the inherent elements tracted many injuries employment”, types employee’s clearly term under the as that is used not diseases recategorization. require act would Rap by Dressler v Grand This is demonstrated Casting Corp, 243, 256; 262 402 Mich Die ids (1978), earlier. decided this Court NW2d the issues in Dressier was whether a back One injury In
in that was an disease. case problems a disabled suffered back Dressier lifting, involving heavy employments in a series of history purposely this in order to concealed During employment. final em his final secure ployment, plaintiff’s back condition worsеned precluded activity. ultimately further work Under purposeful § 431, of a disease would concealment preclude recovery from whom specifically disease was concealed. WCAB personal from a found *26 injury found which was not a disease. The WCAB "plaintiff’s § 301; under sub was disabled * * * aggra sequent employment with defendant injury pre-existing to condition and vated back disability point his last of total on and after the * * supra, day Dressier, of work by the Under the definition of "disease” framed finding case, of instant Court of problems under the existence of which back Dressier derived from the effects facts of were exposure inherent continued employment elements by lifting) employed
(heavy while employers required also have both would How- from a disease. that v Eureka Tire 501 Dissenting Opinion Williams, J. Dressier, ever, majority this Court re- of fact of the findings to reverse WCAB fused in the record for ample support and found conclusions. WCAB’s could types personal injuries easily
Many within the definition of disease employed by come Indeed, that Appeals. the Court of definition is so single other than a event anything broad resulting in immediate to work inability i.e., its scope, any injury aggra- could fall within in subsequent employment. vated the duties We agree legislative intent cannot consist- that view. ent with "disease” as used under the act is nоt an
Clearly
define. It is not defined
easy
present
term to
act,3
applied
has most
been
to cer-
commonly
but
common to
types
injuries
specific
tain
indus-
are in no
position
tries.4 We
better
specifically
3
definition,
1937,
act,
following
present
In
deleted from the
VII,
4,
Chapter
Disability Compen
added to Part
sation Act:
now
of the Worker’s
'occupational
"The term
disease’ means a disease which is due to
peculiar
causes and conditions
particular
Part
are characteristic of and
to a
trade, occupation, process
employment.”
1937 PA
VII,
1.§
4Typical
injuries commonly
of the
found to be
diseases
diseases, see, e.g.,
Michigan
are: silicosis and other dust
Mercatante v
Co,
Casting
542;
(1948),
Steel
Brunswick-Balke-Collender
320 Mich
NW2d
and Whitt v
Co,
494;
App
(1965);
1 Mich
define disease” Appeals. guidance than was the Court of tive There are certain conclusions we can and do reach, however: injuries appear type
1. Back do not to be the occupa- compensable normally events found to be tional diseases.5 occupa-
2. The Court of definition of unacceptable tional disease is reasons. for the above-stated Although 3. the definition of "disease” under the say inexact, act is a definitional error of law we cannot that the WCAB made finding suffering disability was from a and not a disease. occupational injury is an Whether disease generally question supra, fact, Dressier, 256, is and in this case there is a
support record findings findings factual WCAB.6Those 6, are therefore conclusive. See Const art §28. these Under circumstances we find the WCAB’s 401(c)
interpretation appli- of a and its cation to these facts were not erroneous. Apportionment B.
It
is asserted
because the WCAB found
only
prior
Our research has
three
disclosed
cases which a back
injury
occupationаl
Michigan.
has been termed an
disease in
Smith v
Fields v
Co,
Baking
169;
(1963);
Lawrence
370 Mich
plaintiffs 4, to be a 401(c) injury, apportionment portion Chap- § 17.237(435), 4, 418.435; ter MCL MSA must also disagree. apply. We
Despite the few cases in which a back supra, disease, 5, fn was termed a see our research Michigan has disclosed no cases in which have apportionment authorized the case of back dis- precedent ability. This lack of was noted and by the discussed WCAB: apportioned, disabilities have never been even "[B]ack (old act) compensable by when found virtue of Part VII act). (current Chapter 4 * * * Such failure or tacit refusal represents policy a conscious determination board, prior judicial this boards and our reviewers on courts, past present not to treat back conditions as purposes apportionment.” a 'disease’ for of Section 435 WCABO precedent is, course, This lack of not determi- apportionment native if necessitated statute, but we do not believe it is. only act,
Under the is authorized (see supra). in the case of a disease fn statutory section under which the WCAB awarded 17.237(401)(c), compensation, 418.401(c); MCL MSA disability”. refers to both a "disease or find this difference in We do not coverage statutory mere oversight part Legislature. on the Ajax Forging, App
In
136;
Skowronski v
54 Mich
(1974),
which applies only former, that, tionment under to the competent upon the WCAB evidence apportion- determination, their based unanimous ment is not authorized in this case.
IV. Conclusion suffer- determined that The WCAB 401(c) ing and not a from a under disease, not stat- and therefore competent utorily support evidence to authorized. We find We, therefore, reverse that determination. v Eureka Tire Dissenting Opinion by Williams, J. judgment of the Court of and rein- findings state the of the WCAB.
Reversed and remanded. Moody, Jr., J.,
Blair Williams, concurred with J.