After Remand
This is the latest (and, hopefully, the last) proceeding in plaintiff’s appeal of a December 29, 1971 order of the Workmen’s Compensation Appeal Board (WCAB). The order affirmed a hearing referee’s decision which denied plaintiff’s claim for benefits. Over a dissent by now Justice Levin, this Court affirmed the order,
Fergus v Chrysler Corporation,
This case involves a question as to the compens *108 ability of a heart attack, an issue which Professor Arthur Larson deems "probably the most prolific and troublesome problem in workmen’s compensation law”. Larson, The "Heart Cases” in Workmen’s Compensation: An Analysis and Suggested Solution, 65 Mich L Rev 441 (1967). The problem here is compounded by the limited amount of evidence introduced at the original hearing. Plaintiff, then 70 years old, testified that he had been forced to retire from his job with defendant in 1963 because of a heart attack incurred in March of that year. He stated that he had suffered other heart attacks in 1955, 1959 and December, 1962. Each time, he was hospitalized.
The last attack occurred five days after he returned to work following a recuperation period from the December, 1962 attack. Upon returning, plaintiff found that his work was "rough all week” and that difficulties caused pressure to build up on him. Plaintiff worked as a draw die man. He was charged with keeping the production moving smoothly. He observed the steel to keep it from getting "out of tolerance” and splitting. When this happened, he had to run around the die-making machine and stop its operatiоn. Plaintiff stated that when the machine stopped and work backed up, his "bosses” would be "right on [his] neck”. Breakdowns occurred frequently that week. The resultant pressures, he felt, caused his hеart attack. On cross-examination, plaintiff stated that, during his 1962 hospitalization, he was diagnosed as having diabetes and was taking medication for it.
Plaintiff also introduced a letter from a Dr. Jоhn Mucasey. The letter stated that Dr. Mucasey examined plaintiff in August, 1969. It recited a history of plaintiff’s heart trouble and diabetes. In conclusion, Dr. Mucasey stated:
*109 "[Plaintiff] gives clear indicatiоn of having exceeded his functional cardiovascular capacity in the final years of his employment by the repeated episodes of angina and dyspnea, and in this way further served to put serious stress on his already seriously impaired cardiovascular system.”
Defendant’s evidence consisted largely of a letter by a Dr. Ernest Hershey who, having examined plаintiff, concluded:
"In summary, this man has evidence of heart disease as indicated by his history and electrocardiographic changes. He is a diabetic and the appropriate diagnosis would be arteriosclerotic heart disease with angina pectoris associated with the diabetes. As far as his lungs are concerned,. there is nothing by his history, physical examinаtion, chest X-ray study or pulmonary function testing to indicate significant or symptomatic pathology of his lungs, industrially related or otherwise. Copies of the pulmonary function testing curve obtained at the time of this examination are enclosed with this report.”
The hearing referee decided that plaintiffs injury did not arise out of and in the course of his employment. The WCAB affirmed the referee. Pursuant to the latest remand, the WCAB stated in its specific findings:
"In Opinion No. 19415 [order of May 17, 1974] regarding the above entitled cause, a divided Court of Appeals determined that this Boаrd (1974 WCABO #37) failed to follow the Supreme Court order of remand,
"In interpreting the Suprеme Court order, we find four (4) points that we must address to our Board:
"1. Whether the testimony of plaintiff, James Fergus, is credible;
"2. If not, why not?;
"3. Whether his disability is job-related;
*110 "4. Whether the exertion is at least a contributing cause of the injury. The follоwing definitive answers to the four (4) questions are as follows:
"1. Yes;
"2.—
"3. No;
"4. We have applied the
Zaremba Zaremba v Chrysler Corp,
"Our conclusion as to question #4 has been formed to a great extent by the fact six (6) yеars elapsed between the last day of work and the date application for hearing was filed, making plaintiffs testimony stale in nature.
"Further, plaintiff alleges ■ in his application strеss from management and fellow employees. The only positive testimony in this regard comes from the plaintiff who testified twice in the record that management breathed down his back. No testimony can be found buttressing a finding of stress from fellow employees.
"Plaintiff in his application further alleged strain from the job, based on rushing from one end of the machine to another while pushing a truck. Further, the record indicates that plaintiffs job involved only button pushing to get the tolerances in line.
"In reviewing this testimony, we consider Zaremba (supra) and incorporate the analysis of this factual situation vis-a-vis the Zaremba authority made by Chairman Gillman in his concurring Opinion subsequent to the Supreme Court remand:
" 'Finally, what are the Board’s findings on job relationship? We have the report of Dr. Mucasey, postulating such rеlationship, based on an examination six years after plaintiff last worked and 15 years after the heart condition began. We have the report of Dr. Hershey, which does not speak of causality, but does diagnose "arteriosclerotic heart disease with angina pectoria associated with the diabetes.” We also have plaintiffs age at the last dаte he worked (64) and his admitted long history of heart problem. We also have his testimony as to the nature of his work, and his further testimony that he did not think of compensation for *111 any work-relationship to his heart disease until several years after leaving work.
" 'We superimpose on this matrix of evidence the Board’s right to draw reasonable inferences from the proofs before us
(Forner v American Box Board Co,
*
* *
[
" 'We are aware of the Court’s directives not to impose any improper legal tests as to the necessity of a specific injury or certain degree of stress beforе a finding of work injury can be made
(Sheppard v Michigan National Bank,
. Findings of fact by the WCAB are conclusive in the absence of fraud, Const 1963, art 6, § 28; MCLA 418.861; MSA 17.237(861). Decisions of the appeal board will be set aside only when they are contrary to law or not supported by competent, material and substantial evidence on the whole record.
Tillotson v Penn-Dixie Cement Corp,
"Although the appeal board could have expressly rejected plaintiff’s testimony * * * , it could not properly dеduce from the only evidence in the record that no notice was given. * * * The appeal board cannot *112 draw inferences contrary to undisputed evidence.” Id. at 462-463. (Citations omitted.)
Plaintiff argues that his testimony was the "only evidence in the record,” that it wаs undisputed and that the WCAB’s ruling represented an inference contrary to this evidence.
We disagree. Plaintiffs application of the above-quoted language misapprehends relevant law and is not consistent with the instant facts. First, plaintiffs testimony was not undisputed. Defendant presented a medical opinion by a doctor who had examined plaintiff and concludеd that his injury was not work-related.
Even if plaintiffs testimony had been undisputed, he could not, therefore, be entitled to compensation. In compensation proceedings, the plaintiff always bears the burden of showing compensability.
Pulley v Detroit Engineering & Machine Co,
In the instant case, the WCAB found that plaintiff was a credible witness, that he was not lying. However, because plaintiff presented no evidence to corroborate his testimony and because the board *113 deemed his testimony "stale”, it ascribed little weight to plaintiffs testimony. In doing so, the board was within its powers. Further, plaintiffs own doctor’s report did not рrovide significant corroboration. It reported plaintiffs long history of heart disease but, while opining that plaintiffs work had put stress on his weakened cardiovascular system, the doctor’s report did not make a conclusion as to causality or rule out the possibility that plaintiffs injury was caused by diabetes.
We find this case much like
Koschay v Barnett Pontiac, Inc, supra,
and
Grammas v Donut Systems, Inc,
Affirmed. Costs to defendant.