Docket 18938 | Mich. Ct. App. | Jan 8, 1975
KUBICSEK
v.
GENERAL MOTORS CORPORATION
Michigan Court of Appeals.
Andrew J. Transue, for plaintiff.
Munroe & Nobach, P.C. (by Richard P. Shumaker), for defendant.
*518 Before: BRONSON, P.J., and D.E. HOLBROOK and V.J. BRENNAN, JJ.
Leave to appeal applied for.
V.J. BRENNAN, J.
Plaintiff began working for defendant as a tool and die maker on June 5, 1939. He suffered an original injury to his back in the course of his employment on October 27, 1962. During the next four years, plaintiff obtained several periods of sick leave and was rehired after each period of absence. Plaintiff reinjured his back on August 26, 1964, and suffered a further injury to his back on September 9, 1966. Plaintiff has not worked since September 9, 1966, and he was granted a total and permanent disability retirement as of October 1, 1967.
From September 9, 1966 to February 1, 1969, defendant paid workmen's compensation benefits to plaintiff at the rate of $36 per week on the basis of the 1964 injury and rates. Plaintiff filed a petition on December 4, 1969, alleging permanent and total disability arising out of his personal injury which occurred on September 9, 1966. On February 28, 1972, hearing referee Joseph F. Mullaney, after finding dates of injury on August 26, 1964 and September 9, 1966, awarded plaintiff $66 per week in total disability benefits from September 9, 1966, until further order of the Workmen's Compensation Bureau with defendant given credit for payments made since that time.
Defendant appealed to the Workmen's Compensation Appeal Board. In an opinion dated November 15, 1973, the appeal board made factual findings that plaintiff suffered an original injury to his back on October 27, 1962, and suffered a further personal injury to his back in the course of his employment on September 9, 1966. The appeal board also noted that plaintiff's condition had not improved since his total and permanent disability *519 retirement on October 1, 1967, and that without question he is unemployable in his skilled job.
Despite its finding that plaintiff suffered two separate injuries to his back, the appeal board established a single event injury date of October 27, 1962, and modified the hearing referee's decision by ordering compensation payments accordingly. From this determination, plaintiff appeals. The sole issue raised on this appeal is whether the appeal board properly established a single event injury date after factually finding that plaintiff suffered two separate injuries to his back. We believe that the appeal board has applied an incorrect legal standard to the facts of this case.
The appeal board stated in its opinion that the injury of September 9, 1966, did not cause plaintiff's present disability. The issue, however, is not one of causation, but is rather one of determining whether the subsequent injury suffered by plaintiff on September 9, 1966, contributed in any fashion to plaintiff's disability. In view of the fact that plaintiff's final day of work with defendant coincided with the date of his second back injury, we find it inconceivable that this subsequent injury did not contribute to plaintiff's disability.
The statute which applies to injuries arising out of and in the course of employment as a result of successive events is MCLA 418.301; MSA 17.237(301). In pertinent part, the statute provides:
"Time of injury or date of injury as used in this act * * * in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death."
In the instant case, having found that plaintiff received two separate injuries to his back in the *520 course of his employment, the appeal board could not properly attribute plaintiff's "date of injury" to a single event. Therefore, the proper date of injury in this case is September 9, 1966, which was plaintiff's last day of work in his employment.
We hereby reinstate the hearing referee's decision finding an injury date of September 9, 1966, and order compensation payments accordingly.
All concurred.