Nicholson v. Lansing Board of Education, 339 N.W.2d 482

Nicholson v. Lansing Board of Education

339 N.W.2d 482

Mich. Ct. App.

1983

Check Treatment

Lead Opinion

Per Curiam.

Defendants appeal by leave granted from a Workers’ Compensation Appeal Boаrd (WCAB) decision affirming an award of compensation benefits to plaintiff by the referee.

Plaintiff began working for the Lansing School District as a janitor in 1963. During three months prior to January 9, 1973, plaintiff was experiencing pain in his head and periods of fatigue. Plaintiff did not miss any work during this period, nor did he ever report аny of these complaints to his employer. On the morning of January 9, 1973, plaintiff experienced pain in his head which he described as like being struck with a sledge hammer. Plaintiff was taken to the hospital where he underwent surgery for a "spontaneous subarachnoid hemmorrhage”, a stroke. While in the hospital, plaintiff realized that in his opinion the stroke was work-related. However, despite this belief, plaintiff did not notify his employer of any *553possible injury pursuant to MCL 418.301; MSA 17.237(301), nor did he make any claim for compensation benefits until July, 1978, well over 5-1/2 years after the stroke. Although defendants knew plaintiff ‍‌‌‌‌‌‌‌‌‌‌‌‌‍did not report for work on January 9, 1973, because he had a spontaneous subarachnoid hemmorrhage, defendants did not know plaintiff had a compensable injury until they received said claim.

In compensation cases the law in effect at the time of the relevant injury must be applied. Wallin v General Motors Corp, 317 Mich 650; 27 NW2d 122 (1947). At the time of plaintiff’s stroke the workers’ compensation statute provided in pertinent part:

"(1) No proceedings for compensation for injury under this act shall be maintained, unless a notice of the injury has been given to the emрloyer within 3 months after the happening thereof and unless the claim ‍‌‌‌‌‌‌‌‌‌‌‌‌‍for compensation with respect to the injury, which claim may be made either orally or in writing, has been made within 6 months after the occurrence of the same; * * *.” MCL 418.381; MSA 17.237(381).

Having reviewed the records and briefs herein, we find plaintiff is not entitled to workers’ compensation benefits because he failed to give notice to his employеr of a work-related injury within 90 days after he was able to report that injury. Additionally, plaintiff did not make a claim for compensation benefits within the six-month limitation period despite his claimed knowledge of his alleged work-related injury. Smith v Kelsey Hayes Co, 1965 Work Comp Ops 2369, aff'd 404 Mich 70; 273 NW2d 1 (1978). We disagree with the WCAB’s apparent ruling that any time an employer has knowledge of an employee’s absence from work for *554any sickness or injury, even if the employer had no reason whatsoever to suspect that the condition would be work-related, such as the case herein, and even if the sickness or injury manifested itself outside of the work place, ‍‌‌‌‌‌‌‌‌‌‌‌‌‍that said employer had sufficient notice under § 381 so as to require the filing of a report of injury. Hence, we hold plaintiff is precluded from receiving said benefits and the WCAB decision is accordingly reversed.

Reversed.

Dissenting Opinion

Hood, J.

(dissenting). I must rеspectfully dissent. At the time plaintiff suffered his stroke MCL 418.381; MSA 17.237(381) provided:

"(1) No proceedings for compensаtion for an injury under this act shall be maintained, unless a notice of the injury has been given to the emplоyer within 3 months after the happening thereof and unless the claim for compensation with respect to the injury, which claim may be either oral or in writing, has been made within 6 months after the occurrenсe of same; or in the case of the death of the employee, within 12 months after death; * * *. In a case in which the employer has been given notice of the happening of the injury or has notice or knowledge of the happening of the accident within 3 months after the happening of thе same, and fails, neglects or refuses to report the injury to the bureau as required by ‍‌‌‌‌‌‌‌‌‌‌‌‌‍the provisions оf this act, the statute of limitations shall not run against the claim of the injured employee or his insurer, until a report of the injury has been Sled with the bureau.” (Emphasis added.)

The defendants admit that the employer in this case had knowledge of plaintiff’s stroke the day after it occurred. Nevertheless, the employer failed to report that injury to the bureau. The Supreme Court precedents clearly state that an injury that is within the employer’s knowledge must be re*555ported to the bureau if the employer wishes to retain the six-month statute of limitations defense. Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974); Krol v Hamtramck, 398 Mich 341; 248 NW2d 195 (1976); Meads v General Motors Corp, 402 Mich 540; 266 NW2d 146 (1978); Combs v Michigan Mobile Homes, 406 Mich 507; 280 NW2d 451 (1979).

The employer need not have knowledge that the injury is work-related ‍‌‌‌‌‌‌‌‌‌‌‌‌‍or compensable before it is required to report that injury. Meads, supra.

"To hold that defendant was charged with reporting only compensable injuries in order to impose the statutоry limitations would be to hold that defendant was charged with judging the merits of the case. To the contrary, it was and remains the duty of the referee (with appellate levels provided) to determine compensability. The employer must report any injury of which it has notice if it is to have the advantage of the statutory limitations. Conversely, the employer need not report all or any injuries, but in failing to do sо pays the price of suspension of statutory limitations.” Norris, supra, p 480 (emphasis in original).

In this case the employer did not know whether plaintiffs stroke was work-related but knew plaintiff suffered that injury. By failing to report plaintiffs injury to the bureau, the defendants waived the statute of limitations defense. See Ramos v Production Steel Co, 87 Mich App 30; 273 NW2d 578 (1978).

Therefore, I would affirm.