*1 Goodyear & Rubber Co. Samels Í947] Tire TIRE & SAMELS v. GOODYEAR RUBBER CO. Cоmpensation Epicondylitis—Oc- Workmen’s —Tire Builders — cupational Injury. Disease —Personal Award of workmen’s builder Pub. Boyles, epicondylitis after seven Acts and and Dethmers, Acts and 1943). [1st affirmed as an JJ., Reid, course of Ex. JJ. Sess.], compensation (Act and as a months No. as last amended personal work pt. for Bushnell, North, injury arising 1, defendant pt. 7, who suffered Act by No. Butzel, as tire Pub. out Carr, J., C. and Sharpe, J., dissenting.
Appeal Department Industry. of Labor and (Dockеt Submitted October 9, 1946. No. Calen- 43,439.) April dar No. Rehearing Decided 8, 1947. May denied 16, 1947. presented D.
Jobn against Samels bis claim Company, & employer, Tire Rubber Indemnity Company, Hartford Accident & insurer, injuries for for sustained while its plaintiff. employ. Award to appeal. Defendants Affirmed. (Raymond Rappaport,
U. H. Warner H. of coun- sel), plaintiff. for. Smith,
Mitts & for defendants. granted, J. Defendants, on leave took an Reid, appeal in tbe nature certiorari from an award of Reports. industry in which of labor the was determined per to $21 is entitled *2 February January and 29 to from week January and until 1945 to from October de- commission, based the of the order .further average weekly plaintiff’s partment’s finding that injury wage $75, was in excess of the at the time injury upon wage weekly earnings to based his then loss due that his present is at common labor $50 disability to total and that was entitled $25, totally compensation doing disabled from since was he doing in- the time of the the at work he was jury. quеstion the involved whether The real is plaintiff’s such as to entitle nature him to was compensátion. company for
Plaintiff to the defendant went work prior to seven months a truck tire builder some as alleged injury. performing In his his the time of by first the builder affixes corded basfe work tire rotating stretching it as taut it winds on the hand, by is followed in succession three This drum. finally green the and the bands, bead, corded rubber by are then driven force onto The bands rubber. ' by pоunding up them drum and lined down with the mallet. rubber is then heeled down a wooden palms with of the hands a downward the pressure pulling over bead with motion. and forced by exerting pressure is trimmed off Excess rubber rotating a curved knife and the tire on the tire with finally by removing removed from drum these indi- interior, sections drum pounds. weighing vidual sections The between and job required plaintiff weighing also to lift tires approximately pounds. process in- entire physical primarily volves intense exertion muscles of the arms. The of labor and industry of fact found a matter that this labor. skilled
1947] & Tire Bubber Co. Samels operation building
Plaintiff tire testified cannot and has to be seen be described words operation produced understood; be first extreme numbness in his and hands, caused stiffness finger joints; gradually in his this worked out and reappeared condition later elbows; in his disappear elbow condition failed to as he assumed tendency would, became awith severe, up. swell Plaintiff further this testified condition prevent using did not him from his arms the ordi- nary particular sense, but he could not do his work pain; without extreme that the condition became so painful reported that on he hospital, at nurse defendants’ he left day. reported work on that He also to Dr. Don *3 diag- Kudner, one of physicians, defendants’ who epicondylitis nosed the condition as and who told plaintiff only very light to dо work for a while.
Dr. Kudner testified he first examined January on 29, 1945, and that: suffering pain “A. He region from a joint, of the elbow awith marked tenderness over * * * epicondyle. the external epicondylitis? “Q. is What “A. epicondyle. Inflammation of the There are a bunch of muscles attached to the bone at that site it becomes inflamed and tender from over-use set of that muscles, strain that set of muscles. any “Q. any Will over-use of kind—use of mus- epicondylitis?
cles cause * * * “A. Yes. gets stage they If “Q. it into a chronic form a point bursa at the of the inflammation? “A. Yes. anybody, “Q. any Can that condition exist in
type requires play or of work an exertion of ? the muscles Reports. Yes,
“A. elbow, the old name was tennis because players. it occurred in tennis players? “Q. Occur baseball * * * “A. Sometimes. everybody, “Q. Does this occur to or people?
some people. “A. Peculiar tо some people “Q. Are there can do the same exer- developing tion this condition?' without many Yes, “A. “Q. of them. place reference where With Mr. Sam- people depart- employed éis are there works, this developed
ment who have never this condition any form? very only “A. Yes, number of few the entire * * * develop tire builders a ers.” it, course. It fairly complaint common among’ work- industrial place at one in his summаr- Plaintiff development izes the of the condition in his elbows by saying that it “was the culmination of seven any of strain” and months he nowhere describes particular precipitated one or event strain which markedly the condition or made worse. found “that sus- personal injury tained a attributable to a
single repeated but to event events brought unexpected and strain which about an re- ; sult arose out of and- in the course employment.” of his *4 department ruling §
The based its on 2, 1, compensation Comp. of the workmen’s 2 act, Laws § amended Act No. 245, Pub. Acts July (Comp. Supp. 1943, effective 1943 Laws Supp. Stat. 17.151): Ann. Cum. employee, 1. personal An who receives a “Sec. injury arising out of and in the course of his em ployment by employer who is at the time such - 1947] Samels Btjbber Tire & Co. injury subject be provisions act, this shall paid compensation in the manner and ex- provided, tent hereinafter or in cаse of his death re- sulting be injuries from such such shall paid dependents to his as hereinafter defined. injury’ injury’ term The ‘time of or ‘date of as used in this act shall in case, the case of a or disease injury single of an attributable to event be day last of work in which subjected the resulting was last to the conditions disability or death.”
Plaintiff in his claim states, personal injury “1. That this claim relates to a which occurred on or about..........OB To a disablement from which оccurred or about 1945. “3. Nature ness # [*] [*] elbows. The bone seems to be sore and disability —A severe pain stiff- extremely of slightest sensitive to touch. Date recovery remains. of re- Date —Condition
turn work —First March.” employer’s report defendant The basic of indus- injury trial states, “Describe nature and location of Epicondylitis or left elbow.” disease— testimony plainly The indicates that oc .it cupational epicondylitis, disease, whiсh is the cause report of the disablement. of the defendant em ployer admits that fact. awarded personal injury quoted for a 2, but with apparent approval of two wit doctors, nesses for who testified that the disable defendants, epicondylitis. ment was due to Can award be though left to stand as made under 1945, §8485-1, Stat. Ann. Supp. §17.220). Defendants state in their brief: *5 Reports.
“If in onr conclusion that the tri- we are correct ‘personal injury’ finding bunal erred in within part compensation act, section of the 1, 2, workmen’s upheld findings we concede that their could be still supra. if sustained section act, ap- The material on this issue, therefore, becomes ’’ peal though it even was not decided below. Hupp Corp., See Kasarewski v. Motor Car Mich. 228. pertinent §
So far as to this case, act now reads as follows: 1. Whenever used in this act: “Sec. (a) ‘disability’ The word means the state оf be- ing earning wages disabled from full at the work in employee subjected which the was last to the condi- resulting disability; tions (b) word ‘disablement’ means the event becoming subparagraph so disabled as defined (a); (c) ‘personal injury’ The term shall include disability disease or which is due to causes and con- ditions which are the business of the characteristic employer aijd which arises out employment. Ordinary of and in the course of the public generally diseases of life to which the ex- posed employment outside shall not be com- pensable.” ' applicable part the act Supp'. 1945, 8485-3, Stat. Ami. Supp. 17.222) is as follows: employee 3. If an is disabled or dies “Sec. . disability his or death is caused a disease and the due nature of the engaged which such and was con- dependents therein, tracted he or his shall be en- titled to for his death or for his dis- ablement.”
1947] 155. Goodyear. Samels Co. & Rubber Tire *6 epicon- importance whether to consider
It of is dylitis ordinary аnd therefore of life an disease is (c). noncompensable New subd. §1, subjected persons and re- severe of to who"are the peated ever muscles at the elbow strains of the develop epicondylitis. for ex- activities as Certain playing, ample, sometimes cause and tennis baseball conclude that disease in some individuals. We the engaged majority great persons in mot the are of among disease, and such cause the activities those as could engaged as could activities who are such develop only epicondylitis, the disease. cause few epicondylitis case, in this far as the record shows So public, ordinary of life to which the is not disease employment, exposed and generally of the outside (c). prohibition part 7, of subd. not within the things department among “that found, other of his em- and in the the arose оut of course approval, ployment.” quotation, with In view of its plaintiff’s testimony that disable- of the doctors’ department epicondylitis, must the ment was due to having found the disablement due considered as be department epicondylitis. did not in so to plaintiff’s many to disease is due words find that are of and conditions which characteristic causes employer’s peculiar tire build- business, to plain- ing, finding but necessarily required employmеnt skilled labor tiff’s peculiar implies ployer’s em- kind of work is to the that the The uncontradicted business. building process causes ter-
shows that the tire process and is a character- the elbows rific strains on peculiar production. It is to be of and tire istic language (c), subd. noted (not and conditions that the causes act is peculiar must characteristic of be disease) employer. business Michigan Reports. Co., We notе Wilson II. Lee Le Lenko 128 Conn. (24 253), [2d] Atl. in which the Connecticut p. court states, provides “Our act that the words
‘personal injury’ construed to include ‘injury’ or as used in it are to be
occupational disease defined peculiar occupation ‘a follows: disease as engaged Avhichthe and due to causes ordinary excess of the hazards such.’ General 5223.” Statutes, It will be noted that statute Connecticut speaks disease as a that is occupation and due to causes ex *7 ordinary employment, cess of hazards of Michigan Avhereasour causes and statute recites that it is the required which are to be char conditions acteristic of and to the business of the em ployer. Having the distinction in we further mind, following note the from Glodenis v. American Brass (170 146, 150), quoted Co., 118 Conn. Atl. with approval supra: in Case, the Le Lenko phrase, ‘peculiar occupation,’
“The to the is not here used in the sense that the disease must one be originates exclusively particular -which from the employment kind of in which is en- gaged, but rather in sense that the conditions employment 'of that must result in a hazard which distinguishes general.run it in character from the occupations.” (Italics supplied.) opinion
Further on in the Le Lenko the court states, “Occupational ordinarily diseases in- result in capacity rеlatively proportion in a small of the num- employees subjected
ber of this risk; if indeed, so, were not economic considerations would re- quire change employment an abandonment of or a its conditions risk.” to obviate the 1947] Tire Samels SoRubber Co. discussing meaning
After “nat- word as ural” used some of that court’s former deci- the court sions, further states, so “If, traced, a disease is natural result of employment conditions arе which inherent and which attach to that a risk of in- curring attending employment in excess general, pre- an award of cluded because the risk has not is one which become generally recognized usually employees only or because un- susceptible will suffer from the disease.” (Italics supplied.) susceptibility plain-
Defendants claim unusual tiff Samels. Such defense is of no avail. Mere susceptibility Michigan is nowhere mentioned in thе defeating compensability. act as a matter Samels employment, was a well man when he entered the nothing any epi- susceptibility with indicate condylitis, susceptibility apparent and his became only subjection after months of several to terrific employment. strain in the
"While the Connecticut statute, noted, above substantially Michigan yet differs from the statute, put the construction the Connecticut court on “peculiаr” determining the word to us in value meaning what to attach to the words in *8 § part (c), statute, subd. “characteristic of and ’’ peculiar employer. business the of the testimony in all this case is to the effect that the terrific strain over several months work is the epicondylitis, cause of the that does the strain dis- tinguish general the character of the work the occupations run of and that strain is the character- employer istic of аnd to the business 'of the ease. this computation Defendants claim that an erroneous plaintiff’s average weekly earnings adopted was Reports. by ground for tbe in the award. is records claim defendants this advanced weekly wage earnings were introduced which show which per average Plaintiff would not week. $75 “designated” claims that certain a Mr. who Climer, knowledge is shown to had of the records, not have subject (apparently speaking he which was oath) and as a and not that there was witness under testimony no' rec- that the records introduced were earnings. plaintiff’s wage ords all of .The em- ployer’s report filed with commission basic hourly “straight earnings: time states, $1.28. rate — per Hours Plaintiff claims week—56. $65.” Total — undisputed days per that it that he worked seven is Sundays. time for week and that he received double regard theory It can be said for defendants’ in this testimony. a conflict We there was finding do not the commission disturb the particular; there was sufficient support it. quoted from
In heretofore view of the statement depart findings of the brief, the defendants’ testimony in case and ment, the uncontradicted part award language act, though of the act. under made affirmed, as plaintiff. Costs J. concurred with J., Reid,
Butzel, opinion (concurring). I concur in the J. Boyles, except stating of Mr. that the аward Justice Reid, compensation was made under 2 of the act. opinion I think commission indicates that made award of Supp. of3, 1945, 8485-3, act, §17.222) epicondyl- for Stat. Ann. circumstances of case itis, under the this which *9 1947] Tire Samels & Rubber Co.
an disease. Mr. stated As Justice support finding. a there such Reid, If so the commission had not found, would be necessary to the award and remand for reverse finding question. of fact on that § opinion
In its the commission refers epicon- purpose finding of not for the act, that compensable dylitis is under to fix 2, but January time, 29, 1945, when should begin. quotes: It injury’ injury’
“The term ‘time of or ‘date of used in the this act shall the case of a or injury single case of to a attributable day be the work event last subjected which the was last to the condi- resulting disability tions or death.” opinion length of the commission recites at plaintiff plainly the conditions under which worked, showing plaintiff’s under the circumstances dis ‘‘ ability was due causes conditions which are characteristic of and business employer and which arises out of and in the course employment” (part subd. [c], [Comp. act 1945, 8485-1, Stat. Ann. Supp. 17.220]). 1946 The commission found: “We made have a careful review this record. opinion our It is and we find sus- personal injury tained 27, 1945, not single repeated to a attributable event but to events brought unexpected and strain which about an re- sult; that the arose of and in out the course ’’ employment. of his opinion, When considered with rest of the this finding is a sufficient compensation was awarded act, section 2 *10 Michigan Reports. 317 160 Supp. Ann. (Comp. 1945, §8485-2, Stat. Laws Supp. 17.221) declares: of which resulting anof “The disablement disability the treated as or shall be such disease injury meaning personal happening within the aof of this act.” n plaintiff en- is has found that
The commission compensation 3, of aсt the titled to plainly “due disease which was for an of in which such em- the to nature the engaged ployee therein,” was and contracted was language according There of section 3. said finding. support those For the affirming the award. I concur in reasons, de of the After careful consideration J. North, agree opinion partment’s with I am unable Boyles Reid or Justice conclusion of either Justice department’s havе or award should been provisions granted of of the under the compensation Supp. act workmen’s seq., Ann. et 1946 Cum. 1940, 1945, 8485-1 Stat. §17.220 seq.). depart et Nowhere opinion is there a reference to ment’s “occupational disease” act, nor is mentioned only department’s .opinion. In the case cited by department support opinion (Ander of its Corp., 630) son 313 Mich. com v. General Motors pensation part 2 of was awardеd under the work “personal for men’s act a November his Anderson 1, 1943” suffered incident piece lifting heavy a in the Further, metal. department instant case the said: application hearing “Plaintiff filed an for and ad- justment compensation July of claim for alleging personal 'injury arising a out * * * employment. his course On Janu- Tire & Rubber Co. 1947] Samels ary (by deputy) was entered 19th an award find- injury arising personal ing sustained a out employment.” his course deputy
The award of the was affirmed de- partment, only inconsequential with modification opinion as to dates. Further in its said: opinion “It find our and we that the personal injury sustained 27,1945, single repeated
attributable to event but to events *11 brought unexpected and strain which sult of his about an re injury ; that the arose out of and in the course employment. compensation part 2 of Section work 1, the pro men’s vides act, as amendéd in 1943,* as follows: “ employee, personal injury ‘An who receives a arising employment of out and in the course his employer injury who at the time of such sub- ject provisions paid of this act, shall be com- * * * pensation.’ opinion Supreme “See Court in the Corporation of Anderson case v. General Motors {supra).” foregoing,
In view of the noted I as am above, agree department unable based its deci- provisions instant, sion case on the 7 compensation act; workmen’s but on the con- trary compensation it seems clear that was awarded under 2 of the act. affirming IWhile concur in the award made
plaintiff, opinion I am of the that our decision ground should depart- be on same as that of the the. ment which above as indicated was that personal injury arising sustained a out of and in the consequence course of his and in thereof compensation he was entitled tо and received under * Supp. Comp. 1945, Supp. Laws Stat. 1946 Ann. § 17.151.—Reporter. Reports. 317 act, compensation workmen’s is in accordance holding in 1943. Such amended Motors v. General Anderson onr decision with supra. Corporation, concurred with JJ., Dethmers,
Bitshnehl, J. North, I am in accord with (dissenting). J.
Sharpe, Reid for reasons herein- of Mr. Justice opinion after stated. labor and awarded industry compensation provisions §.l act, of the workmen’s
part 2, No; Act as amended Laws Comp. Supp. 1945, §8417, Acts Pub. 17.151). Ann. It is conceded Stat. 1946 Cum. ac- event or there no fortuitous intervening was cident disablement. plaintiff’s causing Co., 316 Mich. Spencer
In O’Neil v. W. R. Grocer salesman. The claim deceased was grocery made he had suffered personal effort oc event was the and that the fortuitous *12 of his car while driving the hazard casioned by with, mantle a of snow. We roads were covered on of his car driving there held the exertion fall of snow an heavy experience after a was streets city common to all motorists Jackson and that a car that particular day; driving not a fortuitous such circumstances was under event. said, “The record substantiates the claim that We death due to disease life to deceased’s is exposed.” ap public general which We Hagopian City of v. proved following Park, 313 Miсh. Highland 619, 621, 625: held that under the frequently compen- “We'have occupational adoption sation act, prior 1947] Samels Tire & Rubber Co. 163 ordinary performing disease amendment, one work for which he hired cannot recover unless causing there is an accident or a fortuitous event ** * disability. ‘‘The amended act itself was not intended to cover aggravation pre-existing ac- an without * * * cident or fortuitous event. properly
“It was restricted to accidents and oc- cupational diseases.” being
In the at bar, case there no event, fortuitous compensation may granted part not be under the act. application hearing adjustment
Plaintiff’s for of claim as follows: reads
‘‘ applicant respectfully The shows: personal “1. That this claim to a relates which occurred on or about-OR aTo disable- ment from disease which occurred on or about 27th 1945.” upon theory cause was tried personal injury. had suffered a The award of the department is based on 2, 1, of the workmen’s compensation act.
Mr. Justice Reid though affirms the award as had been made 7 of the workmen’s com pensation Supp. act seq., 8485-1 et Ann. Stat. 1946 Cum. 17.220 seq.) department et finding without a of fact question. application by plaintiff on filed enough department is broad for the to such make finding of fact. The award should be reversed the cause re- manded whether or determine is entitled award under of the act. to await Costs results. J., C. concurred with Sharpe, J.
Care,