Siders v. Gilco, Inc
473 N.W.2d 802
Mich. Ct. App.
1991
Check Treatment
Per Curiam.

Defendants appeal by leave granted from a December 29, 1989, opinion and order of the Workers’ Compensation Appeal Board reversing the decision of a referee that denied plaintiff a closed benefit award and granting plaintiff an open benefit award. We affirm in part and reverse in part.

Plaintiff suffered from severe, congenital scoliosis. In late 1979, plaintiffs treating orthopedic surgeon inserted a seventeen-inch rod to *672 straighten plaintiff’s spine, and placed him in a back cast which he wore for almost a year.

Before his surgery, plaintiff experienced significant pain, which he attributed to his employment. Plaintiff’s pain would intensify when he worked, and subside when he rested. The appeal board found plaintiff’s employment increased the symptoms resulting from his nonwork-related congenital condition, and thus found him entitled to a closed award of benefits for the period during which his symptoms increased. Plaintiff was awarded a closed benefit award from October 24, 1979, until October 17, 1980, at which time he was released to return to restricted work.

However, the appeal board’s opinion indicates the work restrictions were attributable to the surgery and underlying congenital condition and not to any work-related symptoms that had increased plaintiff’s pain before the surgery.

In January 1981, plaintiff was involved in an automobile accident which did not engender any pathological changes with respect to the scoliosis but did cause a recurrence of his symptoms of pain. Relying on Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 (1979), and Schaefer v Williamston Community Schools, 117 Mich App 26; 323 NW2d 577 (1982), the appeal board found plaintiff entitled to an open award from the date of his accident, because he was not negligent in causing the accident and because such independent, intervening events which follow a personal injury arising out of and in the course of employment do not justify denial, suspension, or reduction of benefits.

The board awarded plaintiff benefits for the closed period at the rate of $171 a week, and for the open portion of the award at the rate of $183.36 a week.

*673 On appeal, the parties agree plaintiffs benefits for the closed period were incorrectly calculated at $171 a week and should have been $156 a week. This agreement should be given effect on remand.

Our review reveals sufficient evidence on the record to support the wcab’s closed benefit award to plaintiff. Flint v General Motors, 184 Mich App 340; 457 NW2d 157 (1990). A closed benefit award is not only permitted, but is the only type available where an employee’s symptoms, rather than the underlying condition, are aggravated by his employment. Thomas v Chrysler Corp, 164 Mich App 549; 418 NW2d 96 (1987); Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960). However, we do find improper the wcab’s later open benefit award to plaintiff. Having concluded that plaintiff was entitled to a closed award during the period of exacerbation of his symptoms commencing October 24, 1979, and ending October 17, 1980, the board in effect had to find that plaintiffs disability, the exacerbation of the symptoms, ended on the last date of the closed award. Plaintiffs disability status having ended on October 17, 1980, remained unchanged prior to plaintiffs January 1981 unrelated automobile accident. Plaintiffs surgery was completed and he had not returned to work. The wcab in awarding plaintiff open benefits inappropriately relied on case law setting forth the principle that an independent, intervening event following a personal injury arising out of and in the course of employment alone does not justify the denial, suspension, or reduction, of disability benefits for a continuing work-related injury. See Powell and Schaefer, supra. Here plaintiff did not suffer from a "continuing work-related injury.” Plaintiffs compensable disability ended on the date his closed award ended. We find no legal support for the wcab’s proposi *674 tion that "therefore plaintiff is entitled to benefits on account of the intervening injury.” Although case law illustrates an intervening event cannot alone justify the discontinuation or reduction of current benefits, it does not support a finding that an unrelated intervening event itself can create a compensable disability.

Affirmed in part, reversed in part, and remanded.