*1 Mich 438. FELCOSKIE v. LAKEY FOUNDRY CORPORATION.

Opinion of the Court. Appeal 1. Questions Raised Questions Error — Reviewable — Appeal. the First Time on question may usually A not be raised for appeal, the first time on general but this rule will not be followed where consideration sought of a necessary claim raised is proper to a de- termination of the case. Compensation Disability Temporary 2. Workmen’s —Partial — Disability Permanent Total —Silicosis—Dust Disease. compensation provides workmen’s compensation act is partial not available disability due to silicosis or other disease, compensation dust $10,500 but payable not to exeeed employees dependents or their if temporary claimant suffers permanent total or death from silicosis or other (CLS 1961, 417.4, dust disease PA 1965, amended § 44). No Compensation 3. Same —Dust Disease — Available —Limitation. Phthisis, silicosis, pneumoconiosis, three of the most common likely diseases, compensable by were made amendment workmen’s provided act the dis- eases were working contracted while occupa- certain listed tions, prevalence but because of diseases, of these legislature further limited the compen- amount available (PA sation Sess], 10, pt 7, Ex No 1, 4, [1st as added §§ 61). ^[8] ^[1] [2-7] 5 Am Jur Am Jur 58 Am Jur, 2d, 2d, References Appeal and Appeal Workmen’s and Error for Points Error Compensation § 545. 1009. in Headnotes §§ 252, 283. ^[9] 58 Am Jur, Workmen’s Dissenting Opinion Compensation §§ Corp. Dust Disease —Construction or Other 4. Same —Silicosis Statutes. the 1937 or other dust disease used amendment Silieosis used to mean aet was the workmen’s *2 only pneumoconiosis if silieosis, and and then contracted (PA of diseases the schedule the manner indicated 1937, pt 7, 1, 4, by Sess], 10, as added PA Ex No §§ [1st 61). No 5. Same —Amendment—Silicosis Dust Disease —Con- Other struction Statutes —Limitation. compensation aet was amended 1943 to abolish The workmen’s coverage of to of and extend the act the schedule disease, well but the disabilities as as even-with amended, coverage on broadened of the aet as the limitation recovery compensation workmen’s on “silieosis amount retained, carrying or other dust disease” was thus on meaning all phrase of that whieli did not include disabilities silicosis, by disease, phthisis, but was limited to caused dust posing pneumoconiosis a and or other dust disease such 10, industry (PA Sess], Ex general No threat to the [1st 1, 1943, pt 7, by 245). PA as amended No § and Disease —Sinusitis Rhinitis— 6. Same —Amendment—Dust Applicability. Limitation — recovery act allow Amendment the workmen’s silicosis, pneumoconiosis when contracted industry occupations protect from certain was intended to prevalent diseases, being swamped by there is these but why apparent would be concerned no reason disease; thus, plaintiff became over a rare or unusual where sight of his rhinitis both ill with sinusitis and and lost coremaker, years a eyes working number of after imposed upon recovery dust limitation for silieosis and other applicable plaintiff’s disease and disease would not be by 1965, (CL8 417.4, 1961, amended PA § 44). No op Proop. 7. Same —Dust Disease —Limitation—Burden $10,500 limitation on An who asserts that compensation applies a dust for workmen’s disease bears proving so common burden of that the disease is and wide- general industry spread as to com- threat parable silicosis, phthisis, pneumoconiosis and if he fails proof apply sustain burden of limitation does not that 44). (CL 1948, §§417.1, 417.4, by PA No as amended Mich Compensation Appeal 8. Costs —Workmen’s — Error —Public Disease. Question —Dust No costs are allowed on from a determination recovery Appeals Court of the limitation on for silicosis applicable diagnosed or other dust is not to a disease (CLS 1961, 417.4, as sinusitis as amended and rhinitis § PA 44). No

Dissenting Opinion. Dethmers, Kelly, Black, JJ. Compensation Disease —Limita- 9. Workmen’s —Coremaker—Dust tion. sight eyes Plaintiff, a both coremaher who lost from $10,500 rhinitis, subject m sinusitis and was to limitation of since he was amount workmen’s recoverable suffering disease, being whether his it immaterial from 417.4, widespread industry (CL 1948, in the or not affliction 44). as amended Appeal

Appeals, Mc- Division Court Gregor, P. Kaufman, JJ., J., and Holbrook and C.

vacating Compensation *3 an order of the Workmen’s

Appeal reinstating an order tbe hear- Board of and

(Calendar ing No. referee. 3, 1969. Submitted June

52,105.) September 1969. 4, Docket No. Decided 3, Behearing denied 1969. October App

11 Mich 710, affirmed. Henry Application by hearing Felcoskie for an

adjustment of claim. a workmen’s Hearing applicant per week for referee awarded $36 plus hospital expenses and from weeks medical Lakey per Foundry Corporation and week from $27 Foundry Injury Lakey Fund. Defendant Second Compensa- Corporation appealed to the Workmen’s Appeal Appeal Board. The Board modified tion hearing order to limit referee’s

Corporation Lakey Foundry $10,500. Defend-

appealed Injury Fund to the Court of ant Second

appeal order board vacated and Appeals. Order Foundry Corp. Lakey Felcoskie Lakey

hearing reinstated. Defendant referee of Foundry appeals. Corporation re- Affirmed and manded. (Edward Wells, D.

Cholette, Perkins <&Buchanan

Foundry. Lakey defendant-appellant counsel), for Corporation. Kelley, Attorney A. Robert General,

Frank J.

Derengoski, Stoddard and A. General, Solicitor C.

Attorneys General, House, Jr., Assistant Glenn W.

defendant-appellee Injury Fund. Second Henry em- was T. G. J. Kavanagh, Corporation ployed by defendant

years. many November a coremaker for On as 1964,

symptoms infec- nasal he ill with became

diagnosed However, sinusitis and rhinitis. tion

spite prompt worsened treatment, his condition

sight had lost the 1964 he November

eyes. both of his

compensa- filed for workmen’s

Plaintiff Felcoskie

employment exposed claiming him tion, that his disability and loss caused which his fumes sight. of $36 The referee awarded employer per paid weeks his for 800 week to be per paid week to be from $27 November starting injury for 756.5 weeks the second fund

September 1,1965. appealed decision to. the referee’s raising compensation appeal board

the workmen’s plaintiff question: suffer first the “Does origin occupational disability having its *4 subsequently employment with the defendant?” plaintiff question: “In the event the additional

compensation, should to held entitled recover

$10,500 to ?” award be limited Mich the Court. n appeal finding The board the referee’s affirmed employee’s disability origin thát the did have its

employment in his with the defendant, but modified

(in provide effect) award to the second

injury solely responsible fund was

beyond the amount $10,500.

injury appealed

The second fund the decision of

appeal asserting board that the limitations of

part § applicable are not here involved. Appeals appeal Court of reversed the board

and reinstated the order of the referee. granted (381 777)

We appel- leave Mich and the

questions: (1) lant asks May us to consider two

injury question applica- second fund raise the

bility of the section 4 limitation since did it not do

appeal (2) so before appeal board, and Did the

properly apply board the section 4 limitation?

question appellant In his first contends that the

injury argue appeal second fund did not before the

apply plaintiff’s board that section 4 did not and hence cannot now heard claim argue be it. What- appellant’s argu- ever the technical correctness perceive ment, necessary we one issue be proper appeal accordingly determination of this will consider it. general question may

“The rule that a not be raised the first on time this court is not inflexible. When a claim consideration sought necessary proper to raised is deter applied.” mination of a case, such rule will not be (Dation v. Ford Motor Co. 314 Mich 152 at [1946],

161.) 417A, CL (Stat as amended Ann 1968 17.223). Rev § *5 Foundry Corp. 1969] Opinion Court. by appellant whether question raised second The applied limitation properly appeal board 4. section contained

part: pertinent 4 reads

Section

partial payable for “Compensation not be shall In disability dust disease. or other to silicosis due disability permanent temporary total or the event not- disease, dust other or from silicosis or death com- provisions withstanding act, of this any other

employ- part payable pensation under be shall following manner dependents in the ees or to their * * * com- such In no shall event amounts: and pensation aggregate $10,500.” total of exceed an

may parties positions summarized be The

phrase appellant “The that: The contends follows:

4 in- was in section or other dust disease’ ‘silicosis

disability causing any apply disease tended to dust

resulting compensation. here suf- The claimant

(dust originating disability a in a dust disease fered

rhinitis) should induced sinusitis therefore

says: appellee by “The 4.” The be limited section

phrase can have ‘silicosis other .disease’ pulmonary application only disabilities. pulmonary claimant here does not suffer disability, be limited.” therefore his claim should not argument yields logic other.

Neither Although are that the dust diseases we satisfied pulmonary all with listed 1937 were concerned significance of less involvement, we consider this fact they most com- than the fact that were and are the likely mon and forms of dust diseases. phrase obviously application has

Since occupational dis- caused some dust disabilities

disability we will assume that here eases, claimant’s

occupational disability a dust was caused 438. Miot-i op the Court.

in- ‘disease'and whether it was determine

by he tended to limited

do not read the limitation of

We section to applicable to all dust disease caused disabilities. „ In 1937the made

compensable they the 31 time and so first did

specific Only guardedly. or diseases conditions

compensable only were made and when the then

specific disease condition was in a contracted

specified manner. diseases, Of those listed three

phthisis, pneu- Were dust silicosis, diseases: and

they, compensa- moconiosis, and as all the rest, were

only occupations.2 ble- if contracted listed

legislature coverage, Even with this restricted feared that those dust diseases scheduled were so prevalent they in the industries listed that further

compensation (see appendix A). limited their Sec-

phrase tion then added was and first used the “silicosis or other dust disease.” Since the enumer- only compen- ated diseases were the dust diseases

phrase phthisis, sable, the silicosis, or as first used had to mean

pneumoconiosis and it covered those

only diseases if contracted the manner indicated

in the schedule.3 pa2

, (1st Sess), 10, pt 7, Ex as added ÑO 61. 3 “See. 1. Definition. Whenever used this aet: “(a)' ‘disability’ being The word means state of disabled from earning wages full at the work employee at which the was last em- n ployed; - “(b) The word becoming ‘disablement’ means the event of so subparagraph (a) disabled ; as defined “(e) ‘occupational The term disease’ means a disease which is due to and causes conditions which are peculiar characteristic of and particular trade, occupation, process to a employment. employee '“See. 2. The resulting disablement from an oc- cupational or, condition following described schedule happening shall be- as personal injury by treated of accident meaning within the procedure this aet and practice provided in apply act shall proceedings all part, under n except specifically provided -where otherwise herein: Corp. v: the Court. hardship

By industrial economic fears of 1943the

compensation expanded not material- had from the ized

B). (see appendix was abolished The schedule

occupational coverage dis- include extended

with However even well diseases.4 abilities

coverage 4 lim- the act section broadened

was or other dust disease” on “silicosis itation retained. allow re- was intended to amendment

The 1937

covery forms diseases and of industrial certain

4 that amend- and the intent of section of conditions,

recovery for the limit the amount of ment was to ' prevalent The' 1943 of dust diseases. most forms

encompassed listed amendment

basically 4 remained un- their causes but

changed. no the 1943 indication There

entirely coverage expansive in was amendment which

expand restrictions of section 4. intended to

leg- conclusion that what the us to the This leads

which could feared in 1937were the diseases islature

phthisis, pneu- *7 industry swamp and silicosis, "an — in’‘1943 it fear continued as moconiosis—and that

everyone day. that almost The fact does to this grinding quarrying, mining, is and industries the (to' probábly exposed has incurred some and to undoubtedly extent) diseases, accounts for sec- these partial disability for a them and denial tion 4’s disability. ceiling for amount total on recoverable the :“30. Silicosis “31. Pneumoconiosis “29. “Disabilities ^[*] No '(PA 4 PA 1912 ^[**] '(cid:127) 61.) phthisis Stone worker’s ^[*] No 245 [1st arising from (1st (CD 1948, Ex Ex Sess], or (cid:127) Sess), grinder’s No §417.1 [Stat pt 7, 10, ing Mining ing ing ^[*] Quarrying, cutting, crushing, grind- Quarrying, cutting, Caused ^[*] pt 7, or §§ or or ^[*] Ann 1960 Rev polishing polishing polishing 1, 2, by § as added as amended of metal. of metal.” crushing, stone, by 17.220]). PA or by grind- grind- 1937, PA 438. Mich Court. the n ap- safeguard no reason maintained, With

legislature pears why been held to have should be the

a unusual disease. over rare or concerned

history legislative contrary act of this On the

as dust disease” other us that “silicosis or convinces that

phrase always compensation in- 4 is used in section been has

phthisis, silicosis, to limit tended to pneumoconiosis,

posing such or other dust disease

industry. general threat to the

employer that the lim- an asserts Hence whenever

applied the dust of section 4 should itation compensa- disability causing which

sought, employer burden such shall bear the tion is

proving and is so common such disease that

present industry widespread comparable a threat

pneumoconiosis. silicosis, n employer this, fails to establish If the

by should not be limited

case, proofs on the In since no were offered

appeal point, remanded to the board the matter is

making talcing proofs and the of such of such for the determination.

No costs. T. M. and J., T. E. C. Kavanagh Brennan, with T. Gr. J. JJ., concurred Kavanagh,

Adams, “A” APPENDIX committee, No 164: Report established of the select opinion that same reasons whieh "The is of the commission applicable justify compensation act for are workmen’s accidents However, disability occupational it due diseases. to most evident death testimony its from submitted to the commission at study hearings, matter made various commission, very from the members of the nature individual extremely disease, leg- it is difficult or industrial employee regard fairly both as to the islate Necessarily, *8 compensation paid or death. to be there for industry, to in which occur workmen but which are certain diseases large origin public and the source or are common to the at the of - industry to We do feel that whieh it difficult determine. not is. Coup. Opinion op the Court. from, charged disability should be common diseases. -with resulting or death such , ... “Rather, compensating legislation we recommend that passed be particular- which particular confines employments.. ;We diseases to parties think sueli all that concerned would be -by the most benefited legislation simply by rather changing than the- word “accident? appears as it in the workmen’s ‘injury’. act to the word plan The so-called certainty. schedule to which we in refer results It litigation. prevents avoids hopes it must delays much It raising and the of false employee. Industry then knows the under which operate and it against knows the conditions which it must guard. of At the same time workman is law.told what the hazards particular employment given opportunity are and is to co- operate employer with in preventing disability or death. The employer cost to the is much more definite. The is not exposures made liable for the occupations. normal of healthful quite generally schedule method has been England followed in. continent, on the in well as the British in dominions. It is effect in numerous States the United States. proposal change “Aside from the the word ‘injury’, ‘accident’ to proposal adopt and the occupational schedule or industrial diseases, suggested it has been adopt that granting we an act com- pensation occupational for defining diseases "and then the term ‘oc- cupational disease’. We have any been unable to find definition of the term which we satisfactory believe would be and have not suc- drafting ceeded in suiting. one to our attempts along Various line have been made in a number of apparently States but without any success. “Therefore, opinion Michigan it is our that should pass existing a bill somewhat similar to' that in New York and other States, setting occupational forth the diseases and the industries they occur, may including silicosis, in which asbestosis and other diseases, for which or death will * * » paid. objections “One of the to our recommendations is that new oc- cupational developing or industrial diseases are industry finds new ways accomplishing results, its desired and it is said that such a amendments will occupational schedule not meet those new diseases without legislature. objection, To obviate this we have incorporated language into the bill department under which the industry may labor and on its public own initiative hearings hold determine whether or not there are new and additional disease hazards to being subjected which workmen are in certain compensated industries similar to those for in proposed bill, our giving department, fincls, if it so right compensate resulting disability or death. We think we have drafted this way such there can be no valid constitutional ob- jection to it. leaving subject, might “Before it be well .refer, for us to propose doing. cost what we We attempted have to secure some definite information as to the cost of a so-called ‘wide-open’ act, changing which means the word ‘injury’ ‘accident’ compensation law. It is said ‘wide-open’ that such a act is effect in Wisconsin and that it increased the employers that in cost to the of that Further, State in 1928 2.14% Wisconsin 8.55% indemnity of all and medical cost in occupation rep- 90% *9 Mioh 448 the Court. difficulty that the eases. We find on of silicosis cost account resents in First, Wis- the commission statement is three-fold.

with that employments strictly act; secondly, the that has construed consin few; and, very thirdly, occupational are found are in diseases which industry of as a whole. What that State increased cost is over the should be interested the particular those in the cost to is increased we industries we occupational There find in which diseases are found. so story. New was amended quite different When the York law a rates, all-inclusive, compensation practically being the in its to for instance result foundry industry, you find due in where the only many dust, the not found increased times that foundries to themselves so buy were forced compensation but unable insurance that if the cost must be borne in mind discontinue business. It great an extent in compensation is increased too of insurance may only State, of the Michigan, it certain industries out not force particular in engaged been the older men and who have but those apt work. affected are to find themselves without industries propose, bill while it will “We have been that the which we assured in in a the in some industries result premiums, considerable increase insurance 1937, eonfiseatory.” (House Journal, pp 157, not will be 158.) “B” APPENDIX Report R. No. 1941: of the committee established H. select change proposed in part of the act abolishes the schedule “One this in contained amendment of 31 diseases the 1937 injuries requirement law and the ac- also abolishes proposed law, part compensable in 2 2 The section of deems cidental. any injury arising in eaused a disease out of and the course of of excludes, 'ordinary employment. however, diseases specifically It colds, general exposed (common' cetera). public is et life’ to which'the overcoming 2 the in- schedule of in- has written with view to “Section been limited, inequities adequacies removing of a the inequable types especially limit the diseases. It is of dustrial types injuries, of an in- diseases. other industrial industrial Unlike through part negligence no on the is dustrial disease contracted employment completely from employee. It conditions the derives personal protects employee has no control. Section which the over through respeet protects in employee the the simple language clear, of common ailments. The exclusion and should engendered complicated language litigation avoid of the 1937 amendment. advocating provision, “In all-inclusive industrial disease the the carefully by checking' costs involved considered Committee industrial disease costs total costs of ratio neighboring already provision. In have such States which Illinois 1941; 22-year average up in Wisconsin in the ratio was 1.8% 3.3%; Michigan ratio 1941 was Indiana was 0.7%. cases, excluding hernia which are included ratio schedule under amendment was Even the 1937 with hernia 1.1%. all 31 ratio of to total eases the cost .the only paid was 1.9.% “But the committee feels that ratio can be reduced even provisions proposed Experience under show's that extension of disease more liberal act. salutary has effect on industrial (House prevention.” Journal, 320.) p Corp. Dissenting Opinion by Dethmers, J. {dissenting). For J. reasons set forth Dethmers, Schoppe my opinion Inc., Hecla, v. Calumet &

my Mich it is view that the limitations of

opinion 4* referred to of Mr. Justice applicable Kavanagh are is, T. G-. and that there

taking no occasion for remand for the therefore, proofs

subject on the of whether

disability, plaintiff causing suffers, which is so

widespread as to a threat to common and

phthisis, industry comparable silicosis,

pneumoconiosis. guage speaks plain The statute lan

Plaintiff suffers from

of “dust disease”.

widespread industry in the disease. Whether it is or not is immaterial.

The order board should be affirmed

Appeals and that of the Court reversed. Kelly JJ., Black, concurred with Dethmers,

J. * 417.4, (Stat as amended Ann CL 17.223).—Reporter. 1968 Rev §