*1 Buschbacher v Great LAKES STEEL CORPORATION v GREAT BUSCHBACHER 1982, 2, February at Detroit. Decided 56034. Submitted Docket No. 6, April 1982. wife, V. Lake Busch- his Denise A. Buschbacher and Robert bacher, Wayne brought Court in Circuit an action alleging among Corporation other and others Great Lakes Steel negligently advise Denise failed to matters that Great Lakes by X- medical condition indicated of an adverse part preemployment physical rays exami- her as taken of duty had a contractual to advise and that Great Lakes nation any was discovered or medical condition which of adverse her preem- during should have been court, Giovan, J., granted ployment William J. status. The summary judgment on the contract Lakes’ motion for ground a cause of action for that it failed to state claim on the time, granted. At the same defendant’s could be which relief negligence judgment summary on the claim on motion for by the exclusive ground action was barred Disability Compensation Act was provision of the Worker’s law, that, denied, finding of the claim did as a matter the court employment relation- of an out of and in the course not arise appeals. ship Held: Defendant between alleged injury deciding did that the The trial court erred employment relation- in the course of the not arise out of and of ship. be decided the Bureau That must first Compensation. Disability court’s order is The circuit Workers’ to the circuit court so and the matter is remanded reversed hearing application plaintiff may with file an filed, timely the circuit court bureau. If such pending abeyance the decision hold the instant action shall injuries plaintiff’s determines that the bureau. If the bureau employment, or if in the course of her were suffered days, the apply for a bureau determination within fails to If grant to defendant. accelerated circuit court shall ^[1] ^[3] ^[2] 81 Am Jur Workmen’s 81 Am Jur Workmen’s Am Jur 2d, 2d, 2d, References for Points in Compensation Compensation 58.§ Headnotes §§ §§ 52. work-related, the bureau finds the not to be the circuit may proceed. court action Reversed and remanded. J., dissented. He would find that the circuit *2 correctly summary judg- court denied defendant’s motion for physical prior plain- ment because the examination occurred employment alleged injury, tiffs and the the failure to discover report by X-ray, the condition indicated did not occur in employment

the course of employment nor was it based on an relationship. circumstances, Under these the Bureau of Work- Disability Compensation jurisdiction. ers’ does not have Opinion of the Court Compensation Remedy. — 1. Workers’ Exclusive by injured employee against An action employer an pre- his remedy provision cluded the exclusive of the Worker’s Disability Compensation recovery Act if the action seeks personal injury arising out of and in the course of and if employer-employee the action is based on the relation- (MCL ship 418.131, 418.301; 17.237[131],17.237[301]). MSA Compensation — Disability 2. Workers’ Bureau of Workers’ Com- pensation. Disability Bureau of Workers’ has the exclu- power sive to determine in the first instance whether Disability Compensation applies Worker’s particular Act injury and whether the is thus under the act; jurisdiction though employee’s exists even this.exclusive complaint particular in a allege rely action does not on an employment relationship parties; only excep- between the tion jurisdiction to the bureau’s exclusive is in situations where it is obvious that the cause of action is not based on an employment relationship, in which case the circuit court has authority reject applicability the claimed of the exclusive remedy provision (MCL 418.131, 418.841; of the act 17.237[131],17.237[841]). J.

Dissent Compensation — Preemployment Physical 3. Workers’ Examina- tion. prospective employer failure of a report to discover or physical X-rays condition prospective indicated on taken of a employee part preemployment physical as examination did not occur in the course of nor itwas based on an employment relationship, having prior prospec- occurred to the employee’s employment; tive under such circumstances the Disability Compensation inapplicable Worker’s Act is and the jurisdiction prospec- circuit court over an action has report employer tive for failure to discover or the condition. Kenney plaintiffs. Archer, Wilson, & for Cooney, Stanczyk Plunkett, Rutt, Watters, & (by Pedersen, Richard M. and P.C. O’Connor Chris- Oldani), D. tine for defendant. Kaufman, P.J.,

Before: N. J. and V. J. Brennan JJ. Cynar, and Corpora-

Cynar, J. Defendant Great Lakes Steel right appeals tion from the trial as court’s granting part January 14, 1981, order part denying summary defendant’s motion for judgment.

Plaintiff Denise V. Lake Buschbacher filed this According January 31, action on allegations to the complaint, 17, 1978, in the on March plaintiff employment application made to Great precondition employment, Lakes Steel. As a submitted to a chest she

physical including examination, X-rays. Plaintiffs’ working subsequently accepted, only was but after days, voluntarily one and one-half she terminated employment. July Thereafter, her on or about X- underwent certain routine chest rays delivery child. At connection with her radiologist time, she was advised the that large X-rays the chest revealed a mass in her Hodg- subsequently diagnosed chest, which as was kins Disease. complaint against de- contains two counts alleges that,

fendant Great Steel. Count IV plaintiffs employer, as had a Great Lakes Steel any duty adverse contractual to advise her Opinion op the Court medical condition which was discovered or should have been during preemployment status. Count V alleges that Great Lakes Steel failed to advise the negligently her of adverse medical condition.

Great Lakes Steel filed a motion for summary asserting the contract allegation failed to state a claim upon which relief could be granted. As to the negligence allegation, Great Lakes Steel asserted that the action was barred by the exclusive remedy provision of the Worker’s Act, Disability Compensation 418.131; MCL 17.237(131) (hereinafter "act”). the granted trial court the motion as to the contract claim. As to negligence claim, the the court denied the that, motion on the ground as a law, matter of the injury did not arise out of and in the course of an employment be- tween Great Lakes appeals Steel final order of the trial court.

Section of the provides: act right "The recovery provided of benefits as this act shall be the employee’s exclusive the employer. As used in this section and section 827 'employee’ person includes the injured, his personal representatives any person other to whom a claim accrues reason of to or death of the employee, and 'employer’ insurer, includes his agent service dent safety inspections providing employer, self-insured and the acci- furnish, fund insofar they as furnish, or fail to safety advisory services incident to compensation workmen’s insurance or inci- dent to a self-insured employer’s liability servicing con- *4 tract.” 17.237(841)

MCL 418.841; MSA provides: "Any controversy concerning compensation shall be 837 questions arising submitted to the bureau and all under this act shall be determined the bureau. The director shall be deemed to be an party interested in all work- compensation questions men’s cases of law.” An action precluded 131 if it seeks recov- § personal ery injury arising out of and in the course of if and the suit is upon based the employer/employee relationship between the 418.301; 17.237(301), MCL MSA Bednarski v General Motors 482, Corp, 484; 88 Mich App 276 (1979), 624 Peoples v Chrysler Corp, 98 NW2d (1980). 277; Mich App 296 NW2d 237 Michigan Numerous cases have enforced the principle concerning issues whether they arose out of and in the course of the are exclusively within purview of the Bureau of Workers’ Disability (hereinafter "bureau’.’). For ex- Co, Sewell v Bathey Manufacturing ample, 732; Mich App (1981), NW2d this Court stated: "It beyond peradventure is also question applies i.e.,

whether whether the act particular injury, arose out of and in the course of a (and worker’s employment thus is under act), ais to be resolved in the first instance exclusively by the Bureau of Compensation. Szydlowski v Corp, 356, General Motors 397 Mich 358- 359; (1976), 245 NW2d 26 St Paul Fire & Marine Ins Co v Littky, 60 App 377-378; Mich 230 NW2d 440 (1975), 17.237(841).” 418.841; Id., MCL Accord, Bednarski, supra, Federal-Mogul Cowan v Corp, 86 Mich App 621; (1977), 273 NW2d 487 Theis, Herman v 684; NW2d (1968).

Exclusive jurisdiction lies with the bureau even *5 App 838 114 Mich rely allege though plaintiffs complaint does not relationship employment the between on an App supra, Sype, 92 Mich narski, Dixon v Bed (1979). 144; 284 NW2d exception only exclusive the bureau’s jurisdiction cause of is that the it obvious is where employer/employee on the is not based action relationship. does cases, the court In circuit such applicability reject authority to the claimed have Panagos provision. v of the exclusive Hospital, General North Detroit (1971), v 559; Modeen Consumers 192 NW2d (1971). Co, 354; We 384 Mich 184 NW2d Power injury not the in this case is note that the claimed condition, the failure discover cancerous report but X-rays. on the the indicated condition as to the ultimate determination bureau has only alleged arose as a duties whether defendant’s result of the alleged under is the

whether the act.

Accordingly, the trial erred we hold that court deciding alleged injury in the did not arise the the rela- out of and in course of question tionship. That must first be decided circuit court’s order the We reverse the bureau. Plain- and remand the matter to circuit court. days shall, of this tiff within 20 of the release date opinion, of Disabil- file with the Bureau Workers’ hearing ity Compensation application on for controversy. If in such timely filed, court shall hold the instant the circuit abeyance pending of decision action plaintiff’s If bureau. the bureau determines employ- were suffered the course apply for ment, or if fails to a bureau Dissent V.J. J. determination within 20 days, the circuit court shall grant accelerated to Great Lakes Steel. If the bureau finds the injuries not to be work-related, the circuit court action may proceed. Dixon, See supra, 150.

Reversed and remanded. *6 Kaufman, P.J.,

J.N. concurred. J. (dissenting). The ac- majority knowledges that the bureau does not have exclu- jursidiction sive where it is obvious that the cause of action is not based upon the employer/employee relationship. circumstances, Under those the cir- cuit court has jurisdiction to determine the rights and liabilities of the parties. The circuit court had jurisdiction in this case because the physical exam- ination prior occurred plaintiffs employment. alleged injury, is failure to discover or report the condition indicated on the did X-ray, not occur in the and, course of employment there- fore, was not upon based an employer/employee relationship. Larson,

2A Law, 68.35, 13-39, pp states: § "When the employer’s fault negli- takes the form of

gence in disclosing not to the employee the existence of noncompensable disease the course of an clinic, examination in the company most cases allow a tort action on the theory in no sense work-connected.”

The rule is even more compelling this case because the was not I yet employee. would find that the circuit court correctly denied Great Lakes Steel Corporation’s motion for sum- mary judgment.