Nicholson v. Lansing Board of Education

423 Mich. 89 (1985) 377 N.W.2d 292 NICHOLSON v. LANSING BOARD OF EDUCATION Docket No. 72216, (Calendar No. 6). Supreme Court of Michigan. Argued March 5, 1985. Decided November 8, 1985. Sablich, Ryan, Bobay & Kaechele, P.C. (by Theodore P. Ryan), for the plaintiff. Foster, Swift, Collins & Coey, P.C. (by Kathryn L. Hagenbuch), for the defendants. BRICKLEY, J. In this case we are asked once again to interpret and apply the notice provision of the workers' compensation act, which tolls the statute of limitations pertaining to filing for benefits, *91 if the employer has received notice of injury, but has not reported the injury to the Bureau of Workers' Compensation. MCL 418.381; MSA 17.237(381). FACTS The facts giving rise to this action were aptly summarized by the WCAB and are not in dispute: Plaintiff was employed with defendant in the capacity of a janitor. During the winter months, this job required plaintiff to shovel coal for approximately two and one-half hours during each day for periods of 45 minutes to one hour at a time. Using an oversized shovel, plaintiff would shovel the coal from the coal bin into a wheelbarrow. Plaintiff testified that the wheelbarrow weighed approximately 500 pounds when full, and that he would push the wheelbarrow some 50 to 75 feet and dump the coal into two coal hoppers. The coal hoppers required between six and eight loads to fill. Plaintiff performed this activity just prior to leaving work each night at 1:00 A.M. during the winter months. The rest of plaintiff's job duties were of the nature that required constant standing and walking. Plaintiff testified that prior to January 1973 he had begun experiencing headaches on almost a daily basis and such was the case on January 8, 1973. In spite of the fact that plaintiff's wife attempted to get plaintiff to stay home from work, plaintiff testified that he was not the type of person who complained and that he never missed any time from work. January 8, 1973 was no exception. Plaintiff testified that when he completed his shift at 1:00 A.M. on January 9, he "couldn't hardly even get in the car to go home" and, upon arriving home, he "couldn't hardly get in the house." Plaintiff then went to bed and upon rising that morning at 8:00 A.M. experienced pains which he characterized as like a sledge hammer *92 hitting him in the head. Plaintiff was subsequently hospitalized and underwent surgery. The diagnosis was a spontaneous subarachnoid hemorrhage. The defendant employer was aware that plaintiff did not report for work on January 9, 1973, because of the stroke. The employer did not report this fact to the Bureau of Workers' Compensation. Plaintiff filed a petition for hearing with the bureau on July 11, 1978. The employer claims this was the first notice it had of the assertion that the stroke was work-related. The hearing referee found that plaintiff suffered a personal injury which arose out of and in the course of his employment. With regard to whether plaintiff's claim was barred under § 381, the referee found that this Court's decision in Krol v Hamtramck, 398 Mich 341; 248 NW2d 195 (1976), was controlling. The employer's failure to file a report of injury was held to have suspended the statutory limitation, and plaintiff thus was awarded benefits. The WCAB affirmed the decision, also relying on Krol. Defendants then filed an application for leave to appeal in the Court of Appeals which was denied for lack of merit on the grounds presented. Defendants next applied for leave to appeal to this Court, and we remanded the case to the Court of Appeals for consideration as on leave granted. 414 Mich 895 (1982). On remand, the Court of Appeals reversed the judgment of the WCAB in a two-to-one decision. 127 Mich App 551; 339 NW2d 482 (1983). The majority pointed to plaintiff's testimony that shortly after the stroke occurred, while still in the hospital, the plaintiff believed his work may have partially caused the stroke. The majority ruled that plaintiff was not entitled to benefits because he failed to *93 give notice to his employer of a work-related injury within ninety days after he was able to report the injury, thus the six-month statute of limitations pertaining to filing for benefits was not tolled. 127 Mich App 553. In contrast to the majority, Judge HOOD, in his dissent, focused on the conduct of the employer. He stated that an injury that is within the employer's knowledge must be reported to the bureau if the employer wishes to retain the six-month statute of limitations defense. 127 Mich App 554-555. He stated further that the correct rule was that an employer need not have knowledge that the injury is work-related or compensable before it is required to report the injury. 127 Mich App 555. Judge HOOD would have held that by failing to report plaintiff's injury to the bureau the defendants waived the statute of limitations defense. Id. We subsequently granted plaintiff's application for leave to appeal. 419 Mich 922 (1984). DISCUSSION It has long been the rule in Michigan that in workers' compensation cases the law in effect at the time of the relevant injury must be applied unless the Legislature clearly indicates a contrary intention.[1]Wallin v General Motors Corp, 317 Mich 650; 27 NW2d 122 (1947). At the time of plaintiff's injury, § 381 provided in part: No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury has been given to the employer 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 *94 writing, has been made within 6 months after the occurrence of the same.... 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 the same, and fails, neglects or refuses to report the injury to the bureau as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of the employer or his insurer, until a report of the injury has been filed with the bureau. [1969 PA 317.] The most frequently cited statement concerning § 381[2] is contained in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974). There, Justice COLEMAN, writing for a unanimous court, began by noting that [t]he purpose of the notice is to give the employer an opportunity to examine into the alleged accident and injury while the facts are accessible and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and minimize the loss. [391 Mich 474, quoting from Littleton v Grand Trunk R Co, 276 Mich 41, 45; 267 NW 781 (1936).] The Norris Court summarized the prior cases dealing with the sufficiency of notice from the employee to the employer: [I]n Henderson v Consumers Power Co, 301 Mich 564; 4 NW2d 10 (1942)[,] the plaintiff was injured in 1930. While convalescing he was visited by company superintendents. As a result of his injuries, plaintiff went blind in one eye in 1937. He *95 filed for compensation in 1940. This Court upheld the award. The Court held that precedent "recognized that knowledge of an accident is the equivalent of notice".... The Court concluded that "defendant had the requisite `notice or knowledge' of plaintiff's accident and injury within three months after the happening thereof." Also see Gates v General Motors Corp, 349 Mich 286; 84 NW2d 482 (1957) where the Court agreed that "the limitation period of the act does not begin to run if the employer has knowledge of the accidental injury and fails to file a report." A statutorily sufficient notice was given in West v Northern Tree Co, [365 Mich 402; 112 NW2d 423 (1961)], where the employee told the foreman that his hands were cold and freezing. The notice was given on February 16, 1957, which was plaintiff's last day as an employee. A finger was amputated in April 1958. Although the only notice given was the complaint to the foreman, the Court affirmed an award for the loss of the finger. Sufficient notice was also found in Meyers v Chris-Craft Corp, 379 Mich 552; 153 NW2d 657 (1967). The employee's wife went to the personnel manager and said her husband had been injured at work. This Court reversed the Appeal Board's reversal of an award and said the "requirement of proof of notice has been complied with." The Court remanded for a decision "as to whether the record established causal relationship between work and the injury." [391 Mich 478-479.] In Norris, the claimant was injured on November 2, 1954, when he was struck by a car while en route from a parking lot to his workplace. The chief guard at the plant was told of the injury immediately, and the claimant's foreman was informed of the injury the same day it occurred. The claimant had continuing medical problems and was never able to return to work. A petition for benefits was not filed until 1968. "Defendant argue[d] that under the state of the law at that time *96 it did not receive notice of a compensable injury and therefore was not required to report." 391 Mich 477. This Court rejected the employer's contention and instead held that an injured employee has two separate obligations: (1) "the employee must first give notice of the accident"; (2) the employee has "a separate obligation" to show that the "injury is compensable" if the employer contests the employee's claim. Id., p 478. The Norris Court rejected the employer's argument that it needed only to report compensable injuries in order to impose the statutory limitations. Under the view of the employer, it would have been chargeable with judging the merits of the case when that duty rests with the referee and the WCAB. 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 so pays the price of the suspension of statutory limitations. [391 Mich 480.] Also: The notice given must be sufficient to make the employer aware that an injury has been sustained. If, after inquiry, the employer does not believe the injury to be compensable, it need not report the accident. However, in not reporting the accident, the employer assumes the risk that the injury will be found to be compensable. If such a determination occurs, the employer's penalty is a suspension of statutory limitations. [391 Mich 477.] The notice to the chief guard and foreman in Norris was sufficient to put the company on notice that the accident occurred while the claimant was *97 reporting to work, and this was enough to toll the statute of limitations. Since Norris, we have reaffirmed this interpretation of § 381. In Krol v Hamtramck, supra, p 344, the employer had notice that the employee's cause of death was "[b]rain necrosis, [with] questionable etiology." The employee had worked in the traffic control division of the police department, painting signs, curbs, and crosswalks and removing paint from signs. In the winter months, he worked primarily indoors and was exposed to paint, kerosene, and gas fumes. Despite having notice of the cause of death and knowledge of the employee's working conditions, the employer did not notify the workers' compensation bureau of the employee's death. Thus, even though the employee's wife did not file a petition for benefits until over two years after Krol's death, we held that the claim was not barred because the statute of limitations was suspended when the employer did not notify the bureau of the death. 398 Mich 347-348. The question whether the employee had given timely notice to the employer was not the end of the inquiry because of that portion of § 381 which provided: "in all cases in which the employer has ... notice ... or knowledge of the happening of [an] accident within 3 months of the happening of the same, and fails, neglects or refuses to report said inquiry to the compensation commission ..., the statute of limitations shall not run against the claim of the injured employee or his dependents ... until a report of said injury shall have been filed with the compensation commission." Accordingly, Mrs. Krol's claim was held not barred as the statute of limitations did not run against her because of the employer's failure to file a report of the injury. In Meads v General Motors Corp, 402 Mich 540; *98 266 NW2d 146 (1978), the claimant had worked over thirty years for the defendant, mostly on jobs involving grinding. For three months before his retirement, the claimant was placed on extended sick leave for which he received sick leave benefits. Company records indicated that the causes of his sick leave were pneumonitis, pulmonary emphysema, and bronchial asthma. The claimant did not file a petition for benefits until almost five years after his retirement because it was not until then that he suspected a connection between his employment and disability. The issue was whether there was sufficient notice to the employer of the claimant's occupational disease and disability so as to require the employer to file a report of injury with the bureau. We looked to the nature of the claimant's employment conditions as well as the employer's knowledge of his illness. The employer "had every opportunity to report the disablement and its nature to the bureau as required by statute [but it] did not do so." The statutory time limits for the filing of notice and claim by the claimant were therefore suspended. 402 Mich 543-544. In Smith v Kelsey-Hayes (After Remand), 404 Mich 70; 273 NW2d 1 (1978), reh den 406 Mich 1102 (1979), a different situation was presented. There the employee was involved in an accident at work in July of 1972 and suffered an injury. Smith v Kelsey-Hayes, 1975 WCABO 2369. He did not, however, notify his employer on the date of his injury. Nor did the employer have knowledge of the injury on August 3, 1972, when the employee went on strike. Until the strike, the employee had worked all his scheduled days and hours. During the strike the employee's symptoms worsened, and he eventually had disc surgery in November of 1972. He did not return to work when the strike *99 ended and applied for group insurance benefits disclaiming any cause related to work on the form filed. He did not file a petition for benefits until March of 1973. The WCAB in Smith found, as a matter of fact that the employer did not have notice of the injury until nine months after it occurred. This Court affirmed, because there was evidentiary support for the finding of fact that notice of the injury was not received by the employer until March of 1973. 404 Mich 73. The employee's claim was barred by the statute of limitations because the employer did not have notice of the injury within three months of its happening. 404 Mich 75. The most recent opinion of the Court in which § 381 was considered is Combs v Michigan Mobile Homes, 406 Mich 507; 280 NW2d 451 (1979). There the employee told his employer in April of 1975 that he was having chest pains at work, and he was allowed to leave work. The employee's wife soon thereafter informed the employer that her husband was hospitalized. A representative of the employer talked twice with the employee about his medical condition and salary and about health insurance matters. The employee filed a claim for benefits in October of 1975. In Combs, the WCAB, by finding insufficient notice of injury, "implied that the plaintiff had to make the company aware of the connection between the plaintiff's work and the plaintiff's occupational disease; at least, aware enough to put the defendant `upon inquiry and require the filing of a report.'" 406 Mich 508-509. In light of Krol and Norris, we rejected this approach and reached a different conclusion: As in Krol and Norris, the employer in this case knew of the employee's health problem and absence *100 from work. Both the employer and employee may have been unaware of a causal connection between the work and the disability, but this does not mean there has not been notice. See West v Northern Tree Co, [supra]; the notice, in this case, given by plaintiff to Jerry King, a manager, is the same kind of notice given by plaintiff West to his foreman. See 365 Mich 404. Accordingly, plaintiff Combs's case is not to be rejected for want of notice. [406 Mich 509.] The plaintiff finds this authority, particularly the pronouncements of Norris and the factual similarities of Krol, to be ample on its face to support a reversal of the judgment of the Court of Appeals, since the facts here support the conclusion that the employer had notice of plaintiff's illness. Defendants propose that the precedent which has developed in these cases is distinguishable from the facts of this case, in that in each of the prior cases the employers had facts within their knowledge which should have made them aware of the causal connection between work and the injury while in this case the employer knew of no facts which would indicate that the employment caused the stroke. We agree. In Henderson, the claimant fell from a utility pole during work and suffered a brain injury. His vision became blurred in one eye and eventually worsened into blindness. Because the employer knew of the work-related injury and failed to file a proper report, it was denied the benefit of the statute of limitations. 301 Mich 578. The employee in Gates suffered a back injury while at work and also hurt his arm when a one-hundred-pound casting fell on it. Since the employer had knowledge of these injuries and failed to file a report, it could not receive the benefit of the statute of limitations *101 defense. 349 Mich 290. In West, the employer's foreman was told that the claimant's hands were cold and freezing due to the outdoor work. This was the employee's last day of work, and the notice given to the employer was held to be sufficient notice to toll the statute of limitations. 365 Mich 406. After being informed by the employee's spouse that the her husband had been injured at work, the personnel manager in Meyers failed to file a report with the bureau. We held that this was sufficient notice of an injury to the employer. 379 Mich 557. In Norris, there was an "accident" in every sense of the word, when the employee, on his way between a parking lot and the plant, was struck by a car. While it was arguable that his injuries were not compensable since he had not yet entered his work station, there was little doubt that his injury was work-connected in a general sense. The pronouncements from Norris, that "[t]he employer must report any injury of which it has notice" even if it may not be compensable, were certainly justified in the context of that case. Norris made it clear that the employer's determination of whether or not to give notice of an injury was not the time or the place to determine its compensability. Employers were required to report injuries to the bureau, and thereafter the compensability of the claims could be determined. In Krol, the employer not only knew of the employee's death, but, in response to its request, received a report listing the cause of death as "[b]rain necrosis, questionable etiology." That information, coupled with the employer's knowledge that the deceased had worked in a confined area where he was "exposed to paint, kerosene and gas fumes," certainly raised the possibility of an occupational *102 disease, which is a personal injury under the act. MCL 418.401(2)(b); MSA 17.237(401)(2)(b). In Meads, as in Norris and Krol, there was no doubt of the employer's knowledge of the employee's disability, because of the employee's illness just before his retirement. As in Krol, there was also reason to suspect an occupational disease, because of the employee's tenure as a grinder and the fact that "pulmonary disability is a common result after many years of exposure as plaintiff experienced." Lastly, in Combs, while there was no accident or event as in Norris or suggestion of occupational disease as in Krol or Meads, there was an occurrence — chest pains — at work. The employer knew the claimant suffered chest pains at work and was forced to leave early. It also knew the claimant had a heart attack shortly thereafter. This was enough to put the employer on notice as to the possible compensability of the injury. In each of these cases, we said that the central focus was the employer's notice of the disability, even though in each case the employers also had information which put them on notice as to the possible work-relatedness of the injuries. Plaintiff urges that the rule to be extrapolated from these cases is that employers must, in order to preclude the tolling of the statute of limitations, report to the bureau any illness of any employee regardless of where it first manifests itself and regardless of an apparent unrelatedness to employment. The common trend running through the case law interpreting § 381 is that each employer had knowledge of facts which made them aware of a work-related injury. We do not believe the Legislature intended to burden employers and the bureau with a requirement that all injuries, from whatever cause, sustained by employees must be reported. In order *103 to receive the benefit of the § 381 statute of limitations employers must report those injuries in which the circumstances indicate the possibility of a work-related cause. Where an injury is suffered outside the workplace and the employer does not have reason to suspect the employment caused or contributed to it, there is no obligation to give notice to the bureau to receive the benefit of the statute of limitations.[3] In this case, the employer, according to the plaintiff's testimony, had no knowledge of any symptoms of injury or illness that occurred while he was at the site of employment. The employer had no knowledge of any event or accident at or near the employment site. There is nothing on the record suggesting that a spontaneous subarachnoid hemorrhage[4] is a disease "characteristic of and peculiar to" (MCL 418.401[2][b]; MSA 17.237[401][2][b]) janitorial duties or heavy shoveling, in particular, or even the workplace generally. The employer in this case had notice — only — of the fact that one of its employees was unable to work because he had suffered a stroke at home. This case presents for the first time an opportunity and a need to qualify the rule of Norris that "[t]he employer must report any injury of which it has notice if it is to have the advantage of the statutory limitations." Certainly, in Norris, we did *104 not intend to include under the term "injury" an illness that the employer had no reason to believe was work-connected. Each of the prior cases finding sufficient notice under § 381 presented fact situations that made it possible for the employer to be on notice of the possibility of work-relatedness. This case did not, and it is thus distinguishable. Affirmed. No costs, a public question. LEVIN, RYAN, CAVANAGH, BOYLE, and RILEY, JJ., concurred with BRICKLEY, J. WILLIAMS, C.J. (concurring in part and dissenting in part). While I concur generally in the reasoning and rationale of my brother BRICKLEY'S opinion, I write separately because I dissent from that portion of the opinion which adopts the conclusion of the Court of Appeals as to when the plaintiff was first aware of the possibility that his stroke might be work-related. The Court of Appeals made a factual finding on the basis of testimony by the plaintiff before the hearing referee and, in doing so, exceeded its authority. I would vacate the decision of the Court of Appeals and remand this case to the Workers' Compensation Appeal Board for a factual determination on this issue. I also wish to emphasize that, assuming the majority is correct that the plaintiff was aware of the possibility his stroke was work-related, the majority opinion does not impose a higher standard of notice on the employee than on the employer. The Court holds that in order for the employer's duty to file to arise there must have been a "fact situation[] that made it possible for the employer to be on notice of the possibility of work-relatedness." *105 Ante, p 104. Thus, notice to the foreman that the employee's hands were cold and freezing, West v Northern Tree Co, 365 Mich 402; 112 NW2d 423 (1961), and notice to the employer that the employee was having chest pains at work, Combs v Michigan Mobile Homes, 406 Mich 507; 280 NW2d 451 (1979), were sufficient to require filing by the employer. However, in this case there was no argument that the employer knew that the employee was experiencing severe headaches and tiredness at work; therefore, the employer did not have notice of the possibility of work-relatedness. Under the rule adopted today, a party, employer or employee, with knowledge of facts giving rise to the possibility of work-relatedness is required to act in accordance with those facts. Since the employee alone knew he had headaches, he was required to file his claim within the prescribed statutory period. NOTES [1] The statute has since been amended to remove the tolling provision. [2] In Norris, we interpreted the predecessor to § 381, but, since the relevant portions of the statutes are identical, the reasoning of that case and the earlier cases applies here. [3] We note that this standard is substantially similar to that suggested by Professor Larson in Workmen's Compensation Law: "It is not enough, however that the employer, through his representatives, be aware that claimant [has suffered an illness or injury]. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim." 3 Larson, Workmen's Compensation Law, § 78.31(a), pp 15-100 to 15-109. [4] The treating physician, who testified for the defense, stated that he used the word "spontaneous subarachnoid hemorrhage" because it "refers to the onset of a hemorrhage without inciting cause, without an inciting, for example, trauma or tumor."