Hollingsworth v. Auto Specialties Manufacturing Co.

*257 Voelker, J. This is an appeal by the employer defendant from a workmen’s compensation award of total disability to the plaintiff made by the appeal board in reversing an order of no compensation by the referee. Many of the salient facts and most of the questions in this case can perhaps best be projected by quoting the opinion of the appeal board which, to avoid altering quotation marks, we give “as is” as follows: * *• * Plaintiff started working for defendant on November 10, 1947. She was assigned to a dry-sand mold inspection joh. Plaintiff testified that previous to injury in November, 1951, she had only casual headaches which did not prevent her from working and that she had no fainting spells. Plaintiff testified that on the Wednesday immediately preceding Thanksgiving Day, 1951 she started for the core room to obtain core rings which required that she duck her head in proceeding under a conveyor line; that in so doing she was struck on top of the head by the conveyor and rendered unconscious. It appears that an unidentified employee was hanging onto or holding the conveyor at the time of the impact and that his act could have been horseplay. Plaintiff testified that this employee could have been straightening a core. The record does not establish that horseplay occurred or that the act of the unknown employee precipitated or brought about the injury. We find that plaintiff sustained an accidental injury arising out of and in the course of her employment. Plaintiff’s husband, James Hollingsworth, was her foreman at the time of injury. It is clear and we find that he had knowledge concerning the accidental injury within a few minutes of its occurrence. Such notice and knowledge is imputable to the employer. Janies Hollingsworth was no less a representative of the employer because he was the husband of plain *258 tiff. Mrs. Hollingsworth was promptly taken to defendant’s first-aid department where she reported the injury to Louise Brand, industrial nurse. We find that defendant had notice and knowledge of the plaintiff’s accidental injury on the date of its occurrence. No report of injury was filed by the employer. Plaintiff’s application for hearing filed on May 1,1953, and served on May 7,1953, was timely. We find that statutory requirements relative to notice of injury and claim for compensation have been properly met. Plaintiff testified that after lying down for 1-3/4 hours in first aid on the date of injury she returned to her job and finished out the day; that she.remained in bed all week end; that she worked the following Monday but became very ill and that on Monday night she had a choking spell and a doctor was called; that she subsequently telephoned in to de-fendaht’s: guardhouse and reported concerning her illness and inability, to return to work. It is undisputed that, .plaintiff was.off work from December 6, 1951 .to'March 3, .1952. She had not worked from JVtu.rch 25, T952., to the.time .of hearing. ‘Plaintiff testified as to symptoms continuing during. the period from the time .of injury to the date of hearing including severe headaches, chest pains, black-out spells,, choking spells, and a paralyzed feeling on her. left side. .Plaintiff-was seen by certain doctors iri'her owif-area and also at the Mayo.Clinic. The only medical testimony, was furnished by JDr. Martin E. Feferman, neurosurgeon, who first-examined plaintiff on July 15, 1953. Dr. Feferman again saw plaintiff on-May, 4, 1954, and-caused her to be hospitalized between May 8 and May 16, 1.954, during which time a pneumo-encephalogram was performed. His testimony includes the following: “A. Well, first of all the- history I received was that she was struck on the left side of the head in November of 1951. Following that'she , developed severe headaches and vomiting, which lasted for several days. She then noticed weakness of her left *259 extremities. Her headaches and weakness have persisted, and in addition she has had ‘fainting spells,’ and she stated that during one of these fainting spells she urinated, making the spell sound like true convulsions. She also stated that she was told that she becomes ‘blue’ when she has these spells. “She has not been able to do too much since _ the accident because of the continuous headaches, dizziness and weakness. * * * “A. My diagnosis at that time was post-traumatic head injury symptoms, and post-convulsive disorder. “Q. Doctor, would you continue, giving us the examinations you performed? “A. Following her visit to the office on the 4th of May, I recommended that she be hospitalized and she was hospitalized in Memorial hospital in South Bend, Indiana, on May 8, 1954. “Q. How long was she in the hospital? “A. Until the 16th of May. “Q. Did you perform any further investigation?- “A. Yes, sir. “Q. What was the nature of that investigation? “A. I did a spinal tap on the 9th of May which revealed a normal pressure, and normal examination of the spinal fluid. A pneumo-encephalogram was performed on the 11th of May, 1954, which revealed marked evidence of - brain injury in the left brain. “Q. Any other examinations? - “A. No, sir, the last X saw her was on the 16th of May, 1954. “Q. Now reviewing the total of your examinations, and the history given to you, and including your hospital examinations, do you have a diagnosis, Doctor? -' “A. Yes, sir. My diagnosis at the present time is brain atrophy, probably convulsive disorder, and headaches associated with the brain damage. “Q. I will ask‘you as to-whether or not this might or could have been caused by a trauma? ' “A. I believe this could have been caused by a trauma, yes, sir. *260 “Q. I will ask you as to whether or not a blow to the top of the head, which occurred when she struck her head on a conveyor, could or might have been the cause of the difficulties you found with this woman? “A. Yes, sir, I believe it could have been. “Q. Is this woman presently disabled, Doctor ? “A. I think there could be a limited type of work that she could perform at the present time. It would be jobs in which she couldn’t hurt herself, if she did have a spell. It would be jobs that would not be too fatiguing. I think those are about the main limitations. “Q. I will ask you as to whether or not she can compete with an ablebodied person in the general field of common labor? “A. No, sir. I don’t believe she could do that. “Q. Doctor, this case has been partially tried on '2 different dates, and the lay testimony put in on October 5, 1953, and December 7, 1953. Assume, Doctor, that on these dates mentioned the proofs indicate that the accident, this traumatic incident, occurred on August 1, 1951 or in November, 1951; I believe the August 1, 1951, date was given to you by the claimant? “A. Yes, sir. “Q. I will ask you as to whether these factors in doubt make any difference in your findings? “A. No, sir. “Q. Does it make any difference in regard to the traumatic causes in this situation? “A. No, sir, it would not. “Mr. Feldman: You may inquire Mr. Crow. * * * “Q. How soon after an injury, as described to you by this patient, would symptoms necessarily manifest themselves ? “A. Well, I assume that we should have symptoms very soon after the accident. “Q. By very soon do you mean a matter of hours ? “A. Well, it would bo hours at the most, and perhaps less than that. *261 “Q. Minutes? “A. Very possibly. I should qualify that a little bit. You know we do see delayed reaction in some of these head injuries which may be because they have a little blood around the brain and it isn’t until the blood which is there breaks down that they get severe symptoms. But they most always have severe symptoms soon. But more may develop later. “Q. Assume for the purpose of this question that Mrs. Hollingsworth sustained a blow to the top of her head on August 1, 1951; and that she continued to work without significant interruption until December 6, 1951; would you feel that the blow on her head, in view of that incident on August 1,1951, could still be a cause of the condition you observed? “A. Well, if she continued to work with no apparent difficulty then I would find it hard to believe that the changes took place from the blow.” While no brief has been filed on behalf of defendant, it appears from the record that the issue probably most strongly stressed by defendant is whether the injury in question occurred on August 1, 1951 or in November, 1951. Through the testimony of Louise Brand, defendant’s records signed by plaintiff’s husband were produced setting forth that a blow to the head was received August 1, 1951 (defendant’s exhibit 2) and that plaintiff strained her right shoulder on November 1,1951, which was reported on November 7,1951 (defendant’s exhibit 1). Louise Brand testified that plaintiff came in to first aid on August 1, 1951 and said that she had bumped her head; that she had not mentioned bumping her head on any other occasion ; that the forms for the records mentioned were filled out by the nurse as to name, clock number, date of injury and date injured worker came to first aid but that the foreman was supposed to fill in the explanatory portion and sign name. Plaintiff testified that the injury occurred on the Wednesday before Thanksgiving; that the reason she *262 was so very sure was that she remembers stating how fortunate it was that it happened on a week end so that she could be in bed and not miss work, and that there was no possibility that this injury occurred in August, 1951. James Hollingsworth testified that the injury occurred at Thanksgiving time; that he had signed an injury report; that he was not plaintiff’s foreman as of August 1, 1951 and did not become foreman on plaintiff’s shift until October 1, 1951 and that the date of August 1,1951, on defendant’s exhibit 2 was inaccurate. He was defendant’s agent who signed the report the date of which is in question. Jacquelyn Zerlut, office secretary for Local 793, HAW-CIO, testified as follows: “Q. Did she describe this injury to you? “A. Yes. “Q. And what did she tell you? “A. She said that — she said she didn’t feel good and I said in what way, what kind of a condition do you think, what is the cause of your not feeling well ? She said she had terrific headaches so I said, Well, you go to your doctor and get your claim filled out and take it out to Auto’s and then bring it back to me.’ So she did. I think Dr. Reed was the first one. Well, it come back and he said, if I remember correctly, his form said that she had a bulge over the right ear, hypertension and migraine headaches. Well, then I said, ‘What do you mean about this bulge over the right ear?’ She said that was from this hit on the head. I said, ‘We can’t put it through the insurance program if it was caused from an injury in the plant.’ She said — I said, T will have to get in touch with the nurse at Riverside.’ So I called Louise and Louise told me that— “Q. This is Louise Brand? ' “A. Yes. I said, ‘Have you ever heard of Maxine Hollingsworth getting hit in the head?’ And she said yes. But that is all that was said. I said, ‘Well, it looks like it is a compensation case to me.’ Well, she said, ‘We got to have a lot more information than *263 we got now.’ And I said, ‘Well, I am going ahead and send this through to the insurance company and we will see what happens.’ And I said to Maxine at the time, I said, ‘Listen, yon had better make contact on getting this report down to Adler.’ And she wouldn’t do it because James was a foreman. She said, T don’t want to jeopardize James’ position.’ # # * “Q. But you advised her to make a claim for this head injury and she refused to do so until she came back? “A. That’s right. “Q. And when did you first advise her to make a claim? “A. I told her right when she told me she got hit on the head, it wasn’t over 6 weeks after she had been hit. “Q. That would have been back in ’51? “A. That’s right. It was either the last of December, ’51 or January, ’52.” We further find as follows: Plaintiff sustained a brain injury on or about November 28, 1951, when she was struck in the head by a conveyor while endeavoring to go under a conveyor line. This injury did not occur on or about August 1, 1951. Records of defendant in this regard are erroneous. The testimony of plaintiff, her husband and Jacquelyn Zerlut is convincing as to date of injury. As the direct result of such injury plaintiff has been totally disabled from December 6, 1951 to March 3, 1952, and from March 25, 1952, to the date of hearing from doing the work she was performing for defendant prior to the accidental injury. Plaintiff was still so disabled at the time of hearing and a continuing award is fully warranted and justified. At the time of injury plaintiff’s average weekly wage was $60. Her work was common labor. Plaintiff had no dependents. *264 Plaintiff is entitled to receive compensation for total disability at the rate of $24 per week from December 6, 1951 to March 3, 1952, and from March 25, 1952, until further order of the workmen’s compensation department. The award of the hearing referee finding that a personal injury occurred on August 1, 1951, but that plaintiff’s condition is not causally related to the injury shall be reversed. * * * This concludes the opinion of the appeal board. Defendant in its appeal here urges, in substance, that the appeal board erred'as a matter of law in the following particulars: in finding that a' timely report was made of the accident; in finding that a timely claim* was made; in finding that an award was not barred by “horseplay”; in basing a continuing award of total disability dated January 29, 1957, solely upon medical evidence last given on June 9, 1954; in failing itself to order further medical proofs or to give defendant an opportunity to rebut this obsolete medical evidence; in thus failing to observe the requirements of due process; in thus denying defendant due process; and in making such award without any evidence to support its findings. The first 2 grounds' of error (plaintiffs claimed failure to timely report and make claim) arise out of sharply disputed questions of fact. Some of the extensive testimony on this score is mentioned briefly in the foregoing quoted opinion. We see no occasion to review all' of it. It is undisputed that the employer did not file a report of the injury. We find that there is competent evidence in the record to support the findings' made on these issues. To point up our rolé in these circumstances we may add that we think there was probably also competent evidence *265 in tlie record to have supported a contrary finding. The credibility of the witnesses is not for us to pass on. Since under these circumstances no questions of law are involved (to which we are thus by statute restricted), we must therefore hold that these grounds of error are without merit (CL 1948, § 413.12 ¡[Stat Ann 1950 Rev § 17.186]). 'On the “horseplay” issue there was some testimony brought out before the referee, mostly from the plaintiff and her husband, that the reason she may have bumped her head was because an unknown young boy might at the time have been “riding” the loaded overhead conveyor line (contrary to his duties and safe practice) who suddenly let go, thus abruptly lowering the temporarily tautened portion of the heavy conveyor under which plaintiff was passing and precipitating the results. The appeal .board found otherwise, likewise based upon some evidence, hut we choose not to ignore this argument by taking the easy way out. There is much talk in the briefs about possible condonation of this practice by the employer and other similar “case-made” considerations which we have from time to time ingeniously grafted on this likewise ingenious case-made escape hatch from employer liability. There was no evidence whatever that the plaintiff participated in this horseplay, if any existed. This case thus presents neither the time nor sufficient factual occasion for us to take a long hard look at our former horseplay and related decisions, but whatever our rule may have been in the past, we think we can state with some degree of confidence that, •even if horseplay had clearly existed here on the part of the boy, in this case and in future eases like it, the nonparticipating employee will not be harred from recovery for that reason alone. This ■ground of error is accordingly without merit. *266 Appellant urges that our decision in White v. Michigan Consolidated Gas Co., 342 Mich 160 is decisively controlling upon its argument that the appeal board lacked sufficient medical and other evidence to base the award it made in our case on January 29, 1957, in turn based upon testimony as to physical condition and consequent disability made not later than June, 1954, over 2-1/2 years before. That is indeed a long time, and we find that in the White Case there was also an extended' delay between the last medical evidence on disability taken before the hearing referee (involving an injured knee) and the appeal and final reversal of the award by the appeal board. We there grounded our decision on a finding that the record then before the appeal board failéd to contain any competent evidence to sustain a finding of continuing disability. In that case the referee’s award (reversed by the appeal board) found that the claimant’s disabilities had ceased. Here the'referee’s award (which was also reversed) found that her “present condition is not causally related to the accidental personal injury of August 1, 1951.” The referee in our case did not attempt to appraise or pas’s oh that “present condition.” ' The reversal here, then, was not a reversal of, or grounded upon, the fact of no disablement, but rather oil the issue of the date and the causal connection of plaintiff’s undefined présent condition with the injury.- (It perhaps might be said that the conflicting testimony before the referee was on these issues “frozen” testimony of a kind which manifestly could not change for better or worse no matter how much time elapsed between its utterance and an adjudicative determination and application of such testimony.) We find that there was competent evidence to sustain-the findings of the appeal board on these disputed issues. We shall now pass to the *267 pricklier question of whether there was sufficient evidence to justify the award of the appeal hoard without the necessity of taking additional medical or other testimony subsequent to the award of the referee made in June, 1954, based upon Dr. Fefer-ra an’s deposition taken earlier the same month. Before doing so we note that the same White Case is once again before us. At this writing our decision therein has not been handed down. * There the plaintiff who lost here in the first case turned around and filed for further compensation, further testimony was taken, and an award for plaintiff has again been appealed here. That we might remand the case at bar, or possibly hold that what was later done by the losing employee in the first White Case might be done by the plaintiff here is, of course, no answer to this appellant, if it is right. On the other hand the fact that the plaintiff may possibly pursue other courses is no reason alone for us to reverse the award in this case, if, when it was made, it was based upon sufficient competent evidence, including that of continued disability. We turn to that question. While we think • there are situations where our holding in the first White Case may properly apply, and we do not seek to overrule that case, this is not to subscribe to the evidently growing notion in some quarters that our decision in that case means that the appeal board in workmen’s compensation cases must, henceforth, in every instance have spanking-fresh testimony before it before it dare make any findings or reach a contrary award. We find nothing in the White Case or the act to sustain any such necessity and we do not want lightly to get abroad the notion that the appeal board must in every case resort to the cumbersome and delaying (and expensive) expedient of taking or permitting the taking of *268 additional testimony in order either to affirm or upset any findings or awards made by the referee. Simplicity and dispatch were once, at least, supposed to be twin goals of the administration of this act. That dispatch may necessarily occasionally suffer is no reason to in turn forsake simplicity. A simple rule is for us to look and see whether the appeal board had any competent evidence before it to support its findings and doings. That was the White Case. That is our case. That is our understanding of the law. Thus, to take an extreme example, no one would seriously claim that any such need for further medical testimony existed where an employee was rendered legless and armless, say, by his accident and an appeal was made on some grounds or other followed by a considerably delayed award of total disability. The point is that obviously, in such a situation, there could be no future improvement. But if that example, as it might be, is deemed loaded and weakened by the fact that disability there is created by conclusive legislative presumption by statutorily declared effect of specific loss, obviously requiring no further “judicial” proofs, then let us assume a situation that involves, say, the wasting away or loss of a “nonspecific-loss” portion of the body. That is apparently precisely what happened here. At least that is what the only proofs offered below tend to indicate. There is the elaborate and rather harrowing testimony of the plaintiff and her husband as to her progressively worsening condition, Avhich we need not revieAv. Most significant, the only medical testimony in the case appears to point steadily to the fact that this plaintiff had irretrievably lost a vital portion Of her body, namely, a portion of her brain; that is, if we concede that the “atrophy” of a portion of the brain testified to by Dr. Feferman properly means a “wasting aAvay of a part or parts *269 of the body” (Tliorndike-Barnhart dictionary) or “a wasting away from want of nourishment; diminution in bulk or slow emaciation of the body or of any part.” (Webster’s New International dictionary) We observe that the idea of irretrievable loss, of continued degeneration, of progressive wasting and diminution is implicit in these definitions. It would seem that if this particular atrophy or wasting away of a portion of the plaintiff’s brain could have resulted from this accident and could also properly be said back in 1954 to have been followed by the impairment of bodily functions and consequent inability to work as also then testified to by Dr. Feferman (the correctness of which is not for us to pass on), then it would seem necessarily to follow that her condition and disability therefrom at that time would not only continue but inevitably get worse, not better, as time and the wasting process went on. If so, it would also appear to follow that there would exist no need for the taking of further medical or other proofs on that score. Since the woman could not improve no gainful probative purpose could possibly be served by showing (at least before the appeal board) that she may have got worse, there being no compensable disability possible beyond that already testified to before the referee and found by the board. Under these circumstances if 10 doctors had been permitted to testify otherwise concerning plaintiff’s condition and disabilities on the very day before the award of the appeal board, we still could not upon review rightfully say that the board lacked any competent evidence before it to make the finding it made. Having said all this, however, that still is no reason to foreclose this appellant from properly presenting its own medical case, whether by 1 doctor or 10 and however needless or futile, if it had a right to do so and which right was without its fault denied it by *270 the appeal board. Tbat is equally plain. But if, as we have just indicated, the board bad before it competent evidence upon which to base its findings we do not think tbat it was up to tbe board either to instruct tbe appellant on available procedures or on its own motion order tbe taking of further medical testimony “in tbe furtherance of justice.” (Rule 9 of tbe workmen’s compensation commission * provides: “Tbe commission may order tbe taking of additional testimony, - either on its own motion or on tbe application of 1 or both of tbe parties when it considers that such action shall be taken in tbe furtherance of justice.”) Tbe deposition of Dr. Feferman on behalf of plaintiff was tbe only medical testimony produced before tbe referee and tbe appeal board. Tbe appellant now complains for tbe first time before us (and tbe appellee disputes) tbat following adjournment of a second continued bearing before tbe referee it bad not fully completed its own proofs before the referee before the latter up and found in appellant’s favor, whereupon, evidently flushed with victory, it concluded to let tbe matter pass. It is fair to say that tbe situation was on this point left somewhat ragged and ambiguously suspended before tbe referee; there are some indications both ways. Right or wrong, at least tbe referee himself appears to have thought tbe case was submitted. In any event we think this is a question we need not resolve. In such a situation and upon appeal by tbe losing plaintiff we think this was all tbe more reason tbat the present appellant should itself have timely brought up tbe subject and, more important, also have timely besought tbe appeal board to permit tbe taking by appellant of further medical proofs under tbe same rule, which right it bad but failed to exercise. Instead it now belatedly *271 seeks to ascribe its failure to its apparent settled confidence that the board would not reverse, and at least not without first giving appellant a chance to put in rebuttal medical proofs. As we have seen, appellant’s earlier elation over victory proved as costly as its later trust and confidence in what the appeal board would do proved excessive. While appellant’s actions are not entirely ununderstandable, under these circumstances we still think the consequences of its failure to. avail itself of the procedures plainly open to it should not be visited on this plaintiff. By the same token such' failure did not constitute so much a denial of due process as possibly faulty guesswork and unwarranted over-confidence on the part of the appellant itself — and perhaps too much strategic reliance upon the White Case: This view is not weakened when we further observe that much of the delay in the decision of the appeal board appears, in part at least, ascribable to the additional failure of the appellant to file any brief before that body during the same period. We cannot encourage litigants to “lie in the weeds” hopefully awaiting a favorable decision and then, when they lose, urge their own procedural lapses and delays — and possible misfired strategems — as a denial of due process or as thus alone causing a fatally excessive remoteness between the taking and adjudicative application of proofs. We find and hold that in this case there was timely and competent medical and other testimony in the record before the appeal board to sustain the finding and the award made by it. That award must therefore be affirmed, with costs to the appellee. Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voelker, J. Dethmers, C. J., and Carr and Kelly, JJ., concurred in the result. Footnotes [*] See White v. Michigan Consolidated Gas Co., 852 Mielx 201.—Re-porter. [*] See 1954 Administrative Code, R 408.9, p 4502.—Reporter.