Mansfield v. ENTERPRISE BRASS WORKS CORP.

97 Mich. App. 736 (1980) 295 N.W.2d 851 MANSFIELD v. ENTERPRISE BRASS WORKS CORPORATION Docket No. 78-5496. Michigan Court of Appeals. Decided June 3, 1980. Marcus, Ruck & Flynn, P.C. (by David M. Wells), for plaintiff. Smith, Haughey, Rice & Roegge (by Ellen J. *740 Eggers), for Enterprise Brass Works Corporation and American Mutual Liability Company. Miller, Johnson, Snell & Cummiskey (by Bert J. Fortuna), for Enterprise Brass Works Corporation and Mutual Insurance Company of Grand Rapids. Before: V.J. BRENNAN, P.J., and BEASLEY and G.E. BOWLES,[*] JJ. V.J. BRENNAN, P.J. In this case plaintiff appeals from a unanimous opinion of the Worker's Compensation Appeal Board affirming the administrative law judge's denial of compensation benefits. The essential facts in this case are not in dispute and are ably put forth in the dissent. Initially plaintiff contends that the board applied an incorrect standard in determining whether plaintiff's condition of disability was caused or aggravated by his employment. In the absence of fraud, this Court's review is limited to whether the board applied the correct legal standard, Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217; 210 NW2d 360 (1973), Barrett v Bohn Aluminum & Brass Co 69 Mich App 636, 640; 245 NW2d 147 (1976). A claimant in a worker's compensation proceeding must prove that he is entitled to benefits by a "preponderance of the evidence". Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978). In the instant case, the board specifically recognized and applied this standard. In its opinion, the board stated: "Plaintiff's proofs failed to show to these reviewers *741 work-related disability and we find that Referee Mikko properly dismissed the case by applying the preponderance of evidence test enumerated in Aquilina v General Motors Corp, 403 Mich 206 (1978)." Plaintiff acknowledges that the board properly recognized the correct standard but claims that in actuality the board applied the "beyond the shadow of a doubt" standard. We disagree. The threshold fact question was whether plaintiff's arthritic back condition was the result of his employment or was caused by the natural aging process to which everyone is exposed. The evidence offered by plaintiff to prove that his back condition was work-related and not caused by other factors consisted of the deposition testimony of Dr. James Glessner and Dr. Burton Onofrio, as well as plaintiff's own testimony before the administrative law judge. Dr. August Aardema was called as a third expert witness on behalf of the defendant and was also deposed. When asked if he believed there to be any connection between plaintiff's disability and his employment, Dr. Glessner stated: "I think probably the progression of the arthritis has been over a period of years based on just aging, hereditary manifestations and so on. It's conceivable that the kind of work he did may have hastened it, but I can't say that with any degree of certainty." Dr. Aardema's testimony was essentially the same: "Q [by Benjamin Marcus, attorney for the plaintiff] Would constant intermittent stress over the past few years before he left the employment be considered an aggravating factor? "A What type of stress are you referring to? "Q Such as we discussed before — the lifting, traveling. He was on the road constantly, he had to get in and out *742 of the automobile, he had long rides — that sort of activity, doctor? "A It's possible, yes. "Q Possible or probable. `Possibly' meaning — "A I can't say that it's probable or not. Many people have back problems and have x-rays that look quite bad, and I don't think are necessarily aggravated by this type of thing." To prevail plaintiff must show by a preponderance of the evidence a reasonable likelihood of cause and effect between the work and the injury. Although the board inartfully characterized the doctors as being unable to "positively" or "categorically" link plaintiff's disability to his employment, our review of the testimony indicates that the doctors were unable to find with any degree of certainty a link between work and the injury. The most the doctors were able to say was that such a link was "conceivable" or "possible". This is not enough evidence of a causal link to sustain the preponderance of the evidence test. The board's reliance on Powell v City of Saginaw, 46 Mich App 751, 753; 208 NW2d 557 (1973), further persuades us that it applied the correct legal standard. Faced with essentially the same question as is present in the instant case, the Powell Court affirmed the board's denial of compensation benefits and held: "Plaintiff offered medical testimony that the arthritic condition could have been aggravated by the working conditions. Such testimony, asserting possible causal connection between the work situation and the claimed disability was not conclusive on the appeal board. The board was within the scope of its exclusive function as determiner of fact in ruling plaintiff had failed to meet his burden of proof in establishing that his arthritic disability was work-related." (Emphasis in original.) *743 Plaintiff's reliance on Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), as support for his argument that the board did not apply the proper standard in reaching its decision is misplaced. The board in this case rendered its decision on November 29, 1978, several months before the Supreme Court decided Kostamo in January of 1979. Notwithstanding this fact, Kostamo requires the appeal board to review de novo the hearing examiner's decision. The board is obliged to consider the opinions of all medical experts as well as lay testimony and to examine the circumstances surrounding the disability and/or injury in determining whether or not there is any causal link to the employment. In addition, the board must also provide the reviewing court with sufficient factual and legal support for its decision. In the instant case, the board considered additional evidence beyond the medical decisions in reaching its decisions. Since there are no allegations of fraud, and since it does not appear that the board applied an incorrect legal standard, we decline to reverse the board on this issue. We also cannot agree with plaintiff's second assertion that the board's finding of no work-related disability was not supported by the evidence. It is well established that this Court must affirm a decision of the board if there is any evidence of record to support its findings, since this Court is not a trier of fact in worker's compensation cases but rather reviews the findings to determine whether there is evidence to support the giving or denial of an award. Moore v Gundelfinger, 56 Mich App 73; 223 NW2d 643 (1974). Epps v Mercy Hospital, 69 Mich App 1; 244 NW2d 340 (1976). *744 Dixon v Coldwater State Home, 59 Mich App 701; 229 NW2d 893 (1975). Goodman v Bay Castings Division of Gulf & Western Industries, 49 Mich App 611; 212 NW2d 799 (1973). An examination of the record supports defendants' contention that there was evidence from which the board could have found that plaintiff's injury was not work related. The board based its findings on the deposition testimony of Drs. Aardema and Glessner who stated that they could not find a causal relationship between plaintiff's arthritic back and his work. The board also considered the deposition of Dr. Onofrio which was taken a year after the hearing before the administrative law judge and after the doctor had operated on plaintiff's back. Dr. Onofrio testified as to the normal degenerative process which accompanies aging. This is more than sufficient evidence to support the "any evidence" standard described in Pastaleniec v The Great A & P Tea Co, Inc, 49 Mich App 702; 212 NW2d 734 (1973). Affirmed. BEASLEY, J. concurred. G.E. BOWLES, J. (dissenting). Plaintiff appeals by leave granted from a unanimous opinion of the Worker's Compensation Appeal Board (WCAB or board) affirming the decision of the administrative law judge denying him compensation benefits. At the time of the hearing, plaintiff was a 67-year-old man living with his wife who was his only dependent. He began employment with the defendant in the fall of 1945 as an office manager in charge of purchasing. He held this position for approximately ten years when he was given the assignment of introducing new products to jobbers throughout the United States and Canada. This *745 new assignment required extensive travel by both automobile and airplane. While in the course of his employment in 1960, plaintiff was involved in an automobile accident and suffered a back injury. He lost "very little" time from work as a result of this injury. He soon returned to his normal activities, although it was necessary for him to receive medical treatment "early after the automobile accident". On January 9, 1974, plaintiff suffered another injury described as follows: "As I came back hurriedly to answer my telephone, I hit this wet spot, my feet started to go out from under me. I would have fallen completely had it not been for Gokey. I was right behind him. I grabbed the back of his office chair, and I slid and twisted at full length — that's what I should say — as far as I go. The only thing that kept me from falling completely, was hanging on to the chair. As I did that, I got a terrible pain in my back." Following this incident, plaintiff cleaned up his desk and left for the day. He was unable to return to work the next morning and saw Dr. Austin Aardema who prescribed treatment with "strict bed rest with bathroom and eating privileges only". By January 22, 1974, claimant felt 100% better. Dr. Aardema told him that he could return to work at this time. Plaintiff returned to work and continued his job until December 17, 1974, the date of his retirement. He testified that after the January incident he was in constant discomfort because of back pain and that he quit in December because it was so difficult for him to do his work. The previous December, however, plaintiff had written to defendant's president expressing an intention to retire *746 at the end of 1974. This letter further suggested the grooming of an assistant as a successor. After retirement the claimant took a vacation to Arizona with his wife, but after four weeks he could not get out of bed because of back pain and eventually underwent a surgical procedure to relieve the pain on October 25, 1976. Claimant's contention is that the specific injury of January 9, 1974, activated his pre-existing back condition which was triggered by the 1960 automobile accident to the point of disablement and that the constant sitting for long periods of time during his travels contributed to and resulted in his disablement. Referring to the depositions of Dr. Aardema and Dr. James R. Glessner, Jr., the board noted that neither doctor could attribute plaintiff's arthritic condition "with any degree of unequivocal medical certainty" to the previous work-related injuries. Dr. Aardema thought it might be possible that the injuries and condition were related while Dr. Glessner stated that he "couldn't say for certain". The board further observed: "As in Powell v City of Saginaw, 46 Mich App 751 (1973), plaintiff only introduced medical evidence showing that his arthritic condition could have been aggravated by the working condition. None of the medical experts in this case could positively and unqualifiedly link the arthritic condition with employment." The board held: "The record is clear that throughout thirty years of employment the hardest part of which was sitting in airplanes or in automobiles, plaintiff received two minor injuries which did not result in any appreciable loss of work and was physically able to satisfactorily perform *747 his job right up to the last day of work, coincidentally the beginning of a planned and well-deserved retirement in a warmer climate. * * * "At the time of his retirement plaintiff was physically capable to continue working. All the doctors testified he suffered from a degenerative arthritic back condition which worsens with the aging process and none of them could categorically attribute either causation or aggravation to either of the two injuries. Plaintiff's proofs fail to show to these reviewers work related disability and we find that Referee Mikko properly dismissed the case by applying the preponderance of evidence test enumerated in Aquilina v General Motors Corporation, 403 Mich 206 (1978)." In reviewing the decision of the WCAB three issues are presented: whether the board applied the correct standard in determining that plaintiff failed to establish a compensable disability, whether the WCAB's conclusion that there was no work-related disability is supported by the evidence, and whether pain alone can constitute a work-related disability under the Worker's Disability Compensation Act.[1] I. THE LEGAL STANDARD APPLIED BY THE WCAB. As the majority notes, the WCAB recognized the proper standard for reviewing the evidence offered to establish work-related disability, namely, the preponderance of the evidence test. Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978), Galac v Chrysler Corp, 63 Mich App 414; 235 NW2d 359 (1975). However, it is equally apparent from the board's opinion that it applied the test improperly. The WCAB's determination that no work-related disability had been proven was based on its findings that "none of the medical *748 experts in this case could positively and unqualifiedly link the arthritic condition with the employment" and that none of the doctors "could categorically attribute either causation or aggravation" to either the 1960 or 1974 injury. Plaintiff need only show a reasonable likelihood of cause and effect between the work and the injury. He need not exclude beyond a doubt other possible or probable causes of the injury. Kepsel v McCready & Sons, 345 Mich 335, 343-344; 76 NW2d 30 (1956). In short, the correct legal standard was recognized by the WCAB but not applied. The board failed to give due consideration to the testimony of plaintiff's expert Dr. Onofrio, whose deposition included the following: "So with his past history of low back pain and x-ray evidence in the past of degenerative changes we must conclude that this was an ongoing process and that whatever episode that he had in 1974 was an aggravation of a pre-existing illness, if any." Dr. Glessner also testified: "I think basically he, the degenerative arthritis was an acquired variety coming on slowly over the years as one get older and I think that the degenerative arthritic was first manifested symptomatically, by the injury back in 1960 and from that point on he has continued to have difficulty of a degree or another with his back. This was going on a reasonably level basis with problems right along until the second injury in January 1974 and since then he has had an intensification of his problem which symptomatically has created more difficulty for him. * * * "Q [by Benjamin Marcus, attorney for the defendant] But as far as the incident of January of `74, did that or did that not in your judgment increase his impairment? "A Yes it did. *749 * * * "Q [by Paul H. Reinhardt, attorney for defendants] Okay, but in any event it is reasonable to say that his present condition is the result of those two incidents, the automobile accident — those two incidents, at least, the automobile accident and the slip and fall in January' '74. "A Yes I think these are the triggers which have created the symptoms. The degenerative arthritis is the thing basically that causes symptoms, but it may not have had it not been for these incidents." Had the board correctly applied the preponderance of the evidence test, it might have found sufficient proof of causation. I do not suggest that if the test were properly applied the WCAB would have found a work-related disability, only that it might have. The reasoning of the Michigan Supreme Court in Kostamo v Marquette Iron Co, 405 Mich 105, 120; 274 NW2d 411 (1979),[2] is instructive on this point. The Court noted that: "We know also that is not possible to determine medically whether particular stress caused a particular injury. Nevertheless compensation may be awarded based on an assessment of the probabilities in light of the background factual circumstances and any opinion testimony. Opinions tentatively expressed may not on that account be discounted. The certainty, or puffery, with which experts express their opinions may mask differing understandings of the factual background and views regarding causation. The answer is to be found in careful scrutiny of the factual background and not in *750 terminology and emphasis. Nor may preclusive effect be given to medical testimony." The Court further stated that: "Dr. English, Kostamo's medical expert, stated that Kostamo's work `could have', `might have', `possibly' precipitated or aggravated Kostamo's heart attack Dr. Rosenbaum, defendant's expert, stated positively that Kostamo's work `did not play a role in the production of his attack, not in his subsequent death * * *'. "In reviewing this testimony the WCAB apparently placed critical importance on the comparative certainty with which the doctors expressed themselves. "Dr. English's failure to state a medical opinion with certainty reflects the current status of scientific knowledge, not a lack of merit in the claimant's position. "The matter does not turn on the use of a particular form of words by the physicians in giving their testimony.'" Id. 136-137. (Footnotes and citations omitted.) Under Kostamo the WCAB must relate the medical testimony and the factual background in detailed findings of fact. It is incumbent upon the WCAB to examine independently the facts offered by plaintiff in support of his claim of work-related injury, as well as the contrary evidence, and only then to arrive at a determination with respect to legal causation. Since this was not done in the case sub judice, I would remand to the WCAB so that the required detailed findings of fact can be made on the issue of whether plaintiff's arthritic condition was or was not caused or aggravated by injuries arising out of and in the course of employment. II. THE FACTUAL FINDINGS OF THE WCAB. The board's findings of fact are binding absent proof of fraud where the appropriate legal standard has been applied and where there is competent *751 evidence on the record to support the findings. DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100-101; 214 NW2d 794 (1974), McClary v Wagoner, 16 Mich App 326, 327-328; 167 NW2d 800 (1969). The WCAB's conclusion that plaintiff's disability was not caused by injuries sustained arising out of and in the course of his employment was based on the factual finding that none of the doctors could categorically attribute either causation or aggravation to the injuries. While the finding that no doctor could categorically attribute causation to the work-related injuries is correct, as noted in the first part of my dissent, plaintiff was not required to prove causation to a certainty but, rather, only by a preponderance of the evidence. The record does show that there was medical testimony from which the board could find by a preponderance of the evidence that plaintiff had suffered a work-related disability. Since in my opinion the correct legal standard was not applied, the board's factual findings are not binding.[3] III. PAIN AS CONSTITUTING A DISABILITY. Plaintiff contends that the board distinguished between pathology, i.e., the underlying disease or condition, and symptomatology, i.e., the outward manifestation or indication of the underlying disease, in reaching the determination that plaintiff failed to prove work-related disability. The WCAB emphasized testimony casting doubt on whether *752 plaintiff's degenerative process had been aggravated by his work-related accidents. It did not evaluate testimony confirming that plaintiff's symptoms, the episodes of severe back pain, were accelerated or aggravated by employment. MCL 418.401(a); MSA 17.237(401)(a) defines disability as: "the state of being disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability." The Michigan Supreme Court defines disability as the "`inability to perform the work claimant was doing when injured.'" Powell v Casco Nelmore Corp, 406 Mich 332, 350; 279 NW2d 769 (1979). Neither of these definitions indicate that a work-related disability is limited to the aggravation of pathological conditions to the exclusion of symptomatology. In fact, the Michigan Supreme Court opinion in Dressler v Grand Rapids Die Casting Corp, 402 Mich 243; 262 NW2d 629 (1978), suggests that disability may be based on an aggravation of symptoms. In Dressler the Court ruled that a plaintiff is not disabled, despite the pain suffered in successive jobs, until the pain becomes so extreme to force his excessive absence from work and the termination of his employment.[4] Case law from other jurisdictions also supports the proposition that a work-related disability can arise from the aggravation of symptoms caused by the employment. Johnson v Travelers Ins Co, 284 So 2d 888 (La, 1973), Shainberg v Dacus, 233 Ark 622; 346 SW2d 462 (1961), Schreven v Industrial Comm of Arizona, 96 Ariz 143; 393 P2d 150 (1964), Bolton *753 v Catalytic Construction Co, 309 So 2d 167 (Miss, 1975), Perez v Pearl-Wick Corp, 56 App Div 2d 239; 392 NYS2d 496 (1977). To the extent the board's finding that "at the time of his retirement plaintiff was physically capable to continue working" was based on a consideration of pathology to the exclusion of symptomatology, I would hold that the finding was erroneous. Plaintiff testified that he was miserable and at the point of undergoing a back operation and that he terminated his employment because "it was so difficult to work" due to "discomfort in my back". Of course, the WCAB is not required to accept, without close scrutiny, plaintiff's contention of extreme pain. However, at a minimum the board must make a finding of fact showing that it at least considered this testimony and reached a factual conclusion on plaintiff's contention. The WCAB is required to determine, when raised, whether a plaintiff is unable to perform the activities required by his job at the time he left his employment and whether he is currently unable to perform the work he was doing at the time of his injury. In my judgment, the WCAB's opinion in this cause lacks sufficiently detailed findings of fact on this critical issue. I would remand for further proceedings. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] MCL 418.101 et seq.; MSA 17.237(101) et seq. [2] The majority suggests that reliance on the Kostamo decision is misplaced because it was not announced until after the WCAB rendered its decision in the instant matter. I disagree. There is no retroactivity problem raised by the application of Kostamo to this case because Kostamo announced no new rule of law in respect to the plaintiff's burden of proof. As the Michigan Supreme Court noted in Kepsel, supra, 343-344: "The claimant must show a reasonable relation of cause and effect between work and injury. Other possible or probable causes of injury do not have to be excluded beyond doubt." [3] The majority states that the "board's reliance on Powell v City of Saginaw, 46 Mich App 751; 208 NW2d 557 (1973), further persuades us that it applied the correct legal standard". With all due respect to my learned brethren, in my opinion the majority has been blinded by a talismanic invocation of Powell. The WCAB must do more than recognize the correct legal standard, it must apply it. While the Powell Court stated that the WCAB was not bound to accept testimony asserting a possible causal connection between the employment and the alleged disability, it did not hold, as the WCAB seems to in this case, that it must be conclusively established that there was a causal relationship between the employment and the disability. [4] Dressler, supra, 253.