Kozlowski v. Chrysler Corp.

Allen, J. Judge Holbrook’s concurring opinion reviews the history of this case. We agree that the case must again be remanded, but our reasons are different than those expressed by Judge Holbrook. The Workmen’s Compensation Appeal Board holding is ambiguous.1 The Burke2 test would require an award of compensation if: (1) Both of the plaintiff’s legs are unusable in industry because (2) use of the legs triggers an employment-related injury whose effects are so severe that they prevent the plaintiff from working. Burke would require compensation for total and permanent disability if the use of plaintiff’s legs triggers disabling pain from the 1957 injury. But the appeal board did not make such a finding. Unfortunately, it is difficult to say precisely what the board did find. There are at least three possible interpretations: (1) Surgery has completely cured all of the symptoms of the 1957 injury, but the plaintiff suffers from a more recent psychosomatic injury which— although it is completely unrelated to her employment with the defendant — has symptoms which are identical to those of the 1957 injury. (2) The surgery was very successful, but it did not completely cure all of the symptoms of the [432] 1957 injury. Nevertheless, pain from the 1957 injury by itself would only be uncomfortable, it would not be disabling. The extra measure of pain which creates the disability is caused by a psychosomatic injury which is completely unrelated to the plaintiff’s employment with the defendant. (3) The 1957 injury is either completely cured or is causing only mild discomfort. The disabling pain is traceable to a psychosomatic injury which is tenuously related to the plaintiff’s employment with the defendant in one respect, viz., the psychosomatic pain is located in the back because the plaintiff remembers the pain from the 1957 injury. In one of those three forms, the appeal board found that, although use of the plaintiff’s legs leads to disabling pain, the condition (1, 2 or 3, supra) which is stimulated by the use of the legs is not an "employment related injury” as that term was last used in Burke. Unlike Judge Holbrook, we believe inquiry into the present source of the pain was within the scope of the remand order from the Supreme Court which ordered the board to apply the Burke test. Kozlowski v Chrysler Corp, 394 Mich 101; 228 NW2d 781 (1975). If the board found either (1) or (2), the plaintiff would not be entitled to compensation. However, the record seems to best support finding (3), and the legal result which would flow from such a finding is by no means clear. The problem might be stated as follows: Is a claimant entitled to full total and permanent disability benefits whenever her employment with a defendant plays any part —no matter how small — in causing a condition which otherwise meets the definition of total and permanent disability? Strict application of the "but for” test would require an award. See, e.g., Carter v Detroit Board [433] of Education, 66 Mich App 128; 238 NW2d 419 (1975), Memeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973). But without benefit of briefing on the issue we are not certain that a rigid application of the "but for” test is appropriate in the instant situation. When this case was last befor.e this Court, Judge V. J. Brennan wrote in his dissenting opinion: "[T]he fact that plaintiffs condition may also have been aggravated by psychological problems does not preclude her from receiving further compensation. See Crosby v Sterner Sheet Metal & Roofing Co, 51 Mich App 311; 214 NW2d 868 (1974); Lockwood v Continental Motors Corp, 27 Mich App 597; 183 NW2d 807 (1970).” Kozlowski v Chrysler Corp, 54 Mich App 100, 105; 220 NW2d 319 (1974). But that statement was prefaced by the assumption that "plaintiff satisfied the above [Burke] test”. 54 Mich App at 105. And, neither of the cases cited by Judge Brennan necessarily mandates compensation. In both Crosby and Lockwood, injuries caused solely by the claimants’ employments were sufficient, without the addition of non-job-related factors, to render the claimant’s legs unusable in industry. Thus, for two reasons this case must again be remanded to the appeal board: First, because the appeal board opinion is ambiguous with different legal conclusions flowing from different possible interpretations; second, assuming that upon remand the board should make specific findings supporting interpretation (3) supra, the parties should brief and argue the legal consequences of such a finding. We therefore request that the appeal board clarify its findings and include a statement of the law and authority governing the [434] legal conclusion flowing from such findings. In order to expedite matters and avoid the necessity of a new appeal by the party dissatisfied with the determination of the appeal board upon remand, this panel will retain jurisdiction. D. C. Riley, J., concurred. Footnotes [1] The appeal board held that: "We agree with Dr. Horvath that plaintiffs back fusion has not failed and that her current inability to work is largely psychological. The psychological problems are a product of her home life, not her injury of 1957. Thus the Burke test is failed at the point of the assumed precondition ('An employment related [emphasis in original] injury ***’)•* * * To the extent that * * * she cannot use her legs in industry * * * we find [that her symptoms are psychosomatic].” (Emphasis supplied.) [2] Burke v Ontonagon County Road Commission, 391 Mich 103; 214 NW2d 797 (1974).