Opinion
Docket No. 48132.
Decided January 22, 1981. Leave to appeal applied for.
Marston, Sachs, Nunn, Kates, Kadushin O'Hare, P.C. (by Jeanne Nunn and Granner S. Ries), for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Caleb B. Martin, Jr., Assistant Attorney General, for defendant Second Injury Fund.
We agree with many of the comments made by our colleague. Nevertheless, we are mindful of the following statement taken from Thornton v Luria-Dumes Co-Venture, 347 Mich. 160, 162-163; 79 N.W.2d 457 (1956):
"`It may not be necessary to repeat what we have so frequently said that this Court does not review the findings of fact of the board, except to determine whether there is any evidence to support the award. The evidence may not be direct; it may be circumstantial. The board not only passes on the credibility of witnesses, but draws its inferences from the circumstances and the facts which it finds established. We may reverse awards for a failure of evidence to support them, but we are not the triers of the facts. With this view in mind, we approach the consideration of this case.' [Meyers v Michigan Central R Co, 199 Mich. 134, 137-138; 165 N.W. 703 (1917)].
"Our jurisdiction, invoked upon issuance and return of certiorari to the workmen's compensation department, is markedly limited. The writ brings us questions of law only. It does not permit scale-weight of evidence and inference here, as on appeals from circuit court judgments, to determine whether administrative findings of fact offend rules governing clear weight and preponderance. Our obligation is to accept, without question, findings that are certified here if there be any evidence whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof. Furthermore, and when we employ as above the word `evidence,' synonymity with the word `facts' is not intended. `Evidence' is really the means by which inferences may logically be drawn as to the existence of facts (Tjernstrom v Ford Motor Co, 285 Mich. 450, 456 [ 280 N.W. 823 (1938)])."
With this in mind, we affirm.
V.J. BRENNAN, J., concurred.
In 1975, "a rather powerful individual, [who] had calluses on his hands * * * and no muscle atrophy [in] either lower limb" was found by a hearing referee to have been totally and permanently disabled for the prior ten years. The referee's award of benefits for total and permanent disability was affirmed with modifications by the Workers' Compensation Appeal Board.
Plaintiff, James Harris, was employed by the City of Detroit in 1959 as a rubbish collector, and on February 1, 1965, he injured his back on the job. After an operation for a herniated disc, he returned to work but found that he could not perform his duties. He was paid benefits for the prior maximum period of 500 weeks.
On October 8, 1974, plaintiff petitioned for total and permanent disability benefits and named his employer and the Second Injury Fund. He claimed to be totally and permanently disabled by reason of the loss of the industrial use of both legs. The referee apparently wanted to award "something", so he ordered the employer to pay $45 per week from October 8, 1972, with certain credits. The Second Injury Fund was ordered to pay differential benefits from January 24, 1975, the date plaintiff was examined by a physician.
MCL 418.361(2)(g); MSA 17.237(361)(2)(g).
The Workers' Compensation Appeal Board split as widely as possible. (The record even arrived at this Court with only two members adopting the controlling opinion and was remanded for that reason. A member who previously had concurred in result only joined in the controlling opinion, stating: "Whatever reservations I had at the time of original review are not now apparent to me".) The Appeal Board changed the date of the benefits from October 8, 1972, to September 3, 1974. If plaintiff lost the use of his legs it had to be the date of the injury, February 1, 1965, or the date of the surgery two weeks later. As it is, the record manifests the desire to award something without benefit of logic.
The Second injury Fund was created September 1, 1965, and benefits, if awarded at all, must start on that date. 1965 PA 44, § 9. This Court's role is not to review factual determinations of the Workers' Compensation Appeal Board if there is evidence to support the findings (Const 1963, art 6, § 28, MCL 418.861; MSA 17.237[861], Coates v Continental Motors Corp, 373 Mich. 461; 130 N.W.2d 34), but no tribunal's hands are tied in the face of an apparent breakdown of the system tantamount to fraud. Indeed, it is said that fraud vitiates everything.
In this case, not only do the calluses appear after ten years, but plaintiff is found to be "powerful" by one doctor and "very strong" by another. No muscle atrophy was noted. He was found to walk with a normal gait and was able to stand on his heels and toes and squat and rise unassisted. His posture was found to be good, and he had 95% range for forward bending, coming within four inches of the floor. His backward bending and lateral bending to both sides was found within normal limits. A treating physician conceded that many of his findings were normal and that the complaints were "bizarre relative to upper extremities that had no basis in physical pathology".
Plaintiff's bizarre and exaggerated complaints included both "numbness" and "sharp pain" in the feet and legs as well as "pain (that) radiated up the back to the neck and head". He had "strong muscles in his legs".
Consulting physicians felt that plaintiff should be protected from heavy lifting. Plaintiff's own treating physician was not called to testify nor was any explanation offered. Plaintiff was not able to say what medication he was taking.
A "compromise verdict" is apparent and, as stated by one member, "transparent":
"Placement of permanent and total disability on either of these dates would give plaintiff a huge award. Both the referee and the Chairman made a transparent attempt to dodge such an award by failing to come to grips with the issue of the correct date for permanent and total disability; each selected an arbitrary date having no relation to the record." (Emphasis added.)
Under the circumstances, rather than correct the date of inception of benefits, the matter should be reversed so that an appropriate tribunal can come to grips with the real issue and hopefully secure additional evidence.
I would reverse and remand for further proceedings consistent with this opinion.