Opinion
Docket No. 47875.
Decided February 5, 1981. Leave to appeal applied for.
Robert L. O'Connell, P.C. (by John C. Brennan), for plaintiff.
Davidson, Breen Doud, P.C., for defendants.
Defendants appeal from an order of the Workers' Disability Compensation Appeal Board, affirming a decision of the hearing referee, awarding plaintiff benefits for an employment-related aggravation of a previous back injury and consequent total disability from engaging in common labor.
Plaintiff, a principal shareholder in T.N. Thompson Realtors, Inc., a family corporation, has been engaged in the construction of modular homes and real estate sales for a number of years. In 1974, while carrying a steel girder in the course of constructing one of his modular dwellings, plaintiff slipped and injured his back, necessitating two surgical operations. Upon completion of the second operation in 1976, plaintiff remained disabled and was authorized to work only under significant restrictions regarding lifting and bending. In February of 1976, plaintiff redeemed his claim for workers' compensation benefits for the 1974 injury for $25,000 cash plus all benefits previously paid.
Plaintiff returned to his business, which had fallen into a sorry financial state. In violation of doctor's orders, he resumed heavy labor. In July of 1976, while operating a bulldozer, he drove over a log, and the resulting bump forced him back against the driver's seat, injuring his back again. A third surgical operation was required, after which plaintiff was medically prohibited from doing any work requiring repeated bending or any kind of lifting. On March 15, 1977, plaintiff returned to work and, since that time, has been doing what the appeal board found to be favored work.
The appeal board found that in July of 1976 plaintiff had aggravated his previous injury and thus had suffered a new injury and disability and that he was not barred from obtaining further workers' compensation benefits by virtue of the redemption agreement in which he had settled his claims for the 1974 injury. Defendants first argue that plaintiff failed to sustain his burden of proving that his present back disability is different from or greater than the disability which existed in February of 1976 when plaintiff chose to enter into the redemption agreement. The board's findings were based on plaintiff's testimony which indicated that the characteristics of his disability after the 1976 injury differ from the disability caused by the 1974 injury and that since the 1976 injury plaintiff's ability to engage in the arduous tasks required in his business has diminished. In addition, psychiatric testimony indicated that plaintiff suffers from a disabling depression, resulting from the 1976 injury. In light of this evidence, we must uphold the board's determination that plaintiff's 1976 injury is separately compensable from his 1974 injury. The board's findings of fact are conclusive upon this Court, in the absence of fraud, if supported by any evidence. MCL 418.861; MSA 17.237(861), Bush v Brunswick Corp, 92 Mich. App. 686; 285 N.W.2d 420 (1979).
Defendants also argue that the board erred in finding that "plaintiff has no wage earning capacity in the field of common labor". This finding also turns on a factual question as to whether plaintiff's employment subsequent to March of 1977 is a favored-work situation, or whether it is one bearing the requisite indicia of permanency sufficient to establish a new wage-earning capacity. See, Markey v SS Peter Paul's Parish, 281 Mich. 292; 274 N.W. 797 (1937), Pulley v Detroit Engineering Machine Co, 378 Mich. 418; 145 N.W.2d 40 (1966), Powell v Casco Nelmor Corp, 406 Mich. 332; 279 N.W.2d 769 (1979). The appeal board's finding that plaintiff returned to a favored-work situation comports with the evidence, including plaintiff's testimony that he would not hire a stranger in his condition to perform the tasks he has been performing since March, 1977, because of his work limitations. Our Supreme Court has held that performance of favored work after a work-related injury does not establish a wage-earning capacity. Powell, supra, 348. While we might express our dissatisfaction with this position, we are bound to follow it. We therefore uphold the appeal board's determination that plaintiff has no wage-earning capacity.
However, we must also note that the appeal board seems to have given insufficient weight to defendants' right to credit for wages plaintiff actually earned or should have been paid for his labors since March, 1977. The board held:
"[P]laintiff sustained his burden of proving total disability in the field of common labor. The restrictions imposed upon plaintiff by the doctors certainly are indicative of such disability. Plaintiff has no wage earning capacity in the field of common labor. See Grames v Borden, Inc, 1979 WCABO 1159. Any money realized by his corporation after the date of his last earnings, August 19, 1976, was put back into the business to give creditors some bones on which to gnaw. At the very most, defendants would be entitled to offset any compensation payable against plaintiff's wages, if any, earned after the 1976 injury. See Markey v SS Peter Paul's Parish, 281 Mich. 292 (1937)."
Although the language of the board's opinion is not clear on this point, it appears only to authorize credit to defendants for those wages, if any, that plaintiff actually receives from the corporation in his favored work situation. Plaintiff testified that he had an agreement with the corporation that he would receive $300 per week for his services. However, due to the mounting of business debts during plaintiff's layoff, plaintiff actually has received no cash in hand for his efforts, with the money he would have earned being used by the corporation to pay off its creditors. Plaintiff candidly admitted that, if he had to hire someone to perform the services that he performs for the corporation, he probably could not find anyone willing to accept the job for $300 per week and that, in his opinion, his services were worth at least what he had been earning before his injuries, $270 per week.
The fact that, with plaintiff's obvious consent, the corporation has retained the wages due him in order to keep creditors at bay does not change defendants' right to credit for what plaintiff's labors have earned him, whether or not he has chosen to demand payment thereof. The board's opinion allows plaintiff to utilize workers' compensation to pay off his corporate creditors. Although the value of plaintiff's services is a question of fact, plaintiff's own testimony establishes that his services are worth far more than the benefits payable and that, therefore, defendants should have had to pay him nothing for all the weeks he has been working since March 15, 1977.
Therefore, while we affirm that portion of the appeal board's opinion awarding plaintiff workers' disability compensation benefits, we remand for further proceedings, directing that defendants' right to offset be recognized in a manner consistent with this opinion.
Affirmed in part and remanded.