ROBERT M TALBOT V DETROIT NEWSPAPER AGENCY
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT M. TALBOT,
UNPUBLISHED
July 24, 2001
Plaintiff-Appellant/Cross-Appellee,
v
No. 224172
WCAC
LC No. 98-000643
DETROIT NEWSPAPER AGENCY,
Defendant-Appellee/CrossAppellant,
and
TRAVELERS INSURANCE COMPANY,
LIBERTY MUTUAL FIRE INSURANCE
COMPANY, and SECOND INJURY FUND,
Defendants-Appellants.
Before: Markey, P.J., and Jansen and Zahra, JJ.
JANSEN, J. (dissenting).
I respectfully dissent. I would reverse the decision of the Worker’s Compensation
Appellate Commission (WCAC) and reinstate the magistrate’s decision that granted an open
award of benefits to plaintiff.
Plaintiff filed his application for mediation or hearing on April 28, 1998, and the hearing
was held before the magistrate on August 13, 1998. In his application, plaintiff alleged dates of
injury of September 5, 1992, January 31, 1994, May 31, 1995, and a last day of work of July 12,
1995. With respect to the injuries, plaintiff alleged (in chronological order) the following: (1) he
fell in his truck, turned his knee, which required surgery, and now needs knee replacement; (2) he
fell out of his truck and turned his knee and his right knee needs replacement; and (3) he injured
his left foot, left shoulder, back, and sprained his ankle when he tripped and fell on newspaper
racks. At the hearing, during plaintiff’s direct examination, defense counsel raised an objection
that the last day of work was not alleged as a date of injury. The magistrate overruled the
objection, stating that the last date of work could be interpreted as a date of injury, as set forth on
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the application for hearing. Indeed, an examination of the application of hearing reveals that the
last day of work is listed in the box entitled “date(s) of injury.”
The WCAC and the majority have erroneously concluded that the magistrate’s decision
was legal error and without support based on the “finding” that the May 31, 1995, date of injury
did not relate to plaintiff’s knees. The magistrate did not find that plaintiff’s knee injury was
based on a May 31, 1995, date of injury. I set forth the relevant findings of the magistrate here:
The court finds that there is not clear and convincing testimony that
plaintiff’s prior knee injuries caused or contributed to the degeneration in his
knees. There clearly is evidence that plaintiff is disabled from his normal work
activity and cannot perform all the duties of his occupation. Defendant argues
that plaintiff’s weight is the cause and this court grants that as contributing.
Plaintiff has established a disability and wage loss due to the injury. The
remaining question is whether plaintiff suffered from a work place injury. The
court concludes that plaintiff has. Plaintiff is grossly overweight and the bilateral
knee problem is related to his weight. However, a more narrow question is
whether the plaintiff has established a claim pursuant to [MCL] 418.301(2). This
court finds that he has. Prior case law establishes the proposition that the
employer takes the employee, at the gate, with all his frailties. The remaining
question is whether the plaintiff’s employment under [MCL 418.]301(2)
contributed to or aggravated or accelerated his bilateral knee problem in a
significant manner. Ambulation away from work clearly would accelerate
plaintiff’s problem, but comparing that to plaintiff’s moderately heavy work and
the significant difference in the nature of these exposures, this court finds most
persuasive the testimony of Dr. Gordon that the heavy work was a factor. This
court further concludes that because of the nature of the exposure while away
from work when compared to work activities, that plaintiff has proven that his
condition was contributed to or aggravated or accelerated in a significant manner.
The WCAC reversed the magistrate, finding that “the magistrate’s decision to grant an open
award for a knee related injury based on an injury date of May 31, 1995 where no knee injury
was alleged is legal error.”
Because the magistrate did not award benefits based on an injury date of May 31, 1995, I
conclude it was the WCAC, and not the magistrate, that erred as a matter of law. As our
Supreme Court has stated, one of the roles of the judiciary in reviewing decisions of the WCAC
is to “ensure the integrity of the administrative process.” Mudel v Great Atlantic & Pacific Tea
Co, 462 Mich 691, 701; 614 NW2d 607 (2000). Thus, our role is to ensure that the WCAC did
not misapprehend its administrative role in reviewing decisions of the magistrate. Id. at 703.
“[A]s long as the WCAC did not misapprehend its administrative appellate role (e.g., engage in
de novo review; apply the wrong rule of law), then the judiciary must treat the WCAC’s factual
decisions as conclusive.” Id. at 703-704.
Here, the WCAC’s decision was based on erroneous legal reasoning because it
incorrectly stated that the magistrate based the decision to grant benefits on an injury date of May
31, 1995. As had been set forth, the magistrate did not base the decision to grant benefits on an
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injury date of May 31, 1995. Instead, the magistrate concluded that plaintiff’s employment
contributed to, aggravated, or accelerated his bilateral knee problem in a significant manner.
This is in accordance with the rule that where the employee’s underlying condition has been
accelerated or aggravated by the employment, the employee is entitled to an open award of
benefits. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 116; 274 NW2d 411 (1979); Cox
v Schreiber Corp, 188 Mich App 252, 259; 469 NW2d 30 (1991).
Accordingly, I would reverse the decision of the WCAC and reinstate the magistrate’s
decision.
/s/ Kathleen Jansen
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