BERT HILL V EMPLOYEE SOLUTIONS INC
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STATE OF MICHIGAN
COURT OF APPEALS
BERT HILL,
UNPUBLISHED
December 28, 2001
Plaintiff-Appellant,
v
EMPLOYEE SOLUTIONS, INCORPORATED,
f/k/a LOGISTICS PERSONNEL
CORPORATION, and LEGION INSURANCE
COMPANY,
No. 231431
WCAC
LC No. 98-000382
Defendants-Appellees.
Before: Saad, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals by leave granted a decision by the Worker’s Compensation Appellate
Commission (WCAC) reversing a magistrate’s decision awarding plaintiff benefits. We vacate
and remand.
Plaintiff worked for defendant as a semi-trailer truck driver. In April 1997, plaintiff
pivoted on his left leg while getting out of the cab of a tractor. He slid to the ground, falling on
his feet and striking his left hip and buttock on a dumpster. He experienced numbness in his left
leg and knife-like pain in his left hip and groin. He continued to suffer pain, but its intensity
increased and decreased, depending on his activity level. He was unable to work because of the
pain.
Dr. John R. Schurman examined plaintiff in June 1997 and diagnosed plaintiff with
arthrosis of the left hip and loss of joint space and joint cartilage. Schurman testified these
degenerative changes indicated that the process had existed for a long time. He found no
objective evidence to establish that the April 1997 injury aggravated the pathology of plaintiff’s
left hip. He believed that the work incident could have been an aggravating factor that did not
resolve with the passage of time, noting that plaintiff’s preexisting aches and pains worsened
after the injury and became persistent by June 1997.
Dr. Ahman M. Hadied examined plaintiff in July 1997. He diagnosed plaintiff with
degenerative arthritis of both hips, noting the left hip was worse than the right. Hadied thought
the work incident might have exacerbated the symptoms associated with the pre-existing
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pathology in plaintiff’s hip and thought the incident may have advanced the date of his need for
total hip replacement surgery.
Plaintiff underwent hip replacement surgery in September 1997. The surgery alleviated
plaintiff’s pain and he has had no further treatment for his left hip problem. He is restricted in
his work. He works for another employer.
The magistrate found that plaintiff suffered a preexisting degenerative left hip condition.
He concluded that the April 1997 work incident constituted a personal injury arising out of and in
the course of plaintiff’s employment. He found that the fall at least aggravated plaintiff’s
preexisting left hip arthrosis and produced plaintiff’s disability. The magistrate awarded plaintiff
benefits.
Defendants appealed to the WCAC, arguing that the magistrate should have considered
and applied the significant manner analysis presented in MCL 418.301(2), which provides:
Mental disabilities and conditions of the aging process, including but not
limited to heart and cardiovascular conditions, shall be compensable if contributed
to or aggravated or accelerated by the employment in a significant manner.
The WCAC agreed with defendants, noting that the evidence established that plaintiff
suffered preexisting degenerative arthritis. It reasoned that the evidence should have motivated
the magistrate to consider whether the work incident pathologically changed plaintiff’s condition.
Because the magistrate did not make a determination whether plaintiff suffered a condition of the
aging process, the WCAC reversed the magistrate’s decision and remanded the matter to the
magistrate to make the determination.
On remand, the magistrate explained that in his previous decision he found that plaintiff
suffered a specific event hip injury arising out of his employment. Thus, section 301(2) did not
apply. He failed to make a finding regarding whether plaintiff’s arthritis is a condition of the
aging process.
After remand, the WCAC indicated that the magistrate misunderstood application of
section 301(2). The WCAC wrote: “[S]ince no condition other than the arthritis produced
plaintiff’s disability, the significant manner test must be applied.” It remanded the matter again,
with instructions to the magistrate to determine if plaintiff’s pre-existing arthritis is a condition
of the aging process and if so, to apply the significant manner test and determine if plaintiff has
met his burden of proof.
On second remand, the magistrate simply applied the significant manner test without
making a determination whether plaintiff’s arthritis is a condition of the aging process. He
concluded that plaintiff’s April 1997 injury contributed to, aggravated or accelerated his left hip
condition and found no nonoccupational factors involved in plaintiff’s injury and need for
surgery.
After the second remand, the WCAC found that the magistrate inappropriately applied the
facts when he weighed the significance of occupational and nonoccupational factors. The
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WCAC stated that the magistrate failed to recognize that the condition of the aging process is a
nonoccupational factor to be considered when applying the significant manner test of section
301(2). The WCAC found that the physicians’ testimony supported a finding of some
immeasurable contribution from work, but that this did not amount to a significant contribution
as required by section 301(2). The WCAC reversed the magistrate’s decision and denied
plaintiff’s claim for benefits.
We granted plaintiff’s application for leave to appeal the final order of the WCAC. Our
Supreme Court has clearly set forth the standards of review applied in worker’s compensation
cases:
The WCAC must review the magistrate’s decision under the “substantial
evidence” standard, while the courts must review the WCAC’s decision under the
“any evidence” standard. Review by the Court of Appeals and this Court begins
with the WCAC’s decision, not the magistrate’s. If there is any evidence
supporting the WCAC’s factual findings, and if the WCAC did not misapprehend
its administrative appellate role in reviewing decisions of the magistrate, then the
courts must treat the WCAC’s factual findings as conclusive. [Mudel v Great
Atlantic & Pacific Tea Co, 462 Mich 691, 709-710; 614 NW2d 607 (2000).]
Our review is further described in Holden v Ford Motor Co, 439 Mich 257, 269; 484
NW2d 227 (1992):
If it appears on judicial appellate review that the WCAC carefully
examined the record, was duly cognizant of the deference to be given to the
decision of the magistrate, did not “misapprehend or grossly misapply” the
substantial evidence standard, and gave an adequate reason grounded in the record
for reversing the magistrate, the judicial tendency should be to deny leave to
appeal or, if it is granted, to affirm, in recognition that the Legislature provided for
administrative appellate review by the seven-member WCAC of decisions of
thirty magistrates, and bestowed on the WCAC final fact-finding responsibility
subject to constitutionally limited judicial review.
In the absence of fraud, the WCAC’s findings of fact, where it was acting within its
powers, must be considered conclusive. MCL 418.861a(14). In addition, this Court may review
questions of law involved with any final order of the WCAC. MCL 418.861a(14); Holden,
supra, 439 Mich 263. The WCAC’s decision may be reversed if it operated within the wrong
legal framework or based its decision on erroneous legal reasoning. MCL 418.861a(14);
DiBenedetto v West Shore Hosp, 461 Mich 394, 401-402; 605 NW2d 300 (2000).
Plaintiff first argues that the WCAC erred in failing to consider whether plaintiff’s
symptoms had been aggravated by his fall. He argues that he presented sufficient evidence to
show that his work injury aggravated the pain in his hip that he had experienced as a result of his
preexisting degenerative arthritis. We agree.
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“[A] symptomatic aggravation of a condition of the aging process” is compensable under
the Worker’s Disability Compensation Act (WDCA), MCL 718.101 et seq. Mattison v Pontiac
Osteopathic Hosp, 242 Mich App 664, 670; 620 NW2d 313 (2000). An employee is entitled to
benefits if he is unable to work because work-related events aggravated the symptoms of a
preexisting condition to the point of disability. Id. at 672. Benefits are recoverable until the
symptoms subside to their preexisting level. Id.
The WCAC noted that Schurman refused to quantify the contribution of work to
plaintiff’s condition. It stated that Schurman “testified that his direct observations did not
support plaintiff’s contention that the incident produced the increased pain.” This finding is not
supported by the record. Schurman testified at his deposition that, while the event may not
necessarily have been causal, it could have been an aggravating factor that did not resolve before
surgery. While Schurman had no objective evidence of an actual pathological aggravation to
plaintiff’s left hip that was related to the April 1997 incident, he had no reason to doubt the
history that plaintiff had given him. In June 1997, plaintiff suffered symptoms associated with
his hip. Plaintiff told Schurman that his hip was more painful after the incident, although he had
experienced some discomfort before the fall. Schurman testified that when he examined
plaintiff, plaintiff’s symptoms were persistent and persisted long enough to lead him to have
surgery. “So that’s one aggravating factor that became something that didn’t go away,”
Schurman concluded.
Contrary to the WCAC’s conclusion, Schurman did not testify that his observations did
not substantiate plaintiff’s position that the incident produced increased pain. There is no
evidence to support this finding. Thus, the finding is erroneous and the WCAC erred by
concluding that plaintiff did not establish that his hip pain increased as a result of his fall.
Next, plaintiff argues that the WCAC erred by failing to address and decide the question
whether plaintiff’s arthritis is a condition of the aging process. We agree.
To apply the significant manner test of MCL 718.301(2), it must be determined that the
employee suffers a condition of the aging process. In this case, neither the magistrate nor the
WCAC made a specific finding that plaintiff’s arthritis is a condition of the aging process. After
remanding the matter two times to the magistrate for consideration of the issue, the WCAC, in its
final decision, appears to have assumed that his arthritis was a condition of the aging process.
However, no specific finding on this factor was ever made.
In the absence of a finding on whether plaintiff’s arthritis was a condition of the aging
process, the magistrate and WCAC should not have considered whether the injury aggravated
plaintiff’s condition or symptoms in a significant manner. This issue is remanded to the WCAC
for reconsideration.
Vacated and remanded for proceedings consistent with this opinion. We retain no further
jurisdiction.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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