STATE OF MICHIGAN
COURT OF APPEALS
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DEBORAH L. CONNAWAY
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Plaintiff-Appellant
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FOR PUBLICATION
December 15, 1998
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v
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No. 201559
WCAC
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WELDED CONSTRUCTION COMPANY
and HARTFORD ACCIDENT AND
INDEMNITY COMPANY
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Defendants-Appellees
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LC No(s). 94-000305
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Before: MacKenzie, P.J., and Whitbeck and G.S. Allen, Jr.*, JJ.
* Former Court of Appeals judge, sitting on the Court of Appeals
by assignment.
WHITBECK, J.
Plaintiff appeals by leave granted from a decision of the
Workers' Compensation Appellate Commission that denied Michigan
benefits to her on the basis that a successive injury in New York
aggravated her prior, Michigan-based condition. We affirm.
I. Basic Facts And Procedural History
A. The November 2, 1989, Injury
Plaintiff Deborah L. Connaway is a resident of Illinois. Defendant Welded
Construction Company ("Welded Construction") is engaged in pipeline construction in several states.
Plaintiff's job as a "welder's helper" involved fairly heavy labor that took place at outdoor
construction sites. Welded Construction assigned plaintiff to a job in northern Michigan
in November 1989. On the first day working on that job, plaintiff injured her right knee (the
"November 2, 1989 Injury"). She received Michigan workers' compensation benefits, and she
was treated by an orthopedic surgeon in Illinois.
Dr. Raymond Coss, plaintiff's treating physician, performed athroscopic surgery on plaintiff in
February of 1990. Dr. Coss found that plaintiff had torn her anterior cruciate ligament and also
had a problem with her patella, or in other words her kneecap. After the surgery, plaintiff
improved, although she was at risk of her knee buckling. Plaintiff went through rehabilitation
and a "work hardening" program during the six-month period after her surgery. Plaintiff was
also prescribed a knee brace. In August of 1990, Dr. Coss thought that plaintiff "had achieved
a maximum benefit from the work hardening" program and suggested "a trial of work." When
asked what he meant by a "trial of work," the doctor explained that plaintiff could return to
work and see if her knee held up:
"We had some tentative feelings about her return to work as a construction
worker but felt that she had proceeded with her work hardening and therapy
program to a point where she could be permitted to return understanding that she,
in my opinion, would have some increased percentage chance of reinjury or intolerance to the work demands."
B. The September 4, 1990, Injury
Welded Construction then assigned plaintiff to work on a pipeline project in New York
state. Plaintiff started working at that job site in mid-August of 1990. Plaintiff performed the
same job as a welder's helper that she did before she was injured. Plaintiff returned to work
without restrictions. Plaintiff worked long days and long weeks, about ten hours per day and
about six days per week. Plaintiff apparently wore her knee brace while she was working. She
testified that she also carried an ice pack in her lunch box to be used on her knee. After
working regularly for ten days to two weeks, on September 4, 1990, plaintiff's knee gave out
when she turned suddenly (the "September 4, 1990 Injury"). The injury occurred at the end of
the work day. Plaintiff could not work the next day. Plaintiff returned home and has not
worked since.
Plaintiff returned to see Dr. Coss in September of 1990. Dr. Coss testified that he felt
plaintiff had "resprained" her knee. Plaintiff's knee brace was "continued," and her activities
were "modified." Plaintiff was also "continued" on home exercises. Dr. Coss followed plaintiff
at least through May of 1993. By October of 1990, Dr. Coss thought plaintiff's knee was "more
stable . . . than at any previous time. . . ." It seems, however, that plaintiff's condition
either
plateaued or gradually deteriorated after that point. Dr. Coss thought that plaintiff was disabled
from her job as a welder's helper. He thought plaintiff should be restricted from climbing,
working on uneven terrain, and heavy lifting. When asked for the basis for his opinion that
plaintiff was disabled, Dr. Coss testified:
"We know that the patient has had a significant cruciate ligament injury and we
know that she has had at the time of her arthroscopy a grade three
chondromalacia patella, and this coupled with the subjective performance of the
knee would, in my opinion, disqualify her from heavy industry participation."
Dr. Coss related plaintiff's continuing disability to the November 2, 1989 Injury. He was asked
whether the knee condition he was then treating plaintiff for was caused or aggravated by the
November 2, 1989 Injury. He answered:
"I think that the ligamentous injury was caused by the fall, I think that the
chondromalacia was most likely exacerbated."
Regarding the September 4, 1990 Injury, Dr. Coss did not seem to think that injury
meaningfully affected plaintiff's pathology. He was asked what effect the September 4, 1990
Injury had on plaintiff's underlying knee condition. His answer was:
"One would have a difficult time perceiving any injury to have a beneficial effect
on the knee. On the other hand, I was unable to determine any objective finding
which delineated further harm to the knee."
On cross-examination it was brought out that plaintiff's condition when the doctor saw her in
September of 1990, after the September 4, 1990 Injury, was considerably different than when
he saw her in August of 1990. The doctor said that plaintiff's condition "was certainly
subjectively different." He explained that in September plaintiff was complaining of pain which
she was not complaining about in August and that plaintiff was complaining in September that
she could not perform all the same activities she could in August.
Plaintiff was examined by Dr. Eugene Cisek in November of 1992. Dr. Cisek thought
plaintiff was disabled from heavy labor because of her knee condition. Dr. Cisek further
testified that he thought that plaintiff's knee disability was a result of the November 2, 1989
Injury and that the September 4, 1990 Injury had no permanent effect on plaintiff. Dr. Cisek
testified:
"Yes, I did not feel that there was any permanent – permanency associated
with the accident of 9/4/90, I felt that that particular accident represented an
aggravation of her preexisting condition, which occurred as a result of the
November, 1989 accident, namely the rupture of the anterior cruciating ligament
and aggravation of patella chondromalacia."
The doctor testified that the September 4, 1990 Injury "would result in a temporary aggravation
of her preexisting condition." When asked on cross-examination about the fact that plaintiff had
returned to work without restrictions and had worked her regular job for about two weeks before
she was again injured, Dr. Cisek replied:
"Well, she had been working only a short time before this 9/4/90 injury, and
there is no way in telling whether that knee would have continued to hold up for
her with the type of pathology she had in her knee joint, given a longer period
of stress on her knee."
The doctor then agreed, however, that the September 4, 1990 Injury "did have some effect" on
plaintiff. Dr. Cisek's view of the two injuries is summarized in a paragraph at the conclusion
of his medical report which was an exhibit to his deposition:
"APPORTIONMENT: I find no apportionment between her injuries of 9/4/90
and 11/2/89, as I find no permanent disability due to her trauma of 9/4/90. The
11/2/89 injury was the initiating factor resulting in ligamentous instability of her
right knee. The accident of 9/4/90 was merely a temporary aggravation of her
initial injury of 11/2/89."
The third doctor who examined plaintiff was Dr. Bert Korhonen who examined her in May of
1993. Dr. Korhonen thought that plaintiff did not have a continuing problem with the ligaments
in her knee. He thought that plaintiff's only problem was the patella problem, which was a
congenital anomaly. Dr. Korhonen thought that the tear in plaintiff's ligament had healed.
Dr. Korhonen would not have placed any restrictions on plaintiff's employment based upon the
ligament injury. Dr. Korhonen further testified that it was his opinion that the September 4,
1990 Injury did not result in damage or injury to plaintiff's anterior cruciate ligament.
C. The Magistrate's Decision
Plaintiff received some sporadic benefits under the New York Worker's Compensation
Act, but defendant Hartford Insurance Company disputed her entitlement to benefits in New
York. Plaintiff filed a petition for reinstatement of her Michigan benefits as a result of the
November 2, 1989 Injury and a hearing was held before a magistrate, who thereafter issued a
decision granting an open award of benefits pursuant to the Michigan Workers' Disability
Compensation Act of 1969 (the "WDCA"). The magistrate found that plaintiff was disabled due
to the November 2, 1989 Injury. The magistrate found plaintiff credible and also found the
testimony of Drs. Coss and Cisek to be credible. As to the September 4, 1990 Injury, the
magistrate found that injury did not aggravate plaintiff's underlying condition. The magistrate
stated:
"Further, all three of the medical examiners who testified were of the opinion that
the September, 1990 incident in New York did not aggravate plaintiff's
underlying condition. Further, the credible testimony of both doctors Coss and
Cisek related Plaintiff's current disability to her 1989 injury at Welded
Construction Company."
D. The WCAC Decision
Welded Construction appealed to the Workers' Compensation Appellate Commission (the
"WCAC"). Welded Construction argued that Michigan did not have jurisdiction to award
benefits to plaintiff because plaintiff was injured in New York, there was no contract of hire
made in Michigan, and plaintiff was not a resident of Michigan. The WCAC viewed the
question as "whether there is a continuing disability from a Michigan injury or a new and
separate injury resulting from the work in New York." The WCAC reversed the magistrate's
decision and found in its decision that the record did not support the magistrate's finding that
plaintiff had a continuing disability from the Michigan injury.
The WCAC noted that after a six-month recovery period plaintiff returned to unrestricted
work "on a trial basis." The WCAC further noted that plaintiff returned to the same job she had
before she was injured in Michigan and that plaintiff was then injured on September 4, 1990,
in New York. The WCAC disagreed with the magistrate's view of the evidence that the three
medical witnesses did not think the incident in New York aggravated plaintiff's underlying
condition. The WCAC quoted the testimony of Dr. Cisek to the effect that he did not feel there
was permanency associated with the September 4, 1990 Injury, but that he "felt that that
particular accident represented an aggravation of her preexisting condition. . . ." The WCACalso quoted Dr. Coss's testimony about how plaintiff's condition was worse when he saw her
in September of 1990, than when he returned her to work in August of 1990.
The WCAC relied upon the rule of law that if an employee has a prior work-related
disability and subsequent work makes it worse, there is a new date of injury. The WCAC
thought it clear that the November 2, 1989 Injury had "resolved" itself by August of 1990, when
plaintiff was returned to work without restrictions. The WCAC viewed the September 4, 1990
Injury as an "aggravation" that created a new injury date. The WCAC noted that the September
4, 1990 Injury was described as an "aggravation" by the two doctors relied upon by the
magistrate. Because plaintiff's September 4, 1990 Injury had no connection with Michigan, and
constituted a new injury, the WCAC concluded that Michigan had no jurisdiction over plaintiff's
claim.
E. Plaintiff's Appeal
Plaintiff filed an application for leave to appeal with this Court, that this Court granted.
Plaintiff now argues that the WCAC erred because the magistrate's decision was amply
supported by the record and the WCAC's finding that plaintiff had fully recovered was not
supported by any evidence in the record. Plaintiff argues that the WCAC took testimony of
witnesses out of context and ignored their contrary testimony. Plaintiff argues that the
September 4, 1990 Injury was a natural consequence of her November 2, 1989 Injury.
Welded Construction emphasizes that plaintiff returned to work without restrictions and
worked for many long days before she was injured again. Welded Construction contends the
evidence supported the WCAC's decision. Welded Construction contends that the instant caseis similar to a case in which an employee has successive injuries. In such cases, the employer
at the time of the latter injury is liable.
II. Standard Of Review
A. Introduction
Few subjects in Michigan jurisprudence have been so thoroughly explored—indeed
one might even say dissected—as the endlessly intricate question of the appropriate standard
of review in WDCA cases. Our purpose here is not to engage in yet another extended
discussion of this subject but rather to state clearly our understanding of the appropriate
standard
at each level of review. We emphasize at the outset, therefore, that it is vitally important to
recognize that there are, in fact, two levels of review, administrative review and judicial review,
and that the standards of review at these two levels are distinctively, and understandably,
different.
B. Administrative Review
As stated by the Michigan Supreme Court in Holden v Ford Motor Co, 439
Mich 257, 260 & n, 3; 484 NW2d 227 (1992), before the passage of 1985 PA 103, referees,
also referred to as administrative law judges, conducted hearings in workers' compensation
cases, with de novo review by the Workers' Compensation Appeal Board. 1985 PA 103
eliminated de novo review commencing October 1, 1986. Holden, supra at 261.
Thereafter, on administrative review the newly-created WCAC was to consider findings of fact
by a worker's compensation magistrate conclusive if such findings of fact were supported by
"competent, material, and substantial evidence on the whole record." MCL 418.861a(3); MSA
17.237(861a)(3).
As the Court commented, "This substantial evidence standard provides for administrative
appellate review more deferential to the hearing officer's decision than de novo review, but for
more searching review by the WCAC than judicial review under the 'any evidence standard.'"
Holden, supra at 261-262. The Court also traced the derivation of the 1985 PA 103
language:
The House Substitute, which became Act 103, retained the "substantial evidence
on the whole record" standard, but added definitions of "substantial evidence" and
"whole record" taken from MERC v Detroit Symphony Orchestra,
Inc, 393 Mich 116; 223 NW2d 283 (1974), where this Court considered
the meaning of "substantial evidence" in the context of judicial review of findings
of fact by the Michigan Employment Relations Commission pursuant to the labor
mediation act. The House Substitute also added language, again taken from
Detroit Symphony, providing that the WCAC's review of a
magistrate's decision should include both a "qualitative and a quantitative"
analysis of the evidence to ensure a full, thorough, and fair review.
* * *
In apparent recognition of the difference between judicial appellate review
of an administrative agency's decision, and administrative appellate review by the
WCAC of a magistrate's decision, the Legislature did not enact, as part of the
substantial evidence standard for workers' compensation administrative appellate
review purposes, the [Detroit Symphony] language that review by the
WCAC is to be "undertaken with considerable sensitivity" to provide "due
deference to administrative expertise" and to avoid displacing a "choice between
two reasonably differing views." [Holden, supra at 264- 265, 267.]
There have been, of course, differing views of the scope of administrative review as set out in
1985 PA 103 and interpreted in Holden, supra.[1] This case,
however, raises a particularly troubling issue, deriving
from the Michigan Supreme Court's decision in Goff v Bil-Mar Foods (After
Remand), 454 Mich 507, 538; 563 NW2d 214 (1997). There the Court stated:
If the magistrate's decision is reasonably supported in the record by
any competent, material, and substantial evidence, then it is
conclusive and the WCAC must affirm. If it does not, it is exceeding the scope
of its reviewing power and impermissibly substituting its judgment for the
magistrate's. In reviewing the magistrate's decision, the WCAC must do so with
sensitivity and deference toward the findings and conclusions of the magistrate in
its assessment of the record. If in its review the WCAC finds that the magistrate
did not rely on competent evidence, it must carefully detail its findings of fact and
the reasons for its findings grounded in the record. [Id., emphasis
supplied.][2]
See also Layman v Newkirk Electric Associates, 458 Mich 494, 507; 581 NW2d 244
(1998); Angel v Jahm, Inc and Wausau Underwriters Insurance Company, ___ Mich
App ___; ___NW2d ___, slip op, p 2 (Docket No. 204255, issued October 27, 1998), citing the
above language.
The "any," prior to the phrase "competent, material, and substantial evidence" in the
above paragraph, is more than a little troublesome. Taken literally, it could be construed to
mean that if there is any evidence at all in a magistrate's decision that can be
considered to be competent, material, and substantial, then the WCAC must always defer to that
decision. We do not believe that the Court intended to place such an enormously binding
constraint upon the WCAC's administrative review, for a number of reasons. First, we note that
in Goff, supra at 512-513, the Court engaged in a discussion of the
Holden standards for judicial review, but then again commented on the standard for
administrative review:
However, where a party claims that the WCAC has exceeded its power by
reversing the magistrate, meaningful review must begin with the magistrate's
decision, because if competent, material, and substantial evidence based on
the whole record supports the magistrate's decision, the WCAC need go
no further. If it does, the WCAC is exceeding its authority. [Emphasis
supplied.]
We view the fact that the Court did not insert the word "any" before the phrase "competent,
material and substantial evidence" in the first sentence to be significant. Had the Court meant
to affirm an interpretation that if any evidence at all, if it could be found to be
competent, material, and substantial, was sufficient to require the WCAC to uphold a
magistrate's decision, here was certainly the place to say it. Quite obviously, the Court did not
make such a statement.[3]
Secondly, such an interpretation flies squarely in the face of the language in
Holden, supra. There, the Court referred to a "more searching review by the
WCAC than judicial review under the 'any evidence standard.'" Holden,
supra at 261-262. Clearly, the Court in Holden was contrasting the
"more searching [administrative] review" provided for under 1985 PA 103 with the "any
evidence standard" of judicial review. Such a comparison makes no sense whatever if, in fact,
the standard for administrative review is that any evidence at all, if it can be found
to be competent, material, and substantial, is sufficient to require the WCAC to uphold a
magistrate's decision. In this regard, we find the Court's observation in Holden,
supra at 262, n 8, to be significant. There, the Court stated:
Judicial review is limited review. In Koopmans v Parsons,
250 Mich 464; 467-469; 231 NW 87 (1930), this Court said that '[i]f there is
evidence in support of [the board's] conclusion, the award will not be disturbed.
. . . With the testimony on the other side of the issue we are not concerned,
because we do not weigh the evidence." Similarly, in Kostamo v Marquette
Iron Mining Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979), this
Court said that it would interfere with findings of the WCAB only when
convinced that there was no evidence to support them.
In Aquilina v General Motors Corp, 403 Mich 206, 213; 267
NW2d 923 (1978), construing MCL 418.861; MSA 17.237(861), this Court said
that review was to determine whether questions of law were correctly decided and
whether there was any fraud associated with, or "any competent
evidence" to support, the findings of fact made by the WCAB." [Emphasis
supplied.]
Clearly, here the Court was again comparing the administrative review provided for
under 1985 PA 103 with the "any evidence standard" of judicial review. It is entirely illogical
to assume that the Court would in Goff reverse its Holden position
entirely and incorporate the "any evidence standard" into the WCAC's administrative review of
a magistrate's decision. Indeed, there is nothing in Goff that indicates, or even
implies, an intent to reverse Holden. Had there been such a intention, one would
have expected the Court to state it clearly, given that Holden is only five years old.
Thirdly, such a restrictive view of the appropriate standard of administrative review by
the WCAC does not comport with more generalized interpretations of the words "substantial
evidence." Such evidence is that which a reasonable mind would accept as adequate to support
a decision. In re Payne, 444 Mich 679, 692; 514 NW2d 121 (1994). See also
Ron's Last Chance, Inc v Liquor Control Comm, 124 Mich App 179,
182; 333 NW2d 502 (1983). While such evidence is more than a scintilla of evidence, it may
be less than a preponderance of the evidence. Id. See also Soto v Director
of Mich Dep't of Social Services, 73 Mich App 263, 271; 251 NW2d 292 (1977), citing
Ginsburg v Richardson, 436 F2d 1146 (CA 3, 1971). To assert that the existence
of "any" competent, material, and substantial evidence on the record is sufficient to require the
WCAC to uphold a magistrate's decision is essentially to say that a scintilla of such evidence
is sufficient. We do not believe that the Court reached such a conclusion in Goff, supra.
Rather, we believe the standard remains as articulated in Holden. In this
regard, we recognize that it is improper for the WCAC to engage in de novo review from the
outset and simply substitute its judgment for that of the magistrate. See Illes v Jones
Transfer Co (On Remand), 213 Mich App 44, 51, 55; 539 NW2d 382 (1995),
Kovach v Henry Ford Hosp, 207 Mich App 107, 111; 523 NW2d 800 (1994).
However, as this Court said in York v Wayne Co Sheriff's Dep't, 219 Mich App
370, 381, n 4; 556 NW2d 882 (1996):
It is important to note that Illes and Kovach do not
hold that it is always impermissible for the WCAC to substitute its opinion for
that of the magistrate, but only that the WCAC may not simply
substitute its own judgment, without first finding adequate reasons, grounded in
the record, for rejecting the judgment of the magistrate. If the WCAC were
absolutely prohibited from substituting its judgment for that of the magistrate,
even when the WCAC has found adequate reasons for doing
so, the WCAC would never be able to overturn the magistrate's findings
on the basis of disagreement with the magistrate's evidentiary analysis. Yet,
Holden, supra, clearly allows the WCAC to reverse the magistrate's
findings on the basis of such disagreements. See 439 Mich 277-278; 285-287.
[Emphasis in the original.]
C. Judicial Review
The situation with respect to judicial review of WCAC decisions is just short of the exact
opposite. Such judicial review is, at the outset, limited by Const 1963, art 6, § 28, thatprovides, "[f]indings of fact in workmen's compensation proceedings shall be conclusive in the
absence of fraud unless otherwise provided by law." Prior to the enactment of 1985 PA 103,
findings of fact by the Workers' Compensation Appeal Board were conclusive on judicial
appellate review, in the absence of fraud.[4] After the enactment
of 1985 PA 103, exactly the same standard prevailed.[5] The
Michigan Supreme Court articulated the elements of this standard in Holden, supra
at 269:
We do not now offer a judicial standard in exegesis of the legislatively
stated standard. 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.[6]
In 1996, this Court engaged in a thorough and scholarly analysis of judicial review of WCAC
decisions in York, supra.[7] There, Judge Markman in
a thoughtful opinion first noted that, prior to the Holden decision, some panels of
this Court reasoned that the "any competent evidence standard" should not be applied when
reviewing the findings of the WCAC. York, supra at 376-377.[8]
However, other panels of this Court reasoned that any expansion of
the scope of this Court's review beyond the "any competent evidence standard" would be
inconsistent with the Legislature's apparent intent to curtail protracted litigation in worker's
compensation cases. York, supra at 377-378[9]
Judge Markman then summarized the basic finding in Holden with respect
to judicial review of findings of fact as being that such review "is to be of the findings of fact
made by the WCAC and not the findings of fact made by the magistrate and that the findings
of fact made by the WCAC are conclusive if there is any competent evidence in the record to
support those findings." York, supra at 378. Judge Markman went on to note,
however, that:
. . . [T]he [Michigan Supreme] Court also stopped somewhat short of fully
adopting this Court's conclusion in Weiss, supra, that the WCAC's
application of the substantial evidence test must always be affirmed on appeal if
there is any competent evidence in the record to support the WCAC's findings.
Rather, the Court indicated that when the WCAC's application of the substantial
evidence test is challenged on appeal, reviewing courts should examine the
reasoning and analysis of the decisions of the magistrate and the WCAC, the
evidence considered or ignored in those decisions, the care taken, and the nature
of the issues involved (particularly when there are issues of credibility to be
determined by the magistrate), in order to determine whether the WCAC acted
in a manner consistent with the concept of administrative appellate review that is
less than review de novo. Unless it is "manifest that the WCAC exceeded its
reviewing power," reviewing courts should ordinarily defer to the judgment of the
WCAC. [York, supra at 378-379, citing to Holden, supra
at 267-269.]
D. Conclusion
The WCAC's administrative review of a decision by a magistrate is no longer de novo
but is still more searching than review under an "any evidence standard." There must be
competent, material, and substantial evidence on the whole record to support a magistrate's
decision; such evidence is that which a reasonable mind would accept as adequate and, while
such evidence must be more than a scintilla, it may be less than a preponderance.
Judicial review of the WCAC's decisions is, by contrast, considerably narrower. The
tendency will be to affirm if the WCAC (1) carefully examined the record, (2) was duly
cognizant of the deference to be given to the decision of the magistrate, (3) did not
misapprehend or grossly misapply the substantial evidence standard and (4) gave an adequate
reason grounded in the record for reversing the magistrate. While we will not automatically
affirm an appeal from a WCAC decision if there was any competent evidence in the record to
support the WCAC's findings, we should examine (1) the reasoning and analysis of the decisions
of the magistrate and the WCAC, (2) the evidence considered or ignored in those decisions and
(3) the care taken, and the nature of the issues involved, in order to determine whether the
WCAC acted in a manner consistent with the concept of administrative appellate review.
In short, the proper exercise of the statutory responsibilities of the reviewing agency or
court under the current WDCA requires considerable discipline. On the one hand, the reviewing
agency or court must not intrude upon the legislatively mandated fact-finding that is to occur at
each lower level. On the other hand, the WCAC must assure that the magistrate based such
fact-finding upon competent, material, and substantial evidence on the whole record and this
Court must assure that the WCAC, if it reverses the magistrate, has done so according to a
reasoned, careful and thorough process. Indeed, one could say that while the WCAC's
administrative review is substantive in nature, our judicial review is procedural: Our task is not
to ascertain whether the WCAC arrived at the "right" decision but rather to assure that the
process that the WCAC used was the correct one.
III. The Successive Injury Rule
A. Introduction
The Massachusetts-Michigan successive injury rule is discussed in 3 Larson, Workmen's
Compensation Law, § 95.12, pp 508.130-508.133. As set forth in Mullins v Dura
Corp, 46 Mich App 52, 55-56; 207 NW2d 404 (1973), quoting Larson, supra,
this rule is as follows:
The Massachusetts-Michigan rule in successive-injury cases is to place full
liability upon the carrier covering the risk at the time of the most recent injury
that bears a causal relation to the disability.
If the second injury takes the form merely of a recurrence of the first,
and if the second incident does not contribute even slightly to the causation of the
disabling condition, the insurer on the risk at the time of the original injury
remains liable for the second. In this class would fall most of the cases
discussed in the section on range of consequences in which a second injury
occurred as the direct result of the first, as when claimant falls because of his
crutches which his first injury requires him to use. This group also includes
the kind of case in which a man has suffered a back strain, followed by a period
of work with continuing symptoms indicating that the original condition persists,
and culminating in a second period of disability precipitated by some lift or
exertion.
On the other hand, if the second incident contributes independently to the
injury, the second insurer is solely liable, even if the injury would have been
much less severe in the absence of the prior condition, and even if the prior
injury contributed the major part to the final condition. This is consistent with
the general principle of the compensability of the aggravation of a preexisting
condition. [Emphasis in the original.]
The Michigan Supreme Court adopted this rule in Dressler v Grand Rapids Die Casting
Corp, 402 Mich 243, 253-54; 262 NW2d 629 (1978). There, the Court also quoted
Larson, supra at § 57.10, for the proposition "'that the distinctive feature of
the compensation system . . . is that its awards (apart from medical benefits) are made not for
physical injury as such, but for "disability" produced by such injury.'" Dressler,
supra at 252. Applying this axiom to the facts of this case, the question then is not when
plaintiff was injured but rather when she was disabled. If the November 2, 1989 Injury in
Michigan disabled plaintiff and this same disability continued through her
employment in New York in September of 1990, then plaintiff is entitled to Michigan benefits.
If, however, the September 4, 1990 Injury was not just a recurrence of the
November 2, 1989 Injury and if the September 4, 1990 Injury contributed even slightly to, or
"aggravated," plaintiff's disability, even if the November 2, 1989 Injury contributed the major
part to the final condition, then plaintiff is not entitled to Michigan benefits.
B. The Conflict Between The Magistrate's Decision And The WCAC's Decision
As noted above, the magistrate's central finding was that all three of the medical
examiners were of the opinion that the September 4, 1990 Injury did not "aggravate plaintiff's
underlying condition" and that the testimony of Drs. Coss and Cisek related plaintiff's disabilityto the November 2, 1989 Injury. The WCAC disagreed with this view of the evidence and
found the September 4, 1990 Injury to be an "aggravation" that created a new injury date. In
this regard, the WCAC noted that the two doctors[10] relied upon
by the magistrate in fact described the September 4, 1990 Injury as an "aggravation." The
WCAC concluded:
In the matter before us, plaintiff clearly suffered a work-related injury in
November of 1989, causing a work-related disability which had resolved itself by
August 8, 1990 when she was released to return to work without restrictions. In
September 1990, plaintiff's knee collapsed while at work, such incident having
been termed an aggravation of her prior condition by both her treating physician
and an independent medical examiner, two individuals upon whom the magistrate
indicated reliance. Thus, given this aggravation, there is a new date of injury,
September 4, 1990, while plaintiff was working in the State of New York. Thus,
there is no competent, material and substantial evidence to support a finding of
disability as a result of plaintiff's November 2, 1989 Injury.
Thus, clearly, this situation is not analogous to that which the Supreme Court faced in
Layman, supra. There, the majority held that the WCAC could not undertake its
own fact-finding in the absence of fact-finding by the magistrate. Here, the WCAC disagreed
with the fact-finding of the magistrate and therefore reversed him. Under York,
supra, the question then is whether the WCAC found adequate reasons, grounded in the
record, for rejecting the judgment of the magistrate. We hold that the WCAC articulated just
such adequate reasons and that its articulation was grounded in the record.
C. The Holden Standards
(1) Careful Examination Of The Record
Rather clearly, the WCAC carefully examined the record; indeed, it quoted extensively
from the magistrate's decision in order to summarize the facts in detail. In addition, the WCAC
scrutinized the testimony of Drs. Coss and Cisek to arrive at its decision that the November 2,
1990 Injury constituted an "aggravation" of her prior condition. We believe that the WCAC
satisfied the careful examination of the record requirement of the Holden standards.
(2) Due Cognizance Of The Deference To Be Given To the Magistrate's Decision
The WCAC, as noted, ultimately reached the decision that it must reverse the
magistrate's decision. Clearly, then, the WCAC ultimately determined not to defer to that
decision. However, the WCAC based its determination upon its view that the finding of a
continuing disability from the Michigan injury was not supported by competent, material, and
substantial evidence. It would be inaccurate to say that there was no competent,
material, and substantial evidence on the record to justify the magistrate's decision. In our
view,
however, the discipline that is so necessary for the proper functioning of the Legislature's
carefully crafted administrative and judicial review system in WDCA cases requires that
we not substitute our view as to the substantive weight to be given to the
testimony of the three medical witnesses. We are satisfied, in this regard, that the WCAC was
cognizant of the deference it was required to give to the magistrate's decision. In our view,
sensitivity to the findings and conclusions of magistrates does not ipso facto require
that the WCAC agree automatically and universally with such findings and conclusions.
(3) Misapprehension Or Gross Misapplication Of The Substantial Evidence Standard
The WCAC articulated and applied the competent, material and substantial evidence on
the whole record standard. Our review of the WCAC's decision discloses no misapprehension
or gross misapplication of that standard.
(4) Adequate Reasons Grounded In The Record For Reversal
As noted, the WCAC reviewed and extensively quoted from the record before the
magistrate and, indeed, from the magistrate's decision. It found that competent, material and
substantial evidence, in the testimony of two examining physicians, existed to support the
proposition that the September 4, 1990 Injury aggravated plaintiff's prior condition. Under the
Massachusetts-Michigan successive injury rule, therefore, the WCAC properly found that
plaintiff was not entitled to Michigan benefits.
D. The York Standards
(1) The Reasoning And Analysis Of The Decisions Of The Magistrate And The WCAC
The magistrate's decision does an excellent job of summarizing the, primarily medical,
testimony that was presented at the benefits hearing. However, the magistrate's decision does
not, in any comprehensible fashion, articulate the successive injury rule or apply the reasoning
of Michigan cases adopting that rule. By contrast, the WCAC articulates the substance of the
rule, albeit also without citation, and correctly states the governing principle that an
aggravation
of a prior condition is in fact a new injury, triggering a new start date and therefore new
liability. We are satisfied that the reasoning and analysis of the WCAC are superior to that of
the magistrate.
(2) The Evidence Considered Or Ignored In The Magistrate's Decision
And The WCAC's Decision
We again note that it is not accurate to say that there was no competent,
material and substantial evidence to support the magistrate's decision. However, it is clear that
the magistrate chose to ignore directly relevant testimony on the central issue of aggravation by
both Dr. Coss and Dr. Cisek. By contrast, the WCAC's decision highlights this testimony;
indeed, it is this testimony that is the fulcrum of its determination to reverse the magistrate's
decision. This decision as to the appropriate weight to be given to conflicting elements of expert
testimony is within the administrative expertise of the WCAC, and we cannot, in a disciplined
system of review, substitute our judgment for that of the WCAC on this point.
(3) The Care Taken And The Nature Of The Issues
We view the WCAC's decision to be carefully crafted and succinctly reasoned. It
directly addresses the issues involved and applies the competent, material, and substantial
evidence contained in the record to these issues. We believe that the WCAC's decision satisfies
this element of the York standards.
IV. Conclusion
When we apply the Holden standards and the York standards, we
are not left with the definite and firm conviction that the WCAC made a mistake when it
reversed the magistrate's decision. Applying Holden standards, we find
that the WCAC carefully examined the record and, although it ultimately reversed the
magistrate, it appeared to be cognizant of the deference to be given to his decision. Further,the WCAC did not misapprehend or grossly misapply the substantial evidence standard and it
gave adequate reasons grounded in the record for reversing the magistrate. In reaching these
decisions, we have applied the York analytical standard to examine the reasoning and
analysis of the decisions of the magistrate and the WCAC, the evidence considered or ignored
in those decisions, the care taken, and the nature of the issues involved, in order to determine
whether the WCAC acted in a manner consistent with the concept of administrative appellate
review. We believe that the process the WCAC used was the correct one. We therefore affirm.
/s/ William C. Whitbeck
/s/ Barbara B. MacKenzie
/s/ Glenn S. Allen, Jr.
1 See for example Layman v Newkirk Electric
Associates, 458 Mich 494; 581 NW2d 244 (1998), in which the majority held that the
WCAC exceeded its authority "when it made impermissible findings of fact in the absence of
findings by the magistrate," id. at 507, while the dissent argued that this holding
was inconsistent with, and marked a clear retreat from, the Court's recent recognition of the
WCAC's authority to find facts.
2 Other than to note it in passing, we do not comment on the
rather obvious discrepancy between the sentence in Goff requiring the WCAC to
review a magistrate's decision with "sensitivity and deference toward the findings and
conclusions of the magistrate" and the sentence in Holden noting that the
Legislature had not adopted language from Detroit Symphony
providing that review by the WCAC is to be "undertaken with considerable sensitivity" to
provide "due deference to administrative expertise" and to avoid displacing a "choice
between two reasonably differing views." See Holden, supra at 267.
3 See also Civil Service Comm v Dep't of Labor, 424
Mich 571, 622; 384 NW2d 728 (1986), modified on other grounds 425 Mich 1201 (1986), in
which the Court stated that a magistrate's findings of fact can be reversed on appeal "only if
there is not substantial evidence on the whole record to support the decision." We note that
the Court did not use the troublesome word "any" before the words "substantial evidence."
4 See MCL 418.861; MSA 17.237(861):
The findings of fact made by the board acting within its powers, in the absence
of fraud, shall be conclusive. The court of appeals and the supreme court
shall have power to review questions of law involved in any final order of the
board . . . .
5 See MCL 418.861a(14); MSA 17.237(861a)(14):
The findings of fact made by the commission acting within its powers, in the
absence of fraud, shall be conclusive. The court of appeals and the supreme
court shall have the power to review questions of law involved with any final
order of the commission . . . .
6 In Holden, supra at 269, n, 21, the Court cited to
Universal Camera Corp v NLRB, 340 US 474, 491; 71 S Ct 456; 95 L Ed 456
(1951). In a different context, this Court has stated:
Application of the Universal Camera standard will preserve scarce
judicial resources, enhance the role of this Court as an intermediate appellate
court, and discourage unnecessary appeals. . . . We therefore hold that when
reviewing a lower court's review of agency action this Court must determine
whether the lower court applied correct legal principles and whether it
misapprehended or grossly misapplied the substantial evidence test to the
agency's factual findings. This latter standard is indistinguishable from the
clearly erroneous standard of review that has been widely adopted in Michigan
jurisprudence. As defined in numerous other contests, a finding is clearly
erroneous when, on review of the whole record, this Court is left with the
definite and firm conviction that a mistake has been made. [Boyd v Civil
Service Comm, 220 Mich App 226, 234-235; 559 NW2d 342 (1996).]
See also Kovach, supra at 111, in which this Court stated that it must "determine
that the WCAC did not grossly misapply the substantial evidence standard and that the
WCAC gave an adequate reason, grounded in the record, for reversing the decision of the
magistrate."
7 In Goff, supra at 528, n, 16, the Michigan Supreme
Court categorized this Court's analysis in York as "correct."
8 See, e.g., Palmer v ITT Hancock, 189 Mich App
509, 515; 474 NW2d 136 (1991); Holden v Ford Motor Co, 185 Mich App 305,
321; 460 NW2d 316 (1990), rev'd 439 Mich 257; 484 NW2d 227 (1992).
9 See, e.g., Weiss v Jewish Home for the Aged, 185
Mich App 687, 705-708; 462 NW2d 821 (1990), aff'd 439 Mich 357; 484 NW2d 227
(1992).
10 The WCAC quoted the following excerpt from Dr. Cisek's
testimony:
Q. Doctor, your report also contains an opinion regarding your
apportionment of her condition between the injury of November 2nd, 1989 and
a second occurrence of September 4th of 1990. Can you describe what your
opinion is in that regard.
A. Yes, I did not feel that there was any permanent – permanency
associated with the accident of 9/4/90, I felt that the particular accident
represented an aggravation of her preexisting condition, which occurred as a
result of the November, 1989 accident, namely the rupture of the anterior
cruciating ligament and aggravation of patella chondromalacia.
The WCAC also quoted the following excerpt from Dr. Coss's testimony:
Q. Dr., relating – or getting to the injury that occurred in New York and the dates prior to that, you last saw this lady, I believe, on August 8th of
1990 prior to her going to work in New York, is that correct?
A. Yes.
Q. Her condition was different, was it not, than when you saw her on 9/13
of 1990, is that correct?
A. It was certainly subjectively different.
Q. She was complaining of many more things than she was on 8/8 of
1990, is that right?
A. Yes, sir.
Q. What was she complaining of on 9/13 that she was not complaining
about on 8/8?
A. She was complaining of pain.
Q. Where was the pain?
A. In the knee.
Q. Was she complaining that she could not do the activities that she could
on 8/8 of 1990?
A. Yes.
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