Opinion
Docket No. 77-2628.
Decided July 18, 1978.
Rosenberg Vigiletti, P.C., for plaintiff.
Munroe Nobach, P.C. (by George H. Wyatt, III), for defendant.
Plaintiff appeals by leave from a June 10, 1977, order of the Workmen's Compensation Appeal Board affirming the decision of the referee denying compensation benefits. Plaintiff, on appeal, argues that the Workmen's Compensation Appeal Board did not adequately set forth the testimony it adopted, or the standard and reasoning it used in reaching its conclusion that plaintiff's obstructive lung disease did not arise out of or in the course of his employment. Plaintiff also contends that there was no evidence from which the Workmen's Compensation Appeal Board could conclude that plaintiff did not carry his burden of proof.
Plaintiff was employed by defendant as a carpenter from 1957 to 1970. He testified that the atmosphere he worked in was "very foul and a very hazy blue smoky condition". His work area was unventilated and battery fumes and engine exhaust permeated the area. For approximately ten hours a week, plaintiff repaired wooden floor blocks using tar. This tar emitted smoke and fumes. Plaintiff did not wear any protective mask.
Plaintiff developed severe breathing problems in 1970 which forced him to stop working. On his last day of work, plaintiff was diagnosed as having bronchitis, emphysema, well-controlled diabetes, arteriosclerosis and chronic obstructive lung disease. Only the obstructive lung disease is at issue.
The proper procedure for reviewing workmen's compensation decisions is set out in DeGeer v DeGeer Farm Equipment Co, 391 Mich. 96, 100; 214 N.W.2d 794 (1974),
"Our first step in reviewing a decision of the Workmen's Compensation Appeal Board is to separate its findings of fact from its understanding of the law controlling the case. If the Appeal Board correctly understood the law and determined as a matter of fact that appellant did not suffer permanent and total disability, we are bound by law to accept its decision in this case."
To make this review meaningful, it is necessary for the board to set out the testimony it adopted, the reasoning it followed, and the standard it applied in reaching its conclusion, Frammolino v Richmond Products Co, 79 Mich. App. 18; 260 N.W.2d 908 (1977). Although it would be desirable for the board to explicitly designate its findings, reasonings and standards as such, it is sufficient if a review of the record allows one to reasonably conclude from it what testimony, reasoning and standards were, in fact, used.
Even though the board does not explicitly state which testimony it is adopting, a review of the record sufficiently indicates this for the purpose of appellate review. It is apparent from their controlling opinion that the board was relying on the testimony of Dr. Harris that, in most cases, the origin and cause of obstructive lung disease is unknown and that he could not specify the origin of the disease in this particular case. The board also appears to have accepted the doctor's testimony that many things (such as smoke and fumes) can aggravate this disease and that the disease process will progress even in the absence of aggravating factors. The board's acceptance of this last evidence is also supported by their recital of the fact that plaintiff's disease continues to progress even though he has stopped work and moved to Arizona. Also, it appears from the board's opinion that they were relying on the fact that plaintiff had not mentioned his work environment as a possible source of his problems to the doctor before suit, as a factor which undermined his credibility.
However, the reasoning and standards that the board used in reaching its decision are unclear. The board does not give any indication of how it proceeded from the facts it accepted to the conclusion that "plaintiff did not receive a personal injury arising out of and in the course of his employment". The board merely recites the testimony and then, in the statutory language, states its ultimate conclusion.
If the structure or wording of the opinion gives one any clues as to what standard the board used, they indicate that it applied the wrong standard. The correct legal standard for this case is set out in Deziel v Difco Laboratories, Inc, 394 Mich. 466; 232 N.W.2d 146 (1975). If a claimant is disabled on account of his employment aggravating, accelerating, or combining with some internal weakness or disease, then he is entitled to compensation.
The opinion of the board does not show that it applied this standard. In fact, a reading of the opinion leads one to conclude that the board was applying the causal relation test which was overruled in Deziel, supra. Almost all the testimony referred to relates to the origin of the disease and its progressive nature. If the board did apply the "causal relation" standard, the case must be remanded for new findings. Contrary to defendant's contention, it makes no difference if the evidence could support the board's finding under the Deziel standard. The board was entrusted by the Legislature with the duty to assess the evidence under the proper standard and find the facts. That the board might have reached the same conclusion if it had applied the proper standard, does not mean that it necessarily would have. Similarly, while administrative considerations might require that an appellate court defer to the board's decision on these facts if it had applied the proper standard, these same considerations do not apply to the board when it decides the case. Thus, even though the facts found could support a decision under the proper standard, the proper procedure where the board does not indicate its standard is to remand so the board can consider the issue under the proper standard, Leskinen v Employment Security Comm, 398 Mich. 501; 247 N.W.2d 808 (1976), DeGeer, supra, Frammolino, supra, Lamb v John's Tavern, 37 Mich. App. 678; 195 N.W.2d 278 (1972). As the Court noted in DeGeer, supra, at 100-101:
"Unfortunately, the opinion of the Appeal Board has combined its findings of facts and legal conclusions in such a manner that the opinion may be fairly read to support either appellant's position that the Appeal Board denied benefits because it interpreted the law to limit recovery to factual situations in which the disability results from a direct injury to the legs, or appellees' position that no permanent and total loss of industrial use was factually established. Consequently, we must remand this case for further proceedings consonant with the remainder of today's opinion. * * *.
"`We cannot * * * review the findings of the board as a question of law if * * * it has done nothing more than to present us with a conclusory finding in the form of the statutory language. We need to know the path the board has taken through the conflicting evidence. The appeal board should indicate the testimony adopted, the standard followed, and the reasoning it used in reaching its conclusion.'"
This quotation is particularly applicable to the instant case in which the board simply stated its conclusion in one sentence quoting the statutory language, Leskinen, supra. There is no indication of what standard it applied.
Accordingly, we remand this case to the Workmen's Compensation Appeal Board with directions that it make findings of fact and conclusions of law determining whether plaintiff suffered a legal injury arising out of or aggravated or accelerated by his employment and that the board assign a factual and legal basis for its conclusions.
We do not retain jurisdiction.