Opinion
Docket No. 125519.
Decided June 4, 1991, at 9:15 A.M. Leave to appeal sought.
Crawforth, McManus, Tenbrunsel Ulrich, P.C. (by John M.H. Ulrich, IV), for James L. Siders.
Plunkett Cooney, P.C. (by Paul F. Paternoster), for Gilco, Inc., and Maryland Casualty Insurance Company.
Conklin, Benham, Ducey, Listman Chuhran, P.C. (by Martin L. Critchell), for Pinkerton's Security and Crawford Company.
Before: McDONALD, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ.
Defendants appeal by leave granted from a December 29, 1989, opinion and order of the Workers' Compensation Appeal Board reversing the decision of a referee that denied plaintiff a closed benefit award and granting plaintiff an open benefit award. We affirm in part and reverse in part.
Plaintiff suffered from severe, congenital scoliosis. In late 1979, plaintiff's treating orthopedic surgeon inserted a seventeen-inch rod to straighten plaintiff's spine, and placed him in a back cast which he wore for almost a year.
Before his surgery, plaintiff experienced significant pain, which he attributed to his employment. Plaintiff's pain would intensify when he worked, and subside when he rested. The appeal board found plaintiff's employment increased the symptoms resulting from his nonwork-related congenital condition, and thus found him entitled to a closed award of benefits for the period during which his symptoms increased. Plaintiff was awarded a closed benefit award from October 24, 1979, until October 17, 1980, at which time he was released to return to restricted work.
However, the appeal board's opinion indicates the work restrictions were attributable to the surgery and underlying congenital condition and not to any work-related symptoms that had increased plaintiff's pain before the surgery.
In January 1981, plaintiff was involved in an automobile accident which did not engender any pathological changes with respect to the scoliosis but did cause a recurrence of his symptoms of pain. Relying on Powell v Casco Nelmor Corp, 406 Mich. 332; 279 N.W.2d 769 (1979), and Schaefer v Williamston Community Schools, 117 Mich. App. 26; 323 N.W.2d 577 (1982), the appeal board found plaintiff entitled to an open award from the date of his accident, because he was not negligent in causing the accident and because such independent, intervening events which follow a personal injury arising out of and in the course of employment do not justify denial, suspension, or reduction of benefits.
The board awarded plaintiff benefits for the closed period at the rate of $171 a week, and for the open portion of the award at the rate of $183.36 a week.
On appeal, the parties agree plaintiff's benefits for the closed period were incorrectly calculated at $171 a week and should have been $156 a week. This agreement should be given effect on remand.
Our review reveals sufficient evidence on the record to support the WCAB'S closed benefit award to plaintiff. Flint v General Motors, 184 Mich. App. 340; 457 N.W.2d 157 (1990). A closed benefit award is not only permitted, but is the only type available where an employee's symptoms, rather than the underlying condition, are aggravated by his employment. Thomas v Chrysler Corp, 164 Mich. App. 549; 418 N.W.2d 96 (1987); Carter v General Motors Corp, 361 Mich. 577; 106 N.W.2d 105 (1960). However, we do find improper the WCAB'S later open benefit award to plaintiff. Having concluded that plaintiff was entitled to a closed award during the period of exacerbation of his symptoms commencing October 24, 1979, and ending October 17, 1980, the board in effect had to find that plaintiff's disability, the exacerbation of the symptoms, ended on the last date of the closed award. Plaintiff's disability status having ended on October 17, 1980, remained unchanged prior to plaintiff's January 1981 unrelated automobile accident. Plaintiff's surgery was completed and he had not returned to work. The WCAB in awarding plaintiff open benefits inappropriately relied on case law setting forth the principle that an independent, intervening event following a personal injury arising out of and in the course of employment alone does not justify the denial, suspension, or reduction, of disability benefits for a continuing work-related injury. See Powell and Schaefer, supra. Here plaintiff did not suffer from a "continuing work-related injury." Plaintiff's compensable disability ended on the date his closed award ended. We find no legal support for the WCAB'S proposition that "therefore plaintiff is entitled to benefits on account of the intervening injury." Although case law illustrates an intervening event cannot alone justify the discontinuation or reduction of current benefits, it does not support a finding that an unrelated intervening event itself can create a compensable disability.
Affirmed in part, reversed in part, and remanded.