Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 30, 2003
E. WAYNE RAKESTRAW,
Plaintiff-Appellee,
v No. 120996
GENERAL DYNAMICS LAND SYSTEMS, INC.
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
YOUNG, J.
Plaintiff sought, and the magistrate awarded, benefits
under the Worker's Disability Compensation Act, MCL 418.301
et seq., on the basis of aggravation of the symptoms of a
nonwork-related condition. We hold that a claimant attempting
to establish a compensable, work-related1 injury must prove
that the injury is medically distinguishable from a
1
As used in this opinion, a compensable, work-related
injury is one that arises “out of and in the course of
employment” in accordance with MCL 418.301(1).
preexisting nonwork-related condition in order to establish
the existence of a “personal injury” under § 301(1).
Accordingly, we remand this case to the Worker’s Compensation
Appellate Commission for further proceedings consistent with
this opinion.
FACTS AND PROCEDURAL HISTORY
The facts in this case are not contested. At the time
plaintiff began working for defendant in 1996, he had a
preexisting neck condition that was asymptomatic.2 According
to plaintiff, his work for defendant caused his neck pain to
return and increase.
The magistrate awarded plaintiff benefits for the
aggravation of his symptoms. Of special note, the magistrate
held that plaintiff suffered from “post surgical changes” of
the cervical spine, but that these “conditions were not caused
by his employment with [d]efendant.” Furthermore, the
magistrate held that the employment did not contribute to or
aggravate the preexisting condition:
Mr. Rakestraw’s pathological postsurgical
changes and spondylosis of the cervical spine were
not contributed to, aggravated or accelerated in a
significant manner as a result of his work
activities. The medical proofs would not sustain a
finding of a change in pathology related to any
work injury or work activities. [Emphasis added.]
2
Plaintiff suffered from a herniated cervical disk that
required surgeries in December 1991 and April 1992.
2
However, the magistrate held that plaintiff’s employment
3
aggravated the symptoms of the preexisting neck condition.
The magistrate determined that plaintiff was partially
disabled as a result of the aggravated symptoms and granted an
open award of benefits. The WCAC reluctantly affirmed on the
basis of Court of Appeals authority. However, the WCAC
suggested that the Court of Appeals case law, which the WCAC
was required to follow, did not properly follow this Court’s
precedent. The Court of Appeals denied leave to appeal.
Defendant sought leave to appeal with this Court, which was
granted.
I. STANDARD OF REVIEW
This Court's review of a decision by the WCAC is limited.
In the absence of fraud, we must consider the WCAC ’S findings
of fact conclusive if there is any competent evidence in the
record to support them. MCL 418.861a(14); Mudel v Great
Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607
(2000). However, questions of law in a worker's compensation
case are reviewed de novo. DiBenedetto v West Shore Hosp, 461
3
Justice WEAVER relies on the magistrate’s commentary
regarding plaintiff’s symptoms, not on the magistrate’s
finding that the employment did not cause, contribute to, or
aggravate the preexisting condition. Post at 2. In so doing,
the dissent makes the same legal error as the magistrate in
failing to recognize that symptoms that are not causally
linked to a work-related injury are not compensable as a
matter of law.
3
Mich 394, 401-402; 605 NW2d 300 (2000); MCL 418.861,
418.861a(14). Likewise, questions requiring statutory
interpretation are questions of law that are reviewed de novo.
Frank W Lynch Co v Flex Technologies, Inc, 463 Mich 578, 583;
624 NW2d 180 (2001); People v Rodriguez, 463 Mich 466, 471;
620 NW2d 13 (2000).
In interpreting a statute, our obligation is to discern
the legislative intent that may reasonably be inferred from
the words actually used in the statute. White v Ann Arbor,
406 Mich 554, 562 281 NW2d 283 (1979). A bedrock principle of
statutory construction is that "a clear and unambiguous
statute leaves no room for judicial construction or
interpretation." Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d
435 (1993). When the statutory language is unambiguous, the
proper role of the judiciary is to simply apply the terms of
the statute to the facts of a particular case. Turner v Auto
Club Ins Ass'n, 448 Mich 22, 27; 528 NW2d 681 (1995). In
addition, words used by the Legislature must be given their
common, ordinary meaning. MCL 8.3a.
II. ANALYSIS
A
MCL 418.301(1) states in pertinent part:
An employee, who receives a personal injury
arising out of and in the course of employment by
an employer who is subject to this act at the time
of the injury, shall be paid compensation as
4
provided in this act. . . .[Emphasis added.]
Under the clear and unambiguous language of the statute,
an employee must establish that he has suffered “a personal
injury arising out of and in the course of employment” in
order to be eligible for compensation benefits.
B
Defendant maintains that the magistrate erred in awarding
benefits because the pain plaintiff suffered was not a
“personal injury” under the act.
On several occasions, this Court has held that symptoms
such as pain, standing alone, do not establish a personal
injury under the statute. Rather, a claimant must also
establish that the symptom complained of is causally linked to
an injury that arises “out of and in the course of employment”
in order to be compensable.4
The difference between a “personal injury” under § 301(1)
and symptoms of a preexisting injury or illness that do not
constitute a compensable injury was explored in Kostamo v
Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979).
4
See Kostamo v Marquette Iron Mining Co, 405 Mich 105,
116-118; 274 NW2d 411 (1979); Miklik v Michigan Special
Machine Co, 415 Mich 364; 329 NW2d 713 (1982); Farrington v
Total Petroleum, Inc, 442 Mich 201; 501 NW2d 76 (1993);
McKissack v Comprehensive Health Services of Detroit, 447 Mich
57; 523 NW2d 444 (1994). See also Hagopian v Highland Park,
313 Mich 608, 621; 22 NW2d 116 (1946) (“The amended act itself
was not intended to cover aggravation of pre-existing disease
without an accident or fortuitous event.”).
5
Kostamo was a consolidation of cases in which the five
plaintiffs either suffered a heart attack or experienced chest
pain and sought compensation. Regarding plaintiffs Fiszer and
Hannula, the board determined that they had not suffered heart
attacks. Rather, these plaintiffs were determined to suffer
chest pain as a result of nonwork-related arteriosclerosis.
In finding compensation unavailable to them, the Kostamo Court
stated:
The workers’ compensation law does not provide
compensation for a person afflicted by an illness
or disease not caused or aggravated by his work or
working conditions. Nor is a different result
required because debility has progressed to the
point where the worker cannot work without pain or
injury. Accordingly, compensation cannot be
awarded because the worker may suffer heart damage
which would be work-related if he continued to
work. Unless the work has accelerated or
aggravated the illness, disease or deterioration
and, thus, contributed to it, or the work, coupled
with the illness, disease or deterioration, in fact
causes an injury, compensation is not payable. [Id.
at 116.5]
In Miklik v Michigan Special Machine Co, 415 Mich 364;
329 NW2d 713 (1982), the plaintiff suffered from many
preexisting conditions, including rheumatic heart disease,
5
Kostamo was decided before the 1980 amendment of the
statute. 1980 PA 357 added MCL 418.301(2), which imposes a
higher standard of contribution where an employee suffers a
certain class of injury. Where an employee’s injury
aggravates or accelerates a mental disability or a condition
of the aging process, the employee after 1982 must show that
the employment contributed to the nonwork-related condition
“in a significant manner.”
6
diabetes, obesity, hypertension, and liver damage. He applied
for compensation benefits, claiming that the stress of his job
caused hypertension and aggravated and accelerated his
arteriosclerosis and rheumatic heart disease. He was
determined to be totally disabled. Initially, this Court
noted that a successful claimant must “establish by a
preponderance of the evidence both a personal injury and a
relationship between the injury and the workplace.” Id. at
367. Turning to the merits of the case, this Court held that
arteriosclerosis, standing alone, was insufficient to
establish a compensable injury:
However, even though arteriosclerosis alone
does not justify compensation, neither does it bar
compensation. Heart damage, such as would result
from a heart attack, is compensable if linked by
sufficient evidence to the workplace. . . .
The WCAB, upon remand, accepted medical
testimony that Miklik's health problems were job
related, and then found them to be compensable. The
board failed to follow Kostamo's direction that in
order for there to be compensation there first must
be an injury. It is impossible to turn
arteriosclerosis into compensable heart damage
merely by labeling it so. The board's opinion,
worded in conclusory terms, ignored this premise of
Kostamo. Testimony, at most, showed the
progressive effects of arteriosclerosis, not
separate heart damage. [Id. at 368-369 (emphasis
added).]
In Farrington v Total Petroleum, Inc, 442 Mich 201; 501
NW2d 76 (1993), this Court reviewed the 1980 legislative
amendments that added the “significant manner” test to
7
recovery of benefits for mental disabilities and conditions of
the aging process. The Court cited the Kostamo holding,
stating that a claimant must prove “[t]hat the alleged cardiac
injury resulting from work activities went beyond the
manifestation of symptoms of the underlying disease. The
heart injury must be significantly caused or aggravated by
employment considering the totality of all the occupational
factors and the claimant’s health circumstances and
nonoccupational factors.” Id. at 216-217 (emphasis added).
Thus, several cases from this Court have articulated the
principle that, where an employee claims to have suffered an
injury whose symptoms are consistent with a preexisting
condition, the claimant must establish the existence of a
work-related injury that extends “beyond the manifestation of
symptoms” of the underlying preexisting condition. Id. at 216.
C
Despite the holdings in Kostamo, Miklik, and Farrington,
plaintiff cites a body of case law developed in the Court of
Appeals holding that aggravation of the symptoms of a
preexisting condition alone constitutes a compensable injury
under § 301(1).6 The rationale of this line of Court of
6
Johnson v DePree Co, 134 Mich App 709; 352 NW2d 303
(1984); Thomas v Chrysler Corp, 164 Mich App 549; 418 NW2d 96
(1987); McDonald v Meijer, Inc, 188 Mich App 210; 469 NW2d 27
(1991); Anderson v Chrysler Corp, 189 Mich App 325; 471 NW2d
623 (1991); Siders v Gilco, Inc, 189 Mich App 670; 473 NW2d
8
Appeals cases appears to emanate from Carter v Gen Motors
Corp, 361 Mich 577; 106 NW2d 105 (1960).
In Carter, the plaintiff had a personality disorder that
made him more susceptible to psychotic breakdowns. His
condition worsened to paranoid schizophrenia because of the
stresses of his employment. He was awarded benefits. This
Court found that his benefits should have stopped on September
11, 1957, because the plaintiff stopped showing signs of
schizophrenia on that date. The principal issue decided in
Carter was whether there had to be a single incident causing
the breakdown in order for benefits to be awarded. This Court
held that there did not have to be a single traumatizing event
in order for benefits to be awarded.
Carter should not be read to support the holding that
mere symptom aggravation, without a change in pathology,
constitutes a “personal injury” under § 301(1).7 In closing
the award of benefits, the Carter Court noted that if the
802 (1991); Laury v Gen Motors Corp (On Remand, On Rehearing),
207 Mich App 249; 523 NW2d 633 (1994); Mattison v Pontiac
Osteopathic Hosp, 242 Mich App 664; 620 NW2d 313 (2000).
7
Carter was also cited in Deziel v Difco Laboratories,
Inc, 403 Mich 1; 268 NW2d 1 (1978), in support of Deziel’s
holding that a subjective standard was appropriate in
psychiatric cases to determine whether the injury arose out of
and in the course of employment. However, the holding in
Deziel was repudiated by the Legislature when it amended the
act in 1980. Hurd v Ford Motor Co, 423 Mich 531, 534; 377
NW2d 300 (1985); Farrington, supra at 216 n 16; Robertson v
DaimlerChrysler Corp, 465 Mich 732; 641 NW2d 567 (2002).
9
plaintiff’s inability to return to work was attributable to
schizophrenia, he would be entitled to continuing benefits.
However, because his inability to return to work was
attributable to a nonwork-related “personality configuration,”
the plaintiff was not entitled to continuing benefits. Id. at
594. Thus, the plaintiff’s work-related schizophrenia, caused
by “the pressure of his job and the pressure of his foreman,”
id., was a distinct injury from the preexisting personality
disorder. The first case citing Carter for the principle that
mere symptoms were sufficient to constitute a personal injury
was promptly reversed by this Court. Fox v Detroit Plastic
Molding Corporate Service, 106 Mich App 749; 308 NW2d 633
(1981); rev’d 417 Mich 901 (1983).
Holding that the aggravation of symptoms of a preexisting
condition is compensable without finding a work-related injury
under § 301(1) is clearly inconsistent with the clear language
of the statute as well as case law from this Court. The
statute requires proof that an employee suffered a personal
injury “arising out of and in the course of employment” in
order to establish entitlement to benefits. To the degree
that the Court of Appeals decisions in Johnson v DePree Co,
134 Mich App 709; 352 NW2d 303 (1984); Thomas v Chrysler
Corp, 164 Mich App 549; 418 NW2d 96 (1987); McDonald v Meijer,
Inc, 188 Mich App 210; 469 NW2d 27 (1991); Anderson v Chrysler
10
Corp, 189 Mich App 325; 471 NW2d 623 (1991); Siders v Gilco,
Inc, 189 Mich App 670; 473 NW2d 802 (1991); Laury v Gen Motors
Corp (On Remand, On Rehearing), 207 Mich App 249; 523 NW2d 633
(1994); Mattison v Pontiac Osteopathic Hosp, 242 Mich App 664;
620 NW2d 313 (2000), hold otherwise, they are overruled.
D
We reaffirm today that an employee must establish the
existence of a work-related injury by a preponderance of the
evidence in order to establish entitlement to benefits under
§ 301(1).8 A symptom such as pain is evidence of injury, but
does not, standing alone, conclusively establish the
statutorily required causal connection to the workplace. In
other words, evidence of a symptom is insufficient to
establish a personal injury “arising out of and in the course
of employment.”9
The text of the statute does not specifically demand that
a claimant prove that his injury is “medically
distinguishable” from a preexisting condition. However, the
clear language of the statute does require the establishment
of “a personal injury arising out of and in the course of
8
“Injury” is defined as “harm or damage done or
sustained, especially bodily harm . . . .” Random House
Webster’s College Dictionary (2001).
9
“Symptom” is defined as “a sign or indication of
something.” Random House Webster’s College Dictionary (2001).
11
employment.” Where a claimant experiences symptoms that are
consistent with the progression of a preexisting condition,
the burden rests on the claimant to differentiate between the
preexisting condition, which is not compensable, and the work
related injury, which is compensable.10 Where evidence of a
medically distinguishable injury is offered, the
differentiation is easily made and causation is established.
However, where the symptoms complained of are equally
attributable to the progression of a preexisting condition or
a work-related injury, a plaintiff will fail to meet his
burden of proving by a preponderance of the evidence that the
injury arose “out of and in the course of employment”; stated
otherwise, plaintiff will have failed to establish causation.
Therefore, as a practical consideration, a claimant must prove
that the injury claimed is distinct from the preexisting
condition in order to establish “a personal injury arising out
of and in the course of employment” under § 301(1).
III. RESPONSE TO THE DISSENTS
Justice WEAVER maintains that compensation is available
“where the plaintiff’s disability is the result of symptoms
that occur at work.” Post at 2 n 3. Justice KELLY would
10
An employee bears the burden of proving the
relationship between the injury and the workplace by a
preponderance of the evidence. Aquilina v Gen Motors Corp,
403 Mich 206, 211; 267 NW2d 923 (1978).
12
apparently agree.
Such a view is remarkable, representing a radical
departure from the text of the statute, as well as the basic
proposition, consistent throughout the history of the WDCA ,
that a claimant must establish a work-related injury as a
necessary precondition to obtain benefits.11 Under the
11
Justice KELLY accurately quotes the holding of the
McKissack Court, which relied on the holding in Kostamo—that
“worker’s compensation benefits may not be awarded simply
because a worker is unable by reason of pain to continue with
the work if the cause of the pain is illness or disease not
caused or aggravated by the work or working conditions.” Post
at 2 n 1.
However, we disagree with Justice KELLY ’S conclusion that
the McKissack quotation does not differentiate between a
symptom and an injury. As the language in McKissack
indicates, there is a distinction between “pain,” which is a
symptom, and the “cause of the pain,” which is an injury,
“illness or disease.”
In McKissack, a work-related injury was found by the WCAB .
447 Mich 60, 62. In this case, the irrefutable truth is that
neither dissenting opinion is able point to any holding that
the “cause of [plaintiff’s] pain” was “illness or disease . .
. caused or aggravated by the work or working conditions.” In
fact, the magistrate specifically held that the workplace did
not cause or aggravate the preexisting injury. Post at 2.
Rather, plaintiff’s disability was premised on aggravated
symptoms, without a finding of a work-related injury.
Justice KELLY would apparently excuse plaintiff from
having to establish a work-related injury because “[s]imilar
to the tip of an iceberg,” pain is frequently “the only
symptom showing that an injury was sustained,” while the
etiology of the pain “remains submerged.” Post at 3.
The clear language of the statute requires that a
claimant prove the existence of an injury “arising out of and
in the course of employment.” Simply put, a claimant must
prove the presence of an injury as well as its cause to
13
dissents’ analyses, a claimant would not be required to
establish the existence of a work-related injury. Rather, a
symptom of a condition that does not arise out of and in the
course of employment, but that fortuitously manifests itself
during the work day, would be compensable. However, no matter
how diligently the dissents attempt to parse the statute, the
statute clearly requires the establishment of a work-related
injury, not a symptom that simply occurs in the workplace.
MCL 418.301(1).
The dissents justify this unusual conclusion with little
more than invocation of the doctrine that WDCA matters are to
be construed liberally because the statute is remedial in
nature. Whatever the efficacy of this rule of construction,
its application is logically justifiable only where the
employer’s responsibility is established: where the employee
proves the injury is work-related.12 We believe it is
establish a compensable claim. It is the responsibility of
the Legislature, not this Court, to alter the language of the
statute and relieve a plaintiff’s evidentiary burden in those
cases where the pathological basis of the symptom is difficult
to ascertain.
12
Once an employee has established the existence of an
injury that arises out of and in the course of employment, the
“liberal construction” standard could arguably be applicable
in determining, for example, the extent of the employee’s
injuries or his ability to return to work after
rehabilitation. Yet we note that the Legislature has
instructed that the “liberal construction” standard be
utilized on only one occasion in the entire WDCA . See MCL
418.354(17). Further, conventional rules of statutory
14
inappropriate to utilize the “liberal construction” standard
when the issue being considered is the initial qualifying
matter of whether the claimed injury falls within the WDCA
regime. That decision, nearly jurisdictional in nature, is
not to be tilted for or against either party as it is made
solely for the purpose of determining whether the worker’s
compensation system will entertain the claim. Accordingly, we
conclude that this approach to interpretation of the statute
is inapplicable, and the resulting construction flawed.
IV. CONCLUSION
In this case, we hold that a claimant attempting to
establish a compensable work-related injury must adduce
evidence of the injury that is medically distinguishable from
the preexisting nonwork-related condition in order establish
the existence of a “personal injury” by a preponderance of the
evidence under § 301(1). We remand this case to the WCAC for
further proceedings consistent with this opinion.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
construction are employed to resolve ambiguities, not negate
the import of clear statutory requirements. Klapp v United
Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003). The
dissents identify no ambiguity at issue in this case. In any
event, we do not address this question, as it is not before us
in this case.
15
S T A T E O F M I C H I G A N
SUPREME COURT
E. WAYNE RAKESTRAW,
Plaintiff-Appellee,
v No. 120996
GENERAL DYNAMICS LAND SYSTEMS, INC.
Defendant-Appellant.
____________________________________
WEAVER, J. (dissenting).
I respectfully dissent from the majority’s holding that
a claimant who alleges that he has suffered a work-related
injury because of the aggravation of his symptoms “must prove
that the injury is medically distinguishable from a
preexisting nonwork-related condition . . . .” Ante at 1
(emphasis added). The majority’s holding reads into the
statute a new test that the text of the statute does not
require.1
The question whether an aggravation of symptoms
constitutes a work-related injury is a difficult
determination. The Worker’s Disability Compensation Act
1
MCL 418.301 requires “a personal injury arising out of
and in the course of employment . . . .”
(WDCA) is a remedial statute that should be construed
liberally to grant benefits rather than deny benefits. Bower
v Whitehall Leather Co, 412 Mich 172, 191; 312 NW2d 640
(1981); DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605
NW2d 300 (2000).2 Therefore, construing the statute
liberally, as our case law directs us to do, I would hold that
an aggravation of symptoms may constitute a work-related
injury that is compensable under the WDCA. In so concluding,
I find persuasive the well-reasoned analysis of Mattison v
Pontiac Osteopathic Hosp, 242 Mich App 664, 672; 620 NW2d 313
(2000), which the majority overrules.3 Mattison, at 672,
stated:
Awarding benefits on the basis of the
aggravation of symptoms alone accords with policy
underlying the [Worker’s Disability Compensation
Act]. The objective of the WDCA is to compensate a
claimant for the loss of an earning capacity caused
by a work-related injury. Kuty v DAIIE, 140 Mich
App 310, 313; 364 NW2d 315 (1985). Even when a
preexisting condition was not caused or aggravated
by employment, if an employee is unable to work
2
I note that Justice Markman’s majority opinion in
DiBenedetto was joined by all the justices who comprise the
majority in this case. If the majority now disagrees with
this analysis, perhaps it should act to overrule DiBenedetto
and all the cases that have so held.
3
Although at one time on the Court of Appeals I was
inclined to hold that there is no compensation where the
plaintiff’s disability is the result of symptoms that occur at
work, (see Laury v Gen Motors Corp [On Remand, On Rehearing],
207 Mich App 249, 251; 523 NW2d 633 [1994]), upon further
consideration of this issue, I have decided that I agree with
Mattison.
2
because work-related events have aggravated the
symptoms of the condition to the point of
disability, the employer should be liable for wage
loss benefits until the symptoms subside to their
preexisting level. See McDonald [ v Meijer, 188
Mich App 210, 215-216; 469 NW2d 27 (1991).] But
for the employee’s work for the employer, the
employee would not be disabled. It is therefore
appropriate to hold the employer liable for payment
of benefits during what is usually a limited
period. On the other hand, because the employment
did not cause or aggravate the underlying
condition, the employer should not be liable
indefinitely, but only until the symptoms return to
their preaggravated condition. Id.
In the present case, the magistrate specifically found
that plaintiff’s cervical symptoms were aggravated by his work
activities and that he was disabled as a result of those
symptoms.4 The magistrate’s decision stated in pertinent
part, “The Plaintiff has established, by a preponderance of
the proofs, that he suffered a symptomatic aggravation of his
cervical spondylosis and postsurgical cervical changes.”
(Emphasis added.) The magistrate also stated:
I find Mr. Rakestraw’s already altered
cervical spine, the postsurgical changes, as well
as his cervical spondylosis, were symptomatically
made worse by his work activities. More
specifically, I find that his work activities,
through his last day of work, significantly
4
Unable to dispute the magistrate’s findings, the
majority instead attempts to mischaracterize these findings as
mere “commentary regarding plaintiff’s symptoms.” Ante at 3
n 3. One should not be persuaded by this obfuscation, which
improperly diminishes the role of the magistrate in worker’s
compensation cases. In considering the case, the WCAC
correctly recognized that these statements are appropriately
considered as findings of the magistrate.
3
contributed to, accelerated or aggravated his
cervical symptoms. That aggravation of his
symptoms has not abated. He remains disabled as a
result of those symptoms. [Emphasis added.5]
Applying the reasoning of Mattison, the aggravation of
the plaintiff’s symptoms in this case is an injury arising out
of and in the course of employment, and, thus, plaintiff is
entitled to worker’s compensation benefits for the aggravation
of his symptoms until such time as his symptoms return to
their preaggravated condition.
The majority asserts that this analysis disregards the
requirement of a work-related injury and permits a claimant to
recover for a “symptom that simply occurs in the workplace.”
Ante at 14. Such an assertion is unfounded. As I have
emphasized, the magistrate found that the plaintiff’s symptoms
in this case were aggravated by work. Thus, they cannot
properly be considered symptoms that fortuitously manifested
5
In its decision affirming the magistrate’s award, the
WCAC noted that defendant did not challenge the basic factual
findings of the magistrate.
Pursuant to MCL 418.861a(3), “[t]he WCAC treats the
magistrate’s findings of fact as conclusive ‘if supported by
competent, material, and substantial evidence on the whole
record.’” Mudel v Great Atlantic & Pacific Tea Co, 462 Mich
691, Appendix 732; 614 NW2d 607 (2000).
The reviewing court treats the findings of fact made by
the WCAC as conclusive in the absence of fraud. Id. “If
there is any evidence supporting the WCAC’s factual findings,
the [reviewing court] must treat those findings as
conclusive.” Id. Questions of law are reviewed de novo. Id.
4
themselves during the workday; instead, they are causally
linked to plaintiff’s work.
For these reasons, I would remand this case to the
magistrate for proceedings consistent with this reasoning.
Elizabeth A. Weaver
Michael F. Cavanagh
Marilyn Kelly
5
S T A T E O F M I C H I G A N
SUPREME COURT
E. WAYNE RAKESTRAW,
Plaintiff-Appellee,
v No. 120996
GENERAL DYNAMICS LAND SYSTEMS, Inc.,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I join Justice Weaver in her dissent and write separately
to comment on several aspects of the majority opinion.
I. THE MAJORITY'S UNSUPPORTED EXTENSION OF PAST CASE LAW
The majority concludes:
On several occasions, this Court has held that
symptoms such as pain, standing alone, do not
establish a personal injury under the statute.
Rather, a claimant must also establish that the
symptom complained of is causally linked to an
injury that arises "out of and in the course of
employment" in order to be compensable.4
___________________________________________________
4
See Kostamo v Marquette Iron Mining Co, 405
Mich 105, 116-118; 274 NW2d 411 (1979); Miklik v
Michigan Special Machine Co, 415 Mich 364; 329 NW2d
713 (1982); Farrington v Total Petroleum, Inc, 442
Mich 201; 501 NW2d 76 (1993); McKissack v
Comprehensive Health Services of Detroit, 447 Mich
57; 523 NW2d 444 (1994). See also Hagopian v
Highland Park, 313 Mich 608, 621; 22 NW2d 116
(1946) ("The amended act itself was not intended to
cover aggravation of pre-existing disease without
an accident or fortuitous event."). [Ante at 5-6.]
__________________________________________________
The cases cited for this proposition conclude that an
injury must be causally related to employment. Their focus is
on the causal connection between the pain and the preexisting
condition, not on whether pain alone could constitute an
injury absent a preexisting condition.1 None of them
explicitly holds that pain alone is insufficient to establish
an injury. Today, in its pronouncements on pain, the majority
1
For instance, the McKissack Court held:
Clearly there is a difference between pain
resulting from "illness or disease not caused or
aggravated" by the work or working conditions, and
pain resulting from a work-related injury. As
indicated in Kostamo, worker's compensation
benefits may not be awarded simply because a worker
is unable by reason of pain to continue with the
work if the cause of the pain is illness or disease
not caused or aggravated by the work or working
conditions. But contrariwise, if the WCAB finds
that pain is caused or aggravated by a work-related
injury, and the worker cannot by reason of pain
resulting from the injury continue to work, the
WCAB can find that the worker is disabled and award
benefits. [McKissack, supra at 67 (emphasis in
original).]
Thus, the Court focused on causation, not on the
difference between symptoms and injuries. Nowhere does the
Court state that pain alone cannot establish a personal
injury; instead, it concludes that pain not caused by a work
related injury is not compensable.
2
makes new law. It does not simply return the law to a prior
state.
When a physician evaluates a patient's condition,
frequently the only symptom showing that an injury was
sustained is a complaint of pain. Similar to the tip of an
iceberg, pain is the sole part exposed to view, while the
greatest part by far remains submerged. Using even the best
medical technology, that part may not be "medically
distinguishable from a preexisting condition." By discounting
pain and redefining "injury," the majority importantly alters
the previous definition of the word "injury" under the act and
eliminates many compensation-worthy claims.
Moreover, when carried to its logical conclusion, the
majority's definition of "personal injury" may adversely
affect employers, as well as employees, stripping employers of
some of the protections of the Worker's Disability
Compensation Act. This is because the act makes the recovery
of benefits the employee's exclusive remedy against an
employer for a personal injury.2 No "injury" means no WDCA
exclusivity. If an employee suffers harm at work, but is not
"injured" as the majority defines the word under the act, the
WDCA would cease to be the employee's exclusive remedy. MCL
2
The act also uses the term "personal injury" at MCL
418.301.
3
418.131. Hence, the employee could bring a tort action
against the employer for money damages. The employer would be
subjected to the expense and uncertainty of litigation, one of
the very eventualities that the WDCA was enacted to prevent.
Thus, the majority alters the long-established approach
to determining a compensable work-related injury. This
alteration is relevant to the very foundation of the
Legislature's intent in enacting the WDCA and risks upsetting
it.
II. LIBERAL CONSTRUCTION OF THE WDCA
It is also important to note the danger of the majority's
questioning and partial disavowal of the rule that the
Worker's Disability Compensation Act "should be construed
liberally to grant rather than deny benefits." The
pronouncement jeopardizes decisions that invoke the rule going
back over seventy years.3
3
See, e.g., Hagerman v Gencorp Automotive, 457 Mich 720,
739; 579 NW2d 347 (1998); Derr v Murphy Motor Freight Lines,
452 Mich 375, 388; 550 NW2d 759 (1996); Sobotka v Chrysler
Corp (After Remand), 447 Mich 1, 20 n 18; 523 NW2d 454 (1994);
(opinion by Boyle, J.) Paschke v Retool Industries, 445 Mich
502, 511; 519 NW2d 441 (1994); Bower v Whitehall Leather Co,
412 Mich 172, 191; 312 NW2d 640 (1981); Century Indemnity Co
v Schmick, 351 Mich 622, 626; 88 NW2d 622 (1958); Lindsey v
Loebel, 265 Mich 242, 245; 251 NW 338 (1933)(Weadock, J.,
concurring); McCaul v Modern Tile & Carpet, Inc, 248 Mich App
610, 619; 640 NW2d 589 (2001); James v Commercial Carriers,
Inc, 230 Mich App 533, 539; 583 NW2d 913 (1998); Tulppo v
Ontonagon Co, 207 Mich App 278, 283; 523 NW2d 883 (1994); Isom
v Limitorque Corp, 193 Mich App 518, 522-523; 484 NW2d 716
(continued...)
4
Michigan courts have always considered the WDCA and its
predecessors to be "remedial in nature." Hagerman v Gencorp
Automotive, 457 Mich 720, 739; 579 NW2d 347 (1998).
Ballentine's Law Dictionary defines a remedial statute as "[a]
statute to be construed liberally as one intended to reform or
extend existing rights . . . ." Ballentine's Law Dictionary
(3d ed). Accord 73 Am Jur 2d, Statutes, § 8, pp 234-235.
Initially, I note that the majority misconstrues the
dissents. It states that we would use liberal construction of
the WDCA to award compensation for injuries that do not arise
out of and in the course of employment. Ante at 15. This is
incorrect. The liberal construction rule simply means that if
an injury arises out of and in the course of employment,
courts should favor inclusion. The rule guards against the
rigid exclusion of claims that could go either way, and does
not provide for inclusion of claims to which the WDCA is
wholly inapplicable.
A. THE LIBERAL CONSTRUCTION RULE APPLIES TO WHETHER AN
INJURY IS WORK-RELATED
Next, I disagree with the majority that liberal
3
(...continued)
(1992); Andriacchi v Cleveland Cliffs Iron Co, 174 Mich App
600, 606; 436 NW2d 707 (1989); Gross v Great Atlantic &
Pacific Tea Co, 87 Mich App 448, 450; 274 NW2d 817 (1978);
Welch v Westran Corp, 45 Mich App 1, 5; 205 NW2d 828 (1973),
aff'd 395 Mich 169; 235 NW2d 545 (1975).
5
construction should be applicable only at a secondary stage of
the analysis. I believe that it is applicable also at the
"initial qualifying" stage when a determination is made
whether a claim is covered by the WDCA.
The majority asserts that the "work-related" question is
resolved at the initial stage, which it terms "nearly
jurisdictional." However, no mention of "work-related"
appears in MCL 418.131, the "nearly jurisdictional" provision.
MCL 418.131 delineates the ambit of the WDCA and provides
that "[t]he right to the recovery of benefits as provided in
this act shall be the employee's exclusive remedy against the
employer for a personal injury or occupational disease."
Therefore, jurisdiction is based on "personal injury" or
"occupational disease," not on whether an injury or disease is
"work-related."4
Whether an injury is work-related is resolved after the
4
Obviously, the personal injury must have some relation
to employment for the WDCA to apply. However, the majority's
"threshold" question, whether the injury is "medically
distinguishable" for purposes of determining whether it is "an
injury arising out of and in the course of employment," is not
implicated at the jurisdictional stage of the proceedings. If
the majority were to define "work-related" in a broad sense,
I might conclude that MCL 418.131 and MCL 418.301 were
coextensive. It is the majority's narrow construction of §
301 that leads me to rely on the differences in the two
provisions. The point, and, implicitly, the basis of my
entire disagreement with the majority, is that "work-related"
can, and should, be construed to include more than the
majority would allow.
6
jurisdictional stage, when the analysis has proceeded to the
point of determining whether the employee is entitled to
benefits. MCL 418.301 then becomes relevant. It provides
that "[a]n employee, who receives a personal injury arising
out of and in the course of employment by an employer who is
subject to this act at the time of the injury, shall be paid
compensation as provided in this act." Hence, the question
whether an injury is "work-related" is not a "jurisdictional"
question, but one directed at whether the injured employee is
entitled to benefits from the employer in question.
It is beyond dispute that our courts have consistently
used the liberal construction rule to decide the question of
entitlement to benefits. As the Bower Court stated:
The Worker's Disability Compensation Act was
designed to help relieve the social and economic
difficulties faced by injured workers. As remedial
legislation, it is liberally construed to grant
rather than deny benefits. Niekro v The Brick
Tavern, 66 Mich App 53; 238 NW2d 537 (1975). See
McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414
(1977). [Bower v Whitehall Leather Co, 412 Mich
172, 191; 312 NW2d 640 (1981)(emphasis added).]
Because the question whether an injury or disease is "work
related" is directly implicated in determining entitlement to
benefits, it follows that the question is susceptible to
liberal construction.5
5
The majority is unable to refer us to authority for the
proposition that the liberal construction rule should not be
(continued...)
7
B. APPLICATION OF THE RULE TO THE QUESTION OF WORK RELATION
IS LOGICALLY JUSTIFIABLE
The majority concludes that liberal construction is
"logically justifiable" only after it has first been
established that an injury is work-related. My disagreement
with the conclusion is based in part on the fact that the
application of liberal construction to whether an injury is
work-related comports with the Legislature's remedial goals.
Our courts have been relying on the liberal construction
principle since at least 1933.6 In 1994, Justice Brickley
provided an example of its proper application in his lead
opinion in Nederhood v Cadillac Malleable Iron Co, 445 Mich
234, 247; 518 NW2d 390 (1994):
In formulating our decision . . ., we must
also be mindful of the policies underlying the
Worker's Disability Compensation Act. MCL 418.101
et seq.; . . . As a preliminary matter, it must be
remembered that the act was designed to be remedial
and must not be unnecessarily construed so as to
favor a denial of benefits. . . .
* * *
It would seem that a permanent forfeiture of
benefits is not in accord with a liberal
construction of the Worker's Disability
Compensation Act.
5
(...continued)
applied to determine whether an injury is "work-related." Its
conclusion is based on its own analysis, not on precedent.
6
Lindsey v Loebel, supra.
8
The majority seems to indicate that it is improper for
the Court to consider legislatively derived public policy in
making its decisions. The inference is that Michigan courts
have been handing down improper decisions in this regard for
decades. I believe that is manifestly incorrect. Over the
years, we have consistently used policy-driven principles for
the purpose of interpreting the WDCA in line with the
Legislature's intent. The liberal interpretation rule is
foremost among them.7 This principle being so firmly
established, I see no reason to abandon it.
I also disagree with the majority's contention that
utilizing the liberal construction rule to determine "whether
the claimed injury falls within the WDCA regime" somehow
"tilt[s]" the scales in favor of the employee. Ante at 15.
Construing the statute to find that claims are within its
ambit should be in the interest of employers as well as
7
Nor do I find the fact that the Legislature has
referenced liberal construction only once in the WDCA should
discourage its use. The text of a statute often does not
indicate what construction is appropriate to it. For example,
the text of the governmental tort liability act (GTLA), MCL
691.1401 et seq., does not require a "narrow" interpretation
of its exceptions. Courts have determined that they are
construed narrowly. The majority has shown no difficulty
accepting this judicially constructed principle. The "narrow
construction" of the GTLA's exceptions resulted from judicial
examination of the intent surrounding the act. A similar
analysis was employed to find that the liberal construction
rule should be applied to the WDCA. Reardon v Dep't of Mental
Health, 430 Mich 398, 406-413; 424 NW2d 248 (1988).
9
employees; it prevents costly tort actions and provides
methods of encouraging employees who recover from injuries to
seek suitable employment. The majority treats the WDCA as a
boon to employees and a scourge to employers, but that is not
and never was intended to be the case.
Moreover, the majority implies that use of the liberal
construction rule would open the floodgates to increased
employer liability. However, the implication disregards the
fact that liberal construction of the WDCA, and not the
approach it announced today, is the established law. I do not
advocate a change in the law. On the contrary, I seek to
maintain the approach to interpretation of the WDCA that has
existed for the past seventy years. If the liberal
construction rule opens the floodgates, then they were opened
a very long time ago.
III. CONCLUSION
In my judgment, this decision implicates much more than
the majority is willing to admit. It will be viewed by many
in the area of worker's compensation law as a crippling blow
to the liberal construction rule. It will be cited for the
proposition that the rule cannot be applied in deciding
whether an alleged injury was work-related or even whether it
constitutes an injury at all.
No matter how the majority spins it, this decision shakes
10
the foundations of established worker's compensation
jurisprudence. Past case law does not establish that pain
alone is never sufficient to prove a personal injury, but the
majority so holds today. Michigan courts have historically
applied the liberal construction rule to the question whether
an injury is work-related, but today the majority holds this
illogical. All these conclusions are drawn not from precedent
and not from the WDCA itself. They come unmistakably from
this majority's conclusion that it knows better than the
jurists who have decided these cases for the last seventy
years.
The majority's decision represents a serious departure
from established law and a disavowal of established public
policy. These changes are seriously ill-conceived. I would
affirm the decisions of the Court of Appeals, the WCAC, and
the magistrate.
Marilyn Kelly
11