Iloyan v. General Motors Corp.

Cavanagh, J.

(dissenting). I respectfully dissent from the opinion of the majority that the recent amendment of the Workers’ Disability Compensation Act, MCL 418.301(2); MSA 17.237(301)(2), by 1980 PA 357, and this Court’s recent decision in Greenwood v Pontiac Bd of Ed, 186 Mich App 389; 465 NW2d 362 (1990), require us to reverse the award of benefits.

In Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1, 21; 268 NW2d 1 (1978), the Supreme Court addressed whether "the wcab identified and correctly applied the legal standard for establishing legal causation in workers’ compensation cases involving mental and nervous injuries.” The initial consideration concerned what causal nexus had to be established by a plaintiff who is admittedly disabled on account of some personal injury and claims that his employment combined with some internal weakness or disease to produce the disability. Deziel, supra at 25.

Our Supreme Court held "that in cases involving mental (including psychoneurotic or psychotic) injuries, once a plaintiff is found disabled and a personal injury is established, it is sufficient that a strictly subjective causal nexus be utilized ... to determine compensability.” Deziel, supra at 26 (emphasis in the original). A claimant would be entitled to compensation once it was established that the claimant "honestly perceive[d]” some personal injury incurred during the ordinary work of his employment caused his disability. Id. Consequently, once a claimant proved (1) a psychoneurotic or psychotic disablement and (2) a personal injury, it would only be logical to "employ a subjective standard in determining whether the claimant’s employment combined with some inter*604nal weakness or disease to produce the disability.” Deziel, supra at 30 (emphasis in the original).

According to the majority in this case, widespread dissatisfaction with the Deziel opinion led to the amendment of the Workers’ Disability Compensation Act to invalidate the subjective "honest perception” test for causation. In agreement are other members of this Court who have determined that, in amending the statute, "the Legislature intended to create a statutorily defined causation standard designed to eradicate potential problems with the 'honest perception’ test.” Greenwood, supra at 396; also see Bentley v Associated Spring Co, 133 Mich App 15, 20-21; 347 NW2d 784 (1984).

The statute now provides that a mental disability "shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.” MCL 418.301(2); MSA 17.237(301)(2). And now, according to the majority, the legal standard requires that a claimant prove (1) a disability, (2) the occurrence of an actual, precipitating, work-related physical trauma, event, or events, and not just an unfounded perception thereof, and (3) that the employment must have contributed to, aggravated, or accelerated the mental disability in a significant manner. It is my view that this standard is incorrect.

The majority has applied the amendatory language — "an unfounded perception thereof’ — to the second prong of the Deziel test, the requirement of a personal injury, when it is clear that the amendatory language was enacted to invalidate the "honest perception” causation standard, the third prong of the Deziel test. In similar fashion, the Greenwood opinion acknowledges that the amendatory language was obviously designed to invalidate the subjective causal nexus standard articulated in Deziel and then applies the unfounded *605perception language to the triggering event, the personal injury. Greenwood, supra at 396-397.

A claimant’s honest perception or characterization of the triggering event has never been the issue. Under the second prong of the Deziel test, which still remains intact, a claimant has to establish that some physical trauma, mental stimulus, or mental stimuli actually occurred. In the next step, under the statute as amended, a claimant then has to establish that the disability was caused by the actual events of employment, not the claimant’s unfounded perceptions thereof. The standard based on the plaintiffs honest, though mistaken, belief that the disability was caused by a physical or mental stimulus incurred during the ordinary work of his employment should no longer apply.

In the present case, the claimant established that he was disabled, that a personal injury occurred at work, and, through the use of medical experts, that his disablement was caused by his employment. Consequently, his honest belief that he was being harassed and that he was disabled because of a work-related injury should have no bearing on the outcome of this case. Furthermore, I do not consider the Greenwood opinion binding because in that case the wcab made no finding of actual harassment and based its award of compensation solely on the plaintiffs perception thereof. That is not the case here, where there is supporting evidence of harassment.

I would affirm the decision of the Workers’ Compensation Appeal Board.