Adcox v. Northville Laboratories, Inc.

T. G-. Kavanagh,

(dissenting). The medical testimony before the appeal board, set out in my Brothers’ opinion, will support only one conclusion: the disability from aseptic necrosis is a further and subsequent development entitling plaintiff to compensation. The 1-year rule should not be applied to deny plaintiff’s claim for benefits from August, 1962, to September, 1964.

In Loucks v. Bauman (1959), 356 Mich 514 (although it was held that the 1-year rule applied because the plaintiff was seeking further compensation for a “disability existing from the date of injury”), the term “further development” was defined as “a *19disability which did not exist when compensation was allowed” initially. 356 Mich 517. See also Morgan v. Lloyds Builders, Inc. (1955), 344 Mich 524.

In the case at bar the conclusion is inescapable that the aseptic necrosis started its pathological development with the trauma, but did not become a disabling condition until August, 1962. It is the date that the condition becomes disabling, rather than when the pathological development begins, that determines eligibility for compensation. The 1-year rule is a limitation on further compensation for a disability for which some compensation was paid. No compensation was ever paid here for the disability caused by the aseptic necrosis.

I would reverse.