S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET #

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1 JOSEPH K. LONG, PLAINTIFF, 2001 ACO #324 S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # MCLOUTH STEEL PRODUCTS CORPORATION AND AMERISURE MUTUAL INSURANCE COMPANY; SILICOSIS, DUST DISEASE & LOGGING INDUSTRY FUND, DEFENDANTS. APPEAL FROM MAGISTRATE MACLEAN. JOY A. TURNER FOR PLAINTIFF, MARTIN L. CRITCHELL FOR DEFENDANTS MCLOUTH STEEL PRODUCTS CORPORATION AND AMERISURE MUTUAL INSURANCE COMPANY, VICTORIA A. KEATING FOR DEFENDANT SILICOSIS, DUST DISEASE & LOGGING INDUSTRY FUND. WITTE, COMMISSIONER OPINION This cause came before the Appellate Commission on defendants McLouth Steel and Amerisure Mutual Insurance Company s appeal and plaintiff Joseph K. Long s cross-appeal from Magistrate Patrick J. MacLean s decision, mailed February 20, 2001 granting an open award of benefits for plaintiff s work-related pneumoconiosis resulting from asbestos exposure. 1 Plaintiff worked for defendant McLouth Steel from July 27, 1960, until he retired in His asbestosis was diagnosed in Defendants McLouth Steel and Amerisure present the following issues on appeal: I. The employee may not proceed with any action to recover workers disability compensation from the employer for not identifying Dr. Drucker in the Application for Medication or Hearing. 1 This case has been ready for review since August 9, Asbestosis is a form of pneumoconiosis. Faulkner Construction Co v Silicosis Dust Disease & Logging Industry Compensation Fund, 226 Mich App 503, 508; 574 NW2d 685 (1997). Chrysler Corp v Silicosis Fund, 243 Mich App 201, 204 (2000), footnote 1.

2 II. III. The workers disability compensation from the employer is limited to $25, because an employer need only establish that an employee is disabled by pneumoconiosis to obtain reimbursement of weekly workers disability compensation from the Silicosis, Dust Disease and Logging Industry Compensation Fund. The employer may credit the responsibility for workers disability compensation by the amount of the settlement of a civil action against the manufacturer of a certain product which was used at work. Defendant Silicosis, Dust Disease & Logging Industry Fund responded with the following argument: MCL (1); MSA (531)(1) as judiciously construed requires an employer seeking Dust Fund reimbursement to present proofs pertaining to the financial impact upon its business of workers compensation claims filed by persons afflicted with the work-related dust disease involved, unless the case involves phthisis or pneumoconiosis arising in the course of employment in the mining, quarrying or grinding industries. McLouth s conceded failure to present any proofs pertaining to the financial impact upon its business of workers compensation claims asserted against it by persons afflicted with asbestosis requires the affirmation of the magistrate s dismissal of the Dust Fund as a defendant in this cause. 3 Responding to defendants appeal and in support of his own cross-appeal, plaintiff makes the following arguments: I. Plaintiff is not precluded from proceeding with an action to recover worker s compensation benefits where the allegation that a medical care provider was not named, as may have been required by MCL (3); MSA (3), has not been raised at trial and where, by not presenting the issue at trial, the employer foreclosed plaintiff from presenting evidence as to whether he was required to, and whether he did, comply with the statute. II. The award entered by the magistrate in this case must nonetheless be affirmed, even if a violation of MCL ; MSA (222) may be alleged at this late date. III. The employer s liability is not limited to $25, In its brief, however, the Fund recognizes that should the Supreme Court reverse the pending case of Alston v Chrysler, 464 Mich 864 (2001), considering whether employers not involved in the mining, quarrying and grinding industries must prove financial impact on their businesses, then its argument is moot and it must reimburse the employer pursuant to MCL (1). 2

3 We address the parties arguments in order. Defendant employer and carrier s first argument concerns section 222, which reads in relevant part: (3) The application for mediation or hearing shall be as prescribed by the bureau and shall contain factual information regarding the nature of the injury, the date of injury, the names and addresses of any witnesses, except employees currently employed by the employer, the names and addresses of any doctors, hospitals, or other health care providers who treated the employee with regard to the personal injury, the name and address of the employer, the dates on which the employee was unable to work because of the personal injury, whether the employee had any other employment at the time of, or subsequent to, the date of the personal injury and the names and addresses of the employers, and any other information required by the bureau. (6) The willful failure of a party to comply with this section shall prohibit that party from proceeding under this act. In his application, plaintiff claimed as the nature of the disability and the manner in which the injury or disablement occurred : Lungs and sequelae, pneumoconiosis as a result of exposure to asbestos. Plaintiff listed as the names and addresses of doctors, hospitals, and other health care providers who treated [him] for this disability Henry Ford Hospital in Wyandotte, Taylor and Detroit, as well as a Dr. John Paesano of Southgate. At trial, the employer and carrier established that plaintiff treated for 20 years (since approximately 1977 until the mid-1990 s 4 ) with a Dr. Drucker (who treated plaintiff s breathing problems associated with his smoking habit), but that plaintiff never told that doctor that he was exposed to asbestos as a part of his working environment. Plaintiff was not diagnosed with asbestosis until examined by Dr. R. Michael Kelly on January 14, 1999, at his attorney s request, long after his 1991 retirement and after his treatment with Dr. Drucker ended. Defendants now claim that plaintiff s failure to list Dr. Drucker on his application is fatal to plaintiff s claim and that the award should be reversed pursuant to the mandatory language of subsection 222(6). Defendants defend their failure to raise this issue before the magistrate pursuant to the rule pronounced in the case of Eriksen v Fisher, 166 Mich App 439 (1988), which states, It is well established that an issue is not preserved for appeal if it is not raised in the trial court, unless the claim is necessary to a proper determination of a case, the claim involves a question of law for which all facts have been presented, or 4 Magistrate s decision, 6. 3

4 manifest injustice would result. Szidik v Podsiallo, 109 Mich App 446, 451; 311 NW2d 386 (1981). We disagree. Defendants did not raise this issue below, even though they were the party introducing the existence of Dr. Drucker and his treatment into the record. Plaintiff did not raise the fact on direct examination. The exchange under cross-examination reads: Q. And you indicated that you had been treating for lung problems prior to your last day of work. Is that correct? Q. And, was the, was the first doctor you saw for that a Dr. Drucker? Yes sir. Q. And during the time that they, that Dr. Drucker was seeing you, he gave you some advice in terms of what to do to help or help your lung condition. Q. And you said you tried to follow that advice? Q. You tried several times. A. I tried for twenty years. Q. When you saw Dr. Drucker, you told him about your cigarette smoking, right? Q. And at that time isn t it true that you didn t tell him about being exposed to anything at work? A. That s very true, yes. 4

5 Q. Now, at some point in the 80 s, shortly after you began to see Dr. Drucker, you were given a diagnosis about what your lung condition was. Is that correct? Q. And, at that time, were you aware of the fact that your lung condition might have something to do with your cigarette smoking? A. He didn t say it caused it. He said it, he sai[d] smoking aggravated it. That s what he said. Q. And that s why you tried to stop? A. That s why I tried for a lot of years to stop. Yes sir. A. He took, advised me to take x-rays periodically. Q. Okay. Did you see Dr., did he examine you in any other way? A. Physical. Q. Okay. A. I got a complete physical, yes. Q. Okay. Did he ever do any tests on you where you blow into a tube? Q. Okay. Prior to seeing Dr. Kelly, you didn t know that you might have an asbestos related disease, is that correct? A. No idea. Q. Now you ve seen other doctors up through the time that your insurance went, went out. Is that correct? A. No, I seen Dr. Drucker. He was my doctor. Q. Okay. And when was the last time you saw Dr. Drucker? Would 1994 sound reasonable? 5

6 A. Somewhere in that area. I started to say somewhere in the mid-90 s. That s Q. Okay. And at any time, isn t it true that Dr. Drucker did not discuss with you a diagnosis of asbestosis or any other disease related to asbestos? A. Did he discuss asbestosis with me? Q. Yes. A. No. Q. And that was your treating doctor, is that correct? A. Right. 5 While defendants contend they could not have brought a motion under section 222 at this point, or at any point before the record closed, they provide no reason why not. Once this doctor s name was revealed, it became their burden to bring a motion under section 222, provided they wanted its relief. We note the magistrate entertained an unrelated motion from the Fund as soon as proofs were closed. 6 We see no reason to believe that the same opportunity to bring a motion under section 222 did not exist for the employer and carrier. Moreover, though defendants argue otherwise, the issue of willfulness is one of fact, not law. Goldstein v Dairy Mart, 2001 ACO # 167. Finally, and importantly, the record is not complete on this point. A finding of willfulness cannot be made from the mere absence of this doctor s name from the application. Plaintiff was never given the opportunity to explain why the name was not included. Therefore, we reject defendants reliance on Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691 (2000), as construed by McComber v McGuire Steel Erection, Inc, 2001 ACO #41, which defendants state gives the Commission authority to decide this question for the first time on appeal. Defendants quote this proposition from McComber: The [Mudel] Court held that the Commission is now empowered to make independent findings of fact to the extent that the record is sufficient for administrative review and fact findings can be made without speculation. Here, the record is not sufficient for such findings. For its second issue, defendants argue that they are eligible for reimbursement from the Fund, even though they did not prove economic injury to their industry. Pursuant to the Supreme Court s order in Alston v Chrysler Corp, 464 Mich 864 (2001), defendants are correct. This the 5 Trial transcript, 43, 45, 46, 47, 52, and See Fund s motion for dismissal brought at page 62 of the trial transcript. 6

7 Fund concedes. In accordance with the change in the law since the magistrate s decision, we modify the award in this regard. Third, defendants employer and carrier request that we credit their liability to plaintiff with the proceeds of a third party lawsuit. Defendants rely on section 827(5) which reads: In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his or her dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall immediately be paid to the employee or his or her dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits. Subsection (6) adds: Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery. We decline defendants request for a credit. The only relevant facts revealed in the record briefly appear on cross-examination of plaintiff: Q. Okay. Now you said that the first time you knew that there might be a problem, related to asbestos exposure was when you saw an ad in the paper? Q. And who placed that ad? A. It was Spurling (ph). It was an attorney. Q. Serlin, Michael Serlin? A. Sterling [sic], okay, yes. A.... [Y]es, I went to see him. 7

8 Q. Okay. And through his office did you file a lawsuit? A. Yes I did. Q. And did you recover monies from that lawsuit? A. Yes I did. Q. And how much did you recover? A. Approximately $23, [By Magistrate MacLean]: That s what went into your pocket? Q. Yes. 7 This issue too is being raised for the first time on appeal. As demonstrated, we are given few details regarding these monies. The only information we are given in the record is that plaintiff netted approximately $23,000 by means of a suit related to asbestos exposure. Particularly absent are any expenses of recovery, especially the amount of attorney fees as mentioned by subsection (6). Even the take-home amount is only approximate. Because neither the magistrate nor the Commission has the authority to apportion the expenses of recovery, this issue is not ripe for consideration. Although the worker s compensation administrative tribunals do have the power to determine credit under the statute, McMiddleton v Second Injury Fund, 225 Mich App 326 (1997), that determination first requires that the parties proportionate share of fees and expenses be established by the circuit court judge. Seay v Spartan Aggregate, 183 Mich App 46 (1990). As for plaintiff s cross appeal, it is rendered moot by our consideration of defendants issues. Therefore, with the modification listed above, permitting defendants to obtain reimbursement from the fund, after the parameters of section 531(1) are met, the award is affirmed. Commissioners Przybylo and Leslie concur. Joy L. Witte Gregory A. Przybylo Richard B. Leslie Commissioners 7 Trial transcript,

9 S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION JOSEPH K. LONG, PLAINTIFF, V DOCKET # MCLOUTH STEEL PRODUCTS CORPORATION, AND AMERISURE MUTUAL INSURANCE COMPANY; SILICOSIS, DUST DISEASE & LOGGING INDUSTRY FUND, DEFENDANTS. This cause came before the Appellate Commission on defendants McLouth Steel and Amerisure Mutual Insurance Company s appeal and plaintiff Joseph K. Long s cross-appeal from Magistrate Patrick J. MacLean s decision, mailed February 20, 2001 granting an open award of benefits for plaintiff s work-related pneumoconiosis resulting from asbestos exposure. The Commission has considered the record and counsels briefs, and concludes that the magistrate s decision should be affirmed with modification. Therefore, IT IS ORDERED that the magistrate s decision is affirmed with the modification that the defendant and carrier are eligible for reimbursement from the Fund, once the parameters of section 531(1) are met. Joy L. Witte Gregory A. Przybylo Richard B. Leslie Commissioners