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11/25/75 WELCH v. WESTRAN CORPORATION HUEY V.

November 25, 1975

WELCH
v.
WESTRAN CORPORATION; HUEY V. CAMPBELL, WYANT & CANNON FOUNDRY COMPANY



Lindemer, J. Coleman and Fitzgerald, JJ., concurred with Lindemer, J. Williams, J., Dissenting. T. G. Kavanagh, C. J., and Levin, J., concurred with Williams, J.

SYLLABUS BY THE COURT

Decision of the Court

1. Appeal and Error -- Equally Divided Court.

Decisions by the Court of Appeals that the former $10,500 limit on workmen's compensation for dust diseases applies to claimants whose last day of work was prior to May 1, 1966, the expiration date of the limitation, are affirmed by an equally divided court (MCLA 417.4).

Opinion for Affirmance

Coleman, Fitzgerald, and Lindemer, JJ.

2. Workmen's Compensation -- Dust Diseases -- Date of Personal Injury.

The "date of personal injury" which determines the applicability of the former $10,500 limit on workmen's compensation for dust diseases is the last day of work under the statute in effect for a claimant whose last day of work was prior to May 1, 1966, the expiration date of the limitation (MCLA 417.4).

3. Workmen's Compensation -- Statutes -- Construction.

It is not within the province of the Supreme Court to eliminate by statutory interpretation an anomalous disparity in workmen's compensation benefits which the Legislature has not seen fit to eliminate; the Court's duty is to apply the law as the Court finds it.

Opinion for Reversal

T. G. Kavanagh, C. J., and Williams and Levin, JJ.

4. Workmen's Compensation -- Dust Diseases -- Date of Personal Injury.

The "date of personal injury" which determines the applicability of the $10,500 limit on workmen's compensation for dust diseases is the date of disablement, not the last day of work; where the date of disablement falls after May 1, 1966, the limit does not apply (MCLA 417.4).

5. Workmen's Compensation -- Diseases -- Disablement -- Date of Personal Injury -- Statutes -- Construction.

The general purpose and tenor of the part of the Workmen's Compensation Act regarding diseases and disablement require that "the date of personal injury" as used in that part be construed in relation to the concept of the accrual of the right to compensation for disease and the establishment of aggregate benefits available; the Legislature did not contemplate going outside of that part to tie the accrual of new rights in a subsection which removes a limitation on compensation when the date of personal injury occurs later than May 1, 1966, to a provision for the computation of compensation in the part concerning compensation (MCLA 417.4).

6. Workmen's Compensation -- Statutes -- Construction.

One provision of the Workmen's Compensation Act may not be construed in such a manner as to render another of no effect if such a result can be avoided.

7. Workmen's Compensation -- Statutes -- Construction.

The interpretation to be given to a particular word in one section of the Workmen's Compensation Act must be arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.

8. Appeal and Error -- Question Not Raised Below -- Workmen's Compensation.

Exceptions to the rule that precludes the consideration on appellate review of a question not raised below may be made where consideration of a claim is necessary to the proper determination of a case; therefore, a question raised by the plaintiffs on appeal in a workmen's compensation case may be considered where the issue was thoroughly considered by the Workmen's Compensation Appeal Board so that the Court has the benefit of the board's expert opinion and the defendants could not claim surprise and where there was considerable controversy and confusion on the issue so that resolution of the question was of major importance to the jurisprudence of the state.

9. Workmen's Compensation -- Finding of Facts.

The Supreme Court is bound by the finding of facts below in a workmen's compensation case (Const 1963, art 6, § 28).

10. Workmen's Compensation -- Date of Personal Injury -- Date of Disablement.

The term "date of personal injury" as used in a section of the Workmen's Compensation Act dealing with silicosis and dust disease and providing that the section shall not apply in cases of claims in which the date of personal injury occurs later than May 1, 1966, should be construed to mean date of disablement by reference to another section of the same part of the act which provides that disablement is to be treated as the happening of a personal injury (MCLA 417.2, 417.4).

11. Workmen's Compensation -- Silicosis -- Other Disability -- Concurrent Benefits.

An employer may credit against its total liability for disability due to silicosis only those workmen's compensation benefits concurrently paid as a result of a back injury, i.e., after the date of disability from silicosis.

The opinion of the court was delivered by: Lindemer

On January 31, 1966, Orville Welch retired from Westran Corporation. In 1968, plaintiff was informed by doctors that he had silicosis and he filed for workmen's compensation benefits. The hearing referee held that the date of disablement was May 9, 1968, and that plaintiff was entitled to benefits, but that such benefits should be limited to $10,500 under the statute in effect at the time of the last day of work. The Workmen's Compensation Appeal Board affirmed. The Court of Appeals denied leave to appeal with respect to the limitation issue and reversed and remanded on another issue, T. M. Burns, P. J., and Holbrook and Van Valkenburg, JJ. (Docket No. 12395). Plaintiff appeals.

Charles Huey suffered a back injury while working at Campbell, Wyant & Cannon Foundry in 1958 and was unable to continue working after May 7, 1959. He was paid the statutory 500 weeks of compensation, and when the 500-week period expired, he filed a petition alleging disablement from silicosis. Before hearing, Huey died and the action was continued by his wife. The referee determined that the silicosis arose out of the course of employment and was the prime cause of death, that the last day of work was May 7, 1959, that the date of disablement was October 15, 1966, that benefits were limited to $10,500 by the statute in effect at the last day of work, and that the defendant could credit the back injury benefits only to the extent that they were paid concurrently with the disablement from silicosis, i.e., after October ...


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