Basalla v. General Motors Corp. , 140 Mich. App. 246 ( 1985 )

Per Curiam.

Defendant appeals from a decision by the Workers’ Compensation Appeal Board reversing hearing referee’s decision denying benefits to the plaintiff. Defendant filed an application for leave to appeal and leave was granted by this Court.

Plaintifff slipped and fell, injuring his left ankle and knee at work in defendant’s facility on August 21, 1972. Plaintiff went to defendant’s medical department where he was treated. He was off work for approximately three weeks and was paid workers’ compensation benefits. When plaintiff returned to work he was put on light duty. Plaintiff had problems with the knee in 1973 and surgery was performed on it in 1974. Plaintiff worked under restrictions until he retired in 1975.

Walter Sobolewski, plaintiff’s supervisor, testified that plaintiff made some comment that his legs were giving him trouble when he retired. James F. Ball, a staff assistant with defendant, stated that he interviewed plaintiff shortly before he retired. Ball noticed that plaintiff had an obvious limp, but plaintiff did not mention that his leg was giving him trouble nor did he mention it as a specific reason for retirement.

Medical testimony was submitted relating to plaintiff’s injury and subsequent treatment. The hearing referee denied benefits. The WCAB reversed the hearing referee, finding that defendant had adequate notice of plaintiff’s disability and that plaintiff was disabled and entitled to beneftis.

Defendant raises three issues on appeal. Defendant’s first claim is that the WCAB erred in concluding that defendant had notice of plaintiff’s disability because defendant was aware plaintiff was having problems with his knee up until his last day of work.

The question of whether an employer had notice of an employee’s injury is a question of fact for the WCAB. Krol v City of Hamtramck, 54 Mich App 234; 220 NW2d 743 (1974); Tillotson v Penn-Dixie Cement Corp, 47 Mich App 427; 209 NW2d 611 (1973), lv den 390 Mich 767 (1973). Fact findings by the WCAB are conclusive in the absence of fraud if there is any competent evidence to support the findings. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979); Carter v Kelsey-Hayes Co, 386 Mich 610, 614-615; 194 NW2d 326 (1972); Leizerman v First Flight Freight Service, 135 Mich App 385, 391; 354 NW2d 351 (1984). All that is required is that the employer have actual notice. A finding of timely notice by the WCAB is binding on the courts if it is supported by a factual basis in the record. Carter, supra, pp 614-615.

In this case the following factors support the WCAB’s finding of notice. Plaintiff retired early and defendant was aware that he had job restrictions against excessive standing and that plaintiff’s job nonetheless required him to stand as much as four hours a day. Defendant was also aware of plaintiff’s 1972 knee injury, his knee problems in 1973, and plaintiff’s knee surgery in 1974. Plaintiff’s supervisor testified that just prior to plaintiff’s retirement he complained about his knee problem and that the condition of plaintiff’s leg was common knowledge. There was competent evidence to support the WCAB’s finding of notice. Shaw v General Motors Corp, 320 Mich 338, 349; 31 NW2d 75 (1948).

Defendant’s next claim is that plaintiff’s claim was not timely because it was not made within six months after the injury, as required by MCL 418.381; MSA 17.237(381). At the time of plaintiff’s injury in 1975, § 381 provided that a claim must be made within six months from the date of injury. Under MCL 418.301; MSA 17.237(301) the date of injury in this case would be the last day of work because the injury was not directly attributable to a single event. Plaintiff filed his claim more than six months after his last day of work.

Plaintiff counters relying on that portion of § 381 which in 1975 stated that the period is tolled if the employer fails, neglects or refuses to report the injury to the bureau. MCL 418.805; MSA 17.237(805), and 1972 AACS R 408.31 require an employer to file notice on a Form 100. The procedure and practices involved in a disease or disability claim are the same as the procedure and practices used in a personal injury situtation. MCL 418.411; MSA 17.237(411); MCL 418.441; MSA 17.237(441).

In this case defendant had an obligation to file a Form 100. Plaintiff was disabled more than seven days; the WCAB found plaintiff’s disability precipitated his early retirement. The original Form 100, filed after the plaintiff was injured in 1972, would not start the limitation period running on plaintiff’s claim of a disability sustained in October, 1975. The two injuries were separate. The personal injury in 1972 is a distinct injury from the disability in 1975. Baaremen v Blackport Packing Co, 16 Mich App 429; 168 NW2d 324 (1969), lv den 382 Mich 778 (1969). Defendant had notice of plaintiff’s disability. Defendant failed to file a Form 100. Defendant’s failure to file the Form 100 suspended the statutory time limits for filing a notice and claim by plaintiff. Meads v General Motors Corp, 402 Mich 540; 266 NW2d 146 (1978). Section 381 does not bar plaintiff’s claim in this case.

Defendant’s final claim is that there is an absolute bar to plaintiff’s claim because it was not made within three years of his retirement in 1975 notwithstanding the defendant’s failure to file a Form 100. MCL 418.381(1); MSA 17.237(381X1), at the time plaintiff’s claim arose, provided in pertinent part:

"In a case in which the employer has been given notice of the injury, or has notice or knowledge of the same within 3 months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within 6 months after the happening of the injury, but does develop and make itself apparent at some date subsequent to 6 months after the happening of the same, claim for compensation may be made within 3 months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within 3 years from the date the personal injury was sustained.”

However in Shaw v General Motors Corp, supra, p 348, the Court in construing a comparable two-year limitation period in a predecessor statute to § 381 ruled that the defendant was not entitled to assert that the claim was not seasonably filed because it had failed to comply with notice provisions of the statute. The same result must be reached here. Furthermore, the above-quoted sentence of § 381 does not apply in this case because the disability which precipitated the claim did not develop after the injury. The injury in this case was the disability that forced plaintiff into early retirement. The disability was not a subsequent development which manifested itself at a later date. It was manifest at plaintiff’s retirement and defendant had notice of it at that time.

The WCAB is affirmed. Defendant had notice of plaintiff’s injury. Plaintiff’s claim was seasonably filed because the limitation period was tolled due to defendant’s failure to file a Form 100.

Affirmed.