Souris, J.
Three distinct appellate issues requiring our construction of our workmen’s compensation act
are presented by this appeal.
First, we must determine whether an employee injured in the course of his employment is entitled to cumulative specific loss awards for loss of a leg and also for loss of the foot of that leg when, in an effort to save as much of the leg as was medically possible, a guillotine amputation of the foot was performed and subsequently a definitive operation above the foot but below the knee was performed. Second, we must determine whether the employee is entitled to a specific loss award for loss of an entire toe from his other foot when the toe’s distal phalange and, in addition, the articular cartilage of the proximal phalange are removed as a result of his injuries. Third, we must determine whether specific loss awards are subject to the maximum and minimum limitations imposed upon benefits awarded claimants for total incapacity, under part 2, § 9 of the act,
and to the maximum limitations imposed upon benefits for partial incapacity, under part 2, § 10 of the act,
which limitations are determined by the number of claimant’s dependents.
Plaintiff Magreta sustained two injuries while in defendant’s employment on March 13, 1958, when a bundle of steel fell upon him. • Part of his left great toe was severed by the bundle and his right foot was severely crushed. He was.taken to a hospital immediately where the entire distal phalange of the injured left great toe, including some of the articular cartilage of the proximal phalange, was amputated and the crushed right foot was debrided and closed. Two days later gangrene developed in his right foot necessitating a guillotine amputation at a point three inches above the ankle and more than seven inches below the tibial plateau. Three months later, on June 17, 1958, a definitive amputation was performed about five inches below the right knee.
Defendant voluntarily paid weekly compensation to plaintiff from March 14, 1958, to April 26, 1962, the period provided by our statute for compensation for the specific loss of a leg. See part 2, § 10. Plaintiff thereafter filed an application with the workmen’s compensation department for hearing and adjustment of claim
for payment of additional benefits for loss of his right foot and for loss of his left great toe. At the hearing before the referee in March of 1963, the parties stipulated that the number of plaintiff’s dependents decreased from four to three on December 8, 1959, and that, as a consequence, the weekly compensation to which plaintiff was entitled thereafter was $51 rather than the $57 defendant voluntarily had paid him. The referee awarded plaintiff benefits for 162 weeks for the specific loss of his right foot and for an additional 215 weeks for the specific loss of his right leg. Notwithstanding the parties’ stipulation, the weekly benefits awarded plaintiff were for $57 for all of both periods. Defendant, of course, was granted
credit for compensation previously paid voluntarily. The referee’s decision omitted any reference to plaintiff’s claim for benefits for specific loss of his left great toe.
Defendant appealed the referee’s decision to the appeal board and plaintiff filed a cross-appeal. The appeal board vacated the referee’s award for loss of the right foot; awarded plaintiff benefits for 16-1/2 weeks for the specific loss of one-half of his left great toe, payment thereof commencing as of March 13, 1958; and modified the referee’s award for the specific loss of plaintiff’s right leg to reflect the stipulated decrease in the number of plaintiff’s dependents, payment thereof to commence as of the expiration of the 16-1/2 week period for payment of the toe award. The appeal board, like the referee, ordered that defendant be credited for compensation previously paid voluntarily.
I.
We conclude that, under circumstances such as are disclosed by this record, a claimant whose leg is amputated, as defined by part 2 § 10 of the act, in two stages, first by guillotine amputation of the foot and then by definitive amputation five inches below the knee, has suffered only one specific loss, the loss of a leg, and, therefore is entitled only to specific loss benefits for such loss of a leg. The definition to which reference has been made reads as follows:
“An amputation between the knee and foot 7 or more inches below the tibial table (plateau) shall be considered a foot, above that point a leg.”
Leaving aside semantic difficulties with the statutory language, we must construe the statute tQ
avoid absurdity.
Williams
v.
Secretary of State
(1953), 338 Mich 202, 208. That end is accomplished best by constant regard for the objective sought by the legislature in providing for specific loss benefits for loss of anatomical members.
Award of specific loss benefits provided by the act is not dependent upon evidentiary proof of incapacity for work, total or partial, resulting from the loss of any of the specified anatomical members. Indeed, such incapacity is presumed conclusively upon suffering any of the specified schedule losses. The legislature has so provided in the following language which introduces the schedule of specific losses appearing in part 2, § 10 of the act:
“In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, to-wit:”
Thus, while maintaining semantic consistency with the act’s general pattern, which makes benefits payable upon a showing of the consequent incapacity for work due to job-related physical injury, the legislature’s purpose in cases of loss of the scheduled anatomical members was to require compensation upon a showing, only, of such job-related physical loss. The question becomes, therefore, what was the anatomical member lost by claimant in this case for which he is entitled to payment of benefits
1
Plaintiff suffered a single injury to his right leg. Two amputations, separated in time by three months, were performed. The first severed plain
tiff’s foot and the second severed the leg just below the knee. There was evidence that both amputations were required as a matter of routine surgical practice in the comprehensive treatment of plaintiff’s injury.
There was no evidence challenging
the reasonableness of suck practice in the medical circumstances of plaintiff’s case. The appeal board’s finding that plaintiff’s loss must be regarded as the loss of a leg only and not the loss, first, of a foot and, then, of the leg is supported amply by the evidentiary record.
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Souris, J.
Three distinct appellate issues requiring our construction of our workmen’s compensation act
are presented by this appeal.
First, we must determine whether an employee injured in the course of his employment is entitled to cumulative specific loss awards for loss of a leg and also for loss of the foot of that leg when, in an effort to save as much of the leg as was medically possible, a guillotine amputation of the foot was performed and subsequently a definitive operation above the foot but below the knee was performed. Second, we must determine whether the employee is entitled to a specific loss award for loss of an entire toe from his other foot when the toe’s distal phalange and, in addition, the articular cartilage of the proximal phalange are removed as a result of his injuries. Third, we must determine whether specific loss awards are subject to the maximum and minimum limitations imposed upon benefits awarded claimants for total incapacity, under part 2, § 9 of the act,
and to the maximum limitations imposed upon benefits for partial incapacity, under part 2, § 10 of the act,
which limitations are determined by the number of claimant’s dependents.
Plaintiff Magreta sustained two injuries while in defendant’s employment on March 13, 1958, when a bundle of steel fell upon him. • Part of his left great toe was severed by the bundle and his right foot was severely crushed. He was.taken to a hospital immediately where the entire distal phalange of the injured left great toe, including some of the articular cartilage of the proximal phalange, was amputated and the crushed right foot was debrided and closed. Two days later gangrene developed in his right foot necessitating a guillotine amputation at a point three inches above the ankle and more than seven inches below the tibial plateau. Three months later, on June 17, 1958, a definitive amputation was performed about five inches below the right knee.
Defendant voluntarily paid weekly compensation to plaintiff from March 14, 1958, to April 26, 1962, the period provided by our statute for compensation for the specific loss of a leg. See part 2, § 10. Plaintiff thereafter filed an application with the workmen’s compensation department for hearing and adjustment of claim
for payment of additional benefits for loss of his right foot and for loss of his left great toe. At the hearing before the referee in March of 1963, the parties stipulated that the number of plaintiff’s dependents decreased from four to three on December 8, 1959, and that, as a consequence, the weekly compensation to which plaintiff was entitled thereafter was $51 rather than the $57 defendant voluntarily had paid him. The referee awarded plaintiff benefits for 162 weeks for the specific loss of his right foot and for an additional 215 weeks for the specific loss of his right leg. Notwithstanding the parties’ stipulation, the weekly benefits awarded plaintiff were for $57 for all of both periods. Defendant, of course, was granted
credit for compensation previously paid voluntarily. The referee’s decision omitted any reference to plaintiff’s claim for benefits for specific loss of his left great toe.
Defendant appealed the referee’s decision to the appeal board and plaintiff filed a cross-appeal. The appeal board vacated the referee’s award for loss of the right foot; awarded plaintiff benefits for 16-1/2 weeks for the specific loss of one-half of his left great toe, payment thereof commencing as of March 13, 1958; and modified the referee’s award for the specific loss of plaintiff’s right leg to reflect the stipulated decrease in the number of plaintiff’s dependents, payment thereof to commence as of the expiration of the 16-1/2 week period for payment of the toe award. The appeal board, like the referee, ordered that defendant be credited for compensation previously paid voluntarily.
I.
We conclude that, under circumstances such as are disclosed by this record, a claimant whose leg is amputated, as defined by part 2 § 10 of the act, in two stages, first by guillotine amputation of the foot and then by definitive amputation five inches below the knee, has suffered only one specific loss, the loss of a leg, and, therefore is entitled only to specific loss benefits for such loss of a leg. The definition to which reference has been made reads as follows:
“An amputation between the knee and foot 7 or more inches below the tibial table (plateau) shall be considered a foot, above that point a leg.”
Leaving aside semantic difficulties with the statutory language, we must construe the statute tQ
avoid absurdity.
Williams
v.
Secretary of State
(1953), 338 Mich 202, 208. That end is accomplished best by constant regard for the objective sought by the legislature in providing for specific loss benefits for loss of anatomical members.
Award of specific loss benefits provided by the act is not dependent upon evidentiary proof of incapacity for work, total or partial, resulting from the loss of any of the specified anatomical members. Indeed, such incapacity is presumed conclusively upon suffering any of the specified schedule losses. The legislature has so provided in the following language which introduces the schedule of specific losses appearing in part 2, § 10 of the act:
“In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, to-wit:”
Thus, while maintaining semantic consistency with the act’s general pattern, which makes benefits payable upon a showing of the consequent incapacity for work due to job-related physical injury, the legislature’s purpose in cases of loss of the scheduled anatomical members was to require compensation upon a showing, only, of such job-related physical loss. The question becomes, therefore, what was the anatomical member lost by claimant in this case for which he is entitled to payment of benefits
1
Plaintiff suffered a single injury to his right leg. Two amputations, separated in time by three months, were performed. The first severed plain
tiff’s foot and the second severed the leg just below the knee. There was evidence that both amputations were required as a matter of routine surgical practice in the comprehensive treatment of plaintiff’s injury.
There was no evidence challenging
the reasonableness of suck practice in the medical circumstances of plaintiff’s case. The appeal board’s finding that plaintiff’s loss must be regarded as the loss of a leg only and not the loss, first, of a foot and, then, of the leg is supported amply by the evidentiary record. We do not read the statute to mean that in such circumstances the injured worker
is entitled to cumulative specific loss benefits as claimed by plaintiff.
Tbe only pertinent authority relied upon by plaintiff on this issue is
Wilson
v.
McCabe & Dishaw
(1936), 274 Mich 74. In
Wilson
this Court affirmed an award for loss of a hand by amputation, necessitated, the Court said the department was entitled to find from the evidence, by an industrial injury suffered several years earlier. The defendant claimed the award should have been reduced by the amount it voluntarily had paid plaintiff less than two years earlier when one finger of plaintiff’s injured hand was amputated. The Court rejected defendant’s claim and affirmed the department’s award for full benefits for the plaintiff’s specific loss of a hand. While it is possible to read this Court’s opinion in
Wilson
in support of plaintiff’s claim here, it is quite clear that the Court did not articulate any reasoning by which it reached its result and upon which we now can rely. Furthermore, it only assumed the voluntary payment was for loss of a finger, but the claim made by plaintiff from which the voluntary settlement resulted was planted on three grounds: total disability, loss of use of hand, and loss by amputation of one finger. Finally, the voluntary payment, while made in settlement of a claim filed by the employer with the department, was never approved by the department nor was the settlement agreement ever submitted therefor to the department. We do not regard
Wilson
as precedent in support of this plaintiff’s claim in this appeal for an additional award for specific loss of his right foot.
II.
The appeal board awarded plaintiff benefits for the specific loss of one-half of the left great toe.
There was evidence from which it could have found, as it apparently did, that none of the bone of the proximal phalange was removed during amputation of the entire distal phalange of the toe.
In the mistaken belief that unless some part of the bone of a phalange is removed there is no loss of a phalange within the meaning of the act, the appeal board concluded that plaintiff was entitled only to specific loss benefits for loss of the first, the distal, phalange.
However, the statute, part 2, § 10, provides:
“The loss of more than 1 phalange shall be considered as the loss of the entire toe; * * * ”
Dr. Castle, defendant’s witness, testified on cross-examination that the articular cartilage of the proximal phalange was removed when the entire distal phalange was amputated.
We read the quoted portion of the statute to require payment for the loss of the entire toe whenever more than one phalange, whether of bone or of cartilage, is lost. The order of the appeal board awarding benefits for the loss of half only of plaintiff’s toe must be reversed for correction in accordance with our decision on this issue upon remand.
III.
Finally, it is claimed that plaintiff’s award of specific loss benefits must be reduced as of December 8, 1959, to reflect a reduction in tbe number of his dependents occurring on tbat date. Tbe parties stipulated before tbe referee tbat sueb reduction in tbe number of dependents then occurred and tbat tbe plaintiff’s weekly benefit rate, as a consequence, thereafter would be $51. On appeal here plaintiff claims tbat no such stipulations were made before tbe appeal board, where tbe matter was beard
de novo,
and tbat, consequently, be should not be bound thereby. It is plaintiff’s claim, also, tbat tbe statute does not require a reduction in a specific loss benefit upon reduction of tbe number of a claimant’s dependents during the period benefits are payable. Tbe defendant, on tbe other band, claims not only tbat plaintiff’s stipulations before tbe referee bind him now but, also, tbat tbe specific loss provisions of part 2, § 10 of tbe act are subject to tbe provisions of part 2, § 9(d), requiring reduction of weekly benefits upon termination of a dependency during tbe benefit period.
Both parties to this appeal, it should be noted, proceed on tbe assumption tbat tbe specific loss benefits specified in tbe schedule in part 2, § 10 are subject to tbe maximum and minimum benefit limitations, determined by tbe number of claimant’s dependents, imposed upon claimants compensated for injuries resulting in incapacity for work which is total, under part 2, § 9(a), and to tbe identical maximum benefit limitations imposed for such incapacity which is partial, under tbe first paragraph of part 2, § 10. We do not join in tbat assumption for we do not read those limitations into tbe specific loss benefits specified in section 10’s schedule.
The schedule of specific loss benefits does not impose any limitation, maximum or minimum, upon the weekly benefit payable for specific losses. If there be such limitations, they must be found elsewhere than in the schedule. It is suggested that the limitations have been incorporated into the schedule of specific losses by the following language which appears in the first sentence of the last paragraph of part 2, § 10:
“The amounts specified in this cause [clause] are all subject to the same limitations as to maximum and minimum as above stated. * * * ”
While part 2, § 9(a), relating to benefits for total incapacity for work, specifies maximum and minimum limitations upon weekly benefits payable, part 2, § 10, specifies no limitations upon the stated benefit rates except only for maximum limitations upon weekly benefits payable for partial incapacity for work. Thus, absent maximum and minimum limitations in section 10, the language quoted above from the last paragraph of section 10, “limitations as to maximum and minimum as above stated” cannot have reference to anything stated in section 10 above that language. It can, however, refer to the maximum and minimum limitations stated in the preceding section of the act, part 2, § 9, and we so hold.
The question remains, however, what “amounts specified in this cause [clause]” are subject to such maximum and minimum limitations? It could be argued that the limitations thus incorporated into section 10 by reference to the limitations of section 9 apply to
all
benefits specified in the entire section 10. That section provides benefits for partial incapacity for work and for specific losses. In addition, and immediately preceding the language we here construe, section 10 contains a definition of
total and permanent disability, compensation for which is provided in the preceding section, section 9.
We cannot read the language to apply section 9’s limitations to the benefits provided in section 10 for partial incapacity simply because, had that been the legislature’s intent, it could have, and we believe it would have, provided specifically in the first paragraph of section 10, as it did in section 9(a), for minimum limitations as well as for the maximum limitations which expressly appear in that paragraph. We should not attribute to the legislature that ineptitude which would be implicit in our ruling that it intended thus clumsily to incorporate some limitation by reference while simultaneously stating other limitations expressly.
Nor can we read the language to apply to the specific loss schedule of section 10. That schedule does not contain even the maximum limitations specified for partial incapacity claimants in the first paragraph of the section. Indeed the sentence which introduces the schedule of specific loss benefits speaks in terms so positive that it is intrinsically inconsistent with any concept of limitations, maximum or minimum:
“In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, to-wit: *
* *
.”
There follows the schedule of losses and the compensation specified in the following form:
“For the loss of a * * * , 66-2/3% of the average weekly wages during * * * weeks;
We do read the language incorporating maximum and minimum limitations, which we here construe, to .apply to those disabilities referred to in the im
mediately preceding language of section 10, namely, total and permanent disabilities as therein defined and for which compensation is payable as provided in section 9, the very section we hold contains the limitations to which reference is made.
The foregoing construction of the first sentence of the last paragraph of section 10 is entirely consistent with the scheme of compensation designed by the legislature for total incapacity which is not permanent, for total and permanent incapacity, for partial incapacity, and for specific losses of anatomical members. The basic compensation rate for all types of injuries, is 2/3 of the loss of wage-earning capacity. See part 2, §§ 9 and 10. Except for specific loss injuries, for which benefits are paid for loss of the anatomical member as we noted above, maximum limitations determined by the number of claimant’s dependents are expressly imposed upon the weekly benefits payable for incapacity for work, whether partial or total and, as to the latter, whether temporary or permanent. But only in the cases of total incapacity for work, where the injured worker theoretically retains no wage-earning capacity, did the legislature impose a minimum weekly benefit limitation, see part 2, § 9(a), in recognition of the need in such cases to provide at least a minimum subsistence level of benefits for that injured employee whose average weekly wage before injury was small. As for those injured employees whose incapacity for work is partial, or who suffer loss of specific anatomical members, and thus who should be able theoretically to earn some wages after injury, the need for a minimum subsistence level of benefits is less apparent and, so, minimum limitations significantly are omitted from the first paragraph of part 2, § 10, and from its schedule of specific losses. Our construction of the first sentence of the last paragraph
of section 10, making it applicable only to the total and permanent disabilities defined in the provisions immediately preceding that sentence, is entirely consistent with the scheme of compensation benefits devised by the legislature, imposing maximum limitations determined by the number of a claimant’s dependents upon all weekly benefits except for specific losses and imposing minimum limitations, similarly determined, only upon weekly benefits for total incapacity.
Accordingly, whatever the number of plaintiff’s dependents at the time of injury and whatever the subsequent change therein, his weekly specific loss benefit rate is 66-2/3% of his average weekly wages before injury, neither diminished nor enlarged because of the number of his dependents. The stipulations of the parties before the referee, reflecting as they do misinterpretation of the applicable law, do not preclude our disposition of this controversy in accordance with the law as we construe it. See
State Highway Commissioner
v.
Simmons
(1958), 353 Mich 432, 438;
Rousseau
v.
Brotherhood of American Yeomen
(1913), 177 Mich 568, 573; and
Detroit
v.
Beckman
(1876), 34 Mich 125, 126 (22 Am Rep 507). Upon remand, the plaintiff’s weekly benefit rate should be recomputed in accordance with the foregoing.
Affirmed in part, reversed in part and remanded for further proceedings.
No
costs may be taxed, each party having prevailed in part.
Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, O’Hara, and Adams, JJ., concurred.
Brennan, J., took no part in the decision of this case.