McKenna v. Chevrolet-Saginaw Grey Iron Foundry Division

234 N.W.2d 526, 63 Mich. App. 365, 1975 Mich. App. LEXIS 1174
CourtMichigan Court of Appeals
DecidedAugust 13, 1975
DocketDocket 21559
StatusPublished
Cited by5 cases

This text of 234 N.W.2d 526 (McKenna v. Chevrolet-Saginaw Grey Iron Foundry Division) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKenna v. Chevrolet-Saginaw Grey Iron Foundry Division, 234 N.W.2d 526, 63 Mich. App. 365, 1975 Mich. App. LEXIS 1174 (Mich. Ct. App. 1975).

Opinions

D. F. Walsh, J.

This is an appeal from the decision of the Workmen’s Compensation Appeal Board upholding a referee’s finding that the plain[367]*367tiff has suffered "permanent and total loss of industrial use of both legs” as a result of his disabling silico-tuberculosis. The plaintiff was therefore found to be totally and permanently disabled within the meaning of MCLA 412.10(b)(7); MSA 17.160(b)(7),1 and therefore entitled to benefits beyond those previously received under MCLA 412.9; MSA 17.159.2 The Second Injury Fund appeals, by leave granted, urging that MCLA 417.4; MSA 17.223,3 which places a ceiling on the amount of compensation to be awarded in the event of permanent total disability due to silicosis, precludes any further recovery by the plaintiff. Our decision necessitates a reconciliation between seemingly contradictory sections of the Workmen’s Compensation Act.

Plaintiff was employed by the Chevrolet-Saginaw Grey Iron Foundry Division of General Motors Corporation from 1946 until January 2, 1961. He was hospitalized for silico-tuberculosis from January 10, 1961, until June 22, 1962.

The plaintiff was bedridden for most of his hospital stay. When he began to ambulate under his own power in the months before his discharge, he experienced severe cramps in his legs. This pain has continued up until the present time, making it impossible for him to walk more than a few blocks at a time without stopping to rest.

From 1961 until 1967 the plaintiff’s employer paid workmen’s compensation benefits at the rate of $33 per week. On February 19, 1967, payments were terminated because the aggregate of all pay[368]*368ments then exceeded the $10,500 limitation of the then-effective MCLA 417.4; MSA 17.223.

On December 21, 1971, plaintiff petitioned for a hearing on his eligibility for permanent disability payments on the ground that he had suffered a work-related injury resulting in the total and permanent loss of the industrial use of both legs. At the hearing plaintiff testified that since 1962 he had experienced cramps and pains in his legs, calves and knees whenever he attempted to walk. Moving about on his feet for any length of time was also made extremely difficult due to shortness of breath:

"I can’t do nothing but — if I get up and walk from here to that door out there I got to stop, my breath gets short. That’s the reason I didn’t go back to work when I got out of the hospital, my breath was short.”

Dr. Helen Winkler, the medical witness testifying at the hearing, attributed the plaintiff’s difficulties with his legs to "pulmonary problems” and "respiratory insufficiency”. She then explained how a lung disease may affect the lower extremities:

"There’s actually several mechanisms. Number one, just the mere fact that he’s using an awful lot of energy just to breathe period. I mean, he’s consuming his energy. Number two, he’s probably not oxygenating his blood as well as a normal person, so consequently * * * he cannot do as much work without oxygen to his legs.
"Number three, because of his pulmonary disease and the scarring and the bronchial obstruction that can occur with silico-tuberculosis, when he exerts himself in any manner he has to hyperventilate in order to produce or in order to get enough oxygen into his blood to do what little exertion he is doing. In hyperventilating, then he blows off some carbon dioxide and he can [369]*369develop a change in the acid base balance of his blood, and we call this respiratory alkalosis. When you get into respiratory alkalosis, then the ionic calcium in the blood is reduced, and then this can cause leg cramps and fatigue and weakness. So that these would be your mechanisms, increased work required to breathe, lack of oxygen, and change in acid base affecting muscular functioning.”

The hearing referee found that since June of 1962 the plaintiff had suffered the loss of industrial use of both lower extremities as a result of silico-tuberculosis, that Chevrolet-Saginaw had paid all weekly benefits required by MCLA 417.4, supra, and that the Second Injury Fund must therefore begin making payments in accordance with MCLA 412.9, supra. This decision was affirmed by the Workmen’s Compensation Appeal Board on the ground that the plaintiff had "lost the industrial use of his legs within the meaning of Part II, Sec. 10(b) of the Act [MCLA 412.10(b), supra,] as a result [of] his employment with defendant”.

A discussion of § 10(b)(7), as it existed in 1962, and as it has been judicially interpreted since then, will help focus the conflict present in the statutory scheme as it then existed. That section defined "total and permanent disability” in terms of seven specific physical disabilities,4 one of them [370]*370being the "permanent and total loss of industrial use of both legs * * * Compensation is provided for such a disability under MCLA 412.9.

It is now the law that one may establish entitlement to "total and permanent” benefits under MCLA 418.521(1); MSA 17.237(521X1) (formerly MCLA 412.9, supra) without proving a direct injury to either leg. Paulson v Muskegon Heights Tile Co, 371 Mich 312; 123 NW2d 715 (1963), Lockwood v Continental Motors Corp, 27 Mich App 597; 183 NW2d 807 (1970). Where disabling symptoms present in a part of the body other than the lower extremities are triggered or aggravated by leg movement and it is this "non-leg, but leg-connected” pathology which prevents the use of the legs in industry, then the worker has established the right to recover for total and permanent disability even though the symptoms are also triggered by other causes. Lockwood, supra, pp 602-603, 606-607. These symptoms may exist in the form of a bladder disorder,* ****5 vertigo precipitated by leg movement,6 a work-related heart condition which prevents the use of the leg,7 or even a disabling condition in only one of the legs.8

Why then, asks Buster McKenna, should a silicosis victim be treated differently from one whose legs are rendered industrially useless by a heart, bladder or hearing condition?

[371]*371It must be preeminently recognized that the Paulson-to-Burke line of cases does not solve our problem. None of these decisions dealt with the compensation limitations for disability due to silicosis, MCLA 417.4, supra, and it has never been held that total and permanent disability under MCLA 412.10(b), compensation for which is provided in MCLA 412.9, is established by showing the loss of industrial use of the legs resulting from silicosis. Therefore, these cases are helpful in determining the existence of such disability when it is clear that that statute (MCLA 412.10[b]) applies. It is not clear that the statute should be applied in the instant case and therefore those cases are simply not controlling.

The defendant relies principally on MCLA 417.4; MSA 17.223, which provides:

"Compensation shall not be payable for partial disability due to silicosis or other dust disease.

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Randall v. Chrysler Corp.
354 N.W.2d 363 (Michigan Court of Appeals, 1984)
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273 N.W.2d 911 (Michigan Court of Appeals, 1978)
Hill v. Highland Park General Hospital
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McKenna v. Chevrolet-Saginaw Grey Iron Foundry Division
234 N.W.2d 526 (Michigan Court of Appeals, 1975)

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Bluebook (online)
234 N.W.2d 526, 63 Mich. App. 365, 1975 Mich. App. LEXIS 1174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenna-v-chevrolet-saginaw-grey-iron-foundry-division-michctapp-1975.