Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh
Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JANUARY 23, 2002
SCOTT M. CAIN,
Plaintiff-Appellee,
v No. 116389
WASTE MANAGEMENT, INC. and
TRANSPORTATION INSURANCE COMPANY,
Defendants-Appellants.
________________________________
Cross-Appellant,
v No. 116945
Defendants-Appellees,
and
SECOND INJURY FUND (TOTAL AND
PERMANENT DISABILITY PROVISION).
Defendant-Appellant,
Cross-Appellee.
________________________________ SCOTT M. CAIN,
v No. 116953
Defendants-Appellants,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
TAYLOR, J.
The issue in this case concerns the proper standard for
determining whether an injured employee is entitled to collect
worker’s compensation benefits for total and permanent
disability pursuant to MCL 418.361(3)(g).1 Specifically, the
question is whether such a person’s injured limb or member
should be evaluated in its “corrected” or “uncorrected” state.
The Worker’s Compensation Appellate Commission (WCAC) held
1 We also are satisfied that the WCAC should have
considered plaintiff’s specific loss claim regarding his left
leg. While this claim may not have been pleaded as
specifically as it should have been, we discern no prejudice
or surprise. Accordingly, we remand this claim to the WCAC
for resolution. As for the remaining issues in this case, we
are no longer persuaded that they should be reviewed by this
Court. Therefore, we vacate our order granting leave to
appeal regarding all other issues and deny leave to appeal
regarding those issues.
that a “corrected standard” should be applied, whereas the
Court of Appeals held that an “uncorrected standard” was
applicable.
In keeping with prior decisions of this Court, and for
the reasons set forth below, we reverse in part the judgment
of the Court of Appeals and hold that § 361(3)(g) envisions
that a “corrected” standard be applied.
I
We begin by noting that this case involves a fairly
uncommon kind of claim for worker’s compensation benefits.
The worker’s compensation act provides, if certain conditions
are met, for payments to workers who are injured or become
disabled on the job. MCL 418.101 et seq. The most common
situation is controlled by the general disability provision.
MCL 418.301(1) provides that an employee, who receives a
personal injury arising out of and in the course of employment
for an employer who is subject to this act at the time of the
injury, shall be paid compensation as provided in this act.
If such a showing is made, one must then determine if the
disability is total or partial. Payment formulas are set by
statute.
In addition to these more common claims for disability
benefits, the act provides compensation for the loss of
certain body parts. These are known as “scheduled”
disabilities. MCL 418.361(2). For example, if a worker loses
his foot at work he is given payments for 162 weeks. Loss of
an arm results in payments for 269 weeks. These are known as
“specific loss” benefits.
If a worker suffers from certain enumerated injuries,
such as loss of both hands or both feet, he may be entitled to
benefits for total and permanent disability, as defined by MCL
418.361(3). As explained more fully hereinafter, such total
and permanent disability benefits are a type of scheduled
benefit, but they are distinct from the scheduled specific
loss benefits. Total and permanent disability benefits are
intended for those who sustain the more catastrophic loss of
more than one member.
“Loss of industrial use” is a special category of total
and permanent disability benefits found in MCL 418.361(3)(g).
This category allows recovery for total and permanent
disability where there is no anatomical loss, but where there
is a loss of industrial use. Hence, for example, even if an
employee does not suffer actual amputation of one or both legs
so as to qualify for specific loss benefits, he may
nevertheless be entitled to scheduled benefits for injury to
both legs if he has lost the “industrial use” of his legs. In
this way the “loss of industrial use” category of total and
permanent benefits differs from other total and permanent
categories.2
The case at bar involves this distinctive “loss of
industrial use” kind of total and permanent disability claim.
II
Plaintiff Scott M. Cain worked as a truck driver and
trash collector for defendant, Waste Management, Inc. In
October 1988, as he was standing behind his vehicle emptying
a rubbish container, he was struck by an automobile that
crashed into the back of the truck. Mr. Cain’s legs were
crushed. Physicians amputated Mr. Cain’s right leg above the
knee. His left leg was saved with extensive surgery and
bracing.
In February 1990, Mr. Cain was fitted with a right leg
prosthesis, and he was able to begin walking. He returned to
his employment at Waste Management and started performing
clerical duties.
Mr. Cain’s left leg continued to deteriorate. In October
1990, he suffered a distal tibia fracture. Doctors diagnosed
it as a stress fracture caused by preexisting weakness from
the injury sustained in the accident. After extensive
physical therapy and further surgery on his left knee, Mr.
2 Total and permanent benefits are payable without regard
to loss of wage earning capacity except for the distinctive
industrial use loss category. Redfern v Sparks-Withington Co,
403 Mich 63, 80; 268 NW2d 28 (1978).
Cain was able to return to Waste Management in August 1991,
first working as a dispatcher and then in the sales
department.
Waste Management voluntarily paid Mr. Cain 215 weeks of
worker’s compensation benefits for the specific loss of his
right leg. MCL 418.361(2)(k). However, there was
disagreement concerning whether he was entitled to additional
benefits.
III
In August 1992, Cain filed a petition with the Bureau of
Worker’s Compensation, seeking total and permanent disability
benefits, which stated:
My legs were crushed in a motor vehicle
accident resulting in an amputation above the knee
of my right leg. The severity of my injuries to my
left leg result [sic] in the industrial loss of use
of both legs. I am, therefore, entitled to
permanent and total disability benefits.
At the end of the second day of the hearing, Mr. Cain
moved to amend his petition to include a claim for the
specific loss of his left leg. The magistrate denied the
motion. Less than a week later, Mr. Cain filed a petition
requesting benefits for the specific loss of the left leg:
In addition to my initial application, I am
claiming specific loss of my left lower extremity
for dates of injury of 10/25/88 and 10/21/90. On
10/21/90, while walking down a ramp at home, I
refractured my left tibia causing it to become
necessary for me to wear a permanent brace on my
left leg.
In December 1993, the magistrate awarded specific loss
benefits (to be paid consecutively) for the loss of both legs.
Although he had denied the motion to add a claim for the
specific loss of the left leg, the magistrate nonetheless
awarded the benefits, reasoning that Mr. Cain’s assertion of
the loss of the industrial use of both legs implicitly
included a claim for the specific loss of the left leg.
The magistrate found that the left leg had been
effectively lost in October 1990, when the stress fracture
occurred and “any hope of restoring the member was abandoned.”
The condition of the Plaintiff’s left leg
subsequent to 10/21/90 appears to be tantamount to
amputation. He cannot support himself without the
brace which was fashioned for him. The Plaintiff
is in effect wearing a prosthetic device on the
Thus, he ruled that the Second Injury Fund would be obligated
to pay benefits for total and permanent disability because
Mr. Cain had lost the industrial use of both legs.3
Waste Management and its insurer appealed to the WCAC,
which reversed the judgment of the magistrate in April 1997.
3 Total and permanent disability, compensation for which
is provided in MCL 418.351, means:
(g) Permanent and total loss of industrial use
of both legs or both hands or both arms or 1 leg
and 1 arm; for the purpose of this subdivision such
permanency shall be determined not less than 30
days before the expiration of 500 weeks from the
date of injury. [MCL 418.361(3)]
The WCAC ruled that, in light of the phrasing of Mr. Cain’s
initial petition to the bureau, the magistrate had erred in
awarding benefits for the specific loss of the left leg. The
WCAC also held that the magistrate had committed legal error
in his analysis of the total and permanent disability claim,
since he had failed to use a “corrected” standard to examine
the remaining usefulness of Mr. Cain’s braced leg. Applying
such a standard, the WCAC concluded that Mr. Cain is not
totally and permanently disabled.
In May 2000, the Court of Appeals affirmed in part,
reversed in part, vacated in part, and remanded for further
proceedings.4 The Court of Appeals affirmed the WCAC’s denial
of specific loss benefits, agreeing that Mr. Cain’s petition
did not state a claim for such benefits. However, the Court
of Appeals reversed and vacated with regard to the finding of
total and permanent disability, stating:
We reverse that portion of the WCAC’s decision
which holds that a claim for [total and permanent]
disability benefits must be analyzed under the
corrected test. While use of the corrected test is
mandated in vision cases, [Hakala v Burroughs Corp
(After Remand), 417 Mich 359; 338 NW2d 165 (1983)],
and has been expanded to cases involving implants,
4 When Mr. Cain first applied for leave to appeal, his
application was denied by the Court of Appeals. Unpublished
order, entered August 7, 1997 (Docket No. 203539). However,
this Court remanded the case for consideration as on leave
granted. 459 Mich 863 (1998). The Court of Appeals decision
was by unpublished opinion per curiam, issued May 2, 2000
(Docket No. 214445).
[O’Connor v Binney Auto Parts, 203 Mich App 522;
513 NW2d 818 (1994)], its use has not been extended
to cases involving prosthetics or braces. In the
instant case, plaintiff wears a prosthetic right
leg and a brace on his left leg. The brace is not
permanently attached to plaintiff’s leg. In
holding that use of the corrected test was required
in this case, the WCAC read Hakala, supra, and
O’Connor, supra, too broadly.
The issue whether a claimant has suffered loss
of industrial use is one of fact. Pipe v Leese
Tool & Die Co, 410 Mich 510, 527; 302 NW2d 526
(1981). We hold that the WCAC exceeded its
authority by applying the corrected test to make
initial findings of fact regarding whether
plaintiff had suffered the loss of industrial use
of his legs. Such initial findings are within the
exclusive province of the magistrate. [Layman v
Newkirk Electric Associates, Inc, 458 Mich 494; 581
NW2d 244 (1998)].[5] We vacate that portion of the
WCAC’s decision denying plaintiff’s claim for
[total and permanent] disability benefits and
remand with instructions that the WCAC apply the
uncorrected test to plaintiff’s claim. If
necessary, the WCAC may further remand the case to
the magistrate for additional findings of fact.
Id.; MCL 418.861a(12); MSA 17.237(861a)(12).
Applications for leave to appeal were filed by Waste
Management, Inc., and the Second Injury Fund. Mr. Cain
responded with an application for leave to appeal as cross
appellant. We granted all three applications and invited
amicus curiae participation.6
5 We overruled Layman to the extent that it clearly
misstated the law with regard to the WCAC's authority to make
independent factual findings in Mudel v Great Atlantic &
Pacific Tea Co, 462 Mich 691, 697; 614 NW2d 607 (2000). Our
opinion in Mudel was issued approximately two months after the
Court of Appeals issued its opinion.
6 463 Mich 995-996 (2001).
IV
We address only one issue: whether the “corrected”
standard of Hakala, applied to a vision claim pursuant to MCL
418.361, should be applied to a permanent and total loss of
industrial use of both legs claim pursuant to MCL
418.361(3)(g).
In Hakala, a worker with a preexisting vision disability7
suffered the loss of a hand. This second loss gave rise to
the issue whether he was totally and permanently disabled
under the predecessor of MCL 418.521(1). The parties turned
to the predecessor of MCL 418.361(2)(l) for the rule that
eighty percent loss of vision in an eye constitutes total loss
of that eye. As it happened, Mr. Hakala’s uncorrected vision
loss was greater than eighty percent, but his corrected vision
did not constitute an eighty-percent loss.8
The question whether to gauge Mr. Hakala’s vision in its
corrected or uncorrected state had led to a division in the
Worker’s Compensation Appeal Board panel that decided the
7 The vision disability was not work-related. 417 Mich
361. See also 399 Mich 162, 176, n 1; 249 NW2d 20 (1976), and
393 Mich 153, 157, n 1; 224 NW2d 27 (1974).
8 The “correction” at issue in Hakala was evidently the
product of ordinary corrective-lens glasses. See Hakala v
Burroughs Corp, 393 Mich 153, 160; 224 NW2d 27 (1974) (opinion
of SWAINSON , J.), on rehearing 399 Mich 162; 249 NW2d 20
(1976).
case. In our Hakala opinion,9 we resolved the matter in this
fashion:
In Nulf [v Browne-Morse Co, 402 Mich 309; 262
NW2d 664 (1978)], we refused to extend the
“uncorrected” vision test to total and permanent
claims, although we had adopted such a test for
specific loss claims in Lindsay v Glennie
Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967).
We observed:
“In Hakala v Burroughs Corp (On Rehearing)
[399 Mich 162; 249 NW2d 20 (1976)], this Court
recognized that the question of Second Injury Fund
benefits in situations involving the loss of an eye
could not be adequately resolved by the universal
adoption of either the “uncorrected vision” test or
the “corrected vision” test. The Court held that
the question of entitlement to Second Injury Fund
benefits must be determined by reference to the
statutory language creating those benefits found in
MCL 418.521; MSA 17.237(521), which requires a
determination of whether the employee has suffered
a “permanent disability in the form of the loss of
a[n] . . . eye.” The determination of whether a
loss is a permanent disability within the meaning
of that section must be evaluated in terms of the
underlying legislative purpose of aiding the
handicapped in obtaining and maintaining
employment.” [Nulf] 402 Mich 312-313.
We are persuaded that the Legislature intended
compensation for a specific loss without regard to
whether the vision could be "corrected" or restored
after the injury. Lindsay, supra.
We are now persuaded that the Legislature
intended that a different standard be used in
determining total and permanent disability inasmuch
as it provided that only "total and permanent loss
of sight" would constitute the qualifying eye loss
for such benefits. We are satisfied that to carry
9 As indicated in footnote 7, this actually was our third
opinion in Hakala.
out the legislative intent a "corrected" vision
standard should hereafter be used in assaying
claims for total and permanent disability involving
the loss of sight.
We conclude that in this connection that is
the sense in which the term "permanently disabled"
is used for the purposes of the Second Injury Fund.
[417 Mich 363-364.]
We have not had occasion subsequently to elaborate upon
or clarify the rule of Hakala. As noted in its opinion in the
present case, the Court of Appeals has extended the principle
only so far as cases involving “implants,” such as the knee
replacement surgery discussed in O’Connor.10 203 Mich App 522.
10 In O’Connor, supra at 534, the Court of Appeals
approved a distinction offered by an earlier panel in Tew v
Hillsdale Tool & Mfg Co, 142 Mich App 29, 35-37; 369 NW2d 254
(1985), where an employee was forced to wear a special
orthopedic boot following an injury that resulted in
amputation of a great toe:
If by some medical procedure an object or
device is attached to or implanted in the injured
member, it has become part of the body. . . . In
contrast, plaintiff's boot is not part of the foot
on which he wears it. Medical science has done to
better the condition of the foot itself. An arm or
leg which contains a surgically inserted pin is,
nevertheless, an arm usable in industry without an
external aid.
* * *
[A] similar distinction can and should be made
between artificial devices or objects which are
made part of the body, and external aids which
merely enable a person to accomplish what the limb
or member cannot do on its own.
V
The question whether MCL 418.361(3)(g) requires
application of a “corrected” or “uncorrected” standard in the
present case is a legal question, which we review de novo.
Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 697, n
3; 614 NW2d 607 (2000).
Ultimately, entitlement to worker’s compensation benefits
must be determined by reference to the statutory language
creating those benefits. Nulf at 312.
As previously indicated, total and permanent disability,
compensation for which is provided in MCL 418.351, means:
and 1 arm . . . . [MCL 418.361(3).]
We conclude that the words “permanent” and “total”
indicate the Legislature intended a “corrected” test. We
agree with the O’Connor Court, supra at 533, that
[t]he concept of permanence is necessarily one of
status, involving an assessment of medical
deterioration, stabilization, or improvement, and
consideration of medical treatment options.[11]
Moreover, as indicated in Hakala and Nulf, the ordinary
meaning of the word “permanent” suggests a condition or injury
that cannot be improved or made functional.
The word “total” similarly suggests a situation that
cannot be corrected. Further, the use of the phrase
“industrial use” in this section itself implies the kind of
functional analysis that is implicit in the “corrected”
standard of MCL 418.351. This phrase modifies “permanent and
total loss” and effectively limits the coverage of this
provision to only certain kinds of permanent and total losses,
to wit, those that have adverse implications for the ability
of an employee to carry out his industrial responsibilities.
Different forms of serious injury may carry altogether
different consequences in terms of the ability of an employee
to perform his “industrial” responsibilities. The express
language of MCL 418.351, in particular the phrase “industrial
use,” makes these different consequences relevant.
There certainly exist conditions that can be overcome,
and we have previously held that the Legislature intended that
poor vision, correctable with glasses, be evaluated in its
corrected state. No sound distinction would lead to a
different result in the case of a limb that, like vision
corrected by glasses, can function with the aid of an external
device. Where the legal inquiry is the effect of the work
injury on a worker’s use of members in industry, that effect
can only be reasonably measured by use of the members as aided
and corrected, whether by the devices listed in MCL
418.315(1)11 or otherwise.
11 We note that pursuant to MCL 418.315(1), employers
subject to the act must provide injured employees
The Court of Appeals opined that the WCAC had read Hakala
and O’Connor too broadly. However, in actuality, and as
indicated above, it is the Court of Appeals that read Hakala
too narrowly.12
In considering the present issue, we have remained
cognizant of the distinction between specific loss benefits
and total and permanent disability benefits. As mentioned at
the beginning of the opinion, they are unique categories with
substantial differences. In its April 1997 decision, the WCAC
included this analysis, which we adopt as our own:
We believe that the historical distinction
repeatedly recognized by the appellate courts
throughout the long interpretational history of the
two statutory provisions continues to provide an
important divider between the specific loss
entitlements and the total and permanent disability
entitlements established under the statute.
crutches, artificial limbs, eyes, teeth,
eyeglasses, hearing apparatus, and other appliances
necessary to cure, so far as is reasonably
possible, and relieve from the effects of injury.
12 As indicated in n 10, both Tew and O’Conner
distinguished between artificial devices or objects that are
made part of the body and external aids that merely enable a
person to accomplish what the limb or member cannot do on its
own. O’Conner at 534, citing Tew at 36-37. We cannot agree
with this distinction because it has no basis in the language
of the statute. The distinction is also contrary to Hakala,
which required consideration of glasses that clearly are an
external device. Whether a corrective device is external or
internal is of no importance in determining whether a claimant
has suffered a permanent and total loss of the industrial use
of a limb.
An even more significant contrast between the
two entitlements concerns the question of whether
loss is measured with the help of prosthetics or
without. The test for specific loss is clearly an
uncorrected test. In Lindsay v Glennie Industries
Inc, 379 Mich [573] (1967), the plaintiff suffered
an injury that compelled surgical removal of his
cataract, but even though he had virtually no sight
in that eye, the subsequent use of contact lenses
enabled him to enjoy virtually full vision. The
Supreme Court reversed the lower court’s finding
that no specific loss could be found because
plaintiff’s vision had been restored, and stated
that the proper analysis should take place without
the corrective procedure. The Lindsay Court
stated:
“We recognize that substituting an artificial
lens has ‘restored’ vision to the otherwise
sightless eye. We point out that a specific loss
award is not made as compensation for diminution of
the use of the involved organ or member. It is not
awarded to compensate for loss of earnings or
earning capacity. It is awarded irrespective of
either fact or both.” Id. at 578.
The Court noted that a plain reading of the
statutory wording put forth a loss regardless of
the correctability of the problem. Because the
Court placed emphasis on the actual loss of the
member or organ when determining specific loss, it
viewed the loss in its uncorrected state.
Likewise, in Tew v Hillsdale Tool & Mfg, 142
Mich App 29 (1985), plaintiff caught his right foot
in a conveyor, and suffered the amputation of his
great toe. There was also loss of tissue from the
second toe which decreased stability of the foot.
Plaintiff wore a special shoe to aid in his walking
ability. The Court held that prosthetic devices
are not taken into account when determining
specific loss in an industrial use analysis. The
Tew court stated “We do not hold that anyone who
wears any sort of prosthetic device has a valid
specific loss claim, but only that the device
should not be considered in measuring the
disability.” Id. at 35.
On the other hand, the test for total and
permanent disability is a corrected test. In
Hakala v Burroughs Corp (After Remand), 417 Mich
359 (1983), plaintiff claimed total and permanent
loss by bringing forth a pre-existing non occupational impairment of vision with the work related loss of his right hand. The Supreme Court
denied total and permanent loss benefits due to the
fact that the “corrected” standard had to be used.
“We are persuaded that the Legislature
intended compensation for a specific loss without
regard to whether the vision could be ‘corrected’
or restored after the injury. Lindsay, supra.
“We are now persuaded that the Legislature
as it provided that only ‘total and permanent loss
of sight’ would constitute the qualifying eye loss
out the legislative intent a ‘corrected’ vision
the loss of sight.” Id. at 364.
With this statement a clear distinction was
established for total and permanent disability
benefits, using the corrected status of the member
or organ. A closer look at why this distinction
was made reveals a logic that leads back to the
main purpose of having separate statutory
provisions. The courts allow correction in the
total and permanent setting because the focus is on
the function of the member or organ that enables
the claimant to earn a living. On the other hand,
specific loss awards the claimant for the loss of
the anatomical member, . . . and thus the
uncorrected test is more appropriate.
In O’Connor v Binney Auto Parts, 203 Mich App
522 (1994), the Court determined that the corrected
test applies beyond the special category of vision.
In O’Connor, an amputee with a prosthesis below the
left knee sought total and permanent loss benefits
for his legs because the right leg was aggravated.
The Court held that any corrective surgery to the
right knee that would improve the claimant’s
condition should be included in the evaluation as
to whether claimant suffered industrial loss of use
of his legs. . . . Essentially, O’Connor confirms
the distinction that for determining specific loss
benefits, prostheses are not considered, while when
determining total and permanent loss, prosthetic
devices and implants must be taken into
consideration.
In summary, the specific loss and total and
permanent disability entitlements in the statute
are unique categories with substantial differences.
They are separately identified in their own
subsections. The focus of specific loss is on
anatomical loss or its equivalent, irrespective of
wage earning ability. In contrast, the focus of
total and permanent disability is on the loss of
wage earning capacity. While the test for specific
loss is an uncorrected test, the test for total and
permanent disability is a corrected test.
We conclude that the “corrected” standard applied in
Hakala accords with the intent of the Legislature as expressed
in the language of MCL 418.361(3)(g) and is properly applied
in the present case.13 In sum, total and permanent disability
is not demonstrated where the proofs indicate that a braced
limb is functional and can support “industrial use.” MCL
13 We note that our holding today, while not required by,
is consistent with our holding in Chmielewski v Xermac, Inc,
457 Mich 593, 609; 580 NW2d 817 (1998) (whether a person is
disabled under the Persons With Disabilities Civil Rights Act,
MCL 37.1101 et seq., is generally determined considering
mitigating measures), and with Sutton v United Airlines, Inc,
527 US 471, 475; 119 S Ct 2139; 144 L Ed 2d 450 (1999)
(whether a person is disabled under the federal Americans with
Disabilities Act, 40 USC 12101 et seq., should be made with
reference to measures that mitigate the individual’s
impairment).
VI
For these reasons, we reverse in part the May 2000
judgment of the Court of Appeals. We remand to the WCAC to
consider plaintiff’s specific loss claim. MCR 7.302(F)(1).
CORRIGAN , C.J., and CAVANAGH , WEAVER , YOUNG , and MARKMAN , JJ.,
concurred with TAYLOR , J.
KELLY , J., concurred in the result only.