JIM W ROBINSON JR V GENERAL MOTORS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
JIM ROBINSON, JR.,
UNPUBLISHED
January 21, 2000
Plaintiff-Appellant,
v
No. 215113
WCAC
LC No. 96-000271
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
Before: O’Connell, P.J., and Talbot and Zahra, J.J.
PER CURIAM.
Plaintiff appeals by leave granted from the September 16, 1998 opinion and order of the
Worker’s Compensation Appellate Commission (WCAC) affirming the magistrate’s denial of specific
loss benefits. We affirm.
Plaintiff was injured while working for defendant on October 8, 1993 when his glove became
caught in a piece of machinery and bent his thumb back. Plaintiff sustained a fracture of the middle bone
(the proximal phalanx) of his right thumb. Plaintiff also suffered some tendon damage. Plaintiff had out
patient surgery performed on the day of his injury and pins were inserted to set the fracture. After the
fracture healed and the pins were removed plaintiff underwent physical therapy to increase the range of
motion of the joints in the thumb.
Plaintiff, obviously an industrious and dedicated employee, returned to work the day after his
injury and was assigned to jobs which he could perform without reliance on his right thumb. On April
13, 1994, plaintiff was placed on a permanent work restriction prohibiting plaintiff from doing work that
requires the use of his right thumb. Plaintiff currently drives a hi-low or operates other machinery which
does not require him to use his right thumb. Plaintiff testified that he drives the hi-low with his left hand
and operates the hoists with his right hand using his fingers and palm to grip the controls. The magistrate
also observed that plaintiff is able to sign his name fairly well with his right hand, keeping his thumb
extended straight.
Appellate review by this Court of factual determinations is limited to “whether the WCAC acted
in a manner consistent with the concept of administrative appellate review that is less than de novo
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review in finding whether the magistrate’s decision was supported by competent, material, and
substantial evidence on the whole record.” Hagerman v Gencorp Automotive, 457 Mich 720, 727;
579 NW2d 347 (1998) citing Holden v Ford Motor Co, 439 Mich 257, 267-268; 484 NW2d 227
(1992). However, whether the magistrate applied the correct legal standard is a question of law that is
reviewed de novo by this Court. Hagerman, supra at 727.
Plaintiff first argues that the magistrate applied the wrong legal standard when finding that
plaintiff has not suffered a specific loss of the industrial use of his thumb. More specifically, plaintiff
contends that the magistrate equated loss of the industrial use of the thumb with a total disability or a
loss equivalent to amputation. This standard, plaintiff argues, is inconsistent with Pipe v Leese Tool &
Die Co, 410 Mich 510, 527; 302 NW2d 526 (1981), and therefore the WCAC should have reversed
the decision of the magistrate and remanded for a determination under the appropriate standard.
Defendant responds that specific loss benefits under MCL 418.361(2); MSA 17.237(361)(2) are only
available when there is actually a physical anatomical loss of one of the body parts enumerated, i.e.
amputation.1
As pointed out by defendant, a literal reading of subsection 361(2) strongly suggests that
specific loss benefits are awarded only for physical anatomical loss of enumerated body parts.
However, in Pipe, supra, the Michigan Supreme Court interpreted the term “loss” in MCL
418.361(2); MSA 17.237(361)(2) to mean not only amputation but also the loss of the industrial use of
the body part:
For purposes of determining an award of specific-loss benefits for the loss of a hand,
there must be a showing of either anatomical loss or loss of the industrial use of the
hand as determined by the loss of the primary service of the hand in industry.
(Emphasis added.) [Pipe, supra at 527.]
In Pipe, the Supreme Court expanded subsection 361(2) in a manner that is arguably
inconsistent with the plain meaning of subsection 361(2), which twice uses the word “amputation” to
describe recoverable losses. Further, the Legislature used the phrase “loss of the industrial use” in
subsection 361(3)(g) to describe the type of disability that gives rise to compensation under section 351
of the WDCA. The phrase “loss of industrial use” is conspicuously absent in subsection 361(2).
Having used the phrase to describe a disability in subsection 361(3)(g), we should assume that had the
Legislature intended to provide compensation for the loss of the industrial use of the body parts
enumerated in subsection 361(2), it would have expressly provided for such recovery.
We are further mindful of our obligation to construe narrowly judicial interpretations that appear
to be inconsistent with the plain meaning of the statutes they interpret. E.g., Herbolsheimer v SMS
Holding Co Inc, ___ Mich App ___; ___ NW2d ___ (Docket No. 204631, released 1/4/00), slip op,
pp 6-7 (holding that where judicially created exceptions to general statutory law are arguably
inconsistent with the plain language of such law, the judicial pronouncement should be interpreted more
narrowly rather than more broadly in those cases in which the scope of the judicial doctrine is
uncertain). Nonetheless, where the Supreme Court has considered a statute and in the process of
interpreting and defining the statute created a clear rule of law, this Court and the trial courts are bound
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to accept, apply, and follow the statutory interpretation advanced by the Supreme Court. Such is the
case here. Notwithstanding our concern over the Supreme Court’s interpretation of subsection 361(2),
we are required to follow Pipe and hold that a claimant may recover benefits under subsection 361(2)
of the WDCA upon establishing loss of the industrial use of a body part enumerated in that subsection.
Having determined that a claimant may recover for loss of industrial use of a body part
enumerated in subsection 361(2) of the WDCA does not resolve the issue of whether the magistrate
applied the wrong legal standard, as claimed by plaintiff. While there exists some ambiguity in the
magistrate’s opinion and findings, when considered in its totality, the magistrate’s opinion establishes that
he was aware of Pipe, supra, and applied the proper legal standard to plaintiff’s claim. The magistrate
opined:
Plaintiff has not persuaded me by a preponderance of the evidence
presented that he has lost the industrial use of his thumb, thus, [plaintiff is] not
entitled to specific loss benefits for that injury.
***
While plaintiff clearly had and continues to experience some disability as a result
of the October 8, 1993 injury to his right hand and thumb, this disability is not
sufficiently severe to be considered a loss of industrial use for the purposes of
workers’ compensation. He does have some restrictions, recognized and accepted
by defendant. He did not suffer an amputation, either complete or partial, and
continues to have some mobility and range of motion observed at trial and
acknowledged in the medical documentation. The most apparent and restricting
problem would appear to be grip strength in the right hand which creates his current
limitations. The fact that defendant recognizes a permanent restriction is not
sufficient, as claimed by plaintiff, to give rise to the loss of industrial use.
In reaching my decision that plaintiff retained sufficient use of the thumb to
perform work in the industrial setting, albeit restricted, I rely on the test or
standard set in Pipe v Leese Tool & Die Company, 410 Mich 510; 302 NW2d
526 (1981). Loss of industrial use of the thumb is sufficient to grant specific
loss benefits, but we must look further to define what constitutes loss of
industrial use. For this we look also to Pipe which states that loss of industrial
use is demonstrated by showing “the loss of primary service of the hand in
industry.” Plaintiff has not demonstrated a loss of service of the thumb. His
continuing work, with restrictions, doing many of the jobs he did before, albeit with
restricted motion and grip as well as some sensation loss, does not sufficiently
demonstrate disability equivalent to amputation or total loss of serviceability, thus my
finding. I believe he retains significant and industrially useful capability in the
hand and thumb that was injured. (Emphasis added.)
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The magistrate at one point did indeed overstate the standard applicable under subsection
361(2) by stating that plaintiff’s disability was not “equivalent to amputation or total loss of
serviceability.” However, the magistrate cited Pipe, supra, and stated the correct standard numerous
times throughout the written opinion and ultimately found that plaintiff retained significant and industrially
useful capability in the hand and thumb that was injured. This factual finding is consistent with the
standard set forth in Pipe, supra at 527. Therefore, we find that the magistrate did not apply the wrong
legal standard in making its determination.
We further find that the magistrate’s factual findings were supported by competent, material and
substantial evidence on the record. The magistrate observed first hand plaintiff’s ability to move his
thumb and sign his name. More significantly, the medical evidence showed that plaintiff retained
significant grip and pinch strength with his injured thumb and had significant range of motion in both
joints of the thumb. As noted in Pipe, supra at 519, grasping is the primary service provided by
thumbs. Therefore, we find that the WCAC did not err in affirming the magistrate’s findings of fact.
Plaintiff also claims on appeal that the magistrate erred by not making a determination that
plaintiff suffered the loss of the industrial use of half of his thumb. The WCAC stated that it was not
certain that such a claim existed, but in any event, the issue was never raised before the magistrate and is
therefore waived on appeal.
Having reviewed the record and briefs filed before the magistrate, we find no evidence that this
issue was ever expressly raised before the magistrate. In fact, plaintiff clearly indicated in his
memorandum of law presented to the magistrate that the loss of use alleged was for the entire thumb:
Mr. Robinson’s loss of use extends to the proximal phalanx which is well below the first
phalange. [Plaintiff’s Memorandum of Law, p 8.]
Moreover, as pointed out by the WCAC, at the beginning of the hearing the magistrate asked the
parties to state their positions on the record. Plaintiff’s counsel stated that plaintiff had suffered the
“industrial loss of use of his right thumb.” Plaintiff’s counsel made no reference to some partial loss.
Plaintiff argues that since subsection 361(2) recognizes a claim for partial loss, a logical
extension of Pipe, supra, would allow for such a claim. Since claims for the loss of the thumb and loss
of one-half of the thumb are made pursuant to the same statute, plaintiff argues, one claim is a lesser
included claim of the other. However, we have found no case in Michigan addressing a claim of loss of
industrial use of only a portion of a body part. Since there is no existing case recognizing a partial loss
of industrial use claim, we find that it was incumbent upon plaintiff to expressly present his claim to the
magistrate, thereby allowing plaintiff’s argument to extend the law to be fully developed before review
by this Court. Plaintiff’s failure to expressly raise this issue before the magistrate precludes
consideration of the issue both by the WCAC and by this Court. Hammack v Lutheran Social
Services of Michigan, 211 Mich App 1, 7; 535 NW2d
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215 (1995); Rutherford v Department of Social Services, 193 Mich App 326, 330; 483 NW2d 410
(1992). Accordingly, we conclude that this issue has not been preserved for appeal.
Affirmed.
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
/s/ Brian K. Zahra
1
Defendant contends that the loss of the industrial use of a body part only comes into play when
determining total and permanent disability under MCL 418.361(3)(g); MSA 17.237(361)(3)(g).
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