SCOTT M CAIN V WASTE MANAGEMENT INC
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 3, 2005
SCOTT M. CAIN,
Plaintiff-Appellee,
v
No. 125111
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellants,
and
SECOND INJURY FUND,
Defendant-Appellee.
_______________________________
SCOTT M. CAIN,
Plaintiff-Appellee,
v
No. 125180
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellees,
and
SECOND INJURY FUND,
Defendant-Appellant.
_______________________________
AFTER REMAND
BEFORE THE ENTIRE BENCH
TAYLOR C.J.
At issue in this worker’s compensation case is whether
a worker must suffer an actual amputation of a limb or body
part in order to qualify for either specific loss benefits
(also described as scheduled loss benefits) or total and
permanent disability benefits.
We hold that specific loss
benefits under MCL 418.361(2) do not require an amputation.
It is sufficient to qualify for such benefits if the limb
or body part has lost its usefulness.
Regarding total and
permanent
MCL
disability
benefits
under
418.361(3)(b),
which covers the loss of both legs, as with specific loss,
if the legs have lost their usefulness, even though not
amputated,
the
worker
disability benefits.
the
Court
of
qualifies
for
total
and
permanent
We therefore affirm the decisions of
Appeals
and
the
Worker’s
Compensation
Appellate Commission (WCAC).
BACKGROUND
This case was previously before us in Cain v Waste
Mgt, Inc, 465 Mich 509, 513; 638 NW2d 98 (2002) (Cain I),
where
we
summarized
the
facts
describing
plaintiff’s
injuries as follows:
Plaintiff Scott M. Cain worked as a truck
driver and trash collector for defendant, Waste
Management, Inc. In October 1988, as he was
2
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. 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.
To understand the benefits that are at issue, it is
necessary
Disability
to
review
several
Compensation
Act
sections
(WDCA),
of
MCL
the
Worker’s
418.101
et
seq.
Specific loss benefits are payable under MCL 418.361(2)(k)
to
an
1
employee
“for
the
loss
of”
a
leg.1
Total
and
The full text of MCL 418.361(2) reads:
In cases included in the following schedule,
the disability in each case shall be considered
to continue for the period specified, and the
compensation paid for the personal injury shall
be 80% of the after-tax average weekly wage
(continued…)
3
(…continued)
subject to the maximum and minimum rates of
compensation under this act for the loss of the
following:
(a) Thumb, 65 weeks.
(b) First finger, 38 weeks.
(c) Second finger, 33 weeks.
(d) Third finger, 22 weeks.
(e) Fourth finger, 16 weeks.
The loss of the first
or of any finger, shall be
to the loss of ½ of that
compensation shall be ½
specified.
phalange of the thumb,
considered to be equal
thumb or finger, and
of the amount above
The loss of more than 1 phalange shall be
considered as the loss of the entire finger or
thumb. The amount received for more than 1 finger
shall not exceed the amount provided in this
schedule for the loss of a hand.
(f) Great toe, 33 weeks.
(g)
weeks.
A
toe
other
than
the
great
toe,
11
The loss of the first phalange of any toe
shall be considered to be equal to the loss of ½
of that toe, and compensation shall be ½ of the
amount above specified.
The loss of more than 1 phalange shall be
considered as the loss of the entire toe.
(h) Hand, 215 weeks.
(i) Arm, 269 weeks.
An amputation between the elbow and wrist
that is 6 or more inches below the elbow shall be
considered a hand, and an amputation above that
point shall be considered an arm.
(continued…)
4
permanent
disability
benefits
are
payable
“[w]hile
the
incapacity for work resulting from a personal injury is
total,”
“total
MCL
and
418.351(1),
permanent
and
MCL
418.361(3)
disability”
means.2
defines
Of
what
particular
(…continued)
(j) Foot, 162 weeks.
(k) Leg, 215 weeks.
An amputation between the knee and foot 7 or
more inches below the tibial table (plateau)
shall be considered a foot, and an amputation
above that point shall be considered a leg.
(l) Eye, 162 weeks.
Eighty percent loss of vision of 1 eye shall
constitute the total loss of that eye.
2
The subsection reads in full:
Total and permanent disability, compensation
for which is provided in section 351 means:
(a) Total
both eyes.
and
permanent
loss
of
sight
of
(b) Loss of both legs or both feet at or
above the ankle.
(c) Loss of both arms or both hands at or
above the wrist.
(d) Loss of any 2 of the members
faculties in subdivisions (a), (b), or (c).
or
(e) Permanent and complete paralysis of both
legs or both arms or of 1 leg and 1 arm.
(f) Incurable insanity or imbecility.
(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
(continued…)
5
relevance here are two of the definitions of total and
permanent disability found in MCL 418.361(3)(b), “Loss of
both legs or both feet at or above the ankle,” and MCL
418.361(3)(g), “Permanent and total loss of industrial use
of both legs or both hands or both arms or 1 leg and 1 arm
. . . .”
In Cain I, we determined that because Mr. Cain had a
brace on his left leg that enabled him to return to work,
he had not lost industrial use of both legs, as required by
MCL 418.361(3)(g).3
We noted there is a difference between
specific loss and loss of industrial use, and we “adopt[ed]
as our own” the analysis of the WCAC in its April 1997
opinion.
Cain
I,
supra
at
521.
In
accord
with
that
analysis, we held that the “corrected” standard applies to
claims for permanent and total loss of industrial use under
MCL 418.361(3)(g), and we remanded to the WCAC “to consider
plaintiff’s specific loss claim.”
Cain I, supra at 524.
On
actual
remand,
unnecessary
the
to
WCAC
qualify
determined
for
specific
loss
amputation
benefits
is
and,
(…continued)
subdivision such permanency shall be determined
not less than 30 days before the expiration of
500 weeks from the date of injury.
3
The reader is directed to Cain I for a full
discussion of the procedural history of the case to that
(continued…)
6
because plaintiff’s leg is essentially useless, his injury
“equated
with
anatomical
loss.”
The
WCAC
cited
as
authority Hutsko v Chrysler Corp, 381 Mich 99; 158 NW2d 874
(1968), and Tew v Hillsdale Tool & Mfg Co, 142 Mich App 29;
369 NW2d 254 (1985).
Both are cases in which specific loss
claims were allowed where there had been a loss of use, but
not an anatomical loss.
The WCAC then concluded without
further explanation that “[h]aving shown specific loss of
each
leg,
plaintiff
disability
is
benefits.”
entitled
On
to
appeal,
total
the
and
Court
permanent
of
Appeals
majority, citing Pipe v Leese Tool & Die Co, 410 Mich 510;
302 NW2d 526 (1981), affirmed the decision of the WCAC.
259 Mich App 350; 674 NW2d 383 (2003).
each
of
benefits
plaintiff’s
(one
through
industrial
use),
together,
equaled
418.361(3)(b),
legs
and
thus
qualified
amputation
that
a
these
“loss
of
entitling
and
It concluded that
for
one
losses,
both
specific
loss
through
lost
when
legs”
plaintiff
to
considered
under
MCL
total
and
permanent disability benefits.
Both the defendant employer and the Second Injury Fund
sought leave to appeal.
leave,
ordering
the
We granted both applications for
appeals
to
be
argued
and
submitted
(…continued)
point, including details of the opinions of the magistrate,
the WCAC, and the Court of Appeals.
7
together.
470 Mich 870 (2004).
We directed the parties in
both appeals to include among the issues to be briefed
whether
the
“loss
of
industrial
use”
standard
may
be
applied to claims of specific loss under MCL 418.361(2) and
whether
Pipe,
supra,
should
be
overruled.
We
further
directed the parties in Docket No. 125180 to address the
issues whether the WCAC exceeded the scope of this Court’s
remand
order
disability
by
awarding
benefits
and
plaintiff
whether
total
total
and
and
permanent
permanent
disability benefits under MCL 418.361(3)(b)(loss of both
legs) may be awarded on the basis of plaintiff’s specific
(anatomical) loss of one leg and his specific (industrial
use) loss of the other leg.
STANDARD OF REVIEW
We
review
de
compensation cases.
Co,
462
Mich
Entitlement
to
691,
novo
questions
of
law
in
worker’s
Mudel v Great Atlantic & Pacific Tea
697
worker’s
n
3;
614
compensation
NW2d
607
benefits
(2000).
must
be
determined by reference to the statutory language creating
those benefits.
Nulf v Browne-Morse Co, 402 Mich 309, 312;
262 NW2d 664 (1978).
As we have noted in the past, when we
construe a statute, our primary goal is to give effect to
the intent of the Legislature and our first step in that
process is to review the language of the statute itself.
In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d
8
164
(1999).
The
Legislature
has
specified
the
proper
approach to construing statutory language, saying in MCL
8.3a:
All words and phrases shall be construed and
understood according to the common and approved
usage of the language; but technical words and
phrases, and such as may have acquired a peculiar
and appropriate meaning in the law, shall be
construed
and
understood
according
to
such
[4]
peculiar and appropriate meaning.
ANALYSIS: SPECIFIC LOSS
We turn first to the question of specific loss and
therefore focus our analysis on MCL 418.361(2). The loss
provision of this section repeatedly has been held to be
intended to compensate workers who have suffered one of the
losses
enumerated
in
this
provision,
regardless
effect on the worker’s earning capacity.5
of
the
Cain I, supra at
524; Redfern v Sparks-Withington Co, 403 Mich 63, 80-81;
268 NW2d 28 (1978).
This means if a worker, for example,
loses an arm, thumb, finger, leg, or so on in a workplace
4
However, when a statute specifically defines a given
term, that definition alone controls.
WS Butterfield
Theatres, Inc v Dep’t of Revenue, 353 Mich 345; 91 NW2d 269
(1958).
5
We note that MCL 418.354(16), in providing for
coordination of social security and other benefits,
recognizes this principle, stating in part, “It is the
intent of the legislature that, because benefits under
section 361(2) and (3) are benefits which recognize human
factors substantially in addition to the wage loss concept,
coordination
of
benefits
should
not
apply
to
such
benefits.”
9
injury,
specific
loss
benefits,
as
set
forth
in
the
schedule, will be awarded even if no time is missed from
work.
At issue here is whether a limb (here, a leg),
crushed but not severed, is to be treated as lost, thus
entitling the injured worker to specific loss benefits.
Defendants argue that the word “loss” unambiguously
means
“amputation,”
especially
in
the
context
361(2)(k), which expressly mentions amputation.
of
§
As they
argue it, amputation is required because MCL 418.361(2)(k)
provides benefits for the loss of a leg by stating:
Leg, 215 weeks.
An amputation between the knee and foot
7 or more inches below the tibial table
(plateau) shall be considered a foot, and an
amputation
above
that
point
shall
be
considered a leg.
Thus, defendants assert that the amputation language,
at least regarding legs, limits the word “loss” in the
statute to mean that only amputations are compensable.
Plaintiff, on the other hand, while agreeing that the
statute is unambiguous, argues that defendants’ approach is
flawed because it disregards the original meaning of the
specific loss provisions when the WDCA was enacted almost a
century ago in favor of a modern perception of the word’s
meaning.
The
original
meaning,
plaintiff
asserts,
is
controlling because, although the statute has been amended
many times since its enactment in 1912, the word “loss” has
10
remained unchanged and without express qualifications or
limitations.
Plaintiff analogizes our task in determining
the meaning of “loss” to that which we undertook in Title
Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 522;
676 NW2d 207 (2004), where we determined what the plain and
ordinary
meaning
of
“transcript”
was
in
1895.
analytical approach of plaintiff is sound.
statute
itself
does
not
define
“loss,”
This
Because the
we
agree
with
plaintiff that we must ascertain the original meaning the
word “loss” had when the statute was enacted in 1912.
“When determining the common, ordinary meaning of a
word or phrase, consulting a dictionary is appropriate.”
Title Office, Inc, supra at 522.
the
era
of
the
original
In the dictionaries from
legislation,
the
definition
of
“loss” is fairly broad: “Perdition, ruin, destruction; the
condition or fact of being ‘lost,’ destroyed, or ruined,”
New English Dictionary (1908); “State or fact of being lost
or destroyed; ruin; destruction; perdition; as Loss of a
vessel
English
at
sea,”
Language
Webster’s
(1921);
New
Int’l
“Failure
Dictionary
to
hold,
of
keep,
the
or
preserve what one has had in his possession; disappearance
from
possession,
use,
or
knowledge;
deprivation
of
that
which one has had: as, the loss of money by gaming, loss of
health or reputation, loss of children: opposed to gain,”
Century Dictionary and Cylopedia (1911).
11
From this we can
see that severance is but one way a loss may occur; loss
also occurs when something is destroyed, ruined, or when it
disappears from use.
We conclude that amputation is not
required in order for a person to have suffered the loss of
a specified body part.
Having ascertained the commonly understood meaning of
the word “loss,” our substantive analysis of its definition
is complete.
594,
597;
Gladych v New Family Homes, Inc, 468 Mich
664
NW2d
705
(2003).
Our
conclusion
is
reinforced by the fact that the same meaning for the word
“loss” is found in the cases construing late nineteenth
century private liability insurance plans for the aid of
injured workers that were, in part, the models for the
body-part
compensation
Legislature
Michigan’s
loss
provisions
act.
in
1912
“Workmen’s
of
When,
in
passed
our
first
special
that
Compensation
first
worker’s
session,
act,
Act,”6
it
the
known
as
was
the
culmination of the efforts of the five-person Employers’
Liability and Workmen’s Compensation Commission appointed
by Governor Chase S. Osborn in 1911.7 The commission had
been formed because of what was described at the time as
6
1912 (1st Ex Sess) PA 10.
7
1911 PA 245.
12
“wide
dissatisfaction”
with
the
employer’s
liability
common law for injuries suffered by his employees.
of
the
Employers’
Liability
and
Workmen’s
at
Report
Compensation
Commission of the State of Michigan, 5 (1911) (Report).
The commission was directed to “investigate and report a
plan
for
legislative
action
to
provide
compensation
for
accidental injuries or death arising out of and in the
course of employment . . . .”
Id.
In its report, the
commission, after concluding that the existing negligence
based
system
prevention
against
of
animosity
and
failed
accidents,
excessive
compensation
similar
(1)
for
(2)
verdicts,
injured
strife,
provisions
to
sufficiently
did
(3)
not
resulted
workers,
recommended
already
Wisconsin, and New Jersey.8
protect
and
a
enacted
employers
in
inadequate
(4)
engendered
statute
in
encourage
based
on
Massachusetts,
The Legislature, with very few
8
These in turn were modeled after European laws that
first appeared in the mid-1800s and that were well
established by the end of that century, swept along by
massive industrialization occurring at the same time
throughout Europe.
Harger, Worker’s compensation, a brief
history, <www.fldfs.com/WC/history.html> (accessed December
22, 2004).
In this country, the first constitutional
worker’s compensation law was the 1908 Employer’s Liability
Acts, 45 USC 51-60.
In 1911, the first states followed,
and by 1913, twenty-three states had comparable laws.
Harger, supra.
By 1948, all the states had at least some
form of worker’s compensation, including the territories of
Alaska and Hawaii. Harger, supra.
13
changes to the recommended language, briskly enacted this
proposal as Michigan’s workmen’s compensation act less than
three weeks after the bill was introduced.
1912 (1st Ex
Sess) Journal of the House 13, 149-150.
In dealing with what today is described as total and
permanent disability, the 1912 statute stated in § 9:
While the incapacity for work resulting from
the injury is total, the employer shall pay, or
cause to be paid as hereinafter provided, to the
injured employee a weekly compensation equal to
one-half his average weekly wages, but not more
than ten dollars nor less than four dollars a
week; and in no case shall the period covered by
such compensation be greater than five hundred
weeks, nor shall the total amount of all
compensation exceed four thousand dollars. [1912
(1st Ex Sess) PA 10, part II, § 9.]
In dealing with partial incapacity, the statute stated
at § 10:
While the incapacity for work resulting from
the injury is partial, the employer shall pay, or
cause to be paid as hereinafter provided, to the
injured employee a weekly compensation equal to
one-half the difference between his average
weekly wages before the injury and the average
weekly wages which he is able to earn thereafter,
but not more than ten dollars a week; and in no
case
shall
the
period
covered
by
such
compensation be greater than three hundred weeks
from the date of the injury. 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:
* * *
14
For the loss of a leg, fifty per centum of
average weekly wages during one hundred and
seventy-five weeks.
[1912 (1st Ex Sess) PA 10,
part II, § 10.]
Section 9 allowed wage-based benefits to be paid to
workers
who
were
totally
incapacitated
from
work,
regardless of the type of work-related injury that caused
the incapacity, while § 10 provided for benefits when the
worker was partially incapacitated.
Moreover, the latter
part of § 10, with its schedule of benefits for specific
losses, allowed a set amount of weeks that benefits would
be
awarded
injuries
when
a
worker
described.
In
suffered
doing
so,
one
it
of
was
the
specific
intentionally
patterned after the specific loss provisions of the above
referenced
employers’
private
liability
insurance
plans,
which were designed to provide benefits to workers injured
on the job.
Report, supra.9
9
The commission’s report even included in its appendix
the text of two plans “typical” at the time.
Report,
supra, Appendix VII, 143-146.
The “Benefit and Relief
Plans of the Cleveland-Cliffs Iron Company” provided:
In addition to the monthly benefit payments, other
amounts are paid for certain serious injuries, as follows:
Loss of one arm, leg or eye, $166.66.
Loss of both arms, legs or eyes, $500.
Similarly, the “Benefit and Relief Plans of the Oliver
Iron Mining Company” provided:
(continued…)
15
The cases construing such insurance policies in that
era,
from
Michigan
and
elsewhere,
unmistakably
indicate
that the word “loss,” just as it did in dictionaries of the
time, meant not just severance or amputation but also the
destruction of the usefulness of the member.
our Court in
In Michigan,
Fuller v Locomotive Engineers’ Mut Life &
Accident Ins Ass’n, 122 Mich 548, 553; 81 NW 326 (1899),
construing
the
specific
loss
provision
in
an
insurance
policy, said just this, indicating that
where an insurance policy insures against the
loss of a member, or the loss of an entire
member, the word “loss” should be construed to
mean the destruction of the usefulness of the
member, or the entire member, for the purposes to
which,
in
its
normal
condition,
it
was
susceptible of application.
(…continued)
The following injuries have specified
others in proportion to these injuries:
amounts,
and
(a) For the loss of a hand, twelve months’ wages.
(b) For the loss of an arm, eighteen months’ wages.
(c) For the loss of a foot, nine months’ wages.
(d) For the loss of a leg, twelve months’ wages.
(e) For the loss of one eye, six months’ wages.
Sections 9 and 10 of the 1912 act
language similar to these insurance plans.
16
incorporated
Simply stated, under such a policy in Michigan, no
amputation was necessary for a loss.
The rationale for not
limiting loss just to amputation was the understanding by
this
Court
and,
as
we
will
explain,
by
other
American
courts that the term “loss” in such policies should be
given its ordinary and popular meaning, which was broad
enough to include loss of usefulness.
As the Missouri Supreme Court said on this topic, the
word “loss” in insurance policies “was used in its ordinary
and popular sense and [did] not mean that there should be a
total destruction of the [member], anatomically speaking,
but that the loss of the use of it for the purposes to
which
[the
. . . .”
member]
is
adapted
would
be
a
loss
of
it
Sisson v Supreme Court of Honor, 104 Mo App 54,
60; 78 SW 297 (1904).
The Kansas Supreme Court stated it
similarly: “The loss of a member of the body, as used in an
accident insurance policy, unless restricted or modified by
other
language,
carries
the
common
meaning
of
the
term
‘loss,’ which is the loss of the beneficial use of the
member.
Obviously
this
may
occur
when
there
is
complete severance of the member from the body.”
not
a
Noel v
Continental Cas Co, 138 Kan 136, 139; 23 P2d 610 (1933).
The
Kansas
thirteen
court
cases
then
from
reinforced
ten
other
17
its
holding
states
from
by
the
citing
late
nineteenth and early twentieth centuries, holding to the
same effect.10
Also buttressing our analysis is that, in the early
years
of
the
act’s
existence,
the
decisions
of
the
Industrial Accident Board (IAB), the WCAC’s predecessor,
also construed “loss” as defined in the dictionary.
That
is consistent with its commonly understood meaning.
This
is consequential because half of the four IAB board members
had
served
on
Governor
Osborn’s
commission
and
had
recommended the very “loss” language we are considering.11
We find the interpretation these board members gave to the
statute
useful
in
the
same
way
that
the
comments
of
10
Travelers’ Ins Co v Richmond, 284 SW 698 (Tex Civ
App, 1926); Continental Cas Co v Linn, 226 Ky 328; 10 SW2d
1079 (1928); Jones v Continental Cas Co, 189 Iowa 678; 179
NW 203 (1920); Locomotive Engineers’ Mut Life & Accident
Ins Co v Meeks, 157 Miss 97; 127 So 699 (1930); Moore v
Aetna Life Ins Co, 75 Or 47; 146 P 151 (1915); Bowling v
Life Ins Co of Virginia, 39 Ohio App 491; 177 NE 531
(1930); Citizens’ Mut Life Ass’n v Kennedy, 57 SW2d 265
(Tex Civ App, 1933); Sneck v Travelers’ Ins Co, 88 Hun 94;
34 NYS 545 (1895); Sheanon v Pacific Mut Life Ins Co, 77
Wis 618; 46 NW 799 (1890); Lord v American Mut Accident
Ass’n, 89 Wis 19; 61 NW 293 (1894); Berset v New York Life
Ins Co, 175 Minn 210; 220 NW 561 (1928); Sisson v Supreme
Court of Honor, 104 Mo App 54; 78 SW 297 (1904); Int’l
Travelers’ Ass’n v Rogers, 163 SW 421 (Tex Civ App, 1914).
11
Richard L. Drake was its first secretary and Ora E.
Reaves was one of three board commissioners.
Reaves
remained on the board until at least 1920.
Michigan
Official Directory and Legislative Manual, 1913-1914, 1915
1916, 1917-1918, and 1919-1920.
18
drafting committees can be “useful interpretive aids” for
construing statutes.
See Gladych, supra at 601 n 4. The
IAB, in Lardie v Grand Rapids Show Case Co, 1916 Workmen’s
Compensation Cases 17, 19, in discussing loss, stated that
“courts
have
uniformly
construed
provisions
of
accident
policies insuring against the loss of a member, to cover
cases where the usefulness of the member was destroyed by
accident
without
resulting
in
severance
Id., citing Fuller, supra at 553.
in
the
context
of
worker’s
or
amputation.”
Similarly, that “loss”
compensation
specific
loss
benefits did not mean only amputations, but also included
loss of usefulness, was indicated by the IAB’s decisions in
an unnamed case cited in Industrial Accident Bd, Bulletin
No
3,
12
13
(1913);12
Rider
v
C
H
Little
Co,
Industrial
The board stated in that case:
The action of the surgeon in amputating a
finger, or in failing to amputate it, or in
choosing
the
point
of
amputation
is
not
controlling in all cases of this kind. Each case
depends for its decision upon the particular
facts relating to the finger, and these might
relate to the point of amputation, or the fact
that the finger or a portion thereof had been
rendered useless without being amputated. . . .
The Board is further of the opinion that in case
no part of the finger is amputated and the injury
is such as to entirely destroy the usefulness of
the first phalange or the entire finger, in that
event the injured person has lost the first
phalange or the finger, as the case may be, as
completely as if the same had been amputated.
19
Accident Bd, supra at 27, 29 (1913); Hirschkorn v Fiege
Desk Co, 184 Mich 239; 150 NW 851 (1915); Purdy v Sault Ste
Marie,
188
Mich
573,
579;
155
NW
597
(1915);
Cline
v
Studebaker Corp, 189 Mich 514; 155 NW 519 (1915); Lardie,
supra; Carpenter v Detroit Forging Co, 191 Mich 45; 157 NW
374 (1916); Packer v Olds Motor Works, 195 Mich 497; 162 NW
80 (1917); Adomites v Royal Furniture Co, 196 Mich 498; 162
NW 965 (1917).
The same can be seen in large part
jurisprudence of the time.
in this Court’s
For example, in Purdy, supra at
579, the Court affirmed the IAB’s specific loss award for a
crushed leg.13
In Lovalo v Michigan Stamping Co, 202 Mich
85, 89; 167 NW 904 (1918), the Court held that the claimant
had suffered the loss of his hand where four fingers and
nearly all the palm were amputated, saying that “the loss
of all the palm and all of the fingers of the hand could
. . .
be
hand.”
reasonably
considered
the
loss
of
the
entire
Indeed, the only expressly contrary case in this
era is Wilcox v Clarage Foundry & Mfg Co, 199 Mich 79; 165
NW 925 (1917), where the Court, in a case with difficult
facts, determined that the specific loss provision required
anatomical
loss.
The
Wilcox
13
Court
made
no
effort
to
The IAB’s decision is at 1916 Workmen’s Compensation
Cases 65.
20
reconcile
its
understanding
analogized
holding
with
of
“loss,”
instead
to
the
with
nor
cases
IAB’s
Fuller
where
clearly
Purdy,
but
plaintiffs
the
or
stated
had
suffered partial losses and this Court had required proof
of complete, rather than partial, loss.14
We conclude that,
given its outlier status, as well as the fact that the
construction
it
seeks
to
give
to
the
term
“loss”
is
inconsistent with the original meaning of “loss” in the
act, Wilcox was incorrectly decided.
Thus, we overrule
Wilcox so that its potentially confusing shadow will be
removed from our case law.15
To
summarize,
of
the
from
its
commonly understood meaning at the time of enactment.
The
contemporaneous
and
definition
of
then,
“loss”:
uses
of
regarding
the
this
definition
the
word
are
issue
comes
corroborative
reinforcing of this definition.
14
Even if those cases can be read as requiring
amputation, Wilcox was flawed in a broader sense by the
fact that, rather than tracing its rationale to the act
itself, it used as a template, as one might in a common-law
case, the prior cases construing the act.
15
We are reinforced in our notion that Wilcox is
aberrant by the fact that the Lovalo Court, in reaching a
holding contrary to Wilcox just one year later, left
unaddressed the continuing strength of Wilcox, suggesting
that the Court considered it confined to its facts.
21
Defendants assert that, even given this conclusion,
the
1927
“loss.”
amendments
forever
altered
the
definition
of
In 1927, the Legislature, for the only time in the
twentieth
century,
consequentially
amended
the
specific
loss section of the statute by adding to the provision
regarding a leg the language: “An amputation between the
knee and foot six or more inches below the knee shall be
considered a foot, above this point a leg[.]”16
1927 PA 63.
Keying off of this amendment, defendants urge that this
language implicitly was designed to alter any previously
broad understanding of the word “loss” so that after the
amendment
amputation.
there
We
could
think
be
no
this
specific
loss
explanation
without
an
insufficiently
appreciates that the amendment came in the wake of a series
of cases where this Court had made debatable calls on the
nature of the loss after an amputation.17
That is, at what
16
Similarly, the amendment added to the provision for
an arm, “An amputation between the elbow and wrist 6 or
more inches below the elbow shall be considered a hand,
above this point an arm.”
17
Stocin v C R Wilson Body Co, 205 Mich 1; 171 NW 352
(1919) (holding that a claimant had lost his arm, not just
his hand, where it was severed below the elbow and the
upper arm was atrophied), Curtis v Hayes Wheel Co, 211 Mich
260; 178 NW 675 (1920) (holding that the claimant had lost
just a foot where his amputation occurred four to five
inches below the knee), and Reno v Holmes, 238 Mich 572;
214 NW 174 (1927) (holding that a claimant had lost his
(continued…)
22
point on the limb had a loss become not just of a hand but
of an arm, not just of a foot but of a leg?
goal
of
the
discrete
amendment
set
amputation.
of
was
to
bring
determinations
We believe the
certainty
once
there
to
was
this
an
It is hard to conclude otherwise, given that
the Legislature, in its amendment, did not expressly alter
or redefine the word “loss” itself and especially given
that word’s quite clear meaning in the dictionaries of the
time as well as the above-referenced decisions of the IAB
and
this
Court.
Moreover,
this
Court’s
leading
postamendment decision in the 1930s on the issue of loss18
is
consistent
with
this
understanding
that
the
1927
amendment was not intended to reverse the holdings of the
IAB and this Court on what is a loss.
This dominant theme of our case law, that loss does
not require amputation, can be seen throughout the mid
century, albeit with some false starts.19
Later in the
(…continued)
leg, not just his foot, where it was severed 5½ inches
below the knee).
18
See Rench v Kalamazoo Stove & Furnace Co, 286 Mich
314; 282 NW 162 (1938), where the Court allowed an award
for loss of two hands where most of the plaintiff’s fingers
had been severed and he had suffered a total loss of use of
both his hands.
19
In the middle of the century, with Hlady v Wolverine
Bolt Co, 325 Mich 23; 37 NW2d 576 (1949), as well as Utter
(continued…)
23
century, in Pipe v Leese Tool & Die Co, 410 Mich 510; 302
NW2d 526 (1981), the Court correctly determined, consistent
with the original understanding of the act and the earlier
cases
we
have
discussed,
that
amputation
was
not
a
prerequisite to a “loss.”
Pipe, however, in a phrase used frequently in these
cases, described this loss of usefulness as “loss of the
industrial use . . . .”
Id. at 527.
The phrase “loss of
industrial use” does not appear anywhere in the specific
loss
provisions,
and
seems
to
have
been
intended
as
judicial shorthand to describe the condition of the injured
member
from
the
standpoint
of
its
use
in
employment.
However, this description causes confusion because it does
not adequately capture the proper standard, which is that
specific loss is to be determined without reference to the
plaintiff’s earning capacity or ability to return to work.
That is, it is paid if the loss has been incurred and it is
not relevant whether the worker can work after the loss.
(…continued)
v Ottawa Metal Co, 326 Mich 450; 40 NW2d 218 (1949), and
Barnett v Kelsey-Hayes Wheel Co, 328 Mich 37; 43 NW2d 55
(1950), this Court decided cases contrary to this original
understanding of the specific loss provisions.
But these
cases are inconsistent with the proper understanding of the
statute and we note that they were hesitatingly followed,
if at all, and Hlady was expressly overruled.
Mitchell v
Metal Assemblies, Inc, 379 Mich 368, 380; 151 NW2d 818
(1967).
24
Miller v Sullivan Milk Products, Inc, 385 Mich 659; 189
NW2d 304 (1971); Shumate v American Stamping Co, 357 Mich
689; 99 NW2d 374 (1959).
We believe it was this concept
that the Pipe Court was attempting to articulate and we
clarify by means of this opinion that holding.
To be clear, we are endeavoring here not to craft a
new
standard,
but
enacted in 1912.
to
articulate
clearly
the
standard
We find that the original understanding
the word “loss” carried when the WDCA was enacted was its
plain and ordinary meaning, consistent with how it had been
construed in the context of insurance law.
Thus, “loss”
includes not only amputation but also loss of usefulness.20
It was the intent of the drafters to write into the statute
a word that was expansive enough to cover both situations
and
the
words
and
language
they
chose
conveyed
this.
Moreover, in our case law, this Court has with considerable
consistency,
albeit
not
unfailingly,
upheld
this
construction.
We do so again today, believing as courts
have before us that the meaning we give to the word “loss”
in MCL 418.361(2) is the meaning originally intended.
20
In Pipe, supra at 530, and again in Cain I, supra at
524, we referred to this as anatomical loss or its
equivalent.
25
Defendants’ approach would require us to ignore the
statutory
drafters’
and
enactors’
turn-of-the-twentieth
century understanding of the common and approved meaning of
“loss”
in
favor
of
a
purportedly
different
understanding, divorced from its roots.
We
are
not
definition
free
of
a
to
substitute
word
or
This we cannot do.
any
term
contemporary
other
for
the
nonstatutory
meaning
it
indisputably had in 1912, and has maintained for almost a
century.
This duty traces to the simple notion that we are
to construe a statute “in the light of the circumstances
existing at the date of its enactment, not in the light of
subsequent developments. . . . ‘The words of a statute must
be taken in the sense in which they were understood at the
time when the statute was enacted.’”
Wayne Co Bd of Rd
Comm’rs v Wayne Co Clerk, 293 Mich 229, 235-236; 291 NW 879
(1940), quoting 25 RCL, § 215, p 959.
We therefore hold to
the original meaning of the word “loss” in the specific
loss provisions: it does not require severance and there
can be a “loss” where the claimant suffers the loss of
usefulness of the member.
In
addition,
we
conclude
that
applied the “uncorrected” standard.
I,
supra
at
“uncorrected”
521-523,
standard
the
to
the
26
properly
We discussed in Cain
propriety
specific
WCAC
loss
of
applying
claims
and
the
the
“corrected”
claims.
The
standard
to
total
and
permanent
disability
We reaffirm that rule today.
WCAC
found
the
damage
to
Mr.
Cain’s
left
leg
“equated with anatomical loss and that the limb retains no
substantial utility.”
The WCAC’s factual finding is, in
essence, that he lost the usefulness of his leg.
Because
that factual finding is supported by competent evidence in
the record, it must be affirmed.
Mudel, supra at 701.
The
Court of Appeals erred when it grafted a loss of industrial
use
standard
administrative
correct
onto
tribunal.
result
eligibility.
the
with
factual
findings
Nonetheless,
regard
Accordingly,
to
it
of
reached
plaintiff’s
plaintiff
is
the
the
benefit
eligible
for
specific loss benefits for the loss of his left leg.
ANALYSIS: TOTAL AND PERMANENT DISABILITY
We next turn to analyze whether the WCAC correctly
allowed plaintiff benefits under the total and permanent
disability
interpreting
provisions,
the
MCL
418.361(3).
Legislature’s
work
is,
Our
if
task
possible,
in
to
read the seven eligibility requirements in § 361(3) so as
to read none of them out or as an unnecessary duplication
of another.
In particular, we must endeavor to harmonize
the three provisions concerning legs and to read them in a
way that does not make any of the language surplusage.
Jenkins v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004);
27
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich
142, 146; 644 NW2d 715 (2002).
In short, we read the words
in a statute together, to harmonize the meaning of the
clauses and give effect to the whole.
G C Timmis & Co v
Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
Defendants argue that we cannot construe “[l]oss” in §
361(3)(b) to mean less than amputation because then cases
of lost industrial use would fall under both § 361(3)(b)
and
§
361(3)(g),
disagree.
rendering
the
latter
surplusage.
We
We find the proper construction of the word
“[l]oss” in § 361(3)(b) is that it has the same meaning
given it in § 361(2).21
This conclusion is unsurprising, we
believe, given the juxtaposition of §§ 361(2) and 361(3),
which is itself a compelling reason to give them the same
meaning.
(1853).
See,
e.g.,
Sibley
v
Smith,
2
Mich
487,
491
Furthermore, doing so, as we will explain, causes
no part of § 361(3) to be duplicative or nugatory.
Dealing
with § 361(3)(b) first, we find that using this definition
of loss means that benefits are payable under this section
not only when there is anatomical loss, but also when the
limbs have no practical usefulness.
the
other
hand,
as
we
discussed
21
Section 361(3)(g), on
in
Cain
I,
with
its
We note that this meaning would also apply in §§
361(3)(c) and 361(3)(d).
28
reference to permanent and total loss of industrial use,
calls the fact-finder to look to wage-earning capacity and
the injured worker’s ability to function in industry.
is
apparent,
these
words
demand
something
distinct
As
from
§ 361(3)(b)’s simple inquiry regarding whether the legs or
feet are amputated or have no practical usefulness.
This
means that what is covered under § 361(3)(b) may not be
covered
under
§§ 361(3)(b)
defining
§
and
loss
361(3)(g).
361(3)(g)
as
we
provision nugatory.
clearer.
If
the
Stated
cover
have
here
more
different
does
not
formally,
things
make
and
either
An example may make this distinction
legs
are
rendered
useless
but
can
be
braced so as to make the performance of the job possible,
there
has
been
loss
under
§
361(3)(b)
industrial use under § 361(3)(g).
but
no
loss
of
This worker, indeed like
Mr. Cain, would under this reading qualify for total and
permanent
disability
§ 361(3)(g).
benefits
under
§
361(3)(b)
but
not
Conversely, a worker whose legs have basic
function, i.e., are practically useful, but whose legs have
no industrial use even if braced (such as a ballerina),
would qualify under § 361(3)(g) but not § 361(3)(b).
These examples limn that the “corrected” standard does
not apply to § 361(3)(b), unlike § 361(3)(g).
The reason
is, as we explained in Cain I, that § 361(3)(g), with its
utilization of permanent and total loss language, compels a
29
conclusion that if the condition is correctable, it is not
permanent and total.
Cain I, supra at 519-520.
In fact,
when this language appears elsewhere in § 361(3), such as
in
§§
361(3)(a)
correctability
permanent
also
and
and
361(3)(e),
applies.
total
Because
loss
the
doctrine
there
triggering
is
no
language
of
such
in
§ 361(3)(b), it follows that the requirement of looking to
correctability is absent.22
In sum, Mr. Cain has clearly suffered the loss of his
amputated right leg and the WCAC found that his left leg
has “no substantial utility.”
practical usefulness.
That is, his leg has no
Thus, he has suffered a “loss of
both legs” and falls within § 361(3)(b), qualifying for an
award of total and permanent disability benefits under that
provision.23
Accordingly, the WCAC and the Court of Appeals
decisions are affirmed.24
22
Again,
§§
361(3)(c)
and
361(3)(d)
are
similarly
worded.
23
We have read the
potential confusion, only
identical to ours.
24
concurrence and, to preclude
note that its conclusion is
We also conclude that, although the WCAC made an
error of law in its interpretation of § 361(3)(b), it was
properly within its scope on remand to reach legal
conclusions based on its reassessment of the facts.
Modreski v Gen Motors Corp, 417 Mich 323; 337 NW2d 231
(1983).
While the WCAC was precluded from reaching a
(continued…)
30
CONCLUSION
In conclusion, we find that Mr. Cain has suffered the
specific loss of his left leg under MCL 418.361(2) and that
he qualifies for an award of total and permanent disability
benefits under MCL 418.361(3)(b).
Therefore, we affirm the
decisions of the Court of Appeals and the WCAC.
Clifford W. Taylor
Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
(…continued)
decision contrary to that of this Court, Cain I did not
address the question whether plaintiff had suffered total
and permanent disability under § 361(3)(b).
Although the
WCAC’s determination on remand that he met the requirements
of § 361(3)(b) had the opposite outcome from its initial
determination that he was not qualified under § 361(3)(g),
its finding was based on a different legal theory.
We
conclude that it did not err in addressing legal questions
raised by its new factual determination.
31
S T A T E
O F
M I C H I G A N
SUPREME COURT
SCOTT M. CAIN,
Plaintiff-Appellee,
v
No. 125111
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellants,
and
SECOND INJURY FUND,
Defendant-Appellee.
_______________________________
SCOTT M. CAIN,
Plaintiff-Appellee,
v
No. 125180
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellees,
and
SECOND INJURY FUND,
Defendant-Appellant.
_______________________________
AFTER REMAND
WEAVER, J. (concurring).
I concur in the result of the majority opinion and its
conclusions that plaintiff suffered a specific loss of his
left leg under MCL 418.361(2)(k) and that he qualifies for
an award of total and permanent disability benefits under
MCL
418.361(3)(b).
The
word
“loss,”
as
used
in
both
subsections of the statute, includes not only amputation
but also those situations in which there is a loss of the
usefulness
Justice
of
the
Taylor,
limb
the
or
member.1
Worker’s
As
noted
Compensation
by
Chief
Appellate
Commission (WCAC) essentially found that on these facts,
plaintiff lost the usefulness of his left leg and that he
accordingly was entitled to specific loss benefits for the
loss of his left leg under MCL 418.361(2)(k).
28.
Ante at 27
There is competent evidence to support the WCAC’s
factual
finding.
finding
and
we
must
defer
to
the
WCAC
on
this
Mudel v Great Atlantic & Pacific Tea Co, 462 Mich
691, 703; 614 NW2d 607 (2000).
Further, plaintiff has
suffered a “[l]oss of both legs” under MCL 418.361(3)(b)
because his right leg has been amputated and he has lost
the
usefulness
entitled
to
of
total
his
and
left
leg.
permanent
1
Consequently,
disability
he
is
benefits.
Dictionary definitions of the word “loss” include:
“failure to preserve or maintain” and “destruction, ruin.”
Random House Webster’s New College Dictionary (1997).
2
Therefore, I agree that the decisions of the WCAC and Court
of Appeals should be affirmed.2
Elizabeth A. Weaver
Marilyn Kelly
2
While I agree with some of the basic conclusions of
the majority, as should be evident from the fact that I am
concurring separately, I do not sign on to all of the
lengthy analysis on which the majority relies to support
its conclusions.
3
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