SCOTT M CAIN V WASTE MANAGEMENT INC
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STATE OF MICHIGAN
COURT OF APPEALS
SCOTT M. CAIN,
FOR PUBLICATION
November 6, 2003
Plaintiff-Appellee,
No. 242104
WCAC
LC No. 98-000390
v
WASTE MANAGEMENT INC. and
TRANSPORTATION INSURANCE CO.,
Defendants-Appellants,
and
SECOND INJURY FUND,
Defendant-Appellee.
SCOTT M. CAIN,
Plaintiff-Appellee,
v
No. 242123
WCAC
LC No. 98-000390
WASTE MANAGEMENT INC. and
TRANSPORTATION INSURANCE CO.,
Defendants-Appellees,
and
SECOND INJURY FUND,
Defendant-Appellant.
Before: Cooper, P.J., and Fitzgerald and Kelly, JJ.
KELLY, J. (concurring in part and dissenting in part).
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Although I concur in part II-A of the majority opinion, I respectfully disagree
with the statutory analysis proffered in part II-B. In lieu of remanding to the WCAC to provide
its statutory authority and construction for awarding plaintiff total and permanent disability
benefits, I would reverse the WCAC’s apparent conclusion that the industrial loss of plaintiff’s
leg in its uncorrected state could constitute one of the two required losses for awarding plaintiff
total and permanent disability benefits under MCL 418.361(3)(b).
On remand, the WCAC’s analysis focused on a discussion of MCL 418.361(2)(k)
and whether plaintiff had suffered the specific (industrial) loss of his left leg in addition to the
specific (anatomical) loss of his right leg. However, the last sentence of the WCAC’s opinion
was its conclusion that “[h]aving shown specific loss of each leg, plaintiff is entitled to total and
permanent disability benefits.” The WCAC did not cite a subsection of MCL 418.361(3), the
total and permanent disability provision, for this conclusion. The order effectuating its opinion
was similarly imprecise, providing only that “specific loss benefits for plaintiff’s left leg are
granted in accordance with the attached opinion.”
In Cain v Waste Management, Inc, 465 Mich 509; 638 NW2d 98 (2002), our
Supreme Court eliminated the possibility of awarding plaintiff benefits under subsection (g) for
the “[p]ermanent and total loss of industrial use of both legs.” MCL 418.361(3)(g). Our
Supreme Court held that plaintiff had not demonstrated total and permanent disability of his left
leg because his left leg, when braced, was functional and could support industrial use. Cain,
supra at 524. We can therefore only presume that the WCAC, having found that plaintiff
suffered two specific losses, awarded plaintiff total and permanent disability benefits under MCL
418.361(3)(b) for the “[l]oss of both legs.” The WCAC presumably concluded that two specific
losses from WDCA section 361(2) entitled plaintiff to an award of total and permanent disability
benefits under WDCA section 361(3).
Whether the WCAC’s award of total and permanent disability benefits was proper
is an issue of first impression. Although the issue of first impression concerns a question of law,
which is appropriately reviewed under a de novo standard, McCaul v Modern Tile and Carpet,
Inc, 248 Mich App 610, 619; 640 NW2d 589 (2001), the WCAC’s one-sentence decision to
award total and permanent disability benefits is an unsatisfactory basis for this Court’s review,
especially in light of the fact that the award presents a statutory construction issue of first
impression and this Court is to give “considerable deference” to the WCAC’s interpretation and
application of a provision of the WDCA. See McCaul, supra. I would therefore favor
remanding this case to the WCAC for the WCAC to supply its statutory basis and construction
for awarding plaintiff total and permanent disability benefits. However, in light of the lengthy
appellate history of this case and because the majority has decided this impression, I proffer my
alternative statutory construction and conclusion in dissent.
This issue impression requires analysis of sections 2 and 3 of WDCA section 361,
which provide:
(2) 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 subject to the
maximum and minimum rates of compensation under this act for the loss of the
following:
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(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 phalange of the thumb, or of any finger, shall be
considered to be equal to the loss of 1/2 of that thumb or finger, and
compensation shall be 1/2 of the amount above specified.
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) A toe other than the great toe, 11 weeks.
The loss of the first phalange of any toe shall be considered to be equal to
the loss of 1/2 of that toe, and compensation shall be 1/2 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.
(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.
(3) Total and permanent disability, compensation for which is provided in section
351 means:
(a) Total and permanent loss of sight of both eyes.
(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 or faculties in subdivisions (a), (b), or
(c).
(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 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).]
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Plaintiff opines that our Supreme Court’s remand order encompasses an award of
total and permanent disability benefits under MCL 418.361(3)(b) for the “[l]oss of both legs”
because this result is the “logical and legal consequence” of the WCAC’s finding that plaintiff
suffered two specific losses under MCL 418.361(2)(k). According to plaintiff, it is “as simple as
adding one plus one to get the two qualifying losses.”
In contrast, SIF complains that plaintiff “bootstrapped” the specific (anatomical)
loss of his right leg with the specific (industrial) loss of the left leg, two inquires decided under
the “uncorrected” test, in order to receive total and permanent disability benefits, which are
awarded based on application of the corrected test. SIF argues that the WCAC’s award therefore
contravenes our Supreme Court’s opinion in Cain that plaintiff was not entitled to total and
permanent disability benefits under the “corrected” test.
Plaintiff concedes the seeming inconsistency in finding that a claimant who
cannot qualify for total and permanent disability benefits for the loss of industrial use of both
legs under the “corrected” test may qualify for total and permanent disability benefits by adding
together two specific losses found by application of the “uncorrected” test. However, plaintiff
attributes the alleged inconsistency not to the WCAC’s erroneous statutory construction but to
the error of our Supreme Court’s holding in Cain that the corrected test applies to subsection (g)
in the total and permanent context.1
I agree with SIF that awarding an employee total and permanent disability
benefits under MCL 418.361(3)(b) (“Loss of both legs”) based on the employee’s specific
(anatomical) loss of one leg and the specific (industrial) loss of the other leg requires an
unreasonable construction of MCL 418.361 that does not accomplish the statute’s twin purposes.
As our Supreme Court stated in Cain, supra at 521, benefits for specific losses and benefits for
total and permanent disabilities are “unique categories with substantial differences.”
“Loss of industrial use” is a special category of total and permanent disability
benefits that was added to the total and permanent disability definition after its original
formulation. Cain, supra at 512. This special category, found in subsection (g) of WDCA
section 361(3) quoted above, allows recovery for total and permanent disability where there is no
anatomical loss but where there is a loss of industrial use. Id. Hence, even if an employee does
not suffer actual amputation of one or both legs so as to qualify for specific loss benefits, the
employee may nevertheless be entitled to scheduled benefits for injury to both legs if the
employee has lost the industrial use of his legs. Id.
The word “[l]oss” in the phrase “[l]oss of both legs” in MCL 418.361(3)(b), the
statute upon which the WCAC’s award was presumably based, does not indicate on its face
whether the provision refers to anatomical loss or industrial loss or a combination thereof. If
reasonable minds can differ as to the meaning of a statute, then judicial construction is
appropriate. McCaul, supra at 619-620. The court must consider the object of the statute, the
harm it is designed to remedy, and apply a reasonable construction that best accomplishes the
1
Plaintiff’s assertion notwithstanding, whether our Supreme Court correctly held in Cain that prosthetics should not
be considered in a total and permanent disability claim is not an issue properly before this Court. A decision of the
majority of the justices of our Supreme Court is binding upon lower courts. See Negri v Slotkin, 397 Mich 105, 107;
244 NW2d 98 (1976).
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statute’s purpose. Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409
(1994).
When read in conjunction with subsection (g) of MCL 418.361(3), it becomes
clear that “[l]oss” in subsection (b) does not refer to industrial “loss of both legs.” The
Legislature expressly included “loss of industrial use of both legs” in subsection (g). Therefore,
“[l]oss of both legs” in subsection (b) excludes the category of “loss of industrial use of both
legs.” Under principles of statutory construction, this Court is required to give effect to every
statutory clause and to consider the statutory context holistically. Eversman v Concrete Cutting
& Breaking, 463 Mich 86, 99; 614 NW2d 862 (2000).
The Legislature’s inclusion of “loss of industrial use of both legs” in subsection
(g) also reflects the Legislature’s judgment that only the industrial loss of both limbs constitutes
a total and permanent disability. The Legislature has made the policy decision that loss of
industrial use only rises to the level of a total and permanent disability when both legs or both
hands or both arms or one leg and one arm have lost their industrial use. MCL 418.361(3)(g).
Accordingly, I do not find that the word “[l]oss” in the phrase “[l]oss of both
legs” in MCL 418.361(3)(b) refers to a combination of anatomical loss and industrial loss, which
is the result reached by the majority. My construction comports with the object of the total and
permanent disability provision and the unique harm it is designed to remedy.
Total and permanent disability benefits is a category of benefits that substantially
differs from the specific loss benefits category. Cain, supra at 521. As a threshold matter, the
two categories have different statutory bases. Section 2 of WDCA section 361 delineates the
specific losses for which benefits will be paid, whereas section 3 of WDCA section 361
delineates the total and permanent disabilities for which benefits will be paid. Moreover,
benefits for a specific loss predicated on a loss of industrial use are awarded for the claimant’s
loss, not for his or her disability; benefits for a total and permanent disability premised on a loss
of industrial use of two limbs are awarded for the claimant’s disability. Id. at 523-524 (adopting
WCAC’s opinion). Accordingly, the test for total and permanent disability is a corrected test,
whereas a specific loss is viewed in its uncorrected state, with an emphasis on the actual loss of
the organ. Id.
Therefore, to import a specific loss from MCL 418.361(2) that is based on the
industrial loss of a limb in its uncorrected state as the predicate for an award of total and
permanent disability benefits under MCL 418.361(3) undermines the purposes of the separate
statutory provisions and misses the policy distinctions between awarding benefits under MCL
418.361(2) and (3).
Our Supreme Court found that plaintiff had not demonstrated the loss of industrial
use of his left leg because his left leg, when braced, was functional and could support industrial
use. Cain, supra at 524. Therefore, within the total and permanent disability setting, plaintiff
has suffered only the anatomical loss of his right leg and not the industrial loss of his left leg.
Consequently, he cannot claim an award of total and permanent disability benefits under MCL
418.361(3)(b) for the “[l]oss of both legs.” I would reverse the WCAC’s apparent conclusion
that the industrial loss of plaintiff’s leg in its uncorrected state could constitute one of the two
required losses for awarding plaintiff total and permanent disability benefits under MCL
418.361(3)(b).
/s/ Kirsten Frank Kelly
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