HARRY E WEAKLAND V TOLEDO ENGINEERING CO
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chie f Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED FEBRUARY 4, 2003
HARRY E. WEAKLAND,
Plaintiff-Appellant/Cross-Appellee,
v
No. 119495
TOLEDO ENGINEERING COMPANY,
INC., USF&G/ST. PAUL INSURANCE
COMPANY, and SECOND INJURY FUND,
Defendants-Appellees/Cross-Appellants.
___________________________________________
PER CURIAM
I
In this worker’s compensation matter, we are called on to
construe the statutory provision that places the obligation on
the employer to supply the injured employee with appliances
that are necessary to alleviate the effects of the work
related injury.
MCL 418.315(1).
We affirm the Worker’s
Compensation Appellate Commission (WCAC) decision that only
the modifications to a van constitute appliances within the
meaning
of
subsection
315(1)
of
the
Worker’s
Compensation Act (WDCA), MCL 418.315(1).
Disability
Furthermore, we
overrule Wilmers v Gateway Transportation Co (On Remand), 227
Mich App 339; 575 NW2d 796 (1998).
II
Plaintiff was employed as a bricklayer by defendant
Toledo Engineering.
In January, 1981, while at work, he was
injured and disabled, and later began to receive worker’s
compensation. Subsequently, his physical health deteriorated,
and by 1990 he was having difficulty walking any substantial
distance without assistance.
As his condition worsened,
plaintiff acquired assistive devices, including a motorized
cart, as well as a van that was customized to transport the
cart.
Plaintiff
sought
reimbursement
for
the
cost
and
customization of the van and other related expenses pursuant
to
MCL
418.315(1),
arguing
that
these
were
“appliances”
necessary to cure or relieve the effects of his compensable
injury.
The magistrate, after taking proofs on this issue,
ordered
reimbursement
for
the
motorized
cart
and
the
reasonable cost of the van and its conversion. On appeal, the
WCAC affirmed the magistrate’s order regarding reimbursement
for the cost of the van conversion, but reversed regarding the
cost of the van and the cart.
The Court of Appeals denied plaintiff’s application for
leave to appeal.
Plaintiff then filed an application for
leave to appeal in this Court, and defendants sought leave to
appeal regarding the award of reimbursement for the van
2
conversion.
This matter turns on the proper construction of
MCL 418.315(1).
III
We review questions of statutory construction de novo.
DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300
(2000).
The fundamental rule of statutory construction is to
give effect to the Legislature’s intent.
Farrington v Total
Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993).
That
intent is clear if the statutory language is unambiguous, and
the statute must then be enforced as written.
Lorencz v Ford
Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
IV
Subsection 315(1) of the WDCA governs liability of an
employer for the cost of enumerated assistive devices:
The employer shall furnish, or cause to be
furnished, to an employee who receives a personal
injury arising out of and in the course of
employment, reasonable medical, surgical, and
hospital
services
and
medicines,
or
other
attendance or treatment recognized by the laws of
this state as legal, when they are needed. However,
an employer is not required to reimburse or cause
to be reimbursed charges for an optometric service
unless that service was included in the definition
of practice of optometry under section 17401 of the
public health code, 1978 PA 368, MCL 333.17401, as
of May 20, 1992. An employer is not required to
reimburse or cause to be reimbursed charges for
services performed by a profession that was not
licensed or registered by the laws of this state on
or before January 1, 1998, but that becomes
licensed, registered, or otherwise recognized by
the laws of this state after January 1, 1998.
Attendant or nursing care shall not be ordered in
excess of 56 hours per week if the care is to be
provided by the employee's spouse, brother, sister,
child, parent, or any combination of these persons.
3
After 10 days from the inception of medical care as
provided in this section, the employee may treat
with a physician of his or her own choice by giving
to the employer the name of the physician and his
or her intention to treat with the physician. The
employer or the employer's carrier may file a
petition objecting to the named physician selected
by the employee and setting forth reasons for the
objection. If the employer or carrier can show
cause why the employee should not continue
treatment
with
the
named
physician
of
the
employee's choice, after notice to all parties and
a prompt hearing by a worker's compensation
magistrate, the worker's compensation magistrate
may order that the employee discontinue treatment
with the named physician or pay for the treatment
received from the physician from the date the order
is mailed. The employer shall also supply to the
injured
employee
dental
service,
crutches,
artificial limbs, eyes, teeth, eyeglasses, hearing
apparatus, and other appliances necessary to cure,
so far as reasonably possible, and relieve from the
effects of the injury. If the employer fails,
neglects, or refuses so to do, the employee shall
be reimbursed for the reasonable expense paid by
the employee, or payment may be made in behalf of
the employee to persons to whom the unpaid expenses
may be owing, by order of the worker's compensation
magistrate. The worker's compensation magistrate
may prorate attorney fees at the contingent fee
rate paid by the employee. [Emphasis added.]
In Wilmers, the Court of Appeals addressed the scope of
the services and devices that an employer can be called on to
provide to an injured employee pursuant to MCL 418.315. It
concluded that an entire custom equipped van, and not just the
required
vehicular
modifications,
could
be
considered
a
reasonably necessary “appliance” for the purpose of subsection
315(1).
Wilmers, supra at 345-346.
In doing so, the Court
reversed the decision of the WCAC, which had found that
4
characterizing an entire vehicle as an appliance would be
stretching the statute beyond the clear terms used by the
Legislature.
Judge Young dissented from the decision of the Court of
Appeals in Wilmers.
Concluding that a van did not constitute
an “appliance” within the meaning of subsection 315(1), he
discussed the substantial difference between a van and the
examples of appliances provided by subsection 315(1):
I conclude that the Legislature’s selection of
the phrase “other appliances,” when preceded by
specific examples of artificial adaptive aids (such
as crutches, hearing aids, dentures, glasses,
etc.), creates an unambiguous legislative intent to
mandate that an employer is obligated only to
supply devices of like kind. . . . Consequently, I
find it hard to reconcile with my construction of
the statute the majority’s view that a van is
considered to be “like” such adaptive aids as a
crutch, a hearing aid, false teeth, or a pair of
eyeglasses. [Id. at 352.]
We
agree
with
that
dissenting
opinion’s
conclusion
regarding the proper understanding of “other appliances.”
Judge Young was applying the canon of statutory construction
described
formally
as
ejusdem
generis.
This
Court
has
utilized this canon frequently in defining the scope of a
broad
term
following
a
series
of
specific
items.
In
discussing this canon in Huggett v Dep’t of Natural Resources,
464 Mich 711, 718-719; 629 NW2d 915 (2001), we described how
meaning is given to the general term in that situation as
follows:
“[T]he general term is restricted to include only
5
things of the same kind, class, character, or nature as those
specifically enumerated”; that is, because the listed items
have a commonality, the general term is taken as sharing it.1
As Judge Young pointed out, the statutorily listed items,
“dental service, crutches, artificial limbs, eyes, teeth,
eyeglasses, hearing apparatus” share a commonality in that
they are artificial adaptive aids that serve to directly
ameliorate the effects of the medical condition.
A van is
dissimilar to the listed items in MCL 418.315(1) because it is
not an artificial adaptive aid. Rather, a van is simply a
means of transportation. The “adaptive aid” ameliorating the
effects
of
utilization
Accordingly,
the
of
the
medical
the
van
phrase
condition
is
the
“other
and
permitting
vehicular
appliances”
the
modification.
as
used
in
subsection 315(1) should not be understood to encompass the
van itself; it encompasses only the necessary modifications
made to the van so that it can be operated by someone who is
disabled.
Therefore, defendants are not obligated to provide
plaintiff with a van under the statutory provision at issue.
1
In A Matter of Interpretation (Princeton, New Jersey:
Princeton University Press, 1997), p 26, United States Supreme
Court Justice Antonin Scalia explains that the ejusdem generis
canon of statutory construction
stands for the proposition that when a text lists a
series of items, a general term included in the
list should be understood to be limited to items of
the same sort. For instance, if someone speaks of
using “tacks, staples, screws, nails, rivets, and
other things,” the general term “other things”
surely refers to other fasteners.
6
V
We affirm the WCAC determination that the employer was
not obligated to provide a van to plaintiff, and we overrule
Wilmers for the reasons stated above.
In all other respects, we also affirm the decision of the
WCAC.
The WCAC had concluded that the particular motorized
cart purchased by plaintiff was not medically necessary.
This
was a factual determination that was properly supported in the
record and, thus, is conclusive.
Mudel v Great Atlantic &
Pacific Tea Co, 462 Mich 691, 703-704; 614 NW2d 607 (2000).
Defendants’ application for leave to appeal as cross
appellants to contest the WCAC decision to reimburse plaintiff
for the cost of the van conversion is denied as abandoned
inasmuch as an appeal was not sought on this issue before the
Court of Appeals.
MCR 7.207.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH, J.
I concur in the result only.
Michael F. Cavanagh
7
S T A T E
O F
M I C H I G A N
SUPREME COURT
HARRY E. WEAKLAND,
Plaintiff-Appellant/Cross-Appellee,
v
No. 119495
TOLEDO ENGINEERING COMPANY,
INC., USF&G/ST. PAUL INSURANCE
COMPANY, and SECOND INJURY FUND,
Defendants-Appellees/Cross-Appellants.
___________________________________________
WEAVER, J. (concurring).
Though not joining in the opinion, I concur in the result
because
the
Worker’s
Compensation
Appellate
Commission
correctly found that the van at issue was not an “appliance”
pursuant to MCL 418.315(1).
Elizabeth A. Weaver
S T A T E
O F
M I C H I G A N
SUPREME COURT
HARRY E. WEAKLAND,
Plaintiff-Appellant
Cross-Appellee,
v
No. 119495
TOLEDO ENGINEERING COMPANY INC.,
USF&G/ST. PAUL INSURANCE COMPANY,
and SECOND INJURY FUND,
Defendants-Appellees
Cross-Appellants.
___________________________________
KELLY, J. (dissenting).
The
majority
today
overrules
Wilmers
v
Gateway
Transportation Co (On Remand)2 and holds that a van is not an
appliance within the meaning of subsection 315(1) of the
Worker's Disability Compensation Act (WDCA), MCL 418.315(1).
Ante at 1.
The decision furthers a trend of ignoring this
Court's prior interpretation of the WDCA and adopts a strict
and harsh approach that we have previously disavowed.
Because
I disagree and would reaffirm Wilmers, I respectfully dissent.
2
227 Mich App 339; 575 NW2d 796 (1998).
THE MAJORITY OVERRULES WILMERS WITHOUT ADDRESSING
THE CASE LAW RELIED ON IN THE DECISION
In the past, this Court interpreted the WDCA and its
predecessors broadly.
For example, in Wells v Firestone Tire
& Rubber Co,3 Justice Cavanagh wrote for the majority:
The statutory workers' compensation scheme was
enacted for the protection of both employees and
employers who work and do business in this state.
The system assures covered employees that they will
be compensated in the event of employment-related
injuries. In addition, employers are assured of the
parameters of their liability for such injuries. By
agreeing
to
assume
responsibility
for
all
employment-related
injuries,
employers
protect
themselves from the possibility of potentially
excessive damage awards.
In order to effectuate
these policies, the statute has been liberally
construed to provide broad coverage for injured
workers.
Wells reflected the Court's view that "[t]he social and
remedial purposes of the [WDCA] were structured to quickly and
assuredly
compensate
employees
for
injuries
suffered."
Farrell v Dearborn Mfg Co, 416 Mich 267, 280; 330 NW2d 397
(1982). Until recently, Michigan courts adhered to this view.4
3
421 Mich 641, 651; 364 NW2d 760 (1984).
4
See, e.g., Hagerman v Gencorp Automotive, 457 Mich 720,
739; 579 NW2d 347 (1998); Derr v Murphy Motor Freight Lines,
452 Mich 375, 388; 550 NW2d 759 (1996); Sobotka v Chrysler
Corp (After Remand), 447 Mich 1, 20, n 18; 523 NW2d 454
(1994); Paschke v Retool Indus, 445 Mich 502, 511; 519 NW2d
441 (1994); Bower v Whitehall Leather Co, 412 Mich 172, 191;
312 NW2d 640 (1981); Century Indemnity Co v Schmick, 351 Mich
622, 626; 88 NW2d 622 (1958); McCaul v Modern Tile & Carpet,
Inc, 248 Mich App 610, 619; 640 NW2d 589 (2001); James v
Commercial Carriers, Inc, 230 Mich App 533, 538-539; 583 NW2d
(continued...)
2
In Wilmers, the Court of Appeals interpreted the statute
consistently with precedent.
Specifically, the Wilmers Court
reasoned:
The Worker's Disability Compensation Act is
remedial legislation that should be interpreted
liberally in a humanitarian manner in favor of the
injured employee. Wells v Firestone Tire & Rubber
Co, [supra at 651]; Matney v Southfield Bowl, 218
Mich App 475, 486; 554 NW2d 356 (1996).
Literal
constructions that produce unreasonable or unjust
results that are inconsistent with the purpose of
the act should be avoided. Rowell v Security Steel
Processing Co, 445 Mich 347, 354; 518 NW2d 409
(1994). . . . [T]he clear purpose of § 315(1) is to
provide the injured employee with such services and
products as are reasonably necessary to cure or
relieve the effects of injury. Here, plaintiff's
evidence (which was never rejected by the magistrate
or the WCAC) indicated that one of the effects of
his injury is a loss of mobility, including an
inability to use an ordinary car, or even a
specially equipped one, for transportation.
We
conclude that under these circumstances the entire
specially equipped van that plaintiff requires for
transportation,
and
not
just
its
special
modifications, may be considered a reasonably
necessary "appliance" for purposes of § 315(1).
[Wilmers, supra at 345-346 (emphasis added).]
Today, the Court rejects Wilmers and the cases on which
it
relied.
It
does
so
without
addressing
Wilmers'
interpretation of the WDCA, focusing instead on Judge Young's
4
(...continued)
913 (1998); Tulppo v Ontonagon Co, 207 Mich App 277, 283; 523
NW2d 883 (1994); Isom v Limitorque Corp, 193 Mich App 518,
522-523; 484 NW2d 716 (1992); Andriacchi v Cleveland Cliffs
Iron Co, 174 Mich App 600, 606; 436 NW2d 707 (1989); Gross v
Great Atlantic & Pacific Tea Co, 87 Mich App 448, 450; 274
NW2d 817 (1978); Welch v Westran Corp, 45 Mich App 1, 5; 205
NW2d 828 (1973), aff'd 395 Mich 169 (1975).
3
dissent.
This omission is not surprising.
Earlier, the majority
was confronted with the fact that the WDCA has long been
broadly interpreted, and the majority chose to ignore that
For instance, in Crowe v Detroit,5 the dissent noted
fact.
that the majority "ignores our duty to recognize that the WDCA
is a remedial statute that should be liberally construed in
favor of the employee, and must be construed to grant rather
than deny benefits."
Id. at 22 (Cavanagh, Weaver, and Kelly,
JJ., dissenting).
The majority reacted dismissively, stating:
We do not think that the statute at issue is
ambiguous.
In any event, if the statutory language were
ambiguous, our first duty is to attempt to discern
the legislative intent underlying the ambiguous
words.
Only if that inquiry is fruitless, or
produces no clear demonstration of intent, does a
court resort to the remedial preferential rule
relied on in the dissent. [Id. at 13.]
The response indicates the majority's preferred method of
legislative interpretation.
Michigan
courts
have
However, it avoids the fact that
consistently
applied
a
different
interpretation than the majority does to the WDCA.
Thus,
without overruling or distinguishing it, the majority ignores
past case law because the majority disagrees with it.
Likewise,
5
the
majority
disregarded
465 Mich 1; 631 NW2d 293 (2001).
4
the
accepted
interpretation of the WDCA in DiBenedetto v West Shore Hosp,
461 Mich 394; 605 NW2d 300 (2000).
There, the majority noted
the accepted interpretation, but ignored it, holding that the
"plain
language
of
the
statute"
precluded
a
broad
interpretation, "no matter how liberally that language is
construed."
Id. at 406.
Moreover, the majority did not
acknowledge that "any inquiry into the applicability of the
[WDCA]"
involved
principles
of
liberal
construction,
but
instead restricted those principles to where the statutory
language was ambiguous.
Hagerman v Gencorp Automotive, 457
Mich 720, 739; 579 NW2d 347 (1998).
The Court of Appeals in Wilmers applied our longstanding
broad interpretation of the WDCA.
The majority would overrule
the result the Wilmers Court reached without confronting or
even acknowledging the precedent that Wilmers relied on.
Of
course,
argument.
a
dearth
of
analysis
begs
a
dearth
of
It is difficult to analyze the majority's reasoning
in changing the law when it provides no reasoning to question.
The opinion states why the majority's view is correct, but
fails to state why the old view is wrong.
THE WILMERS COURT REASONABLY CONCLUDED THAT A VAN
COULD BE AN "APPLIANCE" UNDER SUBSECTION 315(1)
The Wilmers Court held that a specially modified van
could be an "appliance" under subsection 315(1).
5
The section
at issue provides:
The employer shall also supply to the injured
employee dental service, crutches, artificial limbs,
eyes, teeth, eyeglasses, hearing apparatus, and
other appliances necessary to cure, so far as
reasonably possible, and relieve from the effects of
the injury. . . .
[MCL 418.315(1) (emphasis
added).]
Specifically,
Wilmers
held
that
loss
of
mobility
was
a
consequence of the appellant's injury and that a van was
necessary to give the appellant a sense of normalcy.
Wilmers,
supra at 345-346.
The dissent in Wilmers and the majority here assert that
"appliance" cannot mean a van because a van is not similar to
or related to the other items listed in MCL 418.315(1).
at 6.
Ante
They would restrict "appliance" to mean "artificial
adaptive aids that serve to directly ameliorate the effects of
a medical condition."
Ante at 6.
As in Wilmers, the plaintiff here cannot walk without
difficulty.6
related
This lack of mobility is the result of a work
medical
condition
in
ameliorate a lack of mobility?
both
cases.
What
could
I submit that a van reasonably
falls within the majority's definition of an appliance in
6
The Worker's Compensation Appellate Commission rejected
plaintiff's claim for reimbursement for the van on the basis
of factual distinctions between this case and Wilmers, even
though it applied Wilmers.
However, the majority opinion
today would foreclose the possibility of a van being
considered as an appliance under the WDCA in any factual
situation.
6
certain cases.
The
majority
argues
that
prostheses, or hearing aids.
a
van
is
unlike
crutches,
However, in some cases a van
serves the same purpose as crutches or prostheses because it
allows
an
subsection
individual
freedom
of
movement.
Moreover,
315(1) also includes the term "dental service" as
well as artificial teeth.
Dental service is a broad term that
is unlike any of the others and it may include anything from
cosmetic surgery to jaw repair.
The Wilmers Court was not alone in holding that the term
"appliance" may include a van in a worker's compensation
context.
It noted:
Our conclusion is supported by the decisions of
courts in several other states that have held that
specially
equipped
vans
for
paraplegics
may
constitute, in their entirety, a compensable
"appliance"
or
"apparatus"
under
worker's
compensation statutes similar to § 315(1). Terry
Grantham Co v Industrial Comm, 154 Ariz 180; 741 P2d
313 (Ariz App, 1987); Aino's Custom Slip Covers v
DeLucia, 533 So 2d 862 (Fla App, 1988); Edgewood
Boys' Ranch Foundation v Robinson, 451 So 2d 532
(Fla App, 1984); Manpower Temporary Services v
Sioson, 529 NW2d 259 (Iowa, 1995); Mississippi
Transportation Comm v Dewease, 691 So 2d 1007 (Miss,
1997). We find the following passage from the Iowa
Supreme Court's decision in Manpower Temporary
Services particularly instructive:
"We begin with the unusually strong medical
evidence of necessity and of the record that [the
injured employee's] family status and past lifestyle
reveal no other use for the van.
That evidence
refutes any contention that the van is a frill or
luxury and reveals what can be described as an
appliance, not greatly different from crutches or a
7
wheelchair. The point is that a van is necessary in
order to make [the injured employee's] wheelchair
fully useful.
"In another context, like other courts, we have
agreed with the dictionary definition that describes
the term 'appliance' as 'a means to an end.' Murray
v Royal Indem Co, 247 Iowa 1299, 1301; 78 NW2d 786,
787 (1956).
The 'end' of the van is merely an
extension of [the injured employee's] 300-pound
wheelchair. Without a van she is, more than need be,
a prisoner of her severe paralysis. The [factfinder]
could thus reasonably view the van as an appliance,
a necessary part of [the injured employee's] care.
[529 NW2d 264.]"
We acknowledge that there are decisions from
courts in some other states that deny worker's
compensation coverage for specially equipped cars
and vans on the ground that such vehicles simply do
not constitute a medical apparatus or device, and
decisions from courts in still other states that
allow reimbursement only for the cost of the special
vehicle modifications or allow the employer to
offset the cost of the vehicle before modification
with the cost of an average, midpriced car of the
same year. However, we are persuaded that, under
the circumstances of this case, and given the kind
of substantial vehicle modifications that this
plaintiff requires, the entire vehicle may here be
considered an "appliance" covered by § 315(1), even
though it is not actually necessary to rebuild the
entire vehicle to accommodate the handicap.
The
WCAC's interpretation of the term "appliance" is
unduly restrictive and contrary to the principle of
interpreting the Worker's Disability Compensation
Act in a liberal and humanitarian manner so as to
effectuate the remedial goal of relieving injured
workers from the effects of injury. [Wilmers, supra
at 346-347.]
CONCLUSION
Therefore,
considering
the
8
majority's
own
malleable
definition of "appliance"7 and other jurisdictions' decisions,
I submit that the Wilmers Court reasonably concluded that a
van could be an "appliance" under subsection 315(1).
reaffirm Wilmers as good law.
Marilyn Kelly
7
Ante at 5.
9
I would
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