Burke v. Ontonagon County Road Commission, 10

• Decision Date: 14 February 1974
• Docket Number: No. 10,J,10
• Parties: Linda BURKE, widow of Emil E. Burke, Deceased, Plaintiff-Appellant, v. ONTONAGON COUNTY ROAD COMMISSION et al., Defendants-Appellees. anuary Term. 391 Mich. 103, 214 N.W.2d 797
• Court: Michigan Supreme Court

Page 797

214 N.W.2d 797

Linda BURKE, widow of Emil E. Burke, Deceased, Plaintiff-Appellant, v. ONTONAGON COUNTY ROAD COMMISSION et al.,

Defendants-Appellees.

No. 10, January Term.

391 Mich. 103, 214 N.W.2d 797

Supreme Court of Michigan.

Feb. 14, 1974.

Wisti & Jaaskelainen, by Gordon J. Jaaskelainen, Hancock, for plaintiff-appellant.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., by James A. Sullivan, Detroit, for defendants-appellees Ontonagon County Road Commission and Michigan State Accident Fund.

Michigan Second Injury Fund by Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David J. Watts, A. C. Stoddard, Asst. Attys. Gen., Workmen's Compensation Funds Div., Lansing, for defendant-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

In this case it is not disputed that the claimant (plaintiff's decedent) injured one leg in an employment-related accident. Subsequent movement had debilitating consequences for his other leg, because his injured leg had to be favored. The claimant was unable to return to work. The Workmen's Compensation Appeal Board, in determining whether the employment-related injury caused 'permanent and total loss of industrial use of both legs' under § (b)(7) of the Workmen's Compensation Act ¹ used the following hypothetical test:

'. . . assuming plaintiff's left leg was not disabled (it actually was), would the right leg be industrially useless?' (51a)

We disapprove of this test, and set out the proper test, which views the claimant 'as a whole man,' later in this opinion.

I. FACTS

The claimant, while working for defendant Road Commission, slipped and fell into a hole, injuring his left knee. The next day he returned to work lifting 100 1b. bags. However, the third day he had to go to the hospital for treatment of his swollen leg. He again returned to work loading 100 1b. sacks on the sixth day after the accident (4a, 12a). Thereafter, however, he was never again able to work. He underwent surgery (15a), was treated frequently by his family physician for calluses, had injections in both knees for pain (37a, 38a), and took pain pills daily for a number of years (13a). A few years after the injury, he was unable to walk without experiencing pain, and without the aid of crutches (9a). Because the injury to his left leg caused faulty weightbearing, his right leg went, in claimant's words, 'on the bum.' (6a)

After exhausting 500 weeks with specific compensation, claimant sought benefits for 'permanent and total loss of industrial use of both legs.' His family physician and treating orthopedic specialist both testified claimant had no industrial capacity in either leg (39a--41a, 21a). Defendant's orthopedic surgeon, however, testified equivocally. When asked 'considering his right leg alone' whether Burke was industrially disabled, he responded: 'Burke has some abnormality or disability in his right leg, but this, in my opinion, would not disable him for ordinary labor' (22a). But he admitted that, viewing him 'as a whole man' Burke was not able to work (32a).

The Referee denied additional compensation. The perturbed Appeal Board said:

'The poignant question is, is the right leg, in and of itself industrially useless, or assuming plaintiff's left leg was not disabled, would the right leg be industrially useless?' (51a)

Then the Appeal Board, relying on the answer to the 'considering his right leg alone' question posed by defendant's expert, held that the claimant had not sustained the burden of proving industrial loss of use of both legs. The Court of Appeals denied leave to appeal.

II. PERTINENT PRECEDENT

The leading case in this area is Paulson v. Muskegon Heights Tile Co, 371 Mich. 312, 123 N.W.2d 715 (1963). The claimant in that case suffered a punctured bladder and a fractured pelvis in an automobile accident in the course of his employment. The consequence of the accident was that the claimant suffered constant urine drainage from the bladder through sinus tracts in this area of his body. There was no injury to the legs whatsoever. In Paulson, the treating physician testified as follows:

'A. His disability results from the presence of the fistulous tract, the fistulous sinus, with pain resulting from any pressure Being borne by either leg, especially his right leg, so that even walking after a period of time or for short distances of a half a block will prevent him or cause him to stop and rest, shifting his weight primarily to the left side, to the left leg.' (Emphasis in Paulson--371 Mich. 312, 314, 123 N.W.2d 715, 717).

This Court disposed of Paulson as follows:

'Appellants would have us read the act as follows: total and permanent disability occurs when, among other ways, there is a total loss of industrial use of both legs, occasioned by direct injury to both legs. Of course, a reading of subsection (7) (MCLA 412.10; MSA 17.160 § (b)(7)) . . . presents no such restriction . . .. We construe the statute to mean that permanent and total loss of industrial use, in so far as the facts in this case are concerned, is that leg-connected disabling pain associated primarily with the use of the legs, which is so severe as to make use of the legs in industry practically impossible. Testimony of the treating physician, quoted above, assigned the disability to the presence of a fistula tract, with pain resulting from any pressure being borne by either leg. Therefore, the disability would seem fairly within the scope of the statute.' (371 Mich. 312, 319, 123 N.W.2d 715, 719).

This last quotation makes two things clear. First, there may be a total industrial loss of use of both legs without direct injury to both legs or, in fact, without direct injury to either leg. Second, Paulson establishes the following test for permanent and total loss of industrial use of both legs:

'is that leg-connected disabling pain . . . so severe as to make use of the legs in industry practically impossible?' (371 Mich. 312, 319, 123 N.W.2d 715, 719).

Paulson was followed in Lockwood v. Continental Motors Corp., 27 Mich.App. 597, 183 N.W.2d 807 (1970). There, the claimant suffered serious impairment of hearing due to factory noise and acquired vertigo 'which is precipitated when he uses his legs.' (27 Mich.App. 597, 599, 183 N.W.2d 807, 808). The Court of Appeals found that he had sustained 'permanent and total loss of industrial use of both legs' and was entitled to compensation for permanent and total disability, although claimant's 'legs themselves were not injured or affected.' (27 Mich.App. 597, 601, 183 N.W.2d 807, 809).

The opposition to finding loss of industrial use in Lockwood was based, as in Paulson, on the fact that the legs themselves were not impaired. Writing for the Court of Appeals, Judge, now Justice Levin, however, observed as follows:

'But the appeal board ruled that Lockwood's case was different than Paulson's because Lockwood's 'disabling symptoms are not traceable to the use of the lower limbs per se but are due to an impairment of the balance mechanism in his inner ear which is aggravated by any movement and/or noise'.

'We think that the appeal board misreads Paulson; a teaching of Paulson is that disabling symptoms are traceable to the use of the lower limbs when they are due to an impairment of another bodily mechanism which is aggravated by leg movement, that compensation for total and permanent disability is payable when a non-leg malady is triggered by the use of the legs and it is that condition which prevents use of the legs in industry.' (27 Mich.App. 597, 603, 183 N.W.2d 807, 810).

Lockwood reemphasizes that there may be total industrial loss of use of both legs without direct injury to both legs or to either leg. Lockwood rephrases the 'legconnected disabling pain' rule as follows:

'When a non-leg malady is triggered by the use of the legs and it is that condition which prevents use of the legs in industry.'

Paulson and Lockwood examine whether loss of industrial use of both legs can have its source in physical injuries which are not leg-related. A third case in this area, Miller v. Sullivan Milk Products Inc., 385 Mich. 659, 189 N.W.2d 304 (1971), explores loss of industrial use from a significantly different, though seemingly analogous, angle. It analyzes primarily whether the loss of industrial use of both legs arises from an employment-related or nonemployment-related cause.

The claimant in Miller suffered permanent injury to his left leg when he slipped on ice while delivering milk. It was undisputed that there was no impairment or injury of the right leg. While claimant's movements were reduced, he did work intermittently after the injury. The Referee and Appeal Board found loss of industrial use confined to the left leg alone. While the Court of Appeals in effect found industrial loss of use of both legs, this Court affirmed the Appeal Board.

This Court made two observations pertinent to our analysis.

'The basic issue in connection with claims of total and permanent disability is one of fact. Each claim must be weighed carefully. Some claims will fail and some will prevail, depending upon the quality of the proofs presented at the hearing. When the limb cannot be used industrially simply because of other disabling infirmities, it would do violence to the statutory intent to hold that the industrial loss of use of such limb has occurred.' (385 Mich. 659, 667, 189 N.W.2d 304, 308).

'Based upon the testimony in this case, the Court of Appeals might also have found that plaintiff weighed 300 pounds at the time of the hearing and during the last ten years has weighed as much as 377 pounds; that his doctor told him he should lose weight; that for two years he worked at a friend's garage where he answered the phone and kept track of car parts.' (385 Mich. 659, 668, 189 N.W.2d 304, 308).

Miller does not change the rule in Paulson which it recognized. (385 Mich. 659, 666, 189 N.W.2d 304). Nor does it change the rule in Lockwood.

As...