Cain v. WASTE MANAGEMENT INC., Docket No. 242104

Decision Date22 January 2004
Docket NumberDocket No. 242123.,Docket No. 242104
Citation259 Mich. App. 350,674 N.W.2d 383
PartiesScott M. CAIN, Plaintiff-Appellee, v. WASTE MANAGEMENT INC. and Transportation Insurance Co., Defendants-Appellants, and Second Injury Fund, Defendant-Appellee. Scott M. Cain, Plaintiff-Appellee, v. Waste Management Inc. and Transportation Insurance Co., Defendants-Appellees, and Second Injury Fund, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Pinsky, Smith, Fayette & Hulswit (by Edward M. Smith and Pamela K. Bratt), Grand Rapids, for the plaintiff.

Straub, Seaman & Allen, P.C. (by Daniel W. Grow and James M. Straub), St. Joseph, for Waste Management, Inc., and Transportation Insurance Company.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Gerald M. Marcinkoski, Special Assistant Attorney General, Birmingham, for the Second Injury Fund.

Before: COOPER, P.J., and FITZGERALD and KIRSTEN FRANK KELLY, JJ.

COOPER, P.J.

In Docket No. 242104, defendant Waste Management, Inc., and its insurer appeal by leave granted from a May 24, 2002, order of the Worker's Compensation Appellate Commission (WCAC), after remand from our Supreme Court, awarding plaintiff total and permanent disability benefits. In Docket No. 242123, defendant the Second Injury Fund (SIF), Total and Permanent Disability Provisions, appeals by leave granted from the same order. These appeals were consolidated for purposes of appeal. We affirm.

We are asked to determine (1) whether the WCAC used the proper standard in determining "specific loss" and (2) whether the WCAC could properly award plaintiff "total and permanent" disability benefits on the basis of its finding that plaintiff suffered the specific loss of his left leg. After reviewing the decision in Cain v. Waste Mgt., Inc.,1 we find that our Supreme Court did not overrule or abrogate its previous decision in Pipe v. Leese Tool & Die Co.2 In Pipe, the Court held that specific loss can be determined by applying the "loss of industrial use" standard. Accordingly, we uphold the WCAC's decision to affirm the magistrate's determination that plaintiff suffered a specific loss of his left leg, under MCL 418.361(2)(k), where plaintiff lost the industrial use of his left leg in its uncorrected state. We additionally find that the WCAC properly awarded plaintiff total and permanent disability benefits under MCL 418.361(3)(b) for his specific (anatomical) loss of his right leg and the specific (industrial) loss of his left leg. This was a reasonable construction of the statute and the only logical conclusion given the facts in this case. We find this to be especially true given the remedial nature of the Worker's Disability Compensation Act (WDCA)3 and the WCAC's finding that plaintiff suffered the specific loss of both legs.4

I. Facts and Procedural History

These appeals arise from injuries plaintiff suffered approximately fifteen years ago. The case has a lengthy appellate history, and the following facts are taken in large part from the facts stated by our Supreme Court in Cain.5

Plaintiff worked as a truck driver and trash collector for defendant Waste Management. In October 1988, as he was standing behind his vehicle emptying a rubbish container, he was struck by an automobile that crashed into the back of the truck. Plaintiff's legs were crushed. His right leg was amputated above the knee. Doctors were able to save his left leg with extensive surgery and bracing.

In February 1990, plaintiff was fitted with a right leg prosthesis, and he was able to begin walking. He returned to defendant's employ performing clerical duties. But plaintiff's left leg continued to deteriorate and, in October, 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, plaintiff was able to return to work in August 1991, first working as a dispatcher and then in the sales department. Defendant voluntarily paid plaintiff 215 weeks of worker's compensation benefits for the "specific loss" of his right leg.6 But there was disagreement concerning whether plaintiff was entitled to additional benefits.

In August 1992, plaintiff filed a petition for "total and permanent disability benefits" for the "industrial loss of use of both legs." Without citing a particular subsection of MCL 418.361, plaintiff stated the following:

My legs were crushed in a motor vehicle accident resulting in an amputation above the knee of my right leg. The severity of my injuries to my left leg result [sic] in the industrial loss of use of both legs. I am, therefore, entitled to permanent and total disability benefits.

At the end of the last hearing day, plaintiff moved to amend his petition to add a claim for the "specific loss" of his left leg under MCL 418.361(2)(k), but the magistrate denied the motion.

Less than a week later, plaintiff filed a second petition requesting benefits for the specific loss of his left leg. Plaintiff's second petition stated the following:

In addition to my initial application, I am claiming specific loss of my left lower extremity for dates of injury of 10/25/88 and 10/21/90. On 10/21/90, while walking down a ramp at home, I refractured my left tibia causing it to become necessary for me to wear a permanent brace on my left leg.

In December 1993, the magistrate issued an opinion and order awarding specific loss benefits for the loss of both legs. Although the magistrate had denied the motion to add a claim for the specific loss of the left leg, he nonetheless awarded the benefits, reasoning that plaintiff's initial petition for benefits for the loss of the industrial use of both legs had implicitly included a claim for the specific loss of the left leg. The magistrate found that the left leg had been effectively lost when the stress fracture occurred in October 1990, and that "any hope of restoring the member was abandoned." Thus, the magistrate ruled that the SIF was obligated to pay benefits for total and permanent disability because plaintiff had lost the industrial use of both legs.7

Defendant and its insurer appealed to the WCAC, which reversed the judgment of the magistrate in April 1997. The WCAC ruled that, in light of the phrasing of plaintiff's initial petition to the bureau, the magistrate had erroneously awarded benefits for the specific loss of the left leg. The WCAC also held that the magistrate had committed legal error in his analysis of plaintiff's claim of total and permanent disability because the magistrate had failed to use a "corrected" (i.e., measured with the help of prosthetics) standard to examine the remaining usefulness of plaintiff's left leg. Applying this standard, the WCAC concluded that plaintiff could not recover total and permanent disability benefits under MCL 418.361(3)(g) because plaintiff retained the industrial use of his left leg when braced.

In May 2000, this Court affirmed in part, reversed in part, vacated in part, and remanded for further proceedings.8 We affirmed the WCAC's denial of specific loss benefits, agreeing that plaintiff's petition did not state a claim for such benefits. However, this Court reversed and vacated the WCAC's finding that plaintiff was not totally and permanently disabled, holding that claims for total and permanent disability benefits must be analyzed under an "uncorrected" (i.e., measured without the help of prosthetics) test.

Our Supreme Court granted leave to appeal to consider whether the corrected standard applied to a vision claim in Hakala v. Burroughs Corp. (After Remand),9 should be applied to a claim regarding permanent and total loss of industrial use of both legs, MCL 418.361(3)(g).10 In holding that the corrected standard applied, our Supreme Court reasoned that the words "total" and "permanent," as used in MCL 418.361(3)(g), suggested a situation that could not be corrected.11 The Court held that plaintiff had not demonstrated total and permanent disability under subsection 361(3)(g) because his left leg, when braced, could support industrial use.12

Our Supreme Court remanded the case "to the WCAC to consider plaintiff's specific loss claim." The relevant footnote to its opinion provided the following:

We also are satisfied that the WCAC should have considered plaintiff's specific loss claim regarding his left leg. While this claim may not have been pleaded as specifically as it should have been, we discern no prejudice or surprise. Accordingly, we remand this claim to the WCAC for resolution.[13]

On remand, the WCAC found that "[t]he magistrate reasonably accepted the testimony that the injury to plaintiff's left leg equates with anatomical loss and that the limb retains no substantial utility." The WCAC therefore concluded that there was competent, material, and substantial evidence to support the magistrate's 1993 finding that plaintiff had sustained the "specific loss" of his left leg under MCL 418.361(2)(k). The WCAC further held that "[h]aving shown specific loss of each leg, plaintiff is entitled to total and permanent disability benefits."

II. Analysis

These consolidated appeals concern the following two related issues: first, whether specific loss under MCL 418.361(2) may still be determined by applying a "loss of industrial use" standard in light of the Cain decision; and, second, assuming the "loss of industrial use" standard is appropriate for determining specific loss, whether the specific (industrial) loss of one leg may constitute one of the two losses required for awarding total and permanent disability benefits to an employee for the loss of both legs, MCL 418.361(3)(b). This Court may review questions of law involved with any final order of the WCAC.14 Issues requiring statutory construction are reviewed de...

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2 cases
  • Cain v. Waste Management, Inc.
    • United States
    • Michigan Supreme Court
    • May 3, 2005
    ...majority, citing Pipe v. Leese Tool & Die Co., 410 Mich. 510, 302 N.W.2d 526 (1981), affirmed the decision of the WCAC. 259 Mich.App. 350, 674 N.W.2d 383 (2003). It concluded that each of plaintiff's legs qualified for specific loss benefits (one through amputation and one through lost indu......
  • Chase v. Terra Nova Industries
    • United States
    • Court of Appeal of Michigan — District of US
    • November 14, 2006
    ...463 N.W.2d 152 (1990). 2. See Kowalski v. Fiutowski, 247 Mich.App. 156, 160-161, 635 N.W.2d 502 (2001). 3. Cain v. Waste Mgt., Inc., 259 Mich.App. 350, 366, 674 N.W.2d 383 (2003). ...

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