Kidd v. General Motors Corp.

• Decision Date: 07 December 1982
• Docket Number: Docket No. 64649,No. 6,6
• Citation: 327 N.W.2d 265,414 Mich. 578
• Parties: Donald KIDD, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, AC Spark Plug and Second Injury Fund, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 265

327 N.W.2d 265

414 Mich. 578

Donald KIDD, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, AC Spark Plug and Second Injury Fund, Defendant-Appellee.

Docket No. 64649.

Calendar No. 6.

Supreme Court of Michigan.

Argued May 5, 1981.

Decided Dec. 7, 1982.

MacDonald, FitzGerald & MacDonald by Robert J. MacDonald, Flint, for plaintiff-appellant.

Munroe & Nobach, P.C. by Richard R. Weiser, East Lansing, for defendant-appellee General Motors Corp.; Otis M. Smith, Detroit, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eileen D. Zielesch, Richard F. Zapala, Asst. Attys. Gen., Lansing, for defendant-appellee Second Injury Fund.

PER CURIAM.

This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.

This workers' compensation case focuses on an employee's entitlement to total and permanent disability benefits after an initial receipt of benefits for 800 weeks from the date of injury. The questions presented are: (1) what is the proper standard to employ under M.C.L. Sec. 412.9(a); M.S.A. Sec. 17.159(a) ¹ in determining whether a worker who has received total and permanent disability benefits for the statutory conclusive presumption period of 800 weeks continues to be totally and permanently disabled and entitled to additional workers' compensation benefits; and, (2) whether M.C.L. Sec. 412.11; M.S.A. Sec. 17.161, which subjects benefits to a setoff by wages earned, is applicable to the post-800-week period.

I

The plaintiff, Donald Kidd, was born in 1933. In July, 1953, he began working as a trim press operator for AC Spark Plug Division of General Motors Corporation. On April 25, 1960, Mr. Kidd was involved in a work-related accident which resulted in the amputation of the fingers of both hands. Mr. Kidd returned to work for defendant in late 1960, but was given a permanent restriction against the use of presses.

On December 21, 1973, following a full hearing in which both General Motors Corporation and the Second Injury Fund participated, Mr. Kidd was found to be totally and permanently disabled as a result of the loss of the industrial use of both hands. Plaintiff received total and permanent disability benefits under the provisions of M.C.L. Sec. 412.9(a); M.S.A. 17.159(a) and M.C.L. Sec. 412.10; M.S.A. Sec. 17.160 ² from GMC and the fund. These benefits were terminated on August 24, 1975, the expiration of the statutory 800 weeks from the date of injury.

Plaintiff then petitioned for a hearing against GMC and the fund alleging his entitlement to benefits after 800 weeks. A second hearing was held. Plaintiff testified at this hearing that he returned to work for On June 28, 1976, the hearing referee found that plaintiff's physical condition had worsened since the accident and that plaintiff was totally and permanently disabled in fact and in law. GMC and the fund were ordered to continue the payment of benefits with no wage offset.

GMC as a raw material inspector in late 1960. Plaintiff's employment since that time has been continuous and at wages in excess of those earned at the time of injury. There was no dispute over the fact that Mr. Kidd could no longer perform his pre-injury job as trim press operator.

GMC and the fund appealed to the Workers' Compensation Appeal Board (WCAB) which found that plaintiff's physical condition had not improved but that he had been regularly employed by GMC since late 1960 at wages in excess of those he was earning when injured. Citing Clark v. Gerity Michigan Corp., 84 Mich.App. 151, 269 N.W.2d 510 (1978), lv. den. 403 Mich. 856 (1978), the WCAB reversed the award of benefits beyond 800 weeks.

Application for leave to appeal to the Michigan Court of Appeals was denied in an order citing Clark. Docket No. 46517 (February 1, 1980). This Court granted leave to appeal. 409 Mich. 946 (1980).

II

It is well-established that to qualify for the statutory 800-week conclusive presumption ³ a claimant must come within the statutory definition of total and permanent disability. ⁴ Hier v. Boichot Concrete Products Corp., 379 Mich. 605, 153 N.W.2d 753 (1967); Verberg v. Simplicity Pattern Co., 357 Mich. 636, 99 N.W.2d 508 (1959).

As a result of his 1960 injury, plaintiff qualified for the 800 weeks of total and permanent disability benefits due to the loss of the industrial use of both hands.

Plaintiff contends that after the 800-week period, although the conclusive presumption of total and permanent disability ends, the standard to determine whether the worker is still permanently and totally disabled is the same one used to make the pre-800-week determination, i.e., does the claimant come within the statutory definition of total and permanent disability?

Defendants, on the other hand, contend that the post-800-week standard is different in that not only the worker's physical state but also the worker's actual earnings are to be considered in determining whether the worker remains permanently and totally disabled. The defendants thus suggest that a second requirement must be considered: whether the employee has re-established a capacity to earn wages in gainful and continuous employment. If so, benefits do not extend beyond the 800-week period.

From these two competing points of view emerge two distinct issues involving the post-800-week determination. First, what standard is to be applied to find whether a worker still suffers from a permanent and total disability and is therefore entitled to a continuation of compensation benefits. Second, assuming entitlement to benefits, whether such compensation payments are subject to a setoff by wages earned after the 800-week period.

A

The subject of the first issue is the following portion of M.C.L. Sec. 412.9(a); M.S.A. Sec. 17.159(a):

"[T]he conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time."

The Legislature has specifically defined "permanent and total disability" in M.C.L. Sec. 412.10; M.S.A. Sec. 17.160. ⁵ Any claimant whose physical condition places him or her within one of the delineated categories is totally and permanently disabled. In this case, there is no dispute with respect to the initial finding that Mr. Kidd had lost the industrial use of both hands, thus coming within subsection (7).

The determination of whether a worker has lost the ability to use his or her injured limbs in industry is made by examining the physical condition of the injured limbs, i.e., have the limbs been injured to such a degree that their industrial use is lost. Pipe v. Leese Tool & Die Co., 410 Mich. 510, 302 N.W.2d 526 (1981). Unlike general disability cases, the earning of post-injury wages is not relevant in specific loss cases under M.C.L. Sec. 412.10; M.S.A. Sec. 17.160. As we stated in Miller v. Sullivan Milk Products, Inc., 385 Mich. 659, 666, 189 N.W.2d 304 (1971):

"A review of specific loss cases reveals that loss of 'industrial use' is a question of fact. The test of that fact has been to equate such a loss with the physical or anatomical loss of use of a member of the body rather than with an economic reality test. * * * If 'loss of use' is established, recovery follows even though there are no economic consequences from the loss." (Citations omitted.)

See also Paulson v. Muskegon Heights Tile Co., 371 Mich. 312, 123 N.W.2d 715 (1963), and Dechert v. General Motors Corp., 92 Mich.App. 124, 284 N.W.2d 751 (1979).

In contrast with this setting, defendants contend that in the post-800-week situation the claimant's physical state and his actual earnings and capacity to earn wages should be considered to determine whether he remains permanently and totally disabled. It is asserted that economic consequences should be one of the factors evaluated at this point to ascertain whether total and permanent disability is still the fact. Defendants claim support for their position in the following language of M.C.L. Sec. 412.9(a); M.S.A. Sec. 17.159(a):

"[T]he conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time." (Emphasis added.)

We are not persuaded by defendants' contention that the Legislature intended the post-800-week standard for permanent and total disability to be in any way different than the initial 800-week standard.

There is no indication in this or any other section of the Worker's Disability Compensation Act that any definition of "total and permanent disability" resulting from a single injury, other than the one given in M.C.L. Sec. 412.10; M.S.A. Sec. 17.160, ⁶ is to be used. The act does not refer to facts such as the plaintiff's financial status or wage earning capacity. In defining total and permanent disability, it enumerates only health impairments. This meaning is emphasized within M.C.L. Sec. 412.9(a); M.S.A. Sec. 17.159(a) itself. Several lines both before and after the quoted portion refer to permanent and total disability "as defined in sections 8a and 10". (Emphasis added.) ⁷ Therefore, there is no statutory basis on which to conclude that the Legislature intended a different standard for or definition of "permanent and total disability" to prevail after 800 weeks. See Verberg v. Simplicity Pattern Co., supra, 357 Mich. 642, 99 N.W.2d 508.

The significance of the 800-week period is that once a claimant has proved that he or she is permanently and totally disabled as defined by the act, it is conclusively presumed that this disability continues for 800 weeks. Rebutting evidence may not be offered because the conclusive presumption is actually a substantive rule of...