Komendera v. American Bar and Cabinet Mfrs., 15

• Decision Date: 20 November 1973
• Docket Number: No. 15,15
• Citation: 212 N.W.2d 173,390 Mich. 305
• Parties: Leonard KOMENDERA, Plaintiff-Appellant, v. AMERICAN BAR AND CABINET MANUFACTURERS and Phoenix of Hartford Insurance Company, Defendants-Appellees. 390 Mich. 305, 212 N.W.2d 173
• Court: Michigan Supreme Court

Page 173

212 N.W.2d 173

Leonard KOMENDERA, Plaintiff-Appellant, v. AMERICAN BAR AND CABINET MANUFACTURERS and Phoenix of Hartford Insurance Company, Defendants-Appellees.

No. 15.

390 Mich. 305, 212 N.W.2d 173

Supreme Court of Michigan.

Nov. 20, 1973.

Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid, P.C. by Robert L. O'Connell, Detroit, for plaintiff-appellant.

Sullivan, Sullivan, Ranger & Ward by Richard G. Ward, Detroit, for defendants-appellees.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

This case is before us on leave granted, 388 Mich. 755 (1972), from a decision of the Court of Appeals, 39 Mich.App. 370, 197 N.W.2d 511 (1972) upholding a ruling of the Workmen's Compensation Appeal Board that because Sorensen v. Grand Rapids Metalcraft, 333 Mich. 709, 53 N.W.2d 590 (1952) still prevailed in this state, plaintiff was not entitled to benefits for the loss of use of his hand. The facts giving rise to this appeal are as follows:

Plaintiff was employed during the year 1955 by the U.S. Radiator Company as a maintenance carpenter. While there, during his employment, he sustained an injury to his left hand which amputated his ring finger and half of his thumb. He also suffered some flexion loss to his middle finger at this time due to his palm having been cut in the accident.

He recovered from his accident and became a cabinet maker, which occupation he pursued until early March 1966 at which time he was hired by defendant, American Bar and Cabinet Manufacturers in that capacity. On March 29, 1966, plaintiff again suffered an injury during the course of his employment. The accident resulted in amputation of the index finger of plaintiff's left hand. Upon his return to work, plaintiff found he was no longer able to make effective use of his left hand and thus was no longer able to perform his job as cabinet maker. He has now gained new employment in a non-skilled job as an assembler.

Plaintiff filed a petition with the Workmen's Compensation Department alleging that he had lost the industrial use of his left hand and requesting the statutory benefits therefor. After a full hearing, the referee made the following findings:

'I find that the plaintiff has suffered the industrial loss of use of his left hand not only in his skilled work as a cabinet maker but in the field of common labor. Compensation is ordered paid in accord with Magreta v. Ambassador Steel Company. While plaintiff has in fact suffered the industrial loss of use, I must apply the harsh rule of Sorensen v. Grand Rapids Metalcraft, 333 Mich. 709, 53 N.W.2d 590 and not charge the defendant for the condition which did not wholly result from this injury. Taken by itself this injury would not have caused the loss of use of this hand.' ¹

Upon appeal to the Court of Appeals, that Court stated:

'We recognize that the Sorensen rule leads to a harsh result in that the worker is forced to bear a substantial part of the ultimate financial loss brought about by the injury,' 39 Mich.App. 370, 375, 376, 197 N.W.2d 511, 514.

'Plaintiff points out that Sorensen has never been followed, or even cited, in later decisions by Michigan courts. However, our role as an intermediate appellate court is limited, and we are not free to disregard clear precedent of this State's highest court.' 39 Mich.App. 370, 377, 197 N.W.2d 511, 515.

Due to the questioned continued validity of Sorensen, supra, this Court granted leave to appeal.

The issue presented to this Court bottoms itself on the fact that when an individual suffers consecutive losses of parts of his body, there comes a point in time when the cumulative effect of these losses presents a far greater disability than any one loss considered of and by itself. Thus, an individual who has lost a leg is indeed unfortunate, but, in the majority of situations is far from being absolutely and totally disabled. In most situations he is able to continue to lead a close to normal life. But when that same individual then loses the remaining leg, a different situation presents itself. Though it is true that as a result of the second injury he has only lost one leg, and should not be totally disabled from that loss alone, due to the fact that he only had one leg to lose, he may now be considered, and in fact may be, totally disabled.

This Court has to answer the question of whether, in a situation akin to that above, the employer responsible for the second injury alone, should be liable only for that specific injury, or for the actual total disability now suffered by the claimant. Sorensen, supra, holds the employer liable only for the former.

This type of issue was first before our Court in Weaver v. Maxwell Motor Co., 186 Mich. 588, 152 N.W. 993 (1915); 1916B LRA 1276. In Weaver, the plaintiff suffered the loss of his right eye prior to the enactment of our Workmen's Compensation Statute in 1912. Such loss, of course, was not compensable. Subsequently, he suffered a compensable loss of his left eye which left him totally blind. The Court at that time ruled that since the present employer was in no way responsible for the previous injury, this injury could not be combined with the later one to produce total disability. It held the employer liable only for the loss of the left eye.

Following Weaver, supra, the Court decided Winn v. Adjustable Table Co., 193 Mich. 127, 159 N.W. 372 (1916). In Winn, the plaintiff had lost three fingers of his right hand previously in a non-compensable accident. Later, during his employment at Adjustable Table Co., he suffered a further loss of his remaining finger. Plaintiff also suffered from a shoulder ailment and a severe arthritic condition, and, since the culmination of all these conditions left him unable to work, he applied for extended partial disability benefits. The Industrial Accident Board treated this fact situation as an industrial loss of use of an arm and awarded benefits accordingly. Our Court, relying solely on Weaver v. Maxwell Motor Co., Supra, reversed and awarded benefits solely for the loss of a finger. The Court reasoned that since the claimant was totally disabled, partial disability benefits were inappropriate.

This Court next decided Collins v. Albert A. Albrecht Co., 212 Mich. 147, 180 N.W. 480 (1920). In that case, Mr. Collins had, prior to his employment with the Albrecht Company, suffered the non-compensable loss of his left eye. During his employment he suffered the loss of use of his remaining right eye due to an industrial accident. He applied for permanent and total disability benefits being now unable to continue his occupation as a carpenter. This Court denied the permanent and total benefits to Mr. Collins based solely on its prior holding in Weaver, supra. He received benefits only for the loss of his right eye.

With this judicial precedent present in our system of jurisprudence, the now troublesome case of Sorensen v. Grand Rapids Metalcraft, 333 Mich. 709, 53 N.W.2d 590 (1952) came before the Court. In Sorensen plaintiff had suffered previously the noncompensable loss of the thumb, index and middle fingers of his left hand. This loss was occasioned when, as a child, he had picked up a dynamite cap which exploded in his hand. Reaching maturity, plaintiff developed a dexterity with his left hand in that he could use it as well as his right hand. He held many two-handed jobs and was in no way handicapped in his employment from the loss he suffered as a child.

While employed at defendant's place of business as a punch press operator, he suffered an industrial injury which cost him the remaining two fingers on his left hand. The Commission found he had lost the industrial use of his left hand and awarded compensation accordingly. This Court reversed, finding that plaintiff was entitled only to benefits payable for the loss of his remaining two fingers. The Court stated its findings ² were controlled by the decisions previously entered in Weaver, Winn, and Collins, which cases we have discussed above.

As noted by plaintiff's attorneys, this Court has not spoken on or cited the Sorensen opinion since its initial release. We have, however, many times spoken on the issues raised in the cases upon which Sorensen is founded, and on the general equities presented in the Sorensen situation.

In Verberg v. Simplicity Pattern Co., 357 Mich. 636, 99 N.W.2d 508 (1959), Justice Dethmers, also the author of Sorensen, recognized the harshness of the Sorensen rule in stating (p. 643, 99 N.W.2d p. 512):

'The purpose of the statute ³ was to encourage the employment of persons who have previously suffered certain defined personal injuries by relieving the employer or the insurer from the burden of paying the entire compensation for further disability of the employee due to the combined effect of his previous injury and one later received in the course of his employment.

'Clearly, the purpose of the above statutory provision was to enhance the prospects for employment of certain handicapped persons who had previously sustained specific losses, so that they and their families would have a means of livelihood.'

Verberg stands for the proposition that the initial specific loss suffered by an employee of a part of his body need not have been employment related nor compensable in nature. Whitt v. Ford Motor Co., 383 Mich. 726, 178 N.W.2d 917 (1970); Hilton v. Oldsmobile Division, 390 Mich. 43, 210 N.W.2d 316 (1973). Thus by his ruling in Verberg Justice Dethmers Sub silentio overruled the Court's previous decisions in Maxwell, Winn, and Collins. This author made that point abundantly clear in Whitt v. Ford Motor Company, Supra, when he wrote for the Court:

'The creation of the Second Injury Fund under section 8a is a legislative limitation on the decision of Weaver v. Maxwell Motor Co. Supra, insofar as it allows an employee to recover compensation for total and permanent disability from the Second Injury Fund where the employer has...