Magreta v. Ambassador Steel Co.

• Decision Date: 07 March 1967
• Docket Number: No. 8,8
• Citation: 148 N.W.2d 767,378 Mich. 689
• Parties: Francis A. MAGRETA, Plaintiff-Appellant, v. AMBASSADOR STEEL COMPANY and General Accident Assurance Corporation, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 767

148 N.W.2d 767

378 Mich. 689

Francis A. MAGRETA, Plaintiff-Appellant, v. AMBASSADOR STEEL COMPANY and General Accident Assurance Corporation, Defendants-Appellees.

No. 8.

Supreme Court of Michigan.

March 7, 1967.

Kelman, Loria, Downing & Schneider, Detroit, for plaintiff-appellant.

LeVasseur, Werner, Mitseff & Brown, Detroit, for defendants and appellees.

Before the Entire Bench, except BRENNAN, J.

SOURIS, Justice.

Three distinct appellate issues requiring our construction of our workmen's compensation act ¹ are presented by this appeal. ² First, we must determine whether an employee injured in the course of his employment is entitled to cumulative specific loss awards for loss of a leg and also for loss of the foot of that leg when, in an effort to save as much of the leg as was medically possible, a guillotine amputation of the foot was performed and subsequently a definitive operation above the foot but below the knee was performed. Second, we must determine whether the employee is entitled to a specific loss award for loss of an entire toe from his other foot when the toe's distal phalange and, in addition, the articular cartilage of the proximal phalange are removed as a result of his injuries. Third, we must determine whether specific loss awards are subject to the maximum and minimum limitations imposed upon benefits awarded claimants for total incapacity, under section 9, part 2 of the act, ³ and to the maximum limitations imposed upon benefits for partial incapacity, under section 10, part 2 of the act, ⁴ which limitations are determined by the number of claimant's dependents.

Plaintiff Magreta sustained two injuries while in defendant's employment on March 13, 1958, when a bundle of steel fell upon him. Part of his left great toe was severed by the bundle and his right foot was severely crushed. He was taken to a hospital immediately where the entire distal phalange of the injured left great toe, including some of the articular cartilage of the proximal phalange, was amputated and the crushed right foot was debrided and closed. Two days later gangrene developed in his right foot necessitating a guillotine amputation at a point three inches above the ankle and more than seven inches below the tibial plateau. Three months later, on June 17, 1958, a definitive amputation was performed about five inches below the right knee.

Defendant voluntarily paid weekly compensation to plaintiff from March 14, 1958 to April 26, 1962, the period provided by our statute for compensation for the specific loss of a leg. See section 9, part 2. Plaintiff thereafter filed an application with the workmen's compensation department for hearing and adjustment of claim ⁵ for payment of additional benefits for loss of his right foot and for loss of his left great toe. At the hearing before the referee in March of 1963, the parties stipulated that the number of plaintiff's dependents decreased from four to three on December 8, 1959 and that, as a consequence, the weekly compensation to which plaintiff was entitled thereafter was $51 rather than the $57 defendant voluntarily had paid him. The referee awarded plaintiff benefits for 162 weeks for the specific loss of his right foot and for an additional 215 weeks for the specific loss of his right leg. Notwithstanding the parties' stipulation, the weekly benefits awarded plaintiff were for $57 for all of both periods. Defendant, of course, was granted credit for compensation previously paid voluntarily. The referee's decision omitted any reference to plaintiff's claim for benefits for specific loss of his left great toe.

Defendant appealed the referee's decision to the appeal board and plaintiff filed a cross-appeal. The appeal board vacated the referee's award for loss of the right foot; awarded plaintiff benefits for 16 1/2 weeks for the specific loss of one-half of his left great toe, payment thereof commencing as of March 13, 1958; and modified the referee's award for the specific loss of plaintiff's right leg to reflect the stipulated decrease in the number of plaintiff's dependents, payment thereof to commence as of the expiration of the 16 1/2 week period for payment of the toe award. The appeal board, like the referee, ordered that defendant be credited for compensation previously paid voluntarily.

I.

We conclude that, under circumstances such as are disclosed by this record, a claimant whose leg is amputated, as defined by section 10, part 2 of the act, in two stages, first by guillotine amputation of the foot and then by definitive amputation five inches below the knee, has suffered only one specific loss, the loss of a leg, and, therefore is entitled only to specific loss benefits for such loss of a leg. The definition to which reference has been made reads as follows:

'An amputation between the knee and foot 7 or more inches below the tibial table (plateau) shall be considered a foot, above that point a leg; * * *.'

Leaving aside semantic difficulties with the statutory language, we must construe the statute to avoid absurdity. ⁶ Williams v. Secretary of State (1953), 338 Mich. 202, 208, 60 N.W.2d 910. That end is accomplished best by constant regard for the objective sought by the Legislature in providing for specific loss benefits for loss of anatomical members.

Award of specific loss benefits provided by the act is not dependent upon evidentiary proof of incapacity for work, total or partial, resulting from the loss of any of the specified anatomical members. Indeed, such incapacity is presumed conclusively upon suffering any of the specified schedule losses. The Legislature has so provided in the following language which introduces the schedule of specific losses appearing in section 10, part 2 of the act:

'In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, to-wit:'

Thus, while maintaining semantic consistency with the act's general pattern, which makes benefits payable upon a showing of the consequent incapacity for work of job-related physical injury, the Legislature's purpose in cases of loss of the scheduled anatomical members was to require compensation upon a showing, only, of such job-related physical loss. The question becomes, therefore, what was the anatomical member lost by claimant in this case for which he is entitled to payment of benefits?

Plaintiff suffered a single injury to his right leg. Two amputations, separated in time by three months, were performed. The first severed plaintiff's foot and the second severed the leg just below the knee. There was evidence that both amputations were required as a matter of routine surgical practice in the comprehensive treatment of plaintiff's injury. ⁷ There was no evidence challenging the reasonableness of such practice in the medical circumstances of plaintiff's case. The appeal board's finding that plaintiff's loss must be regarded as the loss of a leg only and not the loss, first, of a foot and, then, of the leg is supported amply by the evidentiary record. We do not read the statute to mean that in such circumstances the injured worker is entitled to cumulative specific loss benefits as claimed by plaintiff.

The only pertinent authority relied upon by plaintiff on this issue is Wilson v. McCabe & Dishaw (1936), 274 Mich. 74, 264 N.W. 295. In Wilson this Court affirmed an award for loss of a hand by amputation, necessitated, the Court said the department was entitled to find from the evidence, by an industrial injury suffered several years earlier. The defendant claimed the award should have been reduced by the amount it voluntarily had paid plaintiff less than two years earlier when one finger of plaintiff's injured hand was amputated. The Court rejected defendant's claim and affirmed the department's award for full benefits for the plaintiff's specific loss of a hand. While it is possible to read this Court's opinion in Wilson in support of plaintiff's claim here, it is quite clear that the Court did not articulate any reasoning by which it reached its result and upon which we now can rely. Furthermore, it only assumed the voluntary payment was for loss of a finger, but the claim made by plaintiff from which the voluntary settlement resulted was planted on three grounds: total disability, loss of use of hand, and loss by amputation of one finger. Finally, the voluntary payment, while made in settlement of a claim filed by the employer with the department, was never approved by the department nor was the settlement agreement ever submitted therefor to the department. We do not regard Wilson as precedent in support of this plaintiff's claim in this appeal for an additional award for specific loss of his right foot.

II.

The appeal board awarded plaintiff benefits for the specific loss of one-half of the left great toe. There was evidence from which it could have found, as it apparently did, that none of the bone of the proximal phalange was removed during amputation of the entire distal phalange of the toe. ⁸ In the mistaken belief that unless some part of the bone of a phalange is removed there is no loss of a phalange within the meaning of the act, the appeal board concluded that plaintiff was entitled only to specific loss benefits for loss of the first, the distal, phalange.

However, the statute, section 10, part 2, provides:

'The loss of more than 1 phalange shall be considered as the loss of the entire toe; * * *.'

Dr. Castle, defendant's witness, testified on cross-examination that the articular cartilage of the proximal phalange was removed when the entire distal phalange was amputated. ⁹ We read the quoted portion of the statute to require payment for the loss of the entire toe whenever more than one phalange, whether of bone or of cartilage, is lost. The order of the appeal board awarding benefits...