Miller v. Sullivan Milk Products, Inc.

• Decision Date: 27 August 1971
• Docket Number: No. 27,27
• Citation: 385 Mich. 659,189 N.W.2d 304
• Parties: Max A. MILLER, Plaintiff-Appellee, v. SULLIVAN MILK PRODUCTS, INC., et al., Defendants-Appellants.
• Court: Michigan Supreme Court

Page 304

189 N.W.2d 304

385 Mich. 659

Max A. MILLER, Plaintiff-Appellee, v. SULLIVAN MILK PRODUCTS, INC., et al., Defendants-Appellants.

No. 27.

Supreme Court of Michigan.

Aug. 27, 1971.

Marcus, McCroskey, Libner, Reamon & Williams, Muskegon (Jerry S. McCroskey and Edward M. Welch, Jr., Muskegon, of counsel), for plaintiff and appellee.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for Sullivan Milk Products, Inc. and Consolidated Underwriters.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., A. C. Stoddard, John J. Long, Asst. Attys. Gen., Detroit, for Second Injury Fund.

Before the Entire Bench.

ADAMS, Justice.

On February 24, 1958, plaintiff Miller suffered permanent injury to his left leg when he slipped on some ice while delivering milk. Between 1958 and 1964, he underwent several operations on his left ankle. Miller worked intermittently for defendant from 1958 to 1962.

In November 1967, after the expiration of 500 weeks from the date of injury, Miller filed an application for adjustment of claim with the Bureau of Workmen's Compensation alleging permanent and total loss of industrial use of his legs.

Miller's claim is that he qualifies as totally and permanently disabled under the definition of M.C.L.A. § 418.361(2)(g) ¹ (Stat.Ann.1971 Cum.Supp. § 17.237(361)(2)(g) of the Workmen's Compensation Act, which reads:

'Total and permanent disability, compensation for which is provided in section 351, means: * * * (g) Permanent and total loss of industrial use of both legs * * *.'

Plaintiff's application for total and permanent disability was denied by the Hearing Referee who found:

'Plaintiff has a severe injury to the left ankle resulting in industrial loss of use of the left leg. Plaintiff has industrial capacity of all other limbs but is prevented from exercising said capacity by reason of the left leg injury. Plaintiff does not meet the statutory definition of total and permanent disability.'

Miller appealed to the Workmen's Compensation Appeal Board which affirmed the Hearing Referee by decision dated June 3, 1969, stating:

'Plaintiff may be totally disabled, but his loss of industrial use is completely confined to one leg not both and thus plaintiff has failed to come within the definition prerequisite to qualify for additional benefits provided by law.'

The Court of Appeals granted Miller's application for leave to appeal and unanimously reversed. (26 Mich.App. 185, 182 N.W.2d 39). We granted defendants' application for leave to appeal. (384 Mich. 783.)

Plaintiff argues that the economic reality of his incapacitation should control determination of total loss of industrial use of both legs, rather than requiring anatomical injury to both legs before loss of industrial use can be found. He relies on Paulson v. Muskegon Heights Tile Co. (1963), 371 Mich. 312, 123 N.W.2d 715.

Plaintiff also claims that, since he has lost total industrial use of his legs, a classification which denies him the same compensation as persons who have lost such use through direct physical injury is arbitrary and violates his right to equal protection of the law. This contention was not reached by the Court of Appeals and we do not consider it since we conclude plaintiff has failed to establish in fact the loss of industrial use of both legs.

Defendants, also citing Paulson, supra, contend that, in the absence of physical injury to the right leg, plaintiff cannot, as a matter of law, have suffered total loss of industrial use of Both legs. They contend that this 'schedule loss payment' should only be made if plaintiff falls within the statutory definition.

LOSS OF INDUSTRIAL USE

(a) History of the Term

In Rench v. Kalamazoo Stove & Furnace Co. (1938), 286 Mich. 314, 282 N.W. 162, plaintiff suffered an injury which resulted in the loss of both of his thumbs and his first and second fingers of the right hand at the second joints, and his first, second and third fingers of the left hand at the middle joints. Plaintiff sought recovery for the loss of both of his hands which had rendered him totally and permanently disabled. This Court said (p. 320, 282 N.W. p. 164):

'It is argued that we should not permit recovery for the loss of industrial use of the hands In absence of definite legislative enactment. However, our holding of industrial loss of use is well established. See Lovalo (Lovalo v. Michigan Stamping Co., 202 Mich. 85, 167 N.W. 904), Powers (Powers v. Motor Wheel Corp., 252 Mich. 639, 234 N.W 122), and West (West v. Postum Co., Inc., 260 Mich. 545, 245 N.W. 561) Cases, Supra, and also Suggs v. Ternstedt Manufacturing Co., 232 Mich. 599, 206 N.W. 490; also Lindhout v. Brochu & Hass, 255 Mich. 234, 238 N.W. 231.

'As in the Powers Case, supra, the determination of the loss by plaintiff of the industrial use of his hands is one of fact and, there being testimony to support such a determination, the findings of the commission are binding upon us.' (Emphasis added.)

In Rupp v. Hutter Construction Co. (1939), 288 Mich. 105, 284 N.W. 662, the second, third, fourth, and fifth fingers and half of the metacarpal bones of these fingers had been removed from plaintiff's right hand. The thumb remained uninjured. On the left hand, the third, fourth and fifth fingers were disarticulated at the joint of the metacarpal bones, and the upper two and part of the third phalanges of the index finger were amputated. In response to defendant's claim that because plaintiff could articulate the thumb so as to touch the stump of the finger of the left hand, he had not lost the use of that hand and, therefore, could not claim total disability for the loss of the hands, this Court said (p. 106, 284 N.W. p. 662):

'The cases involving the loss of fingers and the industrial use of hands are assembled and distinguished in Rench v. Kalamazoo Stove & Furnace Co., 286 Mich. 314, 282 N.W. 162, wherein it was held that the determination of the loss of the industrial use of an employee's hands is one of fact and where there is supporting testimony, the finding of the department will not be disturbed. Such finding was supported not only by the physical appearance of the remnants of the hands, but by testimony.'

At the time the above cases were decided, the Workmen's Compensation Act had classified specific losses and total and permanent disability as a deemed or conclusively presumed disability in the following language:

'The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any of two (2) thereof, shall constitute total and permanent disability, to be compensated according to the provisions of section nine (9).' C.L.1929, § 8426.

By P.A.1954, No. 175, the definition of 'total and permanent disability' was changed to read as follows:

'Total and permanent disability, compensation for which is provided in section 9 hereof, means:

'(1) Total and permanent loss of sight of both eyes.

'(2) Loss of both legs or both feet at or above the ankle.

'(3) Loss of both arms or both hands at or above the wrist.

'(4) Loss of any 2 of the members or faculties enumerated in (1), (2) or (3).

'(5) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.

'(6) Incurable insanity or imbecility.' Because specific places of loss were spelled out in Act 175--at or above the wrist, at or above the ankle (indicating amputation), and paralysis of legs or arms was specifically mentioned--this new language was generally regarded as not including 'loss of industrial use' of two extremities. It was so held in Clark v. Chrysler Corporation (1966), 377 Mich. 140, 139 N.W.2d 714.

P.A.1956, No. 195, restored 'loss of industrial use' as a measure of total and permanent disability by adding to the above six classifications the following: '(7) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; * * *.' Since this Court had decided a number of cases in which the term 'loss of industrial use' was used, even though not appearing in the Workmen's Compensation Act, we conclude that the legislature intended to restore this Court's decisions defining the 'loss of industrial use' test to the Workmen's Compensation Law by Act 195.

(b) Nature of Specific Loss Recoveries

In Hutsko v. Chrysler Corporation (1968), 381 Mich. 99, p. 102, 158 N.W.2d 874, p. 876 this Court said:

'Michigan has 2 types of workmen's compensation benefits, wage loss disability payments and specific or schedule loss payments. The first type is dependent upon proof of a wage loss resulting from an industrial injury. It is a differential payment computed on what wage the injured workman is able to earn after his injury and the wage he was earning at the time he was injured. If there is no difference he receives no benefits. The second type is a specific loss benefit paid under a schedule of losses applicable to certain designated organs or anatomical members. To this benefit the injured workman is entitled during the period provided in the schedule, Irrespective of any wages he receives whether greater or less than those he received at the time of his injury.' (Emphasis added.)

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. See, Shumate v. American Stamping Co. (1959), 357 Mich. 689, 99 N.W.2d 374; Paulson v. Muskegon Heights Tile Co., Supra; Clark v. Chrysler Corporation, Supra; Liesinger v. Owens-Ames-Kimball (1966), 377 Mich. 158, 139 N.W.2d 706; Armstrong v. Chrysler Corporation (1969), 382 Mich. 274, 170 N.W.2d 13; Lewandowski v. Alpena Power Co. (1969), 382 Mich. 274, 170 N.W.2d 13; and Wronski v. Chrysler Corporation (1969), 382 Mich. 274, 170 N.W.2d 13. If 'loss of use' is established, recovery follows even though there are no economic...