Mitchell v. Metal Assemblies, Inc., 2

• Decision Date: 21 July 1967
• Docket Number: No. 2,2
• Citation: 151 N.W.2d 818,379 Mich. 368
• Parties: David MITCHELL, Plaintiff and Appellant, v. METAL ASSEMBLIES, INC. and Exchange Casualty and Surety Company (In Liquidation), Defendants and Appellees.
• Court: Michigan Supreme Court

Page 818

151 N.W.2d 818

379 Mich. 368

David MITCHELL, Plaintiff and Appellant, v. METAL ASSEMBLIES, INC. and Exchange Casualty and Surety Company (In Liquidation), Defendants and Appellees.

No. 2.

Supreme Court of Michigan.

July 21, 1967.

Miley & Fox, Detroit, James R. Fletcher, Detroit, of counsel, for appellant.

Levin, Levin, Garvett & Dill, by Edward M. Miller, Detroit, for appellees.

Before DETHMERS, C.J., and KELLY, BLACK, KAVANAGH, SOURIS, O'HARA, ADAMS and BRENNAN, JJ.

PER CURIAM.

The sole question on review by the Court of Appeals, and in turn here, is 'whether there is any evidence to support the award.' Meyers v. Mich. Cent. R. Co., 199 Mich. 134, 137, 138, 165 N.W. 703, 704; Thornton v. Luria-Dumes Co-Venture, 347 Mich. 160, 162, 79 N.W.2d 457; Coates v. Continental Motors Corp., 373 Mich. 461, 467, 130 N.W.2d 34. 'Our obligation is to accept, without question, findings that are certified here if there be any evidence whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof.' (Thornton, 347 Mich. at 162, 79 N.W.2d at 458).

The appeal board found, with ample evidentiary support:

'In the instant case all four fingers which were opposed to the thumb have been been amputated. Since the capacity to grasp comes from the fact that the phalanges are opposable, it follows then that the capacity to grasp is destroyed. It is true that plaintiff can hold some objects by using the thumb in conjunction with the palm or surface of the hand. However, this is more in the nature of a holding action similar to that which might be accomplished by sticking an object between the phalanges of the paw of the performing dog. Plaintiff herein is left with little, if any, more than a pushing instrument. His capacity to use the forelimb to any degree depends upon the other parts of the forelimb. While the forelimb is not completely useless, it is of less use than a forelimb fitted with a modern prosthetic hand. Plaintiff is relegated to the ranks of the odd lot who must substitute other bodily functions for that destroyed in order to continue to be gainfully employed. We hold that he has suffered industrial loss of use of his hand. The order of the Referee shall stand affirmed.'

As against these findings the seated panel of the Court of Appeals reversed the appeal board's award for plaintiff, stressing an opinion of the defendant employer's examining physician ('I do not think he's lost the industrial use of his hand.'). Holding that the presented question 'becomes one of law,' and citing Hlady v. Wolverine Bolt Co., 325 Mich. 23, 37 N.W.2d 576, as controlling authority, the 3 judges came to this specific conclusion:

'While it might seem harsh to find that a man who has lost 4 fingers of his right hand has not, in absence of evidence of any greater injury, lost the industrial use of that hand, such is the law. To change the law is the province of the legislature, not of this Court.' (Mitchell v. Metal-Assemblies, Inc., 3 Mich.App. 143, 150, 141 N.W.2d 710, 714).

Before turning to the proof upon which the appeal board depended, and from there to the authorities with which we are concerned it should be noted that the hearing referee and the appeal board ignored the quoted opinion of defendant's medical witness. Whether that was done for reasons of credibility, or for some other reason or reasons, is not disclosed. It may be that the administrative triers of fact concluded that the doctor's knowledge of essential facts was a bit scarce, the doctor having testified:

'The Referee: Let me put it in converse, Doctor. How much would you say loss of use has there been here?

'A. I would have to say that that depends upon the use for which the hand--I mean, industrially speaking, it depends upon the type of use that the hand has been used to. And to actually go on percentages I would say is impossible. Each individual is different. They each can adopt themselves differently. Some people have abilities with their hands and are double jointed and so on, so that it's hard to measure exactly everyone based on a simple percentage.

'I would say that I haven't seen this man before and not knowing his capabilities, it would be hard for me to give a percentage loss as far as his hand is concerned. I can't say how well he does his job. I have never seen him do it. I did see him flex his hand and extend it. I saw him move his thumb. I would say as far as those uses are concerned, that he does very well with what he has left.

'The Referee: Well, let's put it this way. If you were the examining physician, you were passing upon prospective employees for two-handed jobs, where would he stand?

'Mr. Leib: If the court please, I'm going to object to the question by the court. I think it's highly irrelevant.

'The Referee: Well, I'd like to have an answer to it.

'A. It would depend upon whether the job demanded the dexterity of his fingers. If the job did not--many jobs can be done by just pushing with your palm. If the job demanded dexterity of his fingers, if he had to do emergency work in the hospital like I do, I would say no. I don't know what his job is.'

So far as lifeless print may disclose to a reader thereof, the plaintiff appears to have been remarkably straightforward in giving the testimony upon which the appeal board relied. Unlike the exact situation disclosed in the Hlady Case (see discussion, post), it was shown that plaintiff 'suffered complete loss of the little finger, ring finger, middle finger and about four fifths at least of the index.'. He told of going back to 'part time' work on a garbage route; then with a 'floor cleaning fellow'; and finally as a 'maintenance man.' He said 'I sweep up the floor and clean the bathroom and change light bulbs, whatever has to be done'; 'fix the machines, put saws in, I mean blades, yes, saw blades, and I do truck driving, high-low.' ¹

A fair summary of the extent of the use to which he can employ what is left of his right hand appears from this connected part of his testimony:

'Q. Are you able to get along on the job or did you have any special favoritism shown to you, or how do you manage?

'A. No, I get along fine as far as I know on the job I'm on now. As far as I know everybody likes me, as far as I know. Nobody says anything to me, I just do my job and that's it.

'Q. I'm talking about your ability to perform your work, are you able to do it all right?

'A. Well, as far as sweeping and cleaning up and like that there, yes, sir.

'Q. How do you do it?

'A. Well, I have a broom and brushes, and Ajax, and stuff like that, I use to clean out the bowls. The only thing I have a hard time with is picking the barrels up and stuff like that, but I do get them up and hold them up there. A lot of times I bang my hand where I wouldn't otherwise, and I could just jump through the ceiling then, but other than that everything's fine.

'Q. Is there any work you were doing before your injury that you are unable to do at this time?

'A. Well, I mean I was doing punch press before and, well, I mean other than doing the punch press, I mean I could do most anything, you know, but there's a lot of little things I can't do. Like if I wanted to fix it on my car or work on my car, or something like that, I can't get down in there and hold the wrenches and stuff.

'Q. Well, could you go back and work on the same punch press again?

'A. No, sir.

'Q. Do you know why?

'A. Well, I think it's because one man couldn't operate it with one hand, you have to have two hands to operate it.

'Q. Do you know whether or not you have ever been refused work because of your injured hand?

A. Well, yes, I've applied for kitchen work and stuff like that, and they wouldn't hire me because of that; they told me right out that I'd probably drop the stuff and break it and I wouldn't be no good in the kitchen, and I have been refused work because of that.

'Q. Have you done that kind of work before?

'A. Yes, sir.

'Q. Can you tell us where you were refused employment?

'A. I don't remember the place but it's in Rochester; it was a high class restaurant and I went in and talked to the lady, and she asked me if I was physically fit and everything and I told her I was physically fit other than my hand, and she looked at my hand and she said I'm sorry, I can't use you because you'll drop the dishes, you couldn't pick this up or carry a bucket, or anything like that. So I do forget the name right off hand, but it was right up in Rochester. I could find out.

'Q. Have you had any medical attention on your hand?

'A. Yes, I have. I had to go back one time before when I come out of the hospital, and he cut a little more bone off of here, but it still does bother me right here.

'Q. You're pointing to the knuckle of your long finger?

'A. Well, I guess it's the bone down here, I guess where he squeezed it down or something, but It's nerves, the nerve right there, and I can--I mean I can feel it all the time, you know, and it bothers me, and I talked to the doctor about it and I told him that the company did go bankrupt, and he told me wait until I got settled.

'Q. Who was the doctor?

'A. Doctor Beech, the doctor.

'Q. Is he the one who took care of you before?

'A. Yes, sir.

'Q. Now, are you pointing to that portion of the hand where you've lost the middle finger?

'A. Yes, sir, the middle part right here. The biggest part, this part down here doesn't bother me as much as this does here, but he cut part of his bone off and he said I'd probably have to go back quite a few times before he could cut it all off, because he could only cut a portion off at a time.'

This brings us to application of the 'any evidence' rule; whether there is any evidence on strength of which the appeal board could rightfully find and conclude as it did.

In the first place it is rather firmly settled that, in this particular type of closely disputed 'loss of industrial use' case, the issue almost automatically becomes...