Pipe v. Leese Tool & Die Co.

• Decision Date: 10 March 1981
• Docket Number: No. 5,Docket No. 63435,5
• Parties: Frederick J. PIPE, Plaintiff-Appellant, v. LEESE TOOL & DIE COMPANY, and Liberty Mutual Insurance Company, Defendants-Appellees. Calendar410 Mich. 510, 302 N.W.2d 526
• Court: Michigan Supreme Court

Page 526

302 N.W.2d 526

Frederick J. PIPE, Plaintiff-Appellant, v. LEESE TOOL & DIE COMPANY, and Liberty Mutual Insurance Company, Defendants-Appellees.

Docket No. 63435.

Calendar No. 5.

410 Mich. 510, 302 N.W.2d 526

Supreme Court of Michigan.

Argued May 6, 1980.

Decided March 10, 1981.

Reamon, Williams, Klukowski, Wood & Drew, P. C., by William G. Reamon, Grand Rapids, for plaintiff-appellant.

Smith, Haughey, Rice & Roegge, by Lance R. Mather, Grand Rapids, for defendants-appellees Leese Tool & Die Co. and Liberty Mut. Ins. Co.

MOODY, Justice.

We granted leave in this case to consider two questions:

1) Whether the Workers' Compensation Appeal Board or the Court of Appeals correctly applied the standards set forth in Hutsko v. Chrysler Corp., 381 Mich. 99, 158 N.W.2d 874 (1968), and in Mitchell v. Metal Assemblies, Inc., 379 Mich. 368, 151 N.W.2d 818 (1967), in this matter, and

2) Whether this Court should adopt a different standard and, if so, whether the plaintiff would qualify under such a standard.

We conclude that (1) the Workers' Compensation Appeal Board correctly applied the Mitchell and the properly interpreted Hutsko standards and reverse the Court of Appeals; and (2) there is no present need for a different standard.

FACTS

In 1946, plaintiff, Frederick J. Pipe, was employed by defendant, Leese Tool & Die Company, as an apprentice diemaker. Shortly thereafter, plaintiff earned a journeyman diemaker's card.

During plaintiff's employment with defendant, defendant manufactured large dies for the automotive industry. Plaintiff's duties as a diemaker included primary layout, machine work distribution, and detail assembly and finishing. During the course of is work, plaintiff was required to handle a number of hand and machine tools, including hammers, screwdrivers, micrometers, height gauges and radial drill presses.

On March 10, 1970, plaintiff's right hand was caught in a large press. As a result of this event, plaintiff suffered an almost complete circumferential laceration of his right hand together with multiple fractures of the bones in the hand and a number of other lacerations. Plaintiff was hospitalized for an extended period. During his hospitalization, it ultimately became necessary to amputate his first and second fingers. Later, plaintiff's thumb became severely ankylosed. Finally, surgery was required to place a pedicle graft over the dorsal ulnar aspect of the hand and also over the carpal-metacarpal joint of the thumb.

On May 27, 1970, plaintiff returned to work. According to plaintiff, although he continued in the classification of diemaker, he no longer could perform all of his prior duties. For the most part he performed bench work. Plaintiff indicated that he had lost 95 percent of the function of his right hand and activities that required the use of his right hand could no longer be performed by that hand but were transferred to the left hand.

Subsequent to his return to work, plaintiff was paid workers' compensation benefits by Liberty Mutual, defendant's insurance carrier. Benefits were paid for 71 weeks, the statutory period applicable to specific loss of the first and second fingers under M.C.L. § 418.361(1); M.S.A. § 17.237(361)(1). ¹

Plaintiff continued to work for defendant until October 1, 1972, when defendant ceased to do business. After a period of layoff, plaintiff obtained work at Michigan Machine. Plaintiff indicated that the work he performed at Michigan Machine was considerably lighter than the work he performed for defendant and that very little of his work involved diemaking.

On April 4, 1974, plaintiff filed a petition for hearing with the Bureau of Worker's Compensation, claiming specific-loss benefits for loss of industrial use of his right hand. At a hearing held on December 24, 1974, plaintiff testified as follows as to the use he made of his right hand on his present job:

"Q. Would you please explain for us the principal functions of your right hand in your present job?

"A. Hooking and pushing. I can hook, I can push; and if it's a very small object, I can prop it in between the digits.

"A. The digits on my hand are almost nonfunctional. I have very little control of them, and they are set and fused in most of the joints. What little function is left, I prop things in between for with my left hand, and then I can use them. It's basically I I suppose if it was a mechanical hand, you would do the same thing.

"Q. Tell me this, Mr. Pipe: disregarding for the moment the use of your left hand, what, if any, portions of your work can you perform independently with the right hand without any assistance from the left hand?

"A. I wouldn't get anywhere. I I would I would say 95 percent of my function is with my left hand."

Also introduced at the hearing was the testimony of Dr. Albert Van't Hof, an industrial surgeon who specialized in hand surgery, who had examined the plaintiff on two occasions at the request of Liberty Mutual. The doctor testified to the following findings:

"Q. Doctor, could you give us a brief physical description of this man's hand as it exists today?

"A. This man has three remaining digits; the thumb, on the first examination, had a small amount of motion at the metacarpal-phalangeal joint which was 15 degrees instead of the usual 40 to 50, and the interphalangeal joint 35 degrees instead of the usual 60 to 80 degrees. The last examination he'd lost all motion in the metacarpal-phalangeal joint of the thumb, therefore this was zero instead of 35 degrees 15 degrees as first reported on the first examination. The motion in the other fingers was essentially the same. This, on the present examination, therefore, he has no motion. We'll discuss the ring finger first. He has no motion at the metacarpal-phalangeal joint, this being fixed at 145 degrees. Normal motion here is 90 degrees. At the proximal-interphalangeal joint of the same digit, he has 25 degrees, normal is 90 degrees. At the distal-interphalangeal joint, showed approximately 20 degrees, normal being 50 to 60 degrees. The ring finger, he showed 80 approximately 80 percent motion, active, at the metacarpal-phalangeal joint; all of these measurements I gave, I'm sorry, are active. At the proximal joint of the small finger, it's 30 degrees instead of the usual 90 degrees, and at the distal-interphalangeal joint, 20 degrees instead of the usual 50 to 60 degrees. He could flex the pulp of the ring finger to within 7 centimeters of the distal palmar crease, and of the small finger to within 5 centimeters of the distal palmar crease, and he had some motion in the m.p. joint of the thumb, so that he could he would have a distance of about 11/2 to 2 centimeters between the thumb, which is severely ankylosed, and having a very slight motion at the m.p. joint, and the joint of his the palm of the hand. Sensation, though, normal in the remaining thumb, ring and small fingers. Adduction, of course, was greatly impaired or absent, opposition likewise, was absent.

"Q. Doctor, you have reached a computation of a percentage of anatomical loss of this man's hand, have you not?

"A. Yes.

"Q. And that is 86 percent ?

"A. This is what I estimated it to be."

The doctor testified further regarding the functional usefulness of plaintiff's right hand, saying that plaintiff retained no power grasp, had some precision grasp, had no pinch and had some remaining push and hook. ²

On May 12, 1975, the administrative law judge found that plaintiff was entitled to benefits for the specific loss of his right hand. On appeal, the WCAB affirmed, applying the legal standard announced in Hutsko.

The Court of Appeals reversed. The Court held that the WCAB had failed to properly apply the Hutsko standard because "plaintiff retained some functions of the hand that would not have been present had the hand actually been amputated". 90 Mich.App. 741, 746, 282 N.W.2d 462 (1979).

DISCUSSION

I

In order to place the present controversy in proper perspective, it is necessary to trace the history of a series of appellate decisions of this jurisdiction, all involving claims for specific-loss benefits for the loss of industrial use of a hand. As will become clear, there appears to be a remarkable consistency in the decisions.

The first of the decisions is Lovalo v. Michigan Stamping Co., 202 Mich. 85, 167 N.W. 904 (1918). In Lovalo, plaintiff filed a claim for specific-loss benefits for the loss of a hand as the result of a press accident which amputated four fingers and part of the palm. The thumb remained intact, however.

This Court, in commenting on plaintiff's injury, made a forceful statement regarding the anatomical function of the hand:

"In common terms the human hand consists of the palm, fingers and thumb, being in combination peculiarly adapted physiologically to the function of prehension, or grasping, which is their primary service, locomotion and support being of scant importance as contradistinguished from the lower order of animals. In that sense and for such uses plaintiff has lost his right hand." Lovalo, 202 Mich. 89, 167 N.W. 904.

The Lovalo Court affirmed the award of benefits made by the Industrial Accident Board, one of the predecessors of the WCAB. The Court rejected amputation in toto as the only standard for the determination of benefits. Quoting favorably the decision of the Industrial Accident Board, this Court set the following as the standard:

" 'As stated above, he may not technically have lost the entire hand within the meaning of section 10, of part 2, of the workmen's compensation act, but the board found from the testimony and a careful inspection and examination of the hand, that he has lost substantially the entire usefulness of the hand. The board cannot see that the thumb he has left is of much, if any, practical use to him as far as following any employment is concerned, and believes that for all practical purposes he has lost the entire hand.' " ...