Van Dorpel v. Haven-Busch Co., HAVEN-BUSCH

• Decision Date: 07 October 1957
• Docket Number: HAVEN-BUSCH,No. 44,44
• Citation: 85 N.W.2d 97,350 Mich. 135
• Parties: Peter VAN DORPEL, Plaintiff and Appellee, v.COMPANY and Metals Mutual Insurance Company, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 97

85 N.W.2d 97

350 Mich. 135

Peter VAN DORPEL, Plaintiff and Appellee, v. HAVEN-BUSCH COMPANY and Metals Mutual Insurance Company Defendants and Appellants.

No. 44.

Supreme Court of Michigan.

Oct. 7, 1957.

McCobb, Heaney & Dunn, Grand Rapids (Gordon B. Boozer, Grand Rapids, of counsel), for defendants and appellants.

Stephen A. Bryant, Grand Rapids, for plaintiff and appellee.

Before the Entire Bench.

VOELKER, Justice.

On December 22, 1948 Peter Van Dorpel a 65-year old widower without defendants was working at the job he had followed for upwards of five years: painting steel beams and angle irons for his employer. When painting heavy steel beams it was the practice to rest a number of beams on steel shop horses, attaching the one being painted to an overhead electric chain hoist, which from time to time could be operated for ease in maneuvering or turning the beam on which a man was working. On the day in question, as one of the beams was being turned on the chain hoist, the chain broke and the beam fell, striking the right leg of Peter Van Dorpel and forcing another beam against his right hand, with which he painted.

In the accident the right leg was badly crushed and the four fingers of the right hand were dismembered at the palm. During subsequent hospitalization it was deemed necessary on January 18, 1949 to amputate the leg above the knee. In due course Mr. Van Dorpel was paid compensation on the basis of specific losses of members of the body in accordance with the schedules as they then existed, namely, for the loss of four fingers and a leg. At the expiration of this period the payments were stopped and Mr. Van Dorpel applied for further compensation. In an award dated May 10, 1955 the hearing officer found that the claimant 'has a further total disability above and beyond the specific losses suffered in the accidental personal injury' of December 22, 1948, and further compensation was ordered.

From this award the defendant company and its insurer sought review, and on April 13, 1956 a divided appeal board affirmed the award, modifying it to provide that compensation should not exceed 750 weeks from the date of injury. From this decision the defendants applied to this Court for leave to appeal, which was granted. For convenience hereafter the two corporate appellants will be referred to in the third person singular.

The material facts as to the injury and extent of disability are not in dispute. The thumb was not involved and there were no other injuries or complications. Healing recovery from the amputation was normal. There was medical and other testimony that the claimant had lost the industrial use of his hand and had difficulty in walking, dressing and feeding himself. No question is presented as to whether or not Peter Van Dorpel is in fact totally and permanently disabled from any further industrial employment. All are agreed that he is. The sole question for our determination is the narrow legal one of whether or not recovery for specific losses under part II, section 10 of the act operates as a legal bar to any additional recovery under section 9.

Since its enactment in this state in 1912, section 9 of part II of the workmen's compensation act has provided for compensation for total incapacity and section 10 has provided for compensation for partial incapacity and also for enumerated specific losses of members of the body, certain enumerated combined losses also there being declared to result in total disability. Despite occasional amendments to both sections, the basic design of each has remained substantially unchanged.

At the time of this accident the applicable portion of section 9, after stating the weekly payments for total incapacity for work, read as follows:

'and in no case shall the period covered by such compensation be greater than 500 weeks from the date of the injury, nor shall the total amount of all compensation exceed $10,500.00, except for permanent and total disability, when the compensation shall be paid for 750 weeks from the date of the injury.' Comp.Laws 1948, § 412.9.

Likewise section 10:

'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, towit:' Comp.Laws 1948, § 412.10.

There then follows the list of specific losses of members of the body coming within in the schedule for which payment must be made for a specified number of weeks depending upon the particular member or members lost. In December 1948 this schedule provided for a total of 100 weeks for the loss of the first, second, third and fourth fingers, and further provided for 200 weeks for the loss of a leg.

It is the contention of the appellant that the payment of compensation for the scheduled number of weeks provided by section 10 for the specific loss of four fingers of the right hand and the loss of the right leg acts as a permanent legal bar and limitation to the allowance of any further or other compensation whatever to the claimant, regardless of his condition or state of recovery or inability to work at the end of that time. In other words appellant claims that these provisions of section 10 set both the maximum as well as the minimum of compensation payments allowable and that in no event may a claimant later seek recovery for total disability for such injuries and losses under section 9.

In support of his position he cites as bearing on this point five cases. They are: Limron v. Blair, 1914, 181 Mich. 76, 147 N.W. 546; Curtis v. Hayes Wheel Company, 1920, 211 Mich. 260, 178 N.W. 675; Addison v. W. E. Wood Company, 1919, 207 Mich. 319, 174 N.W. 149; Stack-house v. General Motors Corporation, 1939, 290 Mich. 249, 287 N.W. 452; and Clements v. Chrysler Corporation, 1948, 321 Mich. 558, 33 N.W.2d 82.

In his brief and argument appellee attempts to distinguish appellant's cases; he also hints but does not quite bring himself to say that some of them are bad law; and he further attempts to differ his situation from that of the Curtis case by urging that here we have multiple grave cumulative losses from a common accident, amounting in fact to admitted total disability, whereas there there was but the loss of a single member. He also claims that he is entitled to recover total disability under section 10 for the combined loss of a hand and leg, a proposition anticipated, argued and denied by the appellant.

Of the cases cited by appellant we believe the Curtis case, decided in 1920, is the one most squarely in point. There the applicant suffered an injury to his leg necessitating amputation between 4 and 5 inches below the knee joint. Agreed compensation was paid for the specific loss of a foot for the total number of weeks then provided. Following this the applicant filed a petition for further compensation, alleging non-recovery and continued incapacity to work. After a hearing the board found that total incapacity to work existed and made an award accordingly.

In vacating that portion of the award allowing compensation beyond the number of weeks then allowed for specific loss under section 10, this Court there said (211 Mich. at page 264, 178 N.W. at page 676):

'* * * This leads to a careful consideration of the several provisions of sections 9 and 10 [part 2] of the act, (sections 5439, 5440, 2 Comp.Laws 1915, as amended by Pub.Laws 1919, No. 64). Section 9 provides for compensation in cases where the incapacity for work is total. Applicant is entitled to recover under it until the time when his foot was amputated. Thereafter his claim comes under the provisions of section 10, which specifically allows 'for the loss of a foot, sixty per centum of average weekly wages during one hundred and twenty-five weeks.' As soon as the amputation was performed, he became disabled by the loss of his foot. He suffered no other injury than that which resulted in the amputation. As the act provides specific compensation for the loss of a foot, we are of the opinion that all liability of [defendants] ceased when payment was made for the full term of 125 weeks. These specific items of compensation fixed by the act must control when no other disability than such as results from the removal of the member exists. To hold otherwise would, so far as the employer is concerned, render this provision nugatory and of no effect. Should the employee recover from the effects of the amputation in a few weeks and be able to resume his employment, the payments secured to him on account thereof are in no way affected, but continue during the term fixed. To hold that when his recovery is not fully completed at the expiration of the stated term he may present a claim for further compensation under section 9, would give him an advantage not contemplated in the act. * * *' (Italics ours.)

At the outset we must record the fact that the Court which signed the unanimous opinion in the Curtis case had already done much to promulgate a broad and liberal interpretation of the workmen's compensation act and continued to make many notable contributions in that direction after the Curtis case was decided. Both fairness and candor demand that this be freely acknowledged. But few courts are infallible, especially when they are construing comparatively new legislation; and sometimes the full implications of a given interpretation of a statute can best be appraised only by living with it. Judges are no less fallible than other men and no originality is claimed when we suggest that sometimes in this area, as in other areas of life, experience is often the best teacher. In the light of this acknowledgment and these observations, then, we shall proceed to appraise the Curtis case.

After 37 years we now make bold to ask: a contrary rule gives the luckless amputee an 'advantage' over whom? Did the Curtis case mean to announce some sort of rule of 'turn-about-is-fa...