LOUAGIE
v.
MERRITT, CHAPMAN & SCOTT.
ARMSTRONG
v.
CHRYSLER CORPORATION.
WRONSKI
v.
CHRYSLER CORPORATION.
BAPST
v.
JOHN CROWLEY BOILER WORKS, INC.
LEWANDOWSKI
v.
ALPENA POWER COMPANY.
Calendar No. 24, Docket No. 52,038.
Supreme Court of Michigan.
Decided August 27, 1969.*276 Kelman, Loria, Downing & Schneider (John W. Simpson, Jr., of counsel), for plaintiff.
Badgley, Domke, McVicker & Marcoux (Jerome A. Susskind, of counsel), for defendant employer and its insurer.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John J. Long, Assistant Attorney General, for Second Injury Fund.
Joseph P. Mazzola, for plaintiff.
Lacey & Jones (E.R. Whinham, Jr., of counsel), for defendant employer.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John J. Long and Rodger G. Will, Assistant Attorneys General, for Second Injury Fund.
Dann, Rosenbaum, Bloom & Kaufman, for plaintiff.
Lacey & Jones (E.R. Whinham, Jr., of counsel), for defendant employer.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John J. Long, Assistant Attorney General, for Second Injury Fund.
Kelman, Loria, Downing & Schneider (John W. Simpson, Jr., of counsel), for plaintiff.
Badgley, Domke, McVicker & Marcoux (Jerome A. Susskind, of counsel), for defendant employer and its insurer.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, A.C. Stoddard and Glenn W. House, Jr., Assistant Attorneys General, for Second Injury Fund.
Markle & Markle, for plaintiff.
John Davidson, for defendant employer and its insurer.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John J. Long, Assistant Attorney General, for Second Injury Fund.
PER CURIAM:
These cases are companion cases to Rasar v. Chrysler Corporation (1969), 382 Mich. 169. In Rasar, plaintiff was injured on July 6, 1955. He was found to be totally and permanently disabled, having suffered the loss of the industrial use of both arms as of February 12, 1958.
Plaintiff Louagie was injured on November 2, 1954. It was stipulated that he lost the industrial use of his legs as of July 1, 1956.
Plaintiff Armstrong was injured on February 1, 1956 and was found to be totally and permanently disabled as of September 4, 1963 because of the loss of the use of both legs.
Plaintiff Wronski was injured on July 16, 1955 and was found to be totally and permanently disabled as of August 1, 1956 due to the loss of the industrial use of both legs.
Plaintiff Bapst was injured on April 18, 1956 when he fell and injured his back. He was found to be totally and permanently disabled as of April 18, 1956, having suffered the loss of the use of both legs.
*281 Plaintiff Lewandowski was injured on September 20, 1955 when he received severe burns on both hands. He was found to be totally and permanently disabled as of August 1, 1956 as the result of the industrial loss of the use of both hands.
With regard to all of the above plaintiffs, at the time they were injured the provisions of PA 1912 (1st Ex Sess), No 10, as amended by PA 1954, No 175, were in effect. Under the provisions of that act, none of the plaintiffs met the act's definition of permanent and total disability. However, by PA 1956, No 195, effective August 1, 1956, the act was amended to add loss of industrial use as defined in subsection (7) as constituting total and permanent disability. All of these claimants met the definition of subsection (7). Then, by PA 1965, No 44, amending part 2, § 9 subd (a) (CL 1948 § 412.9 [Stat Ann 1968 Rev § 17.159]), it was provided:
"Any permanently and totally disabled person as defined in this act who, on or after June 25, 1955, is entitled to receive payments of workmen's compensation under this act in amounts per week of less than is presently provided in the workmen's compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amendatory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of his injury and the amount now provided for his permanent and total disability by this or any other amendatory act." (Emphasis added.)
*282 Under the foregoing statutory provisions, on and after August 1, 1956, the effective date of PA 1956, No 195, which defined their disability as being permanent and total, all of the plaintiffs became entitled to receive payments of compensation as totally and permanently disabled persons. All, "at the time of [their] injury," were not entitled to receive such payments "under the provisions of this act as the same was in effect at the time of [their] injury." Consequently, plaintiffs' compensation should be paid "from the second injury fund." We think this was the legislative purpose in enacting PA 1965, No 44, and apply it accordingly to the rights and obligations of all parties to the captioned cases.
A further question raised in Louagie is whether the amount of compensation is reduced when the number of dependents is reduced. Section 9, subd (d)[1], part 2 of the act (CL 1948, § 412.9 [MCLA 1969 Cum Supp § 412.9(d), Stat Ann 1968 Rev § 17.159(d)]), provides for such a decrease. Upon remand, determination of the dependency situation since the date of the original hearing may be presented to the appeal board for disposition.
In Bapst, a question is raised as to whether the evidence failed to establish loss of industrial use of two members as defined in the act. This question was not raised on application for leave to appeal either to the Court of Appeals or to this Court. The referee and the appeal board found that plaintiff was totally and permanently disabled. The question is not properly before us. We decline to pass on same.
In Wronski, appellant contends there is no competent evidence to show that plaintiff has lost the *283 use of both legs causally related to his employment. The referee and the appeal board found that plaintiff did suffer such a loss. The opinion of the appeal board states:
"The proofs which were presented to establish the residuals of injury and loss of use of the limbs are not quite so weighty that it is `obvious' that the employment is the `sole' cause of disability as defendant seemed to concede when they were here before, however, we are of the opinion that the proofs standing unrebutted as they are do establish prima facie evidence from which it is reasonable to conclude that plaintiff did suffer the industrial loss of use of two extremities as a result of injuries suffered on July 16, 1955. We so hold. The proofs show such loss did occur prior to August 1, 1956." (Emphasis added.)
Plaintiff's case was first decided by the appeal board on August 16, 1957. Hearing on a subsequent claim for an adjustment of benefits was held on March 10, 11, 1965. The only testimony was that of plaintiff. Chrysler had had a physical examination of plaintiff on February 19, 1965, but did not produce any evidence, medical or lay. We conclude there was a factual basis for the finding by the referee and the appeal board. Such a finding is conclusive. CL 1948, § 413.12 [Stat Ann 1968 Rev § 17.186].
In Lewandowski, the employer and Michigan Mutual further contend that payments to plaintiff should be reduced by earnings received by plaintiff in favored employment during the period of conclusively presumed total and permanent disability. We are here concerned with the provisions of part 2, § 9, subd (a), of the compensation act. The provisions of part 2, § 11,[2] cannot defeat the mandatory *284 disability benefits relating to specific losses. The claim is without merit.
In view of our holding that liability in these cases rests upon the second injury fund, the issue of res judicata because of a prior decision of the workmen's compensation appeal board need not be considered or passed upon.
All of the above cases are remanded to the workmen's compensation appeal board for appropriate orders in accordance with this opinion.
No costs.
T.E. BRENNAN, C.J., and DETHMERS, KELLY, BLACK, T.M. KAVANAGH, ADAMS, and T.G. KAVANAGH, JJ., concurred.
NOTES
[1] Subdivision (d) was added to PA 1912 (1st Ex Sess), No 10, pt 2, § 9, by PA 1949, No 238, and has been included in each subsequent amendment of that section. The last amendment was by PA 1968, No 227. REPORTER.
[2] PA 1912 (1st Ex Sess), No 10, pt 2, § 11, has been amended by PA 1965, No 44, and PA 1967, No 140 (MCLA § 412.11, Stat Ann 1968 Rev § 17.161). REPORTER.