Hagerman v. Gencorp Automotive

579 N.W.2d 347 (1998)

Marian HAGERMAN, In Her Own Behalf And On Behalf of Keith Hagerman, Deceased Plaintiff-Appellant,
v.
GENCORP AUTOMOTIVE, Self-Insured, Defendant-Appellee.

Docket No. 107059, Calendar No. 8.

Supreme Court of Michigan.

Argued December 10, 1997. Decided June 16, 1998.

Williams, Fotieo, Szczytko & Fedewa by Paul A. Williams, Grand Rapids, for plaintiff-appellant.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendant-appellee.

OPINION

BOYLE, Justice.

We granted leave to appeal to examine the Legislature's use of the phrase "proximate cause" in M.C.L. § 418.375(2); M.S.A. § 17.237(375)(2), which provides for survivor's benefits under the worker's compensation act.^[1] We decline to take up the cudgel with regard to the dissent's scholarly exploration of the evils of judicial legislation or to reconsider the holding in Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994).^[2] Because the circumstances of decedent's death were within the range of compensable consequences under subsection 375(2), we reverse the decision of the Court of Appeals and reinstate the decision of the magistrate.

I

Plaintiff's decedent, Keith Hagerman, worked as a millwright for defendant from April 16,1984, until December 20,1989. Decedent sustained a back injury at work on August 25, 1987, while trying to move a five-hundred-pound barrel. He returned to work, but sustained further aggravating injury to his back until he could no longer work as of December 20, 1989. Defendant paid benefits from decedent's last day of work until his death on March 28,1990.

As part of the medical treatment of the injury, decedent's doctor ordered a myelogram to diagnose the extent of the injury and indicate the desirability of surgery. When decedent underwent this diagnostic medical procedure on March 7, 1990, a nurse advised him that successful recovery from the myelogram required that he consume large quantities of water before and after the procedure.

As a result of this medical advice, after leaving the hospital, decedent consumed a sixteen ounce glass of water every ninety minutes.

Decedent suffered from high blood pressure for which he was taking the diuretic drug Aldoril. On the nights of March 8 and 9, decedent was hospitalized. It is undisputed that the high water intake, combined with the diuretic action of the Aldoril, depleted the sodium levels in his body, causing convulsions or seizures, that decedent aspirated gastric contents into his lungs as a result of the convulsions or seizures, which caused pneumonia and coma, and that decedent died of cardiac arrest on March 28,1990.

Decedent's widow sought death benefits on April 12, 1990. Under subsection 375(2) of the worker's compensation act, when death is not immediate, the survivor seeking death benefits must show that a work-related injury was the "proximate cause" of the death. The magistrate awarded plaintiff benefits, concluding that the requirements of subsection 375(2) had been met by "[a] chain of medical causation [that was], although unexpected and unusual, ... clear and unbroken."^[3] Citing 1 Larson, Workers' Compensation (hereinafter, "Larson"), § 13.21, the magistrate reasoned that "[t]he great weight of authority recognizes that the adverse consequences of medical management of a work related condition results in a compensable circumstance." The magistrate specifically held:

[T]he myelogram was necessitated by the work related injury. It is not an intervening, superseding event, unrelated to the original injury. It does not break the chain of causation. It is but one event occurring in an unbroken sequence of events flowing from, and necessitated by, the injury.

The Worker's Compensation Appellate Commission reversed, concluding that the death "was the result of medication designed to control his high blood pressure, a preexisting condition.... [T]he medication was an independent cause which lead to plaintiff's [sic] death." 1993 Mich. ACO 845, 847. The Court of Appeals originally reversed in a peremptory order, but, on subsequent plenary consideration, the Court affirmed the WCAC, concluding that plaintiff had failed to establish that decedent's death was proximately caused by the work-related injury. 209 Mich.App. 667, 531 N.W.2d 832 (1995).

Plaintiff sought leave to appeal in this Court. We remanded for reconsideration in light of Dedes v. Asch, supra, in which we held that the phrase "the proximate cause" in the governmental immunity statute, M.C.L. § 691.1407(2)(c); M.S.A. § 3.996(107)(2)(c), does not require the plaintiff to establish that the defendant's conduct was the sole proximate cause of plaintiff's injuries. 451 Mich. 874, 549 N.W.2d 565 (1996). On remand, the Court of Appeals did not apply Dedes. Rather, on further examination of the proximate cause issue, the Court of Appeals affirmed the WCAC, concluding that the work-related injury and the myelogram were not substantial factors in the death and that public policy could not support holding defendant to a duty to protect decedent from the harm suffered. 218 Mich.App. 19, 553 N.W.2d 623 (1996). Thus, both the WCAC and the Court of Appeals essentially attributed the death to the preexisting medical condition. We conclude that the Court of Appeals erred. The evidence was sufficient to support the magistrate's conclusion that the injury was the primary moving or substantial cause of the death. We vacate and affirm the decision of the magistrate.

II

A

"[T]he findings of the magistrate are conclusive when supported by substantial, competent, and material evidence...." Goff v. Bil-Mar Foods (After Remand), 454 Mich. 507, 511, 563 N.W.2d 214 (1997). "The question we are faced with on judicial appellate review ... is `whether the WCAC acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate's decision was or was not supported by competent, material, and substantial evidence on the whole record.'" Id., quoting Holden v. Ford Motor Co., 439 Mich. 257, 267-268,484 N.W.2d 227 (1992). In applying subsection 375(2) in the instant case, and upholding the decision of the WCAC, the Court of Appeals employed an erroneous legal framework and based its decision on erroneous legal reasoning. Questions of law are reviewed de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).^[4]

B

"[F]or centuries judges, lawyers and writers have used the phrase `proximate cause' to indicate a cause of which the law will take notice." Perkins & Boyce, Criminal Law (3d ed.), p. 774. We attribute no greater or lesser intent to the Legislature in enacting § 375 than to ensure "legally recognized cause." Id. at 776. Construing the text reasonably to contain all that it fairly means, we find no basis to conclude that legally recognized cause under subsection 375(2) means sole proximate cause.

We need not revisit our decision in Dedes, supra, that "[t]he word `the' before `proximate cause' is not to be read to limit recovery if the plaintiff or another is also a cause.... [or] to prevent a defendant from claiming comparative negligence...." Id. at 118, 521 N.W.2d 488. Rather, for purposes of the question presented here, we need only observe that our reading of subsection 375(2) is consistent with the dictionary definitions of "a" and "the."

A.... The word "a" has varying meanings and uses. "A" means "one" or "any," but less emphatically than either.... [Black's Law Dictionary (5th ed.), p. 1.]

The. An article which particularizes the subject spoken of." Grammatical niceties should not be resorted to without necessity; but it would be extending liberality to an unwarrantable length to confound the articles "a" and "the". The most unlettered persons understand that "a" is indefinite, but "the" refers to a certain object. [Id. at 1324.][^[5]]

"Proximate cause" generally refers to the "primary or moving cause." Id. at 1103. Therefore, while "a" force might be one of a series of causes, "the" primary or moving force, does not logically or linguistically negate the existence of other forces. Stated otherwise, use of the term "the" to modify the object "proximate cause" does not compel the conclusion that the phrase means sole cause. Recognition of the fact that "proximate cause" means, in broad terms, "primary cause," requires us to also acknowledge the existence of other legally recognizable causes. Thus, we refuse defendant's invitation to engraft the word "sole" onto the statute between "the" and "proximate cause" and instead look to the common law to understand the meaning of the phrase "the proximate cause" in the WDCA.

1. The Historical Context

A conclusion that the Legislature intended sole causation in subsection 375(2) would not only ignore the text of the statute, it would also be inconsistent with concurrent causation principles predating the enactment of the predecessor of subsection 375(2) in 1912.^[6] The law has consistently recognized that there may be more than one proximate cause.

The worker's compensation act eliminates contributory negligence (unless wilful) as a defense in death cases^[7] and thus explicitly refutes any contention that the Legislature employed the phrase "the proximate cause" in 1912 as a reference to contributory negligence principles that existed at the time. Op. at 361.^[8] Moreover any suggestion that principles of the doctrine of contributory negligence support the Legislature's intention to apply a standard of "sole" causation bespeaks a misunderstanding of common law contributory negligence, which was an affirmative defense that barred the plaintiff from recovery. There is no foundation in the common law for the notion that, because contributory negligence was a defense, the acts of the defendant on which liability was premised were required to be the sole cause of injury. In other words, while contributory negligence was an independent intervening cause that would bar recovery, if there was no contributory negligence, the defendant might or might not be responsible, depending on whether the injury was proximately caused by the act that was alleged to impose liability. It is axiomatic that the existence of concurrent proximate causes at common law did not bar recovery.

As early as Gage v. Pontiac, O & N R Co., 105 Mich. 335, 63 N.W. 318 (1895), this Court recognized the existence of concurrent proximate causes contributing to the plaintiff's injury. The plaintiff was injured when she was thrown from her carriage after the horse drawing the carriage, while crossing a bridge, "made a sudden shy^[9] to the right," id. at 339, 63 N.W. 318, and went over the side of the bridge. The plaintiff claimed the absence of guardrails on the bridge was the proximate cause of her injuries, while the defendant maintained it was the horse's shy that proximately caused the injuries. The Court held:

[I]t cannot be said, as a matter of law, that the mere shying of the horse, and not the improper and dangerous condition of the highway, was the proximate cause of the injury. They were apparently concurring causes,—the one, the shying of the horse, where neither party can be said to be in fault; and the other, the defect in the highway, for which, under the finding of the jury, the defendant company is responsible. [Id. at 342, 63 N.W. 318.]

The Court supported its decision not to disturb the jury's decision on appeal with reference to Houfe v. Town of Fulton, 29 Wis. 296 (1871):

[In that case], it was held that where, besides the defect in the highway, there is another proximate cause contributing directly to produce the injury, which cause is not attributable to plaintiff's negligence nor that of any third person, the town is still liable in case the jury find that the damage would not have been sustained but for the defect in the way. [Gage, supra at 343, 63 N.W. 318 (emphasis added).]

The common-law understanding of concurrent proximate causation has obtained through recent statutory modifications.^[10] Thus, in 1946, this Court, relying in part on Gage, unanimously stated:

"Since a concurring cause may be a proximate cause, the rule is that one is liable to respond in damages for an injury which was the natural and probable result of the concurrence of his negligence with the negligence of another, or with an act of God or pure accident, or with an inanimate cause, notwithstanding his lack of responsibility for the other cause." [Brackins v. Olympia, Inc., 316 Mich. 275, 281, 25 N.W.2d 197 (1946).]

The Brackins Court's discussion of this rule also included the specific acknowledgment not only that there may be more than one proximate cause, but that where this is the case, the negligent wrongdoers cause may be referred to as "the proximate cause":

"[T]here may be two or more concurrent and directly cooperative and efficient proximate causes of an injury. Negligence which was operative at the time an injury was inflicted may constitute the proximate cause of the injury and be actionable, notwithstanding it concurred with the act of a third person to produce the injury." [Id. (emphasis added).][^[11]]

Thus, construing the phrase, "the proximate cause" to require sole proximate cause would contradict the common law's longstanding recognition of the fact that, "there may be two or more concurrent and directly cooperative and efficient proximate causes of an injury." Id. Absent some persuasive support that the Legislature intended to deviate from the common law's established recognition of concurrent proximate causation, we have neither textual nor historical basis to construe subsection 375(2) to require a showing of "sole" proximate causation.^[12]

Having determined that there is no basis to conclude that the Legislature intended the phrase "the proximate cause" to mean the sole cause, we offer some additional observations before turning to the application of § 375 to the facts before us.

2. The Limit of Proximate Cause is a Matter of Public Policy

Proximate causation is not determined by "application of some rule-of-thumb." Perkins & Boyce, supra at 779. "[S]olutions dependent upon purely mechanical rules would produce absurd results...."^[13]Id. Perkins & Boyce explain the difficult task of determining the boundaries of legally recognized causation:

Whether the term used is "proximate cause," "legal cause," "jural cause," or some equivalent, the idea sought to be expressed is "legally-recognized cause," which should be promptly tested by the question,—legally recognized for what purpose? The matters of policy which determine just where the limitations of juridical recognition shall be placed upon the broad field of actual cause, are grounded partly upon expediency and partly upon notions of fairness and justice, although even proximate cause must be distinguished from the concept of responsibility. Since the boundary lines of proximate cause are governed by these considerations they may, and in fact do, vary according to the jural consequences of the particular kind of case involved. The line of demarcation between causes which will be recognized as proximate and those which will be disregarded as remote "is really a flexible line." "Legal causation reaches further" in some types of cases than it does in others. It reaches further in tort actions based upon intentional harm than in those resulting from negligence, and neither of the boundaries so established is necessarily controlling in other types of cases, such as actions for breach of contract, those under Workmens' Compensation Acts, or criminal prosecutions. [Id. at 776.]

Thus, the limit of proximate cause is a question of public policy,^[14] and its boundaries depend on the type of case in which the Court is asked to determine those boundaries.

C

The parties claim that no authority from this Court establishes the boundaries of proximate causation under subsection 375(2). The defendant argues, consistent with the decision of the Court of Appeals, that we should apply principles of tort law to determine the boundaries of proximate cause under the act, or defer to the WCAC's findings of fact.^[15] The Court of Appeals held "that as a matter of public policy defendant should not be held to have a duty to protect plaintiff's husband from the harm he suffered in the instant case." 218 Mich.App. at 24. We hold, as a matter of public policy, considering our historical treatment of proximate cause in tort and worker's compensation cases, that death is within the range of compensable consequences if the injury was a substantial factor in the death, and, we acknowledge, in the absence of a universally applicable test for proximate cause, that such decisions will almost always turn on the facts and circumstances presented in a given case. See, e.g., Stoll v. Laubengayer, 174 Mich. 701, 704,140 N.W. 532 (1913). Here, because the work-related injury began a clear and unbroken chain of events that led to the decedent's death, the injury was a substantial factor. In other words, we conclude that the magistrate applied the correct legal standard and that the conclusions were supported by competent, material, and substantial evidence on the whole record.

In reaching its conclusion, the Court of Appeals applied the substantial-factor test commonly employed to determine proximate causation in negligence cases:

When a number of factors contribute to produce an injury, one actor's negligence will not be considered a proximate cause of harm unless it was a substantial factor in producing the injury.... Among the factors to be considered is whether the actor's conduct created a force or series of forces that were in continuous and active operation up to the time of the harm, or created a situation harmless in itself unless acted upon by other forces for which the actor is not responsible.... We conclude that the back injury and myelogram did not constitute a substantial factor in producing the injury, and so did not proximately cause the injury. [218 Mich.App. at 23 (emphasis added).]

We agree with the Court of Appeals that the substantial-factor test is relevant in determining proximate causation. However, we do not agree with the Court's application in the instant case, nor with its endorsement of the WCAC's failure to recognize that preexisting conditions will not bar recovery. Section 141 excludes the decedent's contributory negligence as an intervening cause under § 375. The phrase "proximate cause" in subsection 375(2) does not exclude death benefits where the events leading to the death flow in a clear and unbroken chain of causation; thus, decedent's death falls within the range of compensable consequences. We reject the decision of the WCAC because it fails to comply with the legal requirement that the employer take the employee as he finds him, with all preexisting conditions and frailties, for the purpose of determining compensation.^[16] The evidentiary issue is one of remoteness, that is, whether there is sufficient evidence to show a clear and unbroken chain of causation so that the injury was a directly and substantially related cause of the death.

D

Subsection 375(2) adopts a higher standard for awarding benefits than that adopted in § 301.

Subsection 375(2) requires an analysis of whether death was proximately caused by the original injury. Subsection 301(1) requires only the question whether the injury arose out of and in the course of employment. The inquiry into whether a clear and unbroken chain of causation sufficient to show the injury was a directly and substantially related cause of death (subsection 375[2]) is not the same as an inquiry into whether there is a mere causal nexus between the injury or employment, (subsection 301[1]).

For example, in Hammons v. Highland Park Police Dep't, 421 Mich. 1, 9, 364 N.W.2d 575 (1984), the Court held death by suicide compensable as a personal injury arising out of and in the course of employment where there was an adequate causal nexus between the suicide and the work-related injury. The question of intervening causation under subsection 375(2) was not presented in Hammons, which was apparently treated as an immediate death case. However, recovery of death benefits in non-immediate death cases requires an additional hurdle beyond the "arising out of and in the course of employment" causal nexus, namely, proximate cause and the absence of intervening or superseding causes, such as decedent's wilful conduct, sufficient to break the chain of causation. Thus, for example, death by suicide, if wilful, would appear to be noncompensable under subsection 375(2). The phrase "proximate cause" is an inherently limiting phrase.

Certain general principles govern any inquiry into the applicability of a provision of the worker's compensation act. Particularly relevant here are two often-cited principles: First, the worker's compensation act is remedial in nature, and must be "liberally construed to grant rather than deny benefits." Sobotka v. Chrysler Corp. (After Remand), 447 Mich. 1, 20, n. 18, 523 N.W.2d 454 (1994) (Boyle, J., lead opinion); see, also, Gardner v. Van Buren Public Schools, 445 Mich. 23, 49, 517 N.W.2d 1 (1994). Second, for the purpose of determining compensability of an injury or death, courts will require that employers take their employees as they find them. Zaremba v. Chrysler Corp., 377 Mich. 226, 231-232, 139 N.W.2d 745 (1966).^[17] These general principles apply to both injury and subsequent death cases, as does abrogation of the defenses of contributory negligence, negligence of a co-employee, and assumption of the risk under § 141.

M.C.L. § 418.301(1); M.S.A. § 17.237(301)(1) provides the general rule for causation under the act:

An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. In the case of death resulting from the personal injury to the employee, compensation shall be paid to the employee's dependents as provided in this act.

Justice Williams, writing for the Court, eloquently reminded us of the implications of the Legislature's selection of the "arising out of and in the course of employment" standard for causation in supplying a system for compensation of injured employees and, in cases of death, the dependents of those employees:

In fact, it might be said that workmen's compensation, like the gentle rain from heaven, falls upon the just and unjust alike so long as the injury arose out of and in the employment ambience. [Thomas v. Certified Refrigeration, Inc., 392 Mich. 623, 637,221 N.W.2d 378 (1974).]

Section 301 imposes liability where the injury arises out of the employment without reference to fault. Subsection 375(2) likewise imposes liability without respect to fault, but requires closer examination of the causal connection. However, in concluding that the defendant's preexisting condition was the sole legally causative factor in his death, the approach taken by the Court of Appeals and the WCAC elides the principle that an injured employee's preexisting weaknesses, here the decedent's high blood pressure, are irrelevant to the inquiry into causation, and it avoids both the legal and factual inquiry regarding independent intervening cause.

The magistrate correctly observed that "[t]he great weight of authority recognizes that the adverse consequences of medical management of a work related condition results in a compensable circumstance." Larson states:

It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant's condition, or death, resulting from [for example] antibiotics, antitoxins, sedatives, pain-killers, anesthesia, electrical treatments, or corrective or exploratory surgery. [Larson, Worker Compensation Law, § 13.21(a), pp. 3-699 to 3-711.]

We have followed this rule at least since our decision in Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719 (1922). There, we held that the plaintiff could recover where he ultimately lost his leg because of infection after suffering an injury of his ankle at work. The plaintiff's original injury was fairly minor, but subsequent infection after several attempts at treatment resulted in amputation. We stated:

Where there is a right of recovery due to the original injury and the disability at the time of the hearing is directly traceable thereto, the intervention of other and aggravating causes by which such disability has been increased, if the claimant is not himself to blame therefor, is no bar to his recovery.... The rule is thus stated....

"Where the immediate agency causing the death or second injury is one which the first injury rendered it essential to employ, the employer has been held liable for the resulting death or injury." [Id. at 321-322,186 N.W. 719.]

Thus, we concluded that the relevant inquiry focused on whether "disability ... was caused by, or directly traceable to, the injury resulting from the accident," id. at 322, 186 N.W. 719, and precluded plaintiff from suing for damages at law, i.e., for negligence. The Court of Appeals correctly recognized that under Oleszek, "[a]n employer is liable for additional injuries or complications that result when an employee submits to medical procedures necessitated by work-related injuries." 218 Mich.App. at 22-23. However, the Court of Appeals and the WCAC erred in denying compensation on the legal basis that, because decedent had a preexisting condition, the results here were too remote.

In the presence of a causal relationship not so attenuated that a court can permissibly conclude that the original injury was not a moving or substantial cause of the ultimate injury, a court cannot conclude under traditional definitions of proximate cause that necessary medical treatment that resulted in death is not legally cognizable. Larson's view of the uniform rule regarding aggravating medical consequences and Oleszek are consistent with these definitions.

Moreover, it is well established that an employee has a "duty to minimize ... damages by obtaining proper medical or surgical treatment." Smith v. Jones, 382 Mich. 176, 186, 169 N.W.2d 308 (1969). Absent unreasonable risk, an employee must submit to reasonable medical treatment or "release his employers from the obligation to maintain him."^[18]Kricinovich v. American Car & Foundry Co., 192 Mich. 687, 690, 159 N.W. 362 (1916). See, also, Workers' Compensation: Reasonableness of employee's refusal of medical services tendered by employer, 72 A.L.R. 4th 905. In light of the fact that injured employees are required by law to submit to medical treatment, we decline to conclude that the Legislature intended to curtail the right to death benefits by imposing a requirement of sole proximate cause where medical complications result in death. We reaffirm our holding in Oleszek, that the consequences of medical treatment, even where those consequences result in death, are within the range of compensable consequences where the chain of causation is clear and unbroken.

Although Oleszek did not directly involve nonimmediate death benefits under subsection 375(2), the Court's reference to death is consistent with cases decided directly under subsection 375(2) or its predecessors, before and after Oleszek.

In Swanson v. Oliver Iron Mining Co., 266 Mich. 121, 122, 253 N.W. 239 (1934), the plaintiff sought death benefits in the form of "the 300 weeks' compensation that had been awarded to her [deceased] husband...." The decedent was injured in an explosion at the mine where he worked. He recovered and was able to walk on crutches, but did not work again. The decedent received compensation for the injury from 1927 until his death in 1932.^[19] Justice Potter, writing for a unanimous court, addressed the exact issue we address today: "whether the injury suffered by ... plaintiff's husband ... was the proximate cause of his death...." Id. at 122,253 N.W. 239. The Court held:

The question is whether the injury accelerated his death; whether, by reason of the injury suffered by him, his death occurred sooner than it probably otherwise would. There was testimony indicating the injury suffered lowered his vitality and probably shortened his life. This was sufficient. [Id.]

In Neumeier v. City of Menominee, 293 Mich. 646, 292 N.W. 511 (1940), the Court addressed the death benefits question of proximate cause again and sustained an award of death benefits. The decedent dropped a plank on the toes of his right foot at work in 1936. He failed to seek immediate medical attention, and, within a month, gangrene developed, "necessitating the amputation of one toe." Id. at 648, 292 N.W. 511. The gangrene progressed and the decedent's right leg was amputated approximately one month later. While this terminated the infection, the decedent died about sixteen months later. "The causes of death were thrombosis of the popliteal artery of his left leg, chronic myocarditis, arteriosclerosis and toxemia from a tumor in his mouth." Id. at 648, 292 N.W. 511 (emphasis added). In determining "whether ... there [was] any competent testimony to support the ... award," id., the Court rejected the argument that the death benefits statute required a showing of sole proximate causation and sustained an award under 1929 CL 8428, a predecessor of § 375:

It is true that [the treating physician's] testimony does not indicate that the injury was the sole cause of death. But in view of the decisions of this court, if there is competent testimony that the injury accelerated his death it is sufficient to be a proximate cause under the statute.... [Id. at 649, 292 N.W. 511][^[20]]

The Court addressed the same issue again in Byrne v. Clark Equipment Co., 302 Mich. 167, 4 N.W.2d 509 (1942). There, the decedent developed a hernia at work that required surgical repair. However, during the operation, the surgeon also decided to remove the decedent's appendix for reasons without apparent connection to the hernia injury. The decedent developed a postoperative infection and died of peritonitis. Plaintiff, decedent's wife, sought death benefits under a predecessor of subsection 375(2), 1929 CL 8428. Applying the proximate cause language in that section, the Court vacated an award of death benefits because the administrative tribunal found "that the source of the infection resulting in the death of the decedent is unknown and that it is not necessary to determine the source of such infection." Byrne at 176, 4 N.W.2d 509 (emphasis added). The Court held:

[P]laintiff has failed to sustain the burden of proving that the original hernia injury, through direct causal connection with the operation and resulting infection, was the proximate cause of her decedent's death. [Id. at 177, 4 N.W.2d 509.]

The Byrne Court reasoned that an award would be appropriate if plaintiff could show proximate cause through a direct causal connection between "the injury causing the hernia and the infection resulting from the operation for its repair," but that an award would not be appropriate if the infection resulted from the independent appendix removal procedure. Id.^[21] Because the record did not reveal any evidence regarding the source of the infection, the plaintiff could not show that death was proximately caused by the injury, and an award could not be sustained.

The conceptual framework uniting cases involving worker's compensation death benefits claims is acceleration of death on the basis of direct causal connection with the work-related injury. Whether concluding that acceleration of death is sufficient or that a direct causal connection is required, from the earliest days of this Court's interpretation of the worker's compensation act, see, e.g., Fitzgerald v. Lozier Motor Co., 187 Mich. 660, 666, 154 N.W. 67 (1915), through Oleszek (1922), Swanson (1934), Neumeier (1940), Byrne (1942), and the other cases cited above, the decisions present a clear and consistent understanding of proximate cause. In view of the overwhelming weight of the authorities, within our state and elsewhere, see, e.g., Anderson v. Industrial Ins. Comm. of Washington, 116 Wash. 421, 199 P. 747 (1921), we reject both the conclusion of the Court of Appeals in sustaining the decision of the WCAC and the sole causation approach of the dissent.^[22]

Where the plaintiff can show a direct causal connection between the work-related injury and the subsequent death, or a sequence of events that, while unexpected and unusual, are not uninterrupted by causes so unexpected as to break the chain of causation, the plaintiff has met the threshold requirement for proximate cause as a matter of law under subsection 375(2). Testimony may establish a basis for finding that the death was not factually related to the original injury, but preexisting medical conditions are not sufficient as a matter of law to break the chain of causation.^[23] Likewise, aggravating medical consequences will not break the chain of causation where the injury necessitates foreseeable medical treatment and there is an evidentiary foundation that supports the conclusion that there was a clear and unbroken chain of events leading to death.

E

We find the facts and circumstances of this case to be more like Neumeier than Byrne. The magistrate held that the death arose directly as a result of the decedent's compliance with the law and the advice of medical professionals in undergoing a myelogram and drinking plenty of water thereafter in order to properly treat or diagnose his work-related back injury. We agree with the magistrate's interpretation of the law, and we find his award supported by competent evidence, i.e., Dr. Dodson's report/testimony. The fact that decedent ingested an excessive amount of water is, on this record, irrelevant because contributory negligence is not a defense and defendant does not contend that decedent's conduct was an independent intervening cause. That decedent was complying with the legal requirement that he undergo reasonable medical treatment or forfeit his right to benefits precludes us from concluding that benefits are not payable where the complication resulting from the treatment ordered was death.

The magistrate correctly concluded that decedent's death was sufficiently traceable to the work-related injury to fall within the compensable range of consequences under subsection 375(2). The magistrate's ruling amounts to a finding that each step in the chain of causation was dependent on the existence of the work-related injury and its required treatment and that there was no intervening superseding cause sufficient to break the chain of causation. Consistent with the text of subsection 375(2), and longestablished jurisprudence on the meaning of proximate cause, we decline defendant's invitation to read the phrase "proximate cause" to mean sole cause so as to yield a different result, and we specifically reject the notion that decedent's preexisting medical condition may be considered a superseding cause under these circumstances.

III

The magistrate applied the correct legal standard in considering whether the chain of medical causation was "clear and unbroken" and whether that chain established that the death resulted from "the adverse consequences of medical management of a work related condition...." The evidence supported the magistrate's conclusion that the death was sufficiently traceable to the work-related injury to establish compensability. We reverse the decision of the Court of Appeals and reinstate the magistrate's award of benefits.

MALLETT, C.J., and MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., concurred with BOYLE, J.

TAYLOR, Justice (dissenting).

I believe that the decedent's death is not compensable under the worker's compensation act because the work-related injury was not its sole proximate cause. Thus, I would affirm the result reached by the Court of Appeals and the WCAC.^[1]

Plaintiff's decedent, Keith Hagerman, incurred a work-related back injury in 1987. By the latter part of 1989, he could no longer work, his last day of work being December 20, 1989. After leaving work Mr. Hagerman underwent a myelogram at the direction of his physician. Medical personnel advised him to consume large amounts of water before and after the procedure. This he did, apparently drinking twenty to twenty five quarts of water in the thirty-six hours following the myelogram. Unfortunately, Mr. Hagerman also suffered from non-work-related high blood pressure and took Aldoril, a diuretic, to treat this condition. The combination of the increased water consumption and the diuretic depleted sodium levels in his body. While sleeping, he suffered a convulsion or seizure. At some point, either during this initial seizure or later, Mr. Hagerman aspirated the contents of his stomach into his lungs, causing him to develop aspiration pneumonia. During an extended hospital stay his condition worsened. Mr. Hagerman's doctors had difficulty treating his pneumonia, and the treatment he received further damaged his lungs. Ultimately his family instructed his physicians to remove various life support systems and he was designated as a "no code," meaning he would be allowed to die. Mr. Hagerman subsequently died of cardiac arrest.

The Court is presented with the question whether the worker's compensation statute, specifically M.C.L. § 418.375(2); M.S.A. § 17.237(375)(2), warrants an award of death benefits to Mr. Hagerman's survivors. Under subsection 375(2) dependents of a deceased employee are paid death benefits if the work-related injury was "the proximate cause" of the death. The majority concludes that this standard has been met. I disagree.

Section 301^[2] articulates what a claimant must show to establish a compensable injury generally under worker's compensation. Injured employees are paid worker's compensation benefits for injuries "arising out of and in the course of employment." It is agreed by all that this is a liberal standard: The claimant need only show a reasonable relation of cause and effect between work and injury. No showing of proximate cause is necessary, and indeed other possible or probable causes of the injury do not have to be excluded beyond doubt. Kepsel v. McCready & Sons, 345 Mich. 335, 343-344, 76 N.W.2d 30 (1956). In using the new language of subsection 301(1) to allow recovery by the worker when the injury arose out of and in the course of employment, the Legislature lowered the burden from the venerable tort language of causation that had previously controlled.^[3]

However, when it comes to death benefits, subsection 375(2)^[4] contains an additional hurdle not present for the claimant merely qualifying for benefits as a result of injury or immediate death. Under subsection 375(2), death benefits are paid if the work-related injury was "the proximate cause" of the employee's subsequent death. Id. This distinction in the triggering causation between these two sections of the act must be given meaning. Altman v. Meridian Twp, 439 Mich. 623, 635, 487 N.W.2d 155 (1992), reh. den. 440 Mich. 1204, 487 N.W.2d 155 (1992); Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273 (1956).

My primary objection to the majority's resolution of this question is that its construction of the phrase "the proximate cause," as used in subsection 375(2), negates any meaningful distinction between the words "a" and "the" preceding the phrase "proximate cause."

As a term of art, "proximate cause," was well known in the law at the time the predecessor of subsection 375(2) was enacted in 1912. Historically, proximate cause has been seen as that which was not a "secondary or remote cause." Beall v. Township of Athens, 81 Mich. 536, 540, 45 N.W. 1014 (1890). Put differently, this Court has characterized proximate cause as "the immediate efficient, direct cause preceding the injury." Stoll v. Laubengayer, 174 Mich. 701, 706, 140 N.W. 532 (1913).

Moreover, as noted by the majority, it has been well established in our law that there may be more than one proximate cause in any given case. Op., pp. 352-353. The Legislature explicitly demonstrated that it understood this facet of the law, i.e., multiple proximate causation, when it enacted the predecessors of M.C.L. § 418.141; M.S.A. § 17.237(141) and M.C.L. § 418.827; M.S.A. § 17.237(827). Section 141 removes negligence of the employee or a co-employee from consideration when the claimant seeks compensation for injuries or death sustained in the course of employment. Section 827 indicates that an employer will be fully compensated for worker's compensation payments made if an award for the same injury is obtained from a third party.

Given this nuanced understanding of "proximate cause" at the time this statute was enacted, one must then look to the meaning of "the proximate cause."

Traditionally in our law, to say nothing of our classrooms, we have recognized the difference between "the" and "a." "The" is defined as "definite article. 1. (used, esp. before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefinite article a or an.)" Random House, Webster's College Dictionary, p. 1382. Further, we must follow these distinctions between "a" and "the" as the Legislature has directed that "[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language.... M.C.L. § 8.3a; M.S.A. § 2.212(1). Moreover, there is no indication that the words "the" and "a" in common usage meant something different at the time this statute was enacted in 1912 than they do today.^[5]

Consequently, I would apply the words of subsection 375(2) as written and confine my analysis to ascertaining whether Keith Hagerman's work-related back injury was "the proximate cause" of his death, applying that term as normally understood in tort law at the time that the act was adopted^[6]. It is acknowledged that Mr. Hagerman's injury was not, in itself, a life-threatening condition. In fact, again as all acknowledge, there were a series of tragic and unlikely events following his workplace injury that occasioned his death. This means, applying the law as understood at the time of the enactment of this statute, that the injury was not the proximate cause of his death.^[7] At most it was a proximate cause of the death.^[8] Consequently, I would hold that the Court of Appeals did not err in affirming the Worker's Compensation Appellate Commission conclusion that no death benefits should be awarded in this case.

To avoid the statutory language's requirement of sole proximate causation, the majority finds the words "a" and "the" synonymous^[9]. To do so, the majority defines proximate cause as the "primary or moving" force, noting that the term therefore contains within it recognition that there can be other forces that contribute to an injury. Op., p. 351. This is clearly correct in the sense that, as anyone would recognize, many forces, as causes in fact, contribute to an event. Moreover, as the majority takes great pains to explain, our jurisprudence recognizes generally that there may be more than one proximate cause of a single injury. Yet the inevitability of multiple causes in fact and the possibility of the existence of multiple proximate causes does not negate that there may be only one proximate cause in a given case.

Contrary to the assertion of the majority, nothing in the term "proximate cause" itself forecloses the limiting effect of the word "the." Recognition that a proximate cause may be one of many only reinforces the notion that we must apply the commonly understood distinction between "the proximate cause," meaning the sole proximate cause, and "a proximate cause," meaning one of potentially many. The majority's assertion that the text of subsection 375(2) does not itself articulate a requirement of sole proximate cause demonstrates a fundamental unwillingness to apply the plain meaning of the text as written by the Legislature. Contrary to the majority's strained analysis, this case is really not complex and simply requires us to adhere to the fundamental judicial discipline to comply with the Legislature's decisions as reflected in the statutes it enacts, regardless of whether it is the decision we would have wished it to make.^[10]

Yet, by replacing what the Legislature actually said by unwarrantedly creating a hybrid definition of "the proximate cause" previously unknown, the majority runs afoul of the concept and purpose of law itself, which is to enable our citizens, and those who advise them, to know prospectively what the law is and thus to be able to conform their conduct to what it requires. For a court to refuse to give the words of a statute their accepted meaning makes the law unpredictable and moves in the direction of a system with merely a conglomeration of rules and rulings, changeable arbitrarily and without notice, which is the antithesis of law. This is of great importance, and the precedent the majority establishes will undoubtedly be seen by this Court again as litigants in later cases utilize this holding to argue for the rewriting of other statutes on little other basis than, as here, that the change is advisable.

I further disagree with the majority because the cases it cites do not support its result. Contrary to the majority's reading, these cases suggest that a work-related injury may be deemed to be the proximate cause of an employee's subsequent death if the plaintiff shows the injury was a substantial factor in the death and the evidence does not raise a genuine issue regarding whether some other cause was a proximate cause of the death. Several cases cited by the majority simply address whether the work-related injury satisfied the causation standard applicable for injury/nonimmediate death cases^[11]. In others, the issue presented was whether the evidence was sufficient to find that the injury was a proximate cause of the death^[12]. Two cases cited by the majority concern nonimmediate death, and contain some language regarding sole causation. See Monk v. Charcoal Iron Co., 246 Mich. 193, 224 N.W. 354 (1929), and Neumeier v. City of Menominee, 293 Mich. 646, 292 N.W. 511 (1940). However, a close examination of these cases demonstrates they are not dispositive in this case.

Monk relied on case law inapplicable to the question presented in this case, citing La Veck v. Parke, Davis & Co., 190 Mich. 604, 157 N.W. 72 (1916), and Schroetke v. Jackson-Church Co., 193 Mich. 616,160 N.W. 383 (1916), and made statements referencing "sole, proximate" causation without the analysis of the key distinction between the differing standards that must be met, depending on whether there was an injury/immediate death or nonimmediate death. Additionally, reading this Court's opinion in Neumeier, supra, in context, one understands that the Court did not have before it evidence that some extrinsic force was a proximate cause of the death. Under such facts the Court simply relied on prior case law that had been decided on the basis that the evidence presented was sufficient to show that the work-related injury was a proximate cause of the injury.

However, more relevant to this case is the decision in Byrne v. Clark Equipment Co., 302 Mich. 167, 4 N.W.2d 509 (1942), which supports the conclusion that the failure to attribute sole proximate causation to the work-place injury cuts off the employer's liability in cases of nonimmediate death. In Byrne, the decedent suffered a hernia at work, and, during the resulting surgery, the physician also removed the decedent's appendix. After the operation, the decedent contracted an infection and died. This Court concluded that, under these facts, the claimant had failed to establish that the work-related injury was the proximate cause of the death.

Notably, the Court's analysis demonstrates that a "but for" causal link (i.e., but for the injury the surgery would not have been performed and defendant exposed to the risk of surgery) is insufficient to establish compensability under subsection 375(2). Thus, the majority's adoption of a "but for" analysis, "aggravating medical consequences generally will not break the chain of causation where the injury necessitates medical treatment and thereby initiates the clear and unbroken chain of events leading to death," op., p. 360, is inconsistent with both the language of the statute and prior precedent of this Court.^[13]

Finally, I believe it is necessary to address the majority's apparent extension of the holding in Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994). The four-justice majority in Dedes held that, in pursuing a claim under the governmental immunity statute,^[14] the plaintiff need not show that the defendant's negligence was "the" sole proximate cause of the injury (but could be "a" proximate cause), despite the statutory requirement that the negligence be "the proximate cause" of the injury. This holding, turning as it did on the definition of "the," was clearly wrong in the definition it gave. As I have previously explained, "the" does not have the same meaning as "a."

Despite this, the Dedes majority read "the" to mean "a." In doing so, Dedes focused on the legislative history of the governmental immunity statute, which was silent on this issue, and concluded, entirely without any reason to do so other than that the members of the majority would not have done this if they had been in the Legislature, that the Legislature would not have made a major change in the law without commenting on it in the history, such as it is, of the legislation.^[15]

In any case, whatever one thinks about the use of legislative committee reports, I believe this whole approach of the Dedes majority runs contrary to the organizing, and rather obvious, principle that the statute, not its history, is what is law. The history, or its lack, cannot surmount what the Legislature has actually said. After all, as Justice Scalia has trenchantly observed, "we are a Government of laws, not of committee reports." Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 621, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991) (Scalia, J., concurring).

This much must be said for the majority in Dedes, however: unlike the majority in this case, it at least limited its holding by invoking the lack of legislative history as a reason for overruling the Legislature's choice. Indeed, the instant majority opinion unblushingly creates the new rule that "the" may mean "a," even where neither the language of the statute nor its legislative history supports such a reading^[16]. This was necessary of course because under Dedes, flawed as it is, the limiting rationale would not have allowed the majority to do what it wants to do here.

Under the Dedes rationale, this Court refused to give effect to the word "the" before proximate cause because it would have been a major change in the law of comparative negligence existing at the time the statute at issue in Dedes was enacted and no surrounding legislative history gave sufficient indication that the Legislature knew that this was what it was doing. This cannot be said about the predecessor of subsection 375(2) when it was enacted in 1912.

As previously discussed, the common-law rules regarding multiple proximate causation were well established in 1912. Apart from the removal of consideration of negligence attributable to the employee or a coemployee, the Legislature's decision to limit an employer's liability for worker's compensation benefits in instances where other causes could be attributed to the employee's subsequent death was in accord with the negligence doctrines that pertained throughout the tort law of that day. Therefore, under the Dedes rationale, we would have been constrained to give it the meaning that was well understood in 1912. Because this result is unpalatable to the majority, Dedes and its limiting rationale is given only passing mention.^[17]

Second, and more important to our jurisprudence generally, the majority, having ventured onto the slippery slope of judicial legislation in Dedes, is now tumbling down it, having created the new rule that "a" and "the," as used in a statute, are apparently always interchangeable at the will of this Court.^[18] Such a broad claim of power in the courts to rewrite clear statutes blatantly defies the, until now, well understood concept of constitutional separation of powers. As the Michigan Constitution states, "The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Const. 1963, art. 3, § 2.^[19] Yet this Court has now given notice that if you can convince us that we should rewrite what the Legislature said we will do it. We have no such authority under the constitution.

This Court has in the past repeatedly noted that it is not within its province to consider or determine the wisdom, policy, or equity of a legislative enactment, absent finding some constitutional violation. Highland Park v. Clark, County Drain Com'r, 312 Mich. 407, 20 N.W.2d 253 (1945); Warren Twp. v. Engelbrecht, 251 Mich. 608, 232 N.W. 346 (1930). It should not need repeating, but the most respected authorities in our jurisprudence say no less. United States Supreme Court Chief Justice John Marshall, among the most influential figures in the development of American law, explained in Gibbons v. Ogden, 22 U.S. (9 Wheat) 1,197, 6 L. Ed. 23 (1824), that our form of government rests such decisions with the Legislature, which is accountable to its constituents, not the courts, regarding decisions of policy.

The wisdom and the discretion of [the legislature, its] identity with the people, and the influence which [legislators'] constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.

Additionally, it was noted by Michigan's most renowned jurist, Justice Thomas A. Cooley, in his work entitled A Treatise on the Constitutional Limitations (8th ed.), vol. 1, pp. 345-346, that

except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power....

Yet, the majority departs from this standard by adopting the rule it embraces today. This Court, with no authority I understand, has given itself the power to disregard the clear expressions and decisions of the Legislature. There will be, I fear, much harm to come from this unwarranted assertion of power.

It further should be pointed out that, although the words of our constitution and the United States Constitution clearly make such judicial interference with the words of the Legislature impermissible, it is also the case that such a role for the judiciary was even considered, and rejected, by the framers of the federal constitution, which, of course, is the model for our Michigan Constitution. When the Constitutional Convention opened in Philadelphia in May 1787, the Virginia Plan was the first proposal formally submitted to the convention. This plan had at its heart a proposal that all acts of the legislature would be subject to a veto power vested in a council of revision composed of the executive and members of the judiciary. Despite the persistent efforts of James Madison and James Wilson to convince the delegates to invest the judiciary with such power to oversee the acts of the legislature, on no less than four separate occasions (June 4 and 6, July 21, and August 15,1787), the framers specifically rejected the proposal that the judiciary be given such power.^[20]

Now, all these years later, this Court, with no authority I can discern, has determined that it is free, if it seems advisable to do so, to disregard the expressed will of the Legislature. I disagree with the majority's willingness to impose its own notions of proper public policy when the Legislature has indicated, through the words of the statute, its collective decision to the contrary on the issue. The majority treads today where our predecessors have prudently declined to go.

BRICKLEY and WEAVER, JJ., concurred with TAYLOR, J.

NOTES

[1] M.C.L. § 418.375; M.S.A. § 17.237(375) provides in relevant part:

(1) The death of the injured employee before the expiration of the period within which he or she would receive weekly payments shall be considered to end the disability and all liability for the remainder of such payments which he or she would have received in case he or she had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity.

(2) If the injury received by such employee was the proximate cause of his or her death, and the deceased employee leaves dependents..., the death benefit shall be a sum sufficient... to make the total compensation for the injury and death exclusive of medical ... and rehabilitation services, and expenses ... equal to the full amount which such dependents would have been entitled to receive under the provisions of section 321, in case the injury had resulted in immediate death.

M.C.L. § 418.321; M.S.A. § 17.237(321) provides for computation of death benefits at eighty percent of the employee's after tax weekly wage for a period of five hundred weeks for persons wholly dependent on the decedent and for benefits in proportion to the level of dependency for persons partially dependent on the decedent.

[2] We decline the invitation to reconsider Dedes, which involved a different context. Furthermore, the relevance of a discourse on the obligation to effectuate legislative intent is not apparent, given that the dispute here is really a matter of how the law ought to be applied to the facts. Whether we characterize the standard as one of primary causation, consistent with our jurisprudence on the subject, or as one of "sole" proximate causation, consistent with the dissenting opinion, the result would be the same. Although the dissent implies that some "extrinsic force," op. at 364, intervened to cause the death so that the injury resulted from the unfolding of "a series of tragic and unlikely events," op. at 362, the dissent never identifies the extrinsic force interrupting the chain of causation and differentiating this case from our earlier jurisprudence. The decedent's hypertension and medication cannot be so identified because they are part of a preexisting condition. The defendant takes the employee as he finds him. The myelogram was necessitated by the injury, making it, along with its complications, a foreseeable consequence of the injury that does not interrupt the chain of causation. Decedent's ingestion of water indicates compliance with the necessary treatment (another foreseeable consequence of the injury), and an allegation of excessive ingestion would amount to an allegation of contributory negligence not legally recognizable under the WDCA. None of the relevant "forces" was "extrinsic" (or a superseding cause) because none of them could have caused the death alone or concurrently with the other causes independently of the single occurrence that irrefutably set in motion the chain of events leading to Mr. Hagerman's death. Thus, even if we adopted the "sole" proximate causation standard advocated by defendant and the dissent, the conclusion would be inescapable that the single legally recognized primary and proximate cause of Mr. Hagerman's death was the work-related injury that is not too remote, given the clear and unbroken nature of the chain of events directly tying the death to the injury. Although tragic and unlikely, the chain is direct and the consequences are not so remote as to preclude liability under subsection 375(2).

[3] The magistrate found that decedent sustained a work-related back injury, that the work-related injury necessitated the myelogram, that decedent's ingestion of large amounts of water was consistent with the medical recommendations he received in association with the myelogram, and that he died from a combination of sodium deficiency and aspiration pneumonia resulting from the myelogram.

[4] While "factual determinations of the commission, if acting within the scope of its powers, shall be conclusive," Goff, supra at 512, 563 N.W.2d 214, de novo judicial review is appropriate where an incorrect legal standard is employed. The WCAC concluded that the magistrate "applied an incorrect legal standard," 1993 Mich. ACO 846 and reversed the award of death benefits because it believed that death "was the result of medication designed to control [decedent's] high blood pressure, a preexisting condition." Id. at 847. As explained below, the view that attributing the death to a preexisting condition defeats causation under these circumstances is legally erroneous.

[5] The dissent questions our reference to Black's. However, we find no real inconsistency between its discussion and that to which the dissent refers. Given that "proximate cause" is a term of art, resort to a legal dictionary in a discussion of its meaning and application is appropriate.

[6] Proximate cause, whether informed by the substantial factor test, or the discussion of intervening and superseding causes, by acknowledging the possibility of concurrent proximate causes, is foreign to the notion that some factor must be the sole proximate cause. See, e.g., Welch v. Jackson & B.C. Traction Co., 154 Mich. 399, 407-408, 117 N.W. 898 (1908).

[7] M.C.L. § 418.141; M.S.A. § 17.237(141) states:

In an action to recover damages for personal injury sustained by an employee in the course of his employment or for death resulting from personal injuries so sustained it shall not be a defense:

(a) That the employee was negligent, unless it shall appear that such negligence was wilful.

(b) That the injury was caused by the negligence of a fellow employee.

(c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.

[8] The dissent contends that Stoll v. Laubengayer, 174 Mich. 701, 706, 140 N.W. 532 (1913), established the general rule of the day that proximate cause was defined as "the immediate efficient, direct cause preceding the injury." However, as noted below, that was merely one of several definitions considered in Stoll, and the rule to be gleaned from that case is that proximate cause is a case-by-case analysis. The Stoll Court recognized that, as of 1913, the year after enactment of the WDCA, "[n]o general or authoritative definition [of proximate cause] ha[d] been evolved...." Id. at 704, 140 N.W. 532. Nevertheless, the language cited by the dissent does not require proof of the sole cause or the last cause preceding the injury. Rather, the key word being "efficient," it references primary cause. Moreover, that description fits the facts and circumstances of Stoll because it described the influence of plaintiff's decedent's act in voluntarily riding her sleigh down an incline.

[9] The Random House College Dictionary defines "shy," as it relates to horses, as "to start back or aside, as in fear." Id. at 1220.

[10] See, e.g., M.C.L. § 600.6304; M.S.A. § 27A.6304 (comparative fault). By utilizing pure comparative negligence, the Legislature leaves defendants seeking to avoid liability altogether with one argument regarding the plaintiff's conduct—that the plaintiff was one hundred percent at fault for the alleged damages, i.e., that plaintiff's conduct was the sole cause of the injuries for which he seeks recovery.

[11] Lest there be any doubt about the applicability of these concurrent proximate causation rules at the time the Legislature enacted the predecessor to subsection 375(2) in 1912, see Cavanaugh v. Michigan Central R Co., 175 Mich. 156, 160, 141 N.W. 539 (1913), where Justice Bird's dissent reflected on Justice Cooley's treatment of the issue in his treatise on Torts:

"If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.... It is equally true that no wrongdoer ought to be allowed to apportion or qualify his own wrong, and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle such party to exemption, he must show, not only that the same loss might have happened, but that it must have happened if the act complained of had not be done...."

Although the Cavanaugh majority disagreed regarding the result that Justice Bird would have reached, the discussion from Cooley authoritatively supports our understanding of the nature of the proximate cause inquiry circa 1912. Cf. Stoll, n. 8 supra at 704, 140 N.W. 532 (observing the absence of a general and authoritative definition of proximate cause applicable in all cases, instead looking to the peculiar facts and circumstances of the given case).

[12] Indeed while the dissent suggests that our holding launches a judicial missile of unbridled judicial activism that will precipitate further revisionist thinking, the claim is vastly over blown. The dissent is unable to cite a single case standing for the proposition that "the proximate cause" means sole proximate cause. The claim that we are "fundamental[ly] unwilling[] to apply the plain meaning of the text as written by the Legislature," op. at 363, is both unfounded and ironic. It is the dissent that would conflate the word "the" into "sole" to fundamentally alter the legal landscape created by the Legislature. Our understanding of the phrase "proximate cause" is the understanding expressed by this Court before, after, and contemporaneously with enactment of the WDCA. This understanding informed the context in which the act was written. Given that "proximate cause" is, as the dissent acknowledges, a "term of art," op. at 361, that has its origins in the common law, we conclude that the Legislature's understanding of the phrase was consistent with this Court's jurisprudence applying it case by case, and not with the dissent's insistence on the unsupportable and unsupported conclusion that "the" means "the sole." The heroic effort of the dissent notwithstanding, the inquiry into proximate causation is a question of remoteness, not semantics.

[13] Indeed, it was noted about the time the Legislature enacted the worker's compensation act that "all attempts hitherto made at laying down universal tests [for proximate cause] of a more definite and more specific nature have resulted in propounding rules which are demonstrably erroneous." Smith, Legal cause in actions of tort, 25 Harv.L.R. 303, 317 (1912). Even earlier, Chief Justice Cooley noted in passing, "The application of the rule that the proximate, not the remote cause is to be regarded, is obscure and difficult in many cases...." Lewis v. Flint & P.M. R. Co., 54 Mich. 55, 64, 19 N.W. 744 (1884).

[14] See, e.g., Davis v. Thornton, 384 Mich. 138, 146, 180 N.W.2d 11 (1970)("Causation is a process of logical determination, while the significance of the connections—remoteness—is a policy determination"); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 352, 162 N.E. 99 (1928) (Andrews, J., dissenting) ("What we do mean by the word `proximate' is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point"); see also, Williamson v. Waldman, 150 N.J. 232, 245, 696 A.2d 14 (1997) ("[T]he limit of proximate cause is, ultimately, an issue of law and similarly entails a consideration of public policy and fairness"); Marsh v. Commonwealth Land Title Ins. Co., 57 Wash.App. 610, 622, 789 P.2d 792 (1990), rev. den. 115 Wash.2d 1025, 802 P.2d 127 (1990).

[15] See Goff, supra at 511-512, 563 N.W.2d 214.

[16] In Stoll, supra at 705, 140 N.W. 532, while recognizing that this Court had "never apparently attempted to accurately define the term `proximate cause,'" the Court acknowledged the principle announced in Borck v. Michigan Bolt & Nut Works, 111 Mich. 129, 133, 69 N.W. 254 (1896):

The damage to be recovered in an action must always be the natural and proximate consequence of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the mischief or injury, the first must be considered as too remote.

We respectfully disagree with the dissent's conclusion that the injury was too remote in this case. Under these circumstances, neither the preexisting hypertension and medication therefor nor the decedent's compliance with medical advice he received was sufficient to stand alone as the cause of the death, independent of the injury necessitating the myelogram.

[17] The rule is well settled and generally accepted. See, e.g., In re Madden, 222 Mass. 487, 493-494, 111 N.E. 379 (1916).

[18] We find defendant's argument that benefits were paid voluntarily and that no one forced or persuaded decedent to undergo the myelogram unpersuasive. The obligation to mitigate is an independent obligation imposed on a plaintiff by law.

[19] The decedent in the present case died only three months after the injury.

[20] The Neumeier Court cited Rickard v. Bridgeman-Russell Co., 288 Mich. 175, 178, 284 N.W. 689 (1939), in which the question of proximate cause in a death benefit case was again held to turn on whether the injury probably accelerated death. The Rickard Court references five more cases that support this understanding of proximate cause in worker's compensation cases. For example, in Waite v. Fisher Body Corp., 225 Mich. 161, 163, 196 N.W. 189 (1923), the Court defined proximate cause as "`the cause which directly set in motion the train of events which brought about the death.'" See also Monk v. Charcoal Iron Co. of America, 246 Mich. 193, 195-196, 224 N.W. 354 (1929)(sustaining an award of death benefits in an immediate death case while recognizing that the shock and excitement contributing to the decedent's heart attack, in the presence of a possible "previous [heart] disease," need not have been "the sole, proximate cause"). Id. at 197, 224 N.W. 354.

[21] The dissent overlooks this distinction in its analysis of Byrne by oversimplifying the facts of that case. Moreover, the dissent fails to identify what independent factor in this case caused the decedent's death or broke the chain of causation. In Byrne, there was no recognizable legal relationship between the injury and the death because of the ambiguity raised by the doctor's decision to remove plaintiff's appendix independently of the work-related injury. Thus, the Court applied the following rule:

"Where two inferences equally consistent with the facts arise ..., one involving liability on the part of the employer ... and the other relieving him from liability, the [plaintiff] must fail." [Id. at 178, 4 N.W.2d 509.]

In this case there is a clear and legally recognizable relationship among the injury, the ordered medical treatment, and the ultimate resulting complication of death. If the injury required a myelogram, and, in the process of administering that treatment, the doctor engaged in a course of conduct that constituted an independent intervening cause as a matter of law or if there was testimony that the conduct might have caused decedent's death, the situation would be entirely different because, like Byrne, the case would involve an ambiguity relevant to independent, intervening causation that might rise to the level of superseding cause. This is not such a case. This case involves a clear and unbroken chain of events, set in motion by the work-related injury, and not so attenuated as to justify a conclusion that the injury was too remote to stand as the legal cause of death under the WDCA.

[22] Welch, Worker's Compensation in Michigan: Law & Practice, § 7.6, p. 7-8, asserts that Noble v. Ford Motor Co., 152 Mich.App. 622, 394 N.W.2d 50 (1986), altered our jurisprudence in this area. While we agree with the Noble Court that subsection 375(2) requires an inquiry separate and distinct from that which occurs under § 301, we find that the result in that case, that plaintiff had failed to show proximate cause, was driven by the plaintiff's inability to differentiate to any extent between the decedent's cigarette smoking and his occupational health risks for the purposes of showing causation. We agree with the results in Noble and in Barnes v. Campbell, Wyant & Cannon and Aetna Casualty & Surety Co., 188 Mich.App. 46, 469 N.W.2d 7 (1991), which also involved a decedent who was heavy smoker. However, because we find them similar to Byrne, we would not interpret them as departing to any great extent from our earlier proximate cause jurisprudence.

[23] Our opinion in Dean v. Chrysler Corp., 434 Mich. 655, 455 N.W.2d 699 (1990), is not implicated here.

[1] The majority contends that it is inherently inconsistent to affirm the Court of Appeals result while relying on a sole proximate causation analysis. Op., p. 359, n. 22. I respectfully disagree. While I do not employ the analysis employed by the Court of Appeals, my own analysis leads me to the conclusion that the Court of Appeals reached the correct result, i.e., plaintiff is not entitled to benefits under subsection 375(2). Hence, there is nothing inherently inconsistent with my analysis and the result reached thereby.

[2] An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. [M.C.L. § 418.301(1); M.S.A. § 17.237(301)(1).]

[3] See Noble v. Ford Motor Co., 152 Mich.App. 622, 626-627, 394 N.W.2d 50 (1986).

[4] If the injury received by such employee was the proximate cause of his or her death, and the deceased employee leaves dependents, as hereinbefore specified, wholly or partially dependent on him or her for support, the death benefit shall be a sum sufficient, when added to the indemnity which at the time of death has been paid or becomes payable under the provisions of this act to the deceased employee, to make the total compensation for the injury and death exclusive of medical, surgical, hospital services, medicines, and rehabilitation services, and expenses furnished as provided in sections 315 and 319, equal to the full amount which such dependents would have been entitled to receive under the provisions of section 321, in case the injury had resulted in immediate death. [M.C.L. § 418.375(2); M.S.A. § 17.237(375)(2)(emphasis added).]

[5] The majority finds fault with the fact that I have not cited any case for the proposition that "the proximate cause" means the sole proximate cause. Op., p. 353, n. 12. There is no need to because the statute is clear, and thus we should follow it. Moreover, it's worth noting that the majority cites no case to make the point that "a" equals "the." This is unsurprising, because its position is akin to a criticism that asserts that if you can't find a case that says a horse is not a cow, a horse is a cow. What this all comes down to is whether we will follow the Legislature's direction, M.C.L. § 8.3a; M.S.A. § 2.212(1), that the words it uses are to be given their common and usual meaning.

[6] While it is certainly true, as the majority notes, that application of the rule of proximate cause may be difficult in any given case, especially where several causes may be considered to be a proximate cause, such an observation does not diminish the fact that the phrase "the proximate cause" had an unambiguously understood definition in 1912. Moreover, the difficulty of application of that definition does not provide a justification for this Court changing, or redefining, what the Legislature enacted.

[7] The majority chastises me for a failure to identify the specific extrinsic force that broke the chain of proximate causation in this case. Yet it is not necessary to do so because, by the terms of the statute, all we are to focus on is whether the work-related injury was the proximate cause of the death. As long as it was only a proximate cause, as the majority's own analysis of the facts seems to make clear it was, there can be no recovery under the statute. A brief review of the circumstances surrounding the death of Mr. Hagerman makes this clear. First, where the medical personnel were aware of the medications the decedent was taking, undoubtedly the admonishment to drink unlimited amounts of water was a proximate cause of the death because it was Mr. Hagerman's following of this advice, coupled with the effects of the diuretic, that precipitated his seizure. Additionally, where Mr. Hagerman spent a significant amount of time in the hospital after his initial seizure, and the record suggests some of the treatments caused further injury, the medical provider's negligence or inattention should be considered a proximate cause of the death. Moreover, it seems rather plain that the decision to remove life support must be viewed as a proximate cause of Mr. Hagerman's death. There are probably other factors that were proximate, of course, but certainly the point is clear. There was not a single proximate cause of this death. To be noted, I do not contend that these forces were superseding intervening causes, which is indeed the fundamental confusion the majority labors under in its analysis; rather, they were only additional proximate causes. Consequently, I believe that, in light of the evidence in the record, the plaintiff failed to demonstrate that the work-related injury was "the proximate cause" of Mr. Hagerman's death as required by the statute.

[8] Because the statute requires that the work-related injury be "the proximate cause" of the non-immediate death before benefits are properly granted under § 375(2), and such is not the case here, I need not, and hence do not, address whether the work related injury was "a" proximate cause of Mr. Hagerman's death as discussed by the Court of Appeals.

[9] While the majority begins its analysis by citing the definitions of "a" and "the" that appear in Blacks Law Dictionary (5th ed.), it is preferable to use a lay dictionary when defining common words or phrases that have not acquired a unique meaning at law because "the common and approved usage of a nonlegal term is most likely to be found in a standard dictionary and not a legal dictionary." Horace v. City of Pontiac, 456 Mich. 744, 756, 575 N.W.2d 762 (1998).

[10] Although referring to a different statute than the one at issue in this case, this Court has previously recognized that the mere fact that a statute makes benefits more difficult to obtain is no reason to refuse to apply the statute as written.

"The statute, as it is written, may not afford the plaintiff what some would regard as adequate relief, or may render that relief more difficult to obtain.... While we may be sympathetic to the plaintiff's predicament, we are reminded that `[i]t is not within the province of this Court to read [into a statute] a mandate that the legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.'" [Piper v. Pettibone Corp., 450 Mich. 565, 572, 542 N.W.2d 269 (1995)(emphasis added), quoting Carter v. Detroit Harbor Terminal, 414 Mich. 498, 505, 327 N.W.2d 257 (1982).]

[11] Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719 (1922); La Veck v. Parke, Davis & Co., 190 Mich. 604, 157 N.W. 72 (1916); Schroetke v. Jackson-Church Co., 193 Mich. 616, 160 N.W. 383 (1916).

[12] Swanson v. Oliver Iron Mining Co., 266 Mich. 121, 253 N.W. 239 (1934); Waite v. Fisher Body Corp., 225 Mich. 161, 196 N.W. 189 (1923); Anderson v. Fisher Body Corp., 239 Mich. 506, 214 N.W. 938 (1927); Seifman v. Ford Motor Co., 282 Mich. 342, 276 N.W. 472 (1937).

[13] In this regard I also note that our courts have admonished that "`[t]he compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health, accident and old age insurance and spread general protection over risks common to all....'" Adkins v. Rives Plating Corp., 338 Mich. 265, 271, 61 N.W.2d 117 (1953); Schaefer v. Williamston Community Schools, 117 Mich.App. 26, 323 N.W.2d 577 (1982). Yet in finding that the work-related injury was the proximate cause of Mr. Hagerman's death, the majority has construed the worker's compensation statute to effectively provide life insurance in this case.

[14] M.C.L. § 691.1407(2); M.S.A. § 3.996(107)(2).

[15] It has been said before, but it bears repeating.

Legislative histories are always suspicious. As Mr. Justice Scalia said, in reference to the United States Congress:

"My general attitude towards [legislative history] can be summed up ... by saying that I regard it as the greatest surviving legal fiction. If you can believe that a committee report (to take the most respected form of legislative history) in fact expresses what all the Members of Congress (or at least a majority of them) `intended' on the obscure issues that it addresses; if you can believe that a majority of them even read the committee report; indeed, if you can believe that a majority of them was even aware of the existence of the obscure issue; then you would have had no trouble, several hundred years ago, in permitting all tort actions to be squeezed into the writ of assumpsit by the patently phony allegation that the defendant had undertaken (assumpsit) to be careful. Even beyond the unreliability of almost all legislative history (most of which is now cooked-up legislative history) as an indication of intent, it seems to me that asking what the legislators intended rather than what they enacted is quite the wrong question. [Address by Justice Antonin Scalia before the Attorney General's Conference on Economic Liberties in Washington, D.C. (June 14, 1986).]"

Compounding the problem with the Michigan legislative histories is that, in this state, unlike the federal legislature, there is no verbatim journal of the proceedings of either house of the Legislature or of its committees. Further, unlike Congress, the Michigan House of Representatives or Senate does not vote on an acceptance of the legislative history. The creation of legislative histories are therefore free play for legislative staffers and special-interest pleaders. Their hope may well be to fill these empty vessels with potions on the chance that someday some credulous court, unaware of its dubious authenticity, may drink deeply. [Marposs Corp. v. City of Troy, 204 Mich.App. 156, 167-168, n. 2, 514 N.W.2d 202 (1994) (Taylor, P.J., dissenting), majority opinion overruled by super majority panel in Bendix Safety Restraints Group v. City of Troy, 215 Mich.App. 289, 544 N.W.2d 481 (1996)]

[16] Although the majority has attempted to limit its holding to instances where the words "the" or "a" precede "proximate cause," this begs the question—"Why?" In both this case and Dedes, the analytical problem is why the legislature should be taken as not understanding the use of these words when they precede proximate cause, but somehow understanding them when they precede other words or phrases. It is indeed the unanswerable nature of this conundrum that makes any effort by the majority to limit this unfortunate holding futile. It should not be doubted that this holding, which has no discernable principled limitations, will be used in the future by zealous advocates to encourage this Court to engage in yet other forays into statutory revision.

[17] In this regard I agree with the sentiments expressed by Judge Bandstra in his concurrence in this case. See Hagerman v. Gencorp Automotive (On Remand), 218 Mich.App. 19, 25, 553 N.W.2d 623 (1996). In light of the fact that Dedes remains on the books, I would effectively "cabin" its holding to cases where only a showing could be made of a major deviation in the legislation from previously existing law without noting understanding, by way of history, that the Legislature knew such a deviation was being undertaken. Because that cannot be shown here, I would not apply Dedes to this case.

[18] Indeed, one must wonder when we will begin to see efforts at the deconstruction of other words and phrases? Certainly litigants will press the issue on us all the more so because we have established no meaningful limits on when this previously unknown power will be exercised.

[19] The United States Constitution similarly separates the powers of the legislature, executive, and judiciary. U.S. Const., art. I, § 1; art. II, § 1, and art. III, § 1.

[20] As noted by Georgetown University Professor Walter Berns, James Madison and others "would have given the judiciary an openly political role under the Constitution." Berns, Taking the Constitution Seriously (Lanham, Maryland: Madison Books, 1987), p. 201. In his book, from which my discussion of the Constitutional Convention is drawn, Professor Berns discusses the explicit rejection of this proposal, noted above, citing the specific proposals and votes cited in Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966).