Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 3, 2005
SCOTT M. CAIN,
Plaintiff-Appellee,
v No. 125111
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellants,
and
SECOND INJURY FUND,
Defendant-Appellee.
_______________________________
SCOTT M. CAIN,
Plaintiff-Appellee,
v No. 125180
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellees,
and
SECOND INJURY FUND,
Defendant-Appellant.
_______________________________
AFTER REMAND
BEFORE THE ENTIRE BENCH
TAYLOR C.J.
At issue in this worker’s compensation case is whether
a worker must suffer an actual amputation of a limb or body
part in order to qualify for either specific loss benefits
(also described as scheduled loss benefits) or total and
permanent disability benefits. We hold that specific loss
benefits under MCL 418.361(2) do not require an amputation.
It is sufficient to qualify for such benefits if the limb
or body part has lost its usefulness. Regarding total and
permanent disability benefits under MCL 418.361(3)(b),
which covers the loss of both legs, as with specific loss,
if the legs have lost their usefulness, even though not
amputated, the worker qualifies for total and permanent
disability benefits. We therefore affirm the decisions of
the Court of Appeals and the Worker’s Compensation
Appellate Commission (WCAC).
BACKGROUND
This case was previously before us in Cain v Waste
Mgt, Inc, 465 Mich 509, 513; 638 NW2d 98 (2002) (Cain I),
where we summarized the facts describing plaintiff’s
injuries as follows:
Plaintiff Scott M. Cain worked as a truck
driver and trash collector for defendant, Waste
Management, Inc. In October 1988, as he was
2
standing behind his vehicle emptying a rubbish
container, he was struck by an automobile that
crashed into the back of the truck. Mr. Cain’s
legs were crushed. Physicians amputated Mr.
Cain’s right leg above the knee. His left leg was
saved with extensive surgery and bracing.
In February 1990, Mr. Cain was fitted with a
right leg prosthesis, and he was able to begin
walking. He returned to his employment at Waste
Management and started performing clerical
duties.
Mr. Cain’s left leg continued to
deteriorate. In October 1990, he suffered a
distal tibia fracture. Doctors diagnosed it as a
stress fracture caused by preexisting weakness
from the injury sustained in the accident. After
extensive physical therapy and further surgery on
his left knee, Mr. Cain was able to return to
Waste Management in August 1991, first working as
a dispatcher and then in the sales department.
Waste Management voluntarily paid Mr. Cain
215 weeks of worker’s compensation benefits for
the specific loss of his right leg. MCL
418.361(2)(k). However, there was disagreement
concerning whether he was entitled to additional
benefits.
To understand the benefits that are at issue, it is
necessary to review several sections of the Worker’s
Disability Compensation Act (WDCA), MCL 418.101 et seq.
Specific loss benefits are payable under MCL 418.361(2)(k)
to an employee “for the loss of” a leg.1 Total and
1
The full text of MCL 418.361(2) reads:
In cases included in the following schedule,
the disability in each case shall be considered
to continue for the period specified, and the
compensation paid for the personal injury shall
be 80% of the after-tax average weekly wage
(continued…)
3
(…continued)
subject to the maximum and minimum rates of
compensation under this act for the loss of the
following:
(a) Thumb, 65 weeks.
(b) First finger, 38 weeks.
(c) Second finger, 33 weeks.
(d) Third finger, 22 weeks.
(e) Fourth finger, 16 weeks.
The loss of the first phalange of the thumb,
or of any finger, shall be considered to be equal
to the loss of ½ of that thumb or finger, and
compensation shall be ½ of the amount above
specified.
The loss of more than 1 phalange shall be
considered as the loss of the entire finger or
thumb. The amount received for more than 1 finger
shall not exceed the amount provided in this
schedule for the loss of a hand.
(f) Great toe, 33 weeks.
(g) A toe other than the great toe, 11
weeks.
The loss of the first phalange of any toe
shall be considered to be equal to the loss of ½
of that toe, and compensation shall be ½ of the
amount above specified.
The loss of more than 1 phalange shall be
considered as the loss of the entire toe.
(h) Hand, 215 weeks.
(i) Arm, 269 weeks.
An amputation between the elbow and wrist
that is 6 or more inches below the elbow shall be
considered a hand, and an amputation above that
point shall be considered an arm.
(continued…)
4
permanent disability benefits are payable “[w]hile the
incapacity for work resulting from a personal injury is
total,” MCL 418.351(1), and MCL 418.361(3) defines what
“total and permanent disability” means.2 Of particular
(…continued)
(j) Foot, 162 weeks.
(k) Leg, 215 weeks.
An amputation between the knee and foot 7 or
more inches below the tibial table (plateau)
shall be considered a foot, and an amputation
above that point shall be considered a leg.
(l) Eye, 162 weeks.
Eighty percent loss of vision of 1 eye shall
constitute the total loss of that eye.
2
The subsection reads in full:
Total and permanent disability, compensation
for which is provided in section 351 means:
(a) Total and permanent loss of sight of
both eyes.
(b) Loss of both legs or both feet at or
above the ankle.
(c) Loss of both arms or both hands at or
above the wrist.
(d) Loss of any 2 of the members or
faculties in subdivisions (a), (b), or (c).
(e) Permanent and complete paralysis of both
legs or both arms or of 1 leg and 1 arm.
(f) Incurable insanity or imbecility.
(g) Permanent and total loss of industrial
use of both legs or both hands or both arms or 1
leg and 1 arm; for the purpose of this
(continued…)
5
relevance here are two of the definitions of total and
permanent disability found in MCL 418.361(3)(b), “Loss of
both legs or both feet at or above the ankle,” and MCL
418.361(3)(g), “Permanent and total loss of industrial use
of both legs or both hands or both arms or 1 leg and 1 arm
. . . .”
In Cain I, we determined that because Mr. Cain had a
brace on his left leg that enabled him to return to work,
he had not lost industrial use of both legs, as required by
MCL 418.361(3)(g).3 We noted there is a difference between
specific loss and loss of industrial use, and we “adopt[ed]
as our own” the analysis of the WCAC in its April 1997
opinion. Cain I, supra at 521. In accord with that
analysis, we held that the “corrected” standard applies to
claims for permanent and total loss of industrial use under
MCL 418.361(3)(g), and we remanded to the WCAC “to consider
plaintiff’s specific loss claim.” Cain I, supra at 524.
On remand, the WCAC determined actual amputation is
unnecessary to qualify for specific loss benefits and,
(…continued)
subdivision such permanency shall be determined
not less than 30 days before the expiration of
500 weeks from the date of injury.
3
The reader is directed to Cain I for a full
discussion of the procedural history of the case to that
(continued…)
6
because plaintiff’s leg is essentially useless, his injury
“equated with anatomical loss.” The WCAC cited as
authority Hutsko v Chrysler Corp, 381 Mich 99; 158 NW2d 874
(1968), and Tew v Hillsdale Tool & Mfg Co, 142 Mich App 29;
369 NW2d 254 (1985). Both are cases in which specific loss
claims were allowed where there had been a loss of use, but
not an anatomical loss. The WCAC then concluded without
further explanation that “[h]aving shown specific loss of
each leg, plaintiff is entitled to total and permanent
disability benefits.” On appeal, the Court of Appeals
majority, citing Pipe v Leese Tool & Die Co, 410 Mich 510;
302 NW2d 526 (1981), affirmed the decision of the WCAC.
259 Mich App 350; 674 NW2d 383 (2003). It concluded that
each of plaintiff’s legs qualified for specific loss
benefits (one through amputation and one through lost
industrial use), and that these losses, when considered
together, equaled a “loss of both legs” under MCL
418.361(3)(b), thus entitling plaintiff to total and
permanent disability benefits.
Both the defendant employer and the Second Injury Fund
sought leave to appeal. We granted both applications for
leave, ordering the appeals to be argued and submitted
(…continued)
point, including details of the opinions of the magistrate,
the WCAC, and the Court of Appeals.
7
together. 470 Mich 870 (2004). We directed the parties in
both appeals to include among the issues to be briefed
whether the “loss of industrial use” standard may be
applied to claims of specific loss under MCL 418.361(2) and
whether Pipe, supra, should be overruled. We further
directed the parties in Docket No. 125180 to address the
issues whether the WCAC exceeded the scope of this Court’s
remand order by awarding plaintiff total and permanent
disability benefits and whether total and permanent
disability benefits under MCL 418.361(3)(b)(loss of both
legs) may be awarded on the basis of plaintiff’s specific
(anatomical) loss of one leg and his specific (industrial
use) loss of the other leg.
STANDARD OF REVIEW
We review de novo questions of law in worker’s
compensation cases. Mudel v Great Atlantic & Pacific Tea
Co, 462 Mich 691, 697 n 3; 614 NW2d 607 (2000).
Entitlement to worker’s compensation benefits must be
determined by reference to the statutory language creating
those benefits. Nulf v Browne-Morse Co, 402 Mich 309, 312;
262 NW2d 664 (1978). As we have noted in the past, when we
construe a statute, our primary goal is to give effect to
the intent of the Legislature and our first step in that
process is to review the language of the statute itself.
In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d
8
164 (1999). The Legislature has specified the proper
approach to construing statutory language, saying in MCL
8.3a:
All words and phrases shall be construed and
understood according to the common and approved
usage of the language; but technical words and
phrases, and such as may have acquired a peculiar
and appropriate meaning in the law, shall be
construed and understood according to such
[4]
peculiar and appropriate meaning.
ANALYSIS: SPECIFIC LOSS
We turn first to the question of specific loss and
therefore focus our analysis on MCL 418.361(2). The loss
provision of this section repeatedly has been held to be
intended to compensate workers who have suffered one of the
losses enumerated in this provision, regardless of the
effect on the worker’s earning capacity.5 Cain I, supra at
524; Redfern v Sparks-Withington Co, 403 Mich 63, 80-81;
268 NW2d 28 (1978). This means if a worker, for example,
loses an arm, thumb, finger, leg, or so on in a workplace
4
However, when a statute specifically defines a given
term, that definition alone controls. WS Butterfield
Theatres, Inc v Dep’t of Revenue, 353 Mich 345; 91 NW2d 269
(1958).
5
We note that MCL 418.354(16), in providing for
coordination of social security and other benefits,
recognizes this principle, stating in part, “It is the
intent of the legislature that, because benefits under
section 361(2) and (3) are benefits which recognize human
factors substantially in addition to the wage loss concept,
coordination of benefits should not apply to such
benefits.”
9
injury, specific loss benefits, as set forth in the
schedule, will be awarded even if no time is missed from
work. At issue here is whether a limb (here, a leg),
crushed but not severed, is to be treated as lost, thus
entitling the injured worker to specific loss benefits.
Defendants argue that the word “loss” unambiguously
means “amputation,” especially in the context of §
361(2)(k), which expressly mentions amputation. As they
argue it, amputation is required because MCL 418.361(2)(k)
provides benefits for the loss of a leg by stating:
Leg, 215 weeks.
An amputation between the knee and foot
7 or more inches below the tibial table
(plateau) shall be considered a foot, and an
amputation above that point shall be
considered a leg.
Thus, defendants assert that the amputation language,
at least regarding legs, limits the word “loss” in the
statute to mean that only amputations are compensable.
Plaintiff, on the other hand, while agreeing that the
statute is unambiguous, argues that defendants’ approach is
flawed because it disregards the original meaning of the
specific loss provisions when the WDCA was enacted almost a
century ago in favor of a modern perception of the word’s
meaning. The original meaning, plaintiff asserts, is
controlling because, although the statute has been amended
many times since its enactment in 1912, the word “loss” has
10
remained unchanged and without express qualifications or
limitations. Plaintiff analogizes our task in determining
the meaning of “loss” to that which we undertook in Title
Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 522;
676 NW2d 207 (2004), where we determined what the plain and
ordinary meaning of “transcript” was in 1895. This
analytical approach of plaintiff is sound. Because the
statute itself does not define “loss,” we agree with
plaintiff that we must ascertain the original meaning the
word “loss” had when the statute was enacted in 1912.
“When determining the common, ordinary meaning of a
word or phrase, consulting a dictionary is appropriate.”
Title Office, Inc, supra at 522. In the dictionaries from
the era of the original legislation, the definition of
“loss” is fairly broad: “Perdition, ruin, destruction; the
condition or fact of being ‘lost,’ destroyed, or ruined,”
New English Dictionary (1908); “State or fact of being lost
or destroyed; ruin; destruction; perdition; as Loss of a
vessel at sea,” Webster’s New Int’l Dictionary of the
English Language (1921); “Failure to hold, keep, or
preserve what one has had in his possession; disappearance
from possession, use, or knowledge; deprivation of that
which one has had: as, the loss of money by gaming, loss of
health or reputation, loss of children: opposed to gain,”
Century Dictionary and Cylopedia (1911). From this we can
11
see that severance is but one way a loss may occur; loss
also occurs when something is destroyed, ruined, or when it
disappears from use. We conclude that amputation is not
required in order for a person to have suffered the loss of
a specified body part.
Having ascertained the commonly understood meaning of
the word “loss,” our substantive analysis of its definition
is complete. Gladych v New Family Homes, Inc, 468 Mich
594, 597; 664 NW2d 705 (2003). Our conclusion is
reinforced by the fact that the same meaning for the word
“loss” is found in the cases construing late nineteenth
century private liability insurance plans for the aid of
injured workers that were, in part, the models for the
body-part loss provisions of our first worker’s
compensation act. When, in special session, the
Legislature in 1912 passed that first act, known as
Michigan’s “Workmen’s Compensation Act,”6 it was the
culmination of the efforts of the five-person Employers’
Liability and Workmen’s Compensation Commission appointed
by Governor Chase S. Osborn in 1911.7 The commission had
been formed because of what was described at the time as
6
1912 (1st Ex Sess) PA 10.
7
1911 PA 245.
12
“wide dissatisfaction” with the employer’s liability at
common law for injuries suffered by his employees. Report
of the Employers’ Liability and Workmen’s Compensation
Commission of the State of Michigan, 5 (1911) (Report).
The commission was directed to “investigate and report a
plan for legislative action to provide compensation for
accidental injuries or death arising out of and in the
course of employment . . . .” Id. In its report, the
commission, after concluding that the existing negligence
based system (1) failed to sufficiently encourage
prevention of accidents, (2) did not protect employers
against excessive verdicts, (3) resulted in inadequate
compensation for injured workers, and (4) engendered
animosity and strife, recommended a statute based on
similar provisions already enacted in Massachusetts,
Wisconsin, and New Jersey.8 The Legislature, with very few
8
These in turn were modeled after European laws that
first appeared in the mid-1800s and that were well
established by the end of that century, swept along by
massive industrialization occurring at the same time
throughout Europe. Harger, Worker’s compensation, a brief
history, (accessed December
22, 2004). In this country, the first constitutional
worker’s compensation law was the 1908 Employer’s Liability
Acts, 45 USC 51-60. In 1911, the first states followed,
and by 1913, twenty-three states had comparable laws.
Harger, supra. By 1948, all the states had at least some
form of worker’s compensation, including the territories of
Alaska and Hawaii. Harger, supra.
13
changes to the recommended language, briskly enacted this
proposal as Michigan’s workmen’s compensation act less than
three weeks after the bill was introduced. 1912 (1st Ex
Sess) Journal of the House 13, 149-150.
In dealing with what today is described as total and
permanent disability, the 1912 statute stated in § 9:
While the incapacity for work resulting from
the injury is total, the employer shall pay, or
cause to be paid as hereinafter provided, to the
injured employee a weekly compensation equal to
one-half his average weekly wages, but not more
than ten dollars nor less than four dollars a
week; and in no case shall the period covered by
such compensation be greater than five hundred
weeks, nor shall the total amount of all
compensation exceed four thousand dollars. [1912
(1st Ex Sess) PA 10, part II, § 9.]
In dealing with partial incapacity, the statute stated
at § 10:
While the incapacity for work resulting from
the injury is partial, the employer shall pay, or
cause to be paid as hereinafter provided, to the
injured employee a weekly compensation equal to
one-half the difference between his average
weekly wages before the injury and the average
weekly wages which he is able to earn thereafter,
but not more than ten dollars a week; and in no
case shall the period covered by such
compensation be greater than three hundred weeks
from the date of the injury. In cases included by
the following schedule the disability in each
such case shall be deemed to continue for the
period specified, and the compensation so paid
for such injury shall be as specified therein, to
wit:
* * *
14
For the loss of a leg, fifty per centum of
average weekly wages during one hundred and
seventy-five weeks. [1912 (1st Ex Sess) PA 10,
part II, § 10.]
Section 9 allowed wage-based benefits to be paid to
workers who were totally incapacitated from work,
regardless of the type of work-related injury that caused
the incapacity, while § 10 provided for benefits when the
worker was partially incapacitated. Moreover, the latter
part of § 10, with its schedule of benefits for specific
losses, allowed a set amount of weeks that benefits would
be awarded when a worker suffered one of the specific
injuries described. In doing so, it was intentionally
patterned after the specific loss provisions of the above
referenced employers’ private liability insurance plans,
which were designed to provide benefits to workers injured
on the job. Report, supra.9
9
The commission’s report even included in its appendix
the text of two plans “typical” at the time. Report,
supra, Appendix VII, 143-146. The “Benefit and Relief
Plans of the Cleveland-Cliffs Iron Company” provided:
In addition to the monthly benefit payments, other
amounts are paid for certain serious injuries, as follows:
Loss of one arm, leg or eye, $166.66.
Loss of both arms, legs or eyes, $500.
Similarly, the “Benefit and Relief Plans of the Oliver
Iron Mining Company” provided:
(continued…)
15
The cases construing such insurance policies in that
era, from Michigan and elsewhere, unmistakably indicate
that the word “loss,” just as it did in dictionaries of the
time, meant not just severance or amputation but also the
destruction of the usefulness of the member. In Michigan,
our Court in Fuller v Locomotive Engineers’ Mut Life &
Accident Ins Ass’n, 122 Mich 548, 553; 81 NW 326 (1899),
construing the specific loss provision in an insurance
policy, said just this, indicating that
where an insurance policy insures against the
loss of a member, or the loss of an entire
member, the word “loss” should be construed to
mean the destruction of the usefulness of the
member, or the entire member, for the purposes to
which, in its normal condition, it was
susceptible of application.
(…continued)
The following injuries have specified amounts, and
others in proportion to these injuries:
(a) For the loss of a hand, twelve months’ wages.
(b) For the loss of an arm, eighteen months’ wages.
(c) For the loss of a foot, nine months’ wages.
(d) For the loss of a leg, twelve months’ wages.
(e) For the loss of one eye, six months’ wages.
Sections 9 and 10 of the 1912 act incorporated
language similar to these insurance plans.
16
Simply stated, under such a policy in Michigan, no
amputation was necessary for a loss. The rationale for not
limiting loss just to amputation was the understanding by
this Court and, as we will explain, by other American
courts that the term “loss” in such policies should be
given its ordinary and popular meaning, which was broad
enough to include loss of usefulness.
As the Missouri Supreme Court said on this topic, the
word “loss” in insurance policies “was used in its ordinary
and popular sense and [did] not mean that there should be a
total destruction of the [member], anatomically speaking,
but that the loss of the use of it for the purposes to
which [the member] is adapted would be a loss of it
. . . .” Sisson v Supreme Court of Honor, 104 Mo App 54,
60; 78 SW 297 (1904). The Kansas Supreme Court stated it
similarly: “The loss of a member of the body, as used in an
accident insurance policy, unless restricted or modified by
other language, carries the common meaning of the term
‘loss,’ which is the loss of the beneficial use of the
member. Obviously this may occur when there is not a
complete severance of the member from the body.” Noel v
Continental Cas Co, 138 Kan 136, 139; 23 P2d 610 (1933).
The Kansas court then reinforced its holding by citing
thirteen cases from ten other states from the late
17
nineteenth and early twentieth centuries, holding to the
same effect.10
Also buttressing our analysis is that, in the early
years of the act’s existence, the decisions of the
Industrial Accident Board (IAB), the WCAC’s predecessor,
also construed “loss” as defined in the dictionary. That
is consistent with its commonly understood meaning. This
is consequential because half of the four IAB board members
had served on Governor Osborn’s commission and had
recommended the very “loss” language we are considering.11
We find the interpretation these board members gave to the
statute useful in the same way that the comments of
10
Travelers’ Ins Co v Richmond, 284 SW 698 (Tex Civ
App, 1926); Continental Cas Co v Linn, 226 Ky 328; 10 SW2d
1079 (1928); Jones v Continental Cas Co, 189 Iowa 678; 179
NW 203 (1920); Locomotive Engineers’ Mut Life & Accident
Ins Co v Meeks, 157 Miss 97; 127 So 699 (1930); Moore v
Aetna Life Ins Co, 75 Or 47; 146 P 151 (1915); Bowling v
Life Ins Co of Virginia, 39 Ohio App 491; 177 NE 531
(1930); Citizens’ Mut Life Ass’n v Kennedy, 57 SW2d 265
(Tex Civ App, 1933); Sneck v Travelers’ Ins Co, 88 Hun 94;
34 NYS 545 (1895); Sheanon v Pacific Mut Life Ins Co, 77
Wis 618; 46 NW 799 (1890); Lord v American Mut Accident
Ass’n, 89 Wis 19; 61 NW 293 (1894); Berset v New York Life
Ins Co, 175 Minn 210; 220 NW 561 (1928); Sisson v Supreme
Court of Honor, 104 Mo App 54; 78 SW 297 (1904); Int’l
Travelers’ Ass’n v Rogers, 163 SW 421 (Tex Civ App, 1914).
11
Richard L. Drake was its first secretary and Ora E.
Reaves was one of three board commissioners. Reaves
remained on the board until at least 1920. Michigan
Official Directory and Legislative Manual, 1913-1914, 1915
1916, 1917-1918, and 1919-1920.
18
drafting committees can be “useful interpretive aids” for
construing statutes. See Gladych, supra at 601 n 4. The
IAB, in Lardie v Grand Rapids Show Case Co, 1916 Workmen’s
Compensation Cases 17, 19, in discussing loss, stated that
“courts have uniformly construed provisions of accident
policies insuring against the loss of a member, to cover
cases where the usefulness of the member was destroyed by
accident without resulting in severance or amputation.”
Id., citing Fuller, supra at 553. Similarly, that “loss”
in the context of worker’s compensation specific loss
benefits did not mean only amputations, but also included
loss of usefulness, was indicated by the IAB’s decisions in
an unnamed case cited in Industrial Accident Bd, Bulletin
No 3, 13 (1913);12 Rider v C H Little Co, Industrial
12
The board stated in that case:
The action of the surgeon in amputating a
finger, or in failing to amputate it, or in
choosing the point of amputation is not
controlling in all cases of this kind. Each case
depends for its decision upon the particular
facts relating to the finger, and these might
relate to the point of amputation, or the fact
that the finger or a portion thereof had been
rendered useless without being amputated. . . .
The Board is further of the opinion that in case
no part of the finger is amputated and the injury
is such as to entirely destroy the usefulness of
the first phalange or the entire finger, in that
event the injured person has lost the first
phalange or the finger, as the case may be, as
completely as if the same had been amputated.
19
Accident Bd, supra at 27, 29 (1913); Hirschkorn v Fiege
Desk Co, 184 Mich 239; 150 NW 851 (1915); Purdy v Sault Ste
Marie, 188 Mich 573, 579; 155 NW 597 (1915); Cline v
Studebaker Corp, 189 Mich 514; 155 NW 519 (1915); Lardie,
supra; Carpenter v Detroit Forging Co, 191 Mich 45; 157 NW
374 (1916); Packer v Olds Motor Works, 195 Mich 497; 162 NW
80 (1917); Adomites v Royal Furniture Co, 196 Mich 498; 162
NW 965 (1917).
The same can be seen in large part in this Court’s
jurisprudence of the time. For example, in Purdy, supra at
579, the Court affirmed the IAB’s specific loss award for a
crushed leg.13 In Lovalo v Michigan Stamping Co, 202 Mich
85, 89; 167 NW 904 (1918), the Court held that the claimant
had suffered the loss of his hand where four fingers and
nearly all the palm were amputated, saying that “the loss
of all the palm and all of the fingers of the hand could
. . . be reasonably considered the loss of the entire
hand.” Indeed, the only expressly contrary case in this
era is Wilcox v Clarage Foundry & Mfg Co, 199 Mich 79; 165
NW 925 (1917), where the Court, in a case with difficult
facts, determined that the specific loss provision required
anatomical loss. The Wilcox Court made no effort to
13
The IAB’s decision is at 1916 Workmen’s Compensation
Cases 65.
20
reconcile its holding with the IAB’s clearly stated
understanding of “loss,” nor with Fuller or Purdy, but
analogized instead to cases where the plaintiffs had
suffered partial losses and this Court had required proof
of complete, rather than partial, loss.14 We conclude that,
given its outlier status, as well as the fact that the
construction it seeks to give to the term “loss” is
inconsistent with the original meaning of “loss” in the
act, Wilcox was incorrectly decided. Thus, we overrule
Wilcox so that its potentially confusing shadow will be
removed from our case law.15
To summarize, then, regarding this issue of the
definition of “loss”: the definition comes from its
commonly understood meaning at the time of enactment. The
contemporaneous uses of the word are corroborative and
reinforcing of this definition.
14
Even if those cases can be read as requiring
amputation, Wilcox was flawed in a broader sense by the
fact that, rather than tracing its rationale to the act
itself, it used as a template, as one might in a common-law
case, the prior cases construing the act.
15
We are reinforced in our notion that Wilcox is
aberrant by the fact that the Lovalo Court, in reaching a
holding contrary to Wilcox just one year later, left
unaddressed the continuing strength of Wilcox, suggesting
that the Court considered it confined to its facts.
21
Defendants assert that, even given this conclusion,
the 1927 amendments forever altered the definition of
“loss.” In 1927, the Legislature, for the only time in the
twentieth century, consequentially amended the specific
loss section of the statute by adding to the provision
regarding a leg the language: “An amputation between the
knee and foot six or more inches below the knee shall be
considered a foot, above this point a leg[.]”16 1927 PA 63.
Keying off of this amendment, defendants urge that this
language implicitly was designed to alter any previously
broad understanding of the word “loss” so that after the
amendment there could be no specific loss without an
amputation. We think this explanation insufficiently
appreciates that the amendment came in the wake of a series
of cases where this Court had made debatable calls on the
nature of the loss after an amputation.17 That is, at what
16
Similarly, the amendment added to the provision for
an arm, “An amputation between the elbow and wrist 6 or
more inches below the elbow shall be considered a hand,
above this point an arm.”
17
Stocin v C R Wilson Body Co, 205 Mich 1; 171 NW 352
(1919) (holding that a claimant had lost his arm, not just
his hand, where it was severed below the elbow and the
upper arm was atrophied), Curtis v Hayes Wheel Co, 211 Mich
260; 178 NW 675 (1920) (holding that the claimant had lost
just a foot where his amputation occurred four to five
inches below the knee), and Reno v Holmes, 238 Mich 572;
214 NW 174 (1927) (holding that a claimant had lost his
(continued…)
22
point on the limb had a loss become not just of a hand but
of an arm, not just of a foot but of a leg? We believe the
goal of the amendment was to bring certainty to this
discrete set of determinations once there was an
amputation. It is hard to conclude otherwise, given that
the Legislature, in its amendment, did not expressly alter
or redefine the word “loss” itself and especially given
that word’s quite clear meaning in the dictionaries of the
time as well as the above-referenced decisions of the IAB
and this Court. Moreover, this Court’s leading
postamendment decision in the 1930s on the issue of loss18
is consistent with this understanding that the 1927
amendment was not intended to reverse the holdings of the
IAB and this Court on what is a loss.
This dominant theme of our case law, that loss does
not require amputation, can be seen throughout the mid
century, albeit with some false starts.19 Later in the
(…continued)
leg, not just his foot, where it was severed 5½ inches
below the knee).
18
See Rench v Kalamazoo Stove & Furnace Co, 286 Mich
314; 282 NW 162 (1938), where the Court allowed an award
for loss of two hands where most of the plaintiff’s fingers
had been severed and he had suffered a total loss of use of
both his hands.
19
In the middle of the century, with Hlady v Wolverine
Bolt Co, 325 Mich 23; 37 NW2d 576 (1949), as well as Utter
(continued…)
23
century, in Pipe v Leese Tool & Die Co, 410 Mich 510; 302
NW2d 526 (1981), the Court correctly determined, consistent
with the original understanding of the act and the earlier
cases we have discussed, that amputation was not a
prerequisite to a “loss.”
Pipe, however, in a phrase used frequently in these
cases, described this loss of usefulness as “loss of the
industrial use . . . .” Id. at 527. The phrase “loss of
industrial use” does not appear anywhere in the specific
loss provisions, and seems to have been intended as
judicial shorthand to describe the condition of the injured
member from the standpoint of its use in employment.
However, this description causes confusion because it does
not adequately capture the proper standard, which is that
specific loss is to be determined without reference to the
plaintiff’s earning capacity or ability to return to work.
That is, it is paid if the loss has been incurred and it is
not relevant whether the worker can work after the loss.
(…continued)
v Ottawa Metal Co, 326 Mich 450; 40 NW2d 218 (1949), and
Barnett v Kelsey-Hayes Wheel Co, 328 Mich 37; 43 NW2d 55
(1950), this Court decided cases contrary to this original
understanding of the specific loss provisions. But these
cases are inconsistent with the proper understanding of the
statute and we note that they were hesitatingly followed,
if at all, and Hlady was expressly overruled. Mitchell v
Metal Assemblies, Inc, 379 Mich 368, 380; 151 NW2d 818
(1967).
24
Miller v Sullivan Milk Products, Inc, 385 Mich 659; 189
NW2d 304 (1971); Shumate v American Stamping Co, 357 Mich
689; 99 NW2d 374 (1959). We believe it was this concept
that the Pipe Court was attempting to articulate and we
clarify by means of this opinion that holding.
To be clear, we are endeavoring here not to craft a
new standard, but to articulate clearly the standard
enacted in 1912. We find that the original understanding
the word “loss” carried when the WDCA was enacted was its
plain and ordinary meaning, consistent with how it had been
construed in the context of insurance law. Thus, “loss”
includes not only amputation but also loss of usefulness.20
It was the intent of the drafters to write into the statute
a word that was expansive enough to cover both situations
and the words and language they chose conveyed this.
Moreover, in our case law, this Court has with considerable
consistency, albeit not unfailingly, upheld this
construction. We do so again today, believing as courts
have before us that the meaning we give to the word “loss”
in MCL 418.361(2) is the meaning originally intended.
20
In Pipe, supra at 530, and again in Cain I, supra at
524, we referred to this as anatomical loss or its
equivalent.
25
Defendants’ approach would require us to ignore the
statutory drafters’ and enactors’ turn-of-the-twentieth
century understanding of the common and approved meaning of
“loss” in favor of a purportedly different contemporary
understanding, divorced from its roots. This we cannot do.
We are not free to substitute any other nonstatutory
definition of a word or term for the meaning it
indisputably had in 1912, and has maintained for almost a
century. This duty traces to the simple notion that we are
to construe a statute “in the light of the circumstances
existing at the date of its enactment, not in the light of
subsequent developments. . . . ‘The words of a statute must
be taken in the sense in which they were understood at the
time when the statute was enacted.’” Wayne Co Bd of Rd
Comm’rs v Wayne Co Clerk, 293 Mich 229, 235-236; 291 NW 879
(1940), quoting 25 RCL, § 215, p 959. We therefore hold to
the original meaning of the word “loss” in the specific
loss provisions: it does not require severance and there
can be a “loss” where the claimant suffers the loss of
usefulness of the member.
In addition, we conclude that the WCAC properly
applied the “uncorrected” standard. We discussed in Cain
I, supra at 521-523, the propriety of applying the
“uncorrected” standard to specific loss claims and the
26
“corrected” standard to total and permanent disability
claims. We reaffirm that rule today.
The WCAC found the damage to Mr. Cain’s left leg
“equated with anatomical loss and that the limb retains no
substantial utility.” The WCAC’s factual finding is, in
essence, that he lost the usefulness of his leg. Because
that factual finding is supported by competent evidence in
the record, it must be affirmed. Mudel, supra at 701. The
Court of Appeals erred when it grafted a loss of industrial
use standard onto the factual findings of the
administrative tribunal. Nonetheless, it reached the
correct result with regard to plaintiff’s benefit
eligibility. Accordingly, plaintiff is eligible for
specific loss benefits for the loss of his left leg.
ANALYSIS: TOTAL AND PERMANENT DISABILITY
We next turn to analyze whether the WCAC correctly
allowed plaintiff benefits under the total and permanent
disability provisions, MCL 418.361(3). Our task in
interpreting the Legislature’s work is, if possible, to
read the seven eligibility requirements in § 361(3) so as
to read none of them out or as an unnecessary duplication
of another. In particular, we must endeavor to harmonize
the three provisions concerning legs and to read them in a
way that does not make any of the language surplusage.
Jenkins v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004);
27
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich
142, 146; 644 NW2d 715 (2002). In short, we read the words
in a statute together, to harmonize the meaning of the
clauses and give effect to the whole. G C Timmis & Co v
Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
Defendants argue that we cannot construe “[l]oss” in §
361(3)(b) to mean less than amputation because then cases
of lost industrial use would fall under both § 361(3)(b)
and § 361(3)(g), rendering the latter surplusage. We
disagree. We find the proper construction of the word
“[l]oss” in § 361(3)(b) is that it has the same meaning
given it in § 361(2).21 This conclusion is unsurprising, we
believe, given the juxtaposition of §§ 361(2) and 361(3),
which is itself a compelling reason to give them the same
meaning. See, e.g., Sibley v Smith, 2 Mich 487, 491
(1853). Furthermore, doing so, as we will explain, causes
no part of § 361(3) to be duplicative or nugatory. Dealing
with § 361(3)(b) first, we find that using this definition
of loss means that benefits are payable under this section
not only when there is anatomical loss, but also when the
limbs have no practical usefulness. Section 361(3)(g), on
the other hand, as we discussed in Cain I, with its
21
We note that this meaning would also apply in §§
361(3)(c) and 361(3)(d).
28
reference to permanent and total loss of industrial use,
calls the fact-finder to look to wage-earning capacity and
the injured worker’s ability to function in industry. As
is apparent, these words demand something distinct from
§ 361(3)(b)’s simple inquiry regarding whether the legs or
feet are amputated or have no practical usefulness. This
means that what is covered under § 361(3)(b) may not be
covered under § 361(3)(g). Stated more formally,
§§ 361(3)(b) and 361(3)(g) cover different things and
defining loss as we have here does not make either
provision nugatory. An example may make this distinction
clearer. If the legs are rendered useless but can be
braced so as to make the performance of the job possible,
there has been loss under § 361(3)(b) but no loss of
industrial use under § 361(3)(g). This worker, indeed like
Mr. Cain, would under this reading qualify for total and
permanent disability benefits under § 361(3)(b) but not
§ 361(3)(g). Conversely, a worker whose legs have basic
function, i.e., are practically useful, but whose legs have
no industrial use even if braced (such as a ballerina),
would qualify under § 361(3)(g) but not § 361(3)(b).
These examples limn that the “corrected” standard does
not apply to § 361(3)(b), unlike § 361(3)(g). The reason
is, as we explained in Cain I, that § 361(3)(g), with its
utilization of permanent and total loss language, compels a
29
conclusion that if the condition is correctable, it is not
permanent and total. Cain I, supra at 519-520. In fact,
when this language appears elsewhere in § 361(3), such as
in §§ 361(3)(a) and 361(3)(e), the doctrine of
correctability also applies. Because there is no such
permanent and total loss triggering language in
§ 361(3)(b), it follows that the requirement of looking to
correctability is absent.22
In sum, Mr. Cain has clearly suffered the loss of his
amputated right leg and the WCAC found that his left leg
has “no substantial utility.” That is, his leg has no
practical usefulness. Thus, he has suffered a “loss of
both legs” and falls within § 361(3)(b), qualifying for an
award of total and permanent disability benefits under that
provision.23 Accordingly, the WCAC and the Court of Appeals
decisions are affirmed.24
22
Again, §§ 361(3)(c) and 361(3)(d) are similarly
worded.
23
We have read the concurrence and, to preclude
potential confusion, only note that its conclusion is
identical to ours.
24
We also conclude that, although the WCAC made an
error of law in its interpretation of § 361(3)(b), it was
properly within its scope on remand to reach legal
conclusions based on its reassessment of the facts.
Modreski v Gen Motors Corp, 417 Mich 323; 337 NW2d 231
(1983). While the WCAC was precluded from reaching a
(continued…)
30
CONCLUSION
In conclusion, we find that Mr. Cain has suffered the
specific loss of his left leg under MCL 418.361(2) and that
he qualifies for an award of total and permanent disability
benefits under MCL 418.361(3)(b). Therefore, we affirm the
decisions of the Court of Appeals and the WCAC.
Clifford W. Taylor
Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
(…continued)
decision contrary to that of this Court, Cain I did not
address the question whether plaintiff had suffered total
and permanent disability under § 361(3)(b). Although the
WCAC’s determination on remand that he met the requirements
of § 361(3)(b) had the opposite outcome from its initial
determination that he was not qualified under § 361(3)(g),
its finding was based on a different legal theory. We
conclude that it did not err in addressing legal questions
raised by its new factual determination.
31
S T A T E O F M I C H I G A N
SUPREME COURT
SCOTT M. CAIN,
Plaintiff-Appellee,
v No. 125111
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellants,
and
SECOND INJURY FUND,
Defendant-Appellee.
_______________________________
SCOTT M. CAIN,
Plaintiff-Appellee,
v No. 125180
AFTER REMAND
WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO.,
Defendants-Appellees,
and
SECOND INJURY FUND,
Defendant-Appellant.
_______________________________
AFTER REMAND
WEAVER, J. (concurring).
I concur in the result of the majority opinion and its
conclusions that plaintiff suffered a specific loss of his
left leg under MCL 418.361(2)(k) and that he qualifies for
an award of total and permanent disability benefits under
MCL 418.361(3)(b). The word “loss,” as used in both
subsections of the statute, includes not only amputation
but also those situations in which there is a loss of the
usefulness of the limb or member.1 As noted by Chief
Justice Taylor, the Worker’s Compensation Appellate
Commission (WCAC) essentially found that on these facts,
plaintiff lost the usefulness of his left leg and that he
accordingly was entitled to specific loss benefits for the
loss of his left leg under MCL 418.361(2)(k). Ante at 27
28. There is competent evidence to support the WCAC’s
factual finding and we must defer to the WCAC on this
finding. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich
691, 703; 614 NW2d 607 (2000). Further, plaintiff has
suffered a “[l]oss of both legs” under MCL 418.361(3)(b)
because his right leg has been amputated and he has lost
the usefulness of his left leg. Consequently, he is
entitled to total and permanent disability benefits.
1
Dictionary definitions of the word “loss” include:
“failure to preserve or maintain” and “destruction, ruin.”
Random House Webster’s New College Dictionary (1997).
2
Therefore, I agree that the decisions of the WCAC and Court
of Appeals should be affirmed.2
Elizabeth A. Weaver
Marilyn Kelly
2
While I agree with some of the basic conclusions of
the majority, as should be evident from the fact that I am
concurring separately, I do not sign on to all of the
lengthy analysis on which the majority relies to support
its conclusions.
3
Scott M Cain v. Waste Management Inc
Combined Opinion