(dissenting). The defendant Lakey -Foundry Corporation has phrased the question well. It is as follows:
“We know of no greater disability than total dis- . ability and we do not believe there can be any greater *680form of disability than total disability. The way we ■understand plaintiff’s contentions is that he had concurring total disabilities. The statute (CL 1948, § 412.9 [Stat Ann 1947 Cum Supp § 17.159]) speaks of total incapacity for work resulting from the injury and there is an admitted holding by the appeal board that plaintiff was totally disabled from the May, 1949, injury. This total disability continued. * * *
“Plaintiff has been found to be totally disabled from the May, 1949, injury. Plaintiff cannot be totally disabled more than once. The statute fixes máx-imums for total disability and plaintiff has received the maximum for total disability.”
Here we consider once again the “windfall” doctrine.1 Shortly put it is simply this: that if industrial disablement is suffered by one who has been theretofore disabled, and is drawing compensation therefor, no compensation need be paid for both disablements, but only for one. If anyone else had suffered the same disability, compensation would have been paid. But because the victim here is hurt twice the employer need pay but once. Hence it is said the employer gets a “windfall” at the expense of the injured workman. Only statutory command the most compelling, the most unequivocal, could justify a result so at variance with the act’s beneficent purposes. But the command is not there. If it is to be inserted into the act, it is we who must read it in. It will be judge-made law. I reject it.
There are not many cases on the point. The older cases, it seems fair to say, denied compensation. An early Michigan case, O’Brien v. Albert A. Albrecht Co., 206 Mich 101 (6 ALR 1257), was among the number. It was a part of the many harsh interpretations of the act going to make up Michigan’s “bad *681eminence”2 in the field of compensation law. We need not analyze once more these ancient errors.
The problem arises in many ways. There may be an award for amputations to be paid concurrently with the payment of award for prior-incurred disability (the Jones Case3). There may be an award for a prior disability to be paid concurrently with an award arising from an occupational disease (this case). There may be 2 successive accidents involved, or 2 successive occupational diseases, or other combinations of disease or injury. The principle involved in all is the same, namely, the application of the windfall doctrine. The Jones Case presents merely one phase of the application of a basic principle, and possibly the simplest, since in it (having a schedule award) we do not grapple with what the appeal board here describes as a second wage loss which “completely enveloped the first.” But it is a complete non sequitur to argue that since the Jones Case involved a concurrent schedule award plus a disability award, therefore, concurrent disability and occupational disease awards before us are illegal.
Upon what theory may compensation be denied one who has suffered an industrial disability because of his employment ? Let no one imagine that there is a specific statutory bar to the payment of compensation for the second injury. The statute itself does not in terms cover the problem. The defendant resists payment in reliance upon the following statute :4
“While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be *682paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his ■average weekly wages, but not more than” [here follow dollar amounts scaled according to number of dependents].
Does the above, as defendant argues, mean that “the maximum payable for any and all injuries” shall be only so much? If so, only the first accident need be paid for. The next is free. Or does it, as plaintiff argues, mean that “the maximum payable for any one injury” shall be as specified? If this is its meaning, then no covered disability shall be without compensation, whether it runs concurrently with another or not.
This, it will be noted, is a case that cannot be answered by the argument that the legislature has spoken and that it is our duty to wait for the legislature to,-make changes. Here the legislature has not spoken. There is a gap in the statute. We must fill it in. It begs the question to say that the legislature has spoken either way.
The answer as to our choice of interpretations will be found, not in any single phrase of the act but in the intent of the legislature, clearly discernible from our past determinations thereof. It was almost a quarter-century ago when we wrote,5 unanimously, that:
“Its [the workmen’s compensation act] enactment marked the crystallization into a legislative enactment of the economic fact that the ultimate consumer pays for the compensation of injured employees in the increased cost of the product. It aims at compensation, not damages. It is wholly substitutional in character and displaces the common-law liability for negligence. It should be administered substantially as insurance of a social character. Claimant had no action in law or in equity against his employ*683er. Proceedings under the workmen’s compensation act are purely statutory, — administrative, riot judicial, — inquisitorial, not contentious, — disposed of, not by litigation and ultimate judgment, but summarily. Most of the difficulties now encountered in the administration of the workmen’s compensation act arise from injudicious attempts, sometimes acquiesced in, to engraft upon the workmen’s compensation act common-law theories at variance with its spirit and intent.”
The intent of the act, as above described, is that the cost of the product must bear the expense not only of the inanimate machinery worn out in its production but that of human expenditure as well. Expenses of repair and replacement of machinery were always passed on to the consumer. But prior to the passage of the workmen’s compensation acts the injured workman was left to bear his own loss alone, save as he was able to establish that the negligence of his employer caused the injury, and here he was met by the baleful trio' of assumption of risk, contributory negligence, and the fellow-servant rule.-
I cannot, consonant with the intent of the act, assume that such a disability as we here consider, arising out of and in the course of employment, and otherwise compensable, is to be free of liability because compensation is also being paid for another disability. It is an odd perversion of logic and experience (and, we repeat, unwarranted in the language or the intent of the compensation act) to argue that the onset of silicosis in some way cured the leg condition, or relieved the employer from liability for the leg injuries. The cost of a product may be reckoned in terms of one injury or several. There is no warrant for restricting the cost to a portion, only, of the injuries suffered. To do so may cheapen the cost to the ultimate consumer, but it is a cheapem ing dearly bought in terms of human values and *684■wholly inconsistent with the intent of the act. If, indeed, there is no compensation payable for this injury, has the employee lost also his common-law remedy for the injury? If he has, a constitutional problem of real magnitude may be faced. If he has not, then we have, at long last, come full circle and once more the common-law courts will face injured workmen and the pernicious trinity which gave rise to the compensation acts in the first place: assumption of risk, contributory negligence, and the fellow-servant doctrine.
We observed heretofore that certain of the earlier rulings on this issue were largely restrictive. Such, however, was not the result of all, here or abroad, nor-is it the result of the more modern cases. In addition to the cases cited in Jones v. Cutler Oil, supra, holding that the maximum in the statutes pertained only to one injury, see, also, Asplund Construction Co. v. State Industrial Commission (1939), 185 Okla 171 (90 P2d 642); and Bethlehem Steel Co. v. Dempsey (1956), 94 Ga App 408 (94 SE2d 749). In all of these cases, of course, there are minor statutory differences between their acts and our own. In none, however, is the difference one of substance as regards our problem. In the latter case, for example, we find no real difference in the statute. The applicable Georgia statute will be placed side by side with our own so that the necessary comparisons may be made:
Georgia
“When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid, as hereinafter provided for, to the employee during such total incapacity a weekly compensation equal to *** but not more than ***.” Code of Ga Ann § 114-404.
Michigan
“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 *** but not more than ***.” CL 1948, § 412.9 (Stat Ann 1947 Cum Supp § 17.159).
*685The court held as follows with respect to the proper interpretation of the quoted section (p 409):
“Code, § 114-404 deals with the amount of compensation allowable for an injury and the maximum compensation allowable in each case; it does not set forth the amount of compensation allowable to an employee from all injuries and in all cases involving that employee. Therefore, in view of what has been said above, and in view of the fact that the act is to be liberally construed in order to effect its general purpose, Van Treeck v. Travelers Ins. Co., 157 Ga 204 (121 SE 215); Austin Brothers Bridge Co. v. Whitmire, 31 Ga App 560 (121 SE 345), this court must hold that the limit referred to in Code, § 114-404 is the limit for which compensation may be paid as the result of one injury and not the limit that an employee can draw regardless of the number of injuries he may be unfortunate enough to suffer.”
The gist of the matter is this: A man, even one legally defined as “totally disabled,” may acquire, develop, and sell on the market whatever rudimentary skills remain in him. In modern times we encourage his so doing, seeking to avoid, so far as possible, the aid of public or private charity. In short, rehabilitation is fostered. Should a man so courageous be again disabled, I find nothing in the act saying that he shall not receive concurrent compensation.6 To me the answer is that he has concurrent injuries. They were incurred in the manufacture of the product. That the product should bear such losses is the basic principle of compensation law.
The order should be reversed and remanded for further proceedings not inconsistent herewith. Costs to appellant.
*686Kavanagh, and Souris, JJ., concurred with Smith, J.See 20 La L Rev 109 (1959).
Dean Emeritus Roscoe Pound, quoted in dissent, Mack v. Reo Motors, Inc., 345 Mich 268, 281.
Jones v. Cutler Oil Co., 356 Mich 487.
CL 1948, § 412.9 (Stat Ann 1947 Cum Supp § 17.159).
Hebert v. Ford Motor Co., 285 Mich 607, 610.
We note that the total of payments for both injuries ($21 for the leg injury, plus $34 for the silicosis) would be less than the wage he received either at the time of the first injury ($60.80 in 1949) or the subsequent disablement ($76.40 in 1953).