Komendera v. American Bar & Cabinet Manufacturers

T. M. Kavanagh, C. J.

This case is before us on leave granted, 388 Mich 755 (1972), from a decision of the Court of Appeals, 39 Mich App 370; 197 NW2d 511 (1972) upholding a ruling of the Workmen’s Compensation Appeal Board that because Sorensen v Grand Rapids Metalcraft, 333 Mich 709; 53 NW2d 590 (1952) still prevailed in this state, plaintiff was not entitled to benefits for the loss of use of his hand. The facts giving rise to this appeal are as follows:

Plaintiff was employed during the year 1955 by the U.S. Radiator Company as a maintenance carpenter. While there, during his employment, he sustained an injury to his left hand which amputated his ring finger and half of his thumb. He also suffered some flexion loss to his middle finger at *309this time due to his palm having been cut in the accident.

He recovered from his accident and became a cabinet maker, which occupation he pursued until early March 1966 at which time he was hired by defendant, American Bar and Cabinet Manufacturers in that capacity. On March 29, 1966, plaintiff again suffered an injury during the course of his employment. The accident resulted in amputation of the index finger of plaintiff’s left hand. Upon his return to work, plaintiff found he was no longer able to make effective use of his left hand and thus was no longer able to perform his job as cabinet maker. He has now gained new employment in a non-skilled job as an assembler.

Plaintiff filed a petition with the Workmen’s Compensation Department alleging that he had lost the industrial use of his left hand and requesting the statutory benefits therefor. After a full hearing, the referee made the following findings:

"I find that the plaintiff has suffered the industrial loss of use of his left hand not only in his skilled work as a cabinet maker but in the field of common labor. Compensation is ordered paid in accord with Magreta v Ambassador Steel Company. While plaintiff has in fact suffered the industrial loss of use, I must apply the harsh rule of Sorensen v Grand Rapids Metalcraft, 333 Mich 709 and not charge the defendant for the condition which did not wholly result from this injury. Taken by itself this injury would not have caused the loss of use of this hand.”1

Upon appeal to the Court of Appeals, that Court stated:

*310"We recognize that the Sorensen rule leads to a harsh result in that the worker is forced to bear a substantial part of the ultimate financial loss brought about by the injury.” 39 Mich App 370,375-376.
"Plaintiff points out that Sorensen has never been followed, or even cited, in later decisions by Michigan courts. However, our role as an intermediate appellate court is limited, and we are not free to disregard clear precedent of this state’s highest court.” 39 Mich App 370, 377.

Due to the questioned continued validity of Sorensen supra, this Court granted leave to appeal.

The issue presented to this Court bottoms itself on the fact that when an individual suffers consecutive losses of parts of his body, there comes a point in time when the cumulative effect of these losses presents a far greater disability than any one loss considered of and by itself. Thus, an individual who has lost a leg is indeed unfortunate, but, in the majority of situations is far from being absolutely and totally disabled. In most situations he is able to continue to lead a close to normal life. But when that same individual then loses the remaining leg, a different situation presents itself. Though it is true that as a result of the second injury he has only lost one leg, and should not be totally disabled from that loss alone, 'due to the fact that he only had one leg to lose, he may now be considered, and in fact may be, totally disabled.

This Court has to answer the question of whether, in a situation akin to that above, the employer responsible for the second injury alone, should be liable only for that specific injury, or for the actual total disability now suffered by the claimant. Sorensen, supra, holds the employer liable only for the former.

This type of issue was first before our Court in *311Weaver v Maxwell Motor Co, 186 Mich 588; 152 NW 933; 1916B LRA 1276 (1915). In Weaver, the plaintiff suffered the loss of his right eye prior to the enactment of our workmen’s compensation statute in 1912. Such loss, of course, was not compensable. Subsequently, he suffered a compensable loss of his left eye which left him totally blind. The Court at that time ruled that since the present employer was in no way responsible for the previous injury, this injury could not be combined with the later one to produce total disability. It held the employer liable only for the loss of the left eye.

Following Weaver, supra, the Court decided Winn v Adjustable Table Co, 193 Mich 127; 159 NW 372 (1916). In Winn, the plaintiff had lost three fingers of his right hand previously in a noncompensable accident. Later, during his employment at Adjustable Table Co, he suffered a further loss of his remaining finger. Plaintiff also suffered from a shoulder ailment and a severe arthritic condition, and, since the culmination of all these conditions left him unable to work, he applied for extended partial disability benefits. The Industrial Accident Board treated this fact situation as an industrial loss of use of an arm and awarded benefits accordingly. Our Court, relying solely on Weaver v Maxwell Motor Co, supra, reversed and awarded benefits solely for the loss of a finger. The Court reasoned that since the claimant was totally disabled, partial disability benefits were inappropriate.

This Court next decided Collins v Albert A. Albrecht Co, 212 Mich 147; 180 NW 480 (1920). In that case, Mr. Collins had, prior to his employment with the Albrecht Company, suffered the non-compensable loss of his left eye. During his *312employment he suffered the loss of use of his remaining right eye due to an industrial accident. He applied for permanent and total disability benefits being now unable to continue his occupation as a carpenter. This Court denied the permanent and total benefits to Mr. Collins based solely on its prior holding in Weaver, supra. He received benefits only for the loss of his right eye.

With this judicial precedent present in our system of jurisprudence, the now troublesome case of Sorensen v Grand Rapids Metalcraft, 333 Mich 709; 53 NW2d 590 (1952) came before the Court. In Sorensen plaintiff had suffered previously the noncompensable loss of the thumb, index and middle fingers of his left hand. This loss was occasioned when, as a child, he had picked up a dynamite cap which exploded in his hand. Reaching maturity, plaintiff developed a dexterity with his left hand in that he could use it as well as his right hand. He held many two-handed jobs and was in no way handicapped in his employment from the loss he suffered as a child.

While employed at defendant’s place of business as a punch press operator, he suffered an industrial injury which cost him the remaining two fingers on his left hand. The Commission found he had lost the industrial use of his left hand and awarded compensation accordingly. This Court reversed, finding that plaintiff was entitled only to benefits payable for the loss of his remaining two fingers. The Court stated its findings2 were controlled by the decisions previously entered in *313Weaver, Winn, and Collins, which cases we have discussed above.

As noted by plaintiffs attorneys, this Court has not spoken on or cited the Sorensen opinion since its initial release. We have, however, many times spoken on the issues raised in the cases upon which Sorensen is founded, and on the general equities presented in the Sorensen situation.

In Verberg v Simplicity Pattern Co, 357 Mich 636; 99 NW2d 508 (1959), Justice Dethmers, also the author of Sorensen, recognized the harshness of the Sorensen rule in stating (p 643):

" 'The purpose of the statute3 was to encourage the employment of persons who have previously suffered certain defined personal injuries by relieving the employer or the insurer from the burden of paying the entire compensation for further disability of the employee due to the combined effect of his previous injury and one later received in the course of his employment.’
"Clearly, the purpose of the above statutory provision was to enhance the prospects for employment of certain handicapped persons who had previously sustained specific losses, so that they and their families would have a means of livelihood.”

Verberg stands for the proposition that the initial specific loss suffered by an employee of a part of his body need not have been employment related nor compensable in nature. Whitt v Ford Motor Co, 383 Mich 726; 178 NW2d 917 (1970); Hilton v Oldsmobile Division, 390 Mich 43; 210 NW2d 316 (1973). Thus by his ruling in Verberg Justice Dethmers sub silentio overruled the Court’s previous decisions in Maxwell, Winn, and Collins. This author made that point abundantly *314clear in Whitt v Ford Motor Company, supra, when he wrote for the Court:

"The creation of the Second Injury Fund under §8a is a legislative limitation on the decision of Weaver v Maxwell Motor Co supra, insofar as it allows an employee to recover compensation for total and permanent disability from the Second Injury Fund where the employer has suffered the loss of one member from injuries related or unrelated to employment covered by the workmen’s compensation law and subsequently suffers the loss of another member from causes arising out of and in the course of employment covered by the workmen’s compensation law. To this extent it removes the effect of Weaver. ” 383 Mich 726, 731. (Emphasis supplied.)

When this author spoke for the Court in Whitt, the intention of the Court was to remove from the jurisprudence of this state the harsh, inequitable rule and effect which Weaver v Maxwell Motor Co. supra, had exerted on our workmen’s compensation law.4 The Court felt that it had clearly stated that Weaver would no longer be followed in this state and was overruled. Accordingly, any cases subsequent to Weaver, which owe their existence to and base their foundations solely on the strength of and the rationale of the Weaver decision are of highly questionable continued validity; this Court is not now bound by their precedent. Winn, Collins, and Sorensen are such cases. All draw their strength and continued validity from the Weaver rule that prior noncompensable injuries may not be considered in determining the extent of the disability a plaintiff suffers when he incurs a second compensable injury. To the extent *315that they are inconsistent with this opinion they are hereby overruled.

Turning now to the instant case, this Court must now determine to what benefits plaintiff is entitled, and upon whom the burden of paying those benefits should fall.

The argument is made that plaintiff has only lost his index finger as a result of the second accident. He could not have lost an entire hand, the argument goes, as he did not have an entire hand to lose. He had already lost one finger and part of a thumb from that hand. For those losses he was compensated according to the act and should not again be compensated. At first glance, this argument appears to have merit. However, upon closer scrutiny, it fails in that it does not recognize the legislative intent behind the awarding of specific benefits for losses of this nature.

When a man loses a finger, a toe, a hand, or another part of his body this loss cannot be cured by treatment, can never be retrieved, and is a loss akin to no other. When the injured employee first suffers the loss there is, to be sure, the physical pain and suffering accompanying accidents of that nature. Even when the wound, has healed to the best extent it ever will, there still remains the disfigurement. Ever present is the continuing psychological and mental anguish over the loss, and the continuing frustration over never again having use of that portion of the body.

Next comes the days, months, perhaps years of struggle and adjustment wherein the injured employee must learn to accustom himself to his new situation and to rehabilitate himself. He must learn new ways of doing old, habitual acts which were of a second nature to him. Still, there remains the anguish and the frustration when he *316momentarily lapses into his old ways, always to his embarrassment. Further, we need not say. The specific loss provisions of the act were designed to compensate for the above injuries. As we stated in Verberg, supra,

"The Michigan act and those of most States, from the very beginning, provided compensation payments for fixed numbers of weeks for certain specific losses even though the injuries were not disabling as a matter of fact for such length of time, while granting compensation for other injuries only during the period of the resultant disablement. Nowhere yet has this been held to be an unreasonable classification. The very nature of such specific losses, never to be returned, appeals to reason, common sense and humane considerations as placing them in a class by themselves.” 357 Mich 636, 642.

The plaintiff in this case has lost the use of his left hand. The findings of the referee and of the Workmen’s Compensation Appeal Board were to this effect and are amply supported by the record. Plaintiff entered into and became proficient at his chosen employment after he had suffered previous injuries to his hand. His damaged hand was of sufficient industrial use for him to change his occupation from maintenance carpenter to cabinetmaker. Now, however, he can no longer work at that skilled occupation. The referee also found that his left hand is now industrially useless for common labor also. With these findings we are bound, Const 1963, art 6, § 28. Industrial loss of use of the hand has occurred. This is the loss actually suffered by the plaintiff. Before the accident he had full industrial use of his left hand and maintained his employment. After the accident, he no longer has this use and was forced to change *317employment. He has lost a hand. It is for a hand he should be compensated. But, by whom?

As Chief Judge Lesinski noted, writing for the Court of Appeals below, the Second Injury Fund provisions, MCLA 418.521; MSA 17.237 (521) do not provide coverage for an injury as is present in the instant case. As the Court of Appeals noted, there are conflicting public policies expressed in the present situation. If this Court holds the last employer responsible for the entire loss, the "full-responsibility” rule, some employers might see a strong financial incentive to discharge all handicapped workers who might bring upon them this aggravated liability. See, 2 Larson’s Workmen’s Compensation Law (6th ed), § 59.31, pp 88.118-88.119.

Conversely, if benefits were denied the injured employee, it is he who must suffer financial loss, loss of his job, and permanent disablement all without even the meager benefits it was the intention of our Legislature to provide him in compensation. Had the Workmen’s Compensation Act never been passed, the employee would at least have been left with his civil law remedies. Instead this remedial act was passed, totally abrogating those remedies the employee had against his employer, in whose employment he was injured. Thus the benefits flowing to the employer from this act were both complete and effective.

"The act was originally adopted to give employers protection against common-law actions and to place upon industry, where it properly belongs, not only the expense of the hospital and medical bills of the injured employee, but place upon it the burden of making a reasonable contribution to the sustenance of that employee and his dependents during the period of time he is incapacitated from work. This was the express intent of the legislature in adopting this law.
*318"During the years, with the development of industry and the employment of larger and larger numbers of employees in ,the business world, the legislature has progressively, even if slowly, kept the act up to date by meeting the changing conditions and requiring industry to assume its share of the new responsibilities. The employers who were happy to be relieved of the old liabilities have sought by legalistic approach of narrow and limited construction of the act to defeat its humanitarian purposes.” Lahti v Fosterling, 357 Mich 578, 585-587; 99 NW2d 490 (1959).

Because the act is now deficient and ineffective in further protecting the rights of the employer from a conceded inequity, this Court is asked to further restrict the benefits flowing to the employee under the act. This we refuse to do. As Chief Judge Lesinski noted:

" '[A]n * * * inadequacy of the present Michigan Second Injury Fund statute is that it severely limits the kinds of preexisting handicaps that are covered. * * * Thus, persons who have lost a minor member * * * are excluded. * * * It is therefore submitted that if the Michigan statute is to encourage the employment of handicapped persons, it must be expanded to cover all persons having handicaps, both patent and latent, which are serious enough to constitute an obstacle to employment. Note: Encouraging Employment of the Handicapped in Michigan: A Proposal for Revision of the Michigan Second Injury Fund. ’ 67 Mich L Rev 393, 398-399 (1968).” 39 Mich App 370, 378.

We, like the Court of Appeals, recognize the inequities of the situation. The task, however, of expanding the coverage of the Second Injury Fund is a legislative function, not a judicial one.

We hold the petitioner is entitled to an award for industrial loss of the use of his hand. This payment to be made by the last employer.

*319The case is remanded to the Workmen’s Compensation Appeal Board, with instructions to enter an award pursuant to this opinion. No costs, a public question being involved.

T. G. Kavanagh, Williams, and Levin, JJ., concurred with T. M. Kavanagh, C. J.

The referee awarded plaintiff benefits for the loss of his index finger and also for the loss of use of his middle finger. The Appeal Board, also relying on Sorensen, supra, modified this ruling and allowed benefits to be awarded only for the actual loss of the index finger.

The parties argued on appeal that Mr. Sorensen had not actually lost the industrial use of his hand due to the fact he remained employed and continued at his previous employment. He still performed the duties of a punch press operator. This issue was not decided by the Court due to its holding the case was controlled by Weaver.

The Court was speaking of the creation of the Second Injury Fund and its accompanying statutory amendments.

This was recently reaffirmed by this Court in Hilton v Oldsmobile Division, 390 Mich 43; 210 NW2d 316 (1973).