Weakland v. Toledo Engineering Co., Inc.

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chie f Justice Justices
Maura D. Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED FEBRUARY 4, 2003

HARRY E. WEAKLAND,

Plaintiff-Appellant/Cross-Appellee,

v No. 119495

TOLEDO ENGINEERING COMPANY,

INC., USF&G/ST. PAUL INSURANCE

COMPANY, and SECOND INJURY FUND,

Defendants-Appellees/Cross-Appellants.

___________________________________________

PER CURIAM

I

In this worker’s compensation matter, we are called on to

construe the statutory provision that places the obligation on

the employer to supply the injured employee with appliances

that are necessary to alleviate the effects of the work­

related injury. MCL 418.315(1). We affirm the Worker’s

Compensation Appellate Commission (WCAC) decision that only

the modifications to a van constitute appliances within the

meaning of subsection 315(1) of the Worker’s Disability

Compensation Act (WDCA), MCL 418.315(1). Furthermore, we

overrule Wilmers v Gateway Transportation Co (On Remand), 227

Mich App 339; 575 NW2d 796 (1998).

II

Plaintiff was employed as a bricklayer by defendant

Toledo Engineering. In January, 1981, while at work, he was

injured and disabled, and later began to receive worker’s

compensation. Subsequently, his physical health deteriorated,

and by 1990 he was having difficulty walking any substantial

distance without assistance. As his condition worsened,

plaintiff acquired assistive devices, including a motorized

cart, as well as a van that was customized to transport the

cart.

Plaintiff sought reimbursement for the cost and

customization of the van and other related expenses pursuant

to MCL 418.315(1), arguing that these were “appliances”

necessary to cure or relieve the effects of his compensable

injury. The magistrate, after taking proofs on this issue,

ordered reimbursement for the motorized cart and the

reasonable cost of the van and its conversion. On appeal, the

WCAC affirmed the magistrate’s order regarding reimbursement

for the cost of the van conversion, but reversed regarding the

cost of the van and the cart.

The Court of Appeals denied plaintiff’s application for

leave to appeal. Plaintiff then filed an application for

leave to appeal in this Court, and defendants sought leave to

appeal regarding the award of reimbursement for the van

2

conversion. This matter turns on the proper construction of

MCL 418.315(1).

III

We review questions of statutory construction de novo.

DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300

(2000). The fundamental rule of statutory construction is to

give effect to the Legislature’s intent. Farrington v Total

Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). That

intent is clear if the statutory language is unambiguous, and

the statute must then be enforced as written. Lorencz v Ford

Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).

IV

Subsection 315(1) of the WDCA governs liability of an

employer for the cost of enumerated assistive devices:

The employer shall furnish, or cause to be

furnished, to an employee who receives a personal

injury arising out of and in the course of

employment, reasonable medical, surgical, and

hospital services and medicines, or other

attendance or treatment recognized by the laws of

this state as legal, when they are needed. However,

an employer is not required to reimburse or cause

to be reimbursed charges for an optometric service

unless that service was included in the definition

of practice of optometry under section 17401 of the

public health code, 1978 PA 368, MCL 333.17401, as

of May 20, 1992. An employer is not required to

reimburse or cause to be reimbursed charges for

services performed by a profession that was not

licensed or registered by the laws of this state on

or before January 1, 1998, but that becomes

licensed, registered, or otherwise recognized by

the laws of this state after January 1, 1998.

Attendant or nursing care shall not be ordered in

excess of 56 hours per week if the care is to be

provided by the employee's spouse, brother, sister,

child, parent, or any combination of these persons.

3

 After 10 days from the inception of medical care as

provided in this section, the employee may treat

with a physician of his or her own choice by giving

to the employer the name of the physician and his

or her intention to treat with the physician. The

employer or the employer's carrier may file a

petition objecting to the named physician selected

by the employee and setting forth reasons for the

objection. If the employer or carrier can show

cause why the employee should not continue

treatment with the named physician of the

employee's choice, after notice to all parties and

a prompt hearing by a worker's compensation

magistrate, the worker's compensation magistrate

may order that the employee discontinue treatment

with the named physician or pay for the treatment

received from the physician from the date the order

is mailed. The employer shall also supply to the

injured employee dental service, crutches,

artificial limbs, eyes, teeth, eyeglasses, hearing

apparatus, and other appliances necessary to cure,

so far as reasonably possible, and relieve from the

effects of the injury. If the employer fails,

neglects, or refuses so to do, the employee shall

be reimbursed for the reasonable expense paid by

the employee, or payment may be made in behalf of

the employee to persons to whom the unpaid expenses

may be owing, by order of the worker's compensation

magistrate. The worker's compensation magistrate

may prorate attorney fees at the contingent fee

rate paid by the employee. [Emphasis added.]

In Wilmers, the Court of Appeals addressed the scope of

the services and devices that an employer can be called on to

provide to an injured employee pursuant to MCL 418.315. It

concluded that an entire custom equipped van, and not just the

required vehicular modifications, could be considered a

reasonably necessary “appliance” for the purpose of subsection

315(1). Wilmers, supra at 345-346. In doing so, the Court

reversed the decision of the WCAC, which had found that

4

characterizing an entire vehicle as an appliance would be

stretching the statute beyond the clear terms used by the

Legislature.

Judge Young dissented from the decision of the Court of

Appeals in Wilmers. Concluding that a van did not constitute

an “appliance” within the meaning of subsection 315(1), he

discussed the substantial difference between a van and the

examples of appliances provided by subsection 315(1):

I conclude that the Legislature’s selection of

the phrase “other appliances,” when preceded by

specific examples of artificial adaptive aids (such

as crutches, hearing aids, dentures, glasses,

etc.), creates an unambiguous legislative intent to

mandate that an employer is obligated only to

supply devices of like kind. . . . Consequently, I

find it hard to reconcile with my construction of

the statute the majority’s view that a van is

considered to be “like” such adaptive aids as a

crutch, a hearing aid, false teeth, or a pair of

eyeglasses. [Id. at 352.]

We agree with that dissenting opinion’s conclusion

regarding the proper understanding of “other appliances.”

Judge Young was applying the canon of statutory construction

described formally as ejusdem generis. This Court has

utilized this canon frequently in defining the scope of a

broad term following a series of specific items. In

discussing this canon in Huggett v Dep’t of Natural Resources,

464 Mich 711, 718-719; 629 NW2d 915 (2001), we described how

meaning is given to the general term in that situation as

follows: “[T]he general term is restricted to include only

5

things of the same kind, class, character, or nature as those

specifically enumerated”; that is, because the listed items

have a commonality, the general term is taken as sharing it.1

As Judge Young pointed out, the statutorily listed items,

“dental service, crutches, artificial limbs, eyes, teeth,

eyeglasses, hearing apparatus” share a commonality in that

they are artificial adaptive aids that serve to directly

ameliorate the effects of the medical condition. A van is

dissimilar to the listed items in MCL 418.315(1) because it is

not an artificial adaptive aid. Rather, a van is simply a

means of transportation. The “adaptive aid” ameliorating the

effects of the medical condition and permitting the

utilization of the van is the vehicular modification.

Accordingly, the phrase “other appliances” as used in

subsection 315(1) should not be understood to encompass the

van itself; it encompasses only the necessary modifications

made to the van so that it can be operated by someone who is

disabled. Therefore, defendants are not obligated to provide

plaintiff with a van under the statutory provision at issue.

1
In A Matter of Interpretation (Princeton, New Jersey:

Princeton University Press, 1997), p 26, United States Supreme

Court Justice Antonin Scalia explains that the ejusdem generis

canon of statutory construction

stands for the proposition that when a text lists a

series of items, a general term included in the

list should be understood to be limited to items of

the same sort. For instance, if someone speaks of

using “tacks, staples, screws, nails, rivets, and

other things,” the general term “other things”

surely refers to other fasteners.

6

 V

We affirm the WCAC determination that the employer was

not obligated to provide a van to plaintiff, and we overrule

Wilmers for the reasons stated above.

In all other respects, we also affirm the decision of the

WCAC. The WCAC had concluded that the particular motorized

cart purchased by plaintiff was not medically necessary. This

was a factual determination that was properly supported in the

record and, thus, is conclusive. Mudel v Great Atlantic &

Pacific Tea Co, 462 Mich 691, 703-704; 614 NW2d 607 (2000).

Defendants’ application for leave to appeal as cross­

appellants to contest the WCAC decision to reimburse plaintiff

for the cost of the van conversion is denied as abandoned

inasmuch as an appeal was not sought on this issue before the

Court of Appeals. MCR 7.207.

Maura D. Corrigan

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

CAVANAGH, J.

I concur in the result only.

Michael F. Cavanagh

7

 S T A T E O F M I C H I G A N

SUPREME COURT

HARRY E. WEAKLAND,

Plaintiff-Appellant/Cross-Appellee,

v No. 119495

TOLEDO ENGINEERING COMPANY,

INC., USF&G/ST. PAUL INSURANCE

COMPANY, and SECOND INJURY FUND,

Defendants-Appellees/Cross-Appellants.

___________________________________________

WEAVER, J. (concurring).

Though not joining in the opinion, I concur in the result

because the Worker’s Compensation Appellate Commission

correctly found that the van at issue was not an “appliance”

pursuant to MCL 418.315(1).

Elizabeth A. Weaver

 S T A T E O F M I C H I G A N

SUPREME COURT

HARRY E. WEAKLAND,

Plaintiff-Appellant
Cross-Appellee,

v No. 119495

TOLEDO ENGINEERING COMPANY INC.,
USF&G/ST. PAUL INSURANCE COMPANY,
and SECOND INJURY FUND,

Defendants-Appellees
Cross-Appellants.
___________________________________

KELLY, J. (dissenting).

The majority today overrules Wilmers v Gateway

Transportation Co (On Remand)2 and holds that a van is not an

appliance within the meaning of subsection 315(1) of the

Worker's Disability Compensation Act (WDCA), MCL 418.315(1).

Ante at 1. The decision furthers a trend of ignoring this

Court's prior interpretation of the WDCA and adopts a strict

and harsh approach that we have previously disavowed. Because

I disagree and would reaffirm Wilmers, I respectfully dissent.

2

227 Mich App 339; 575 NW2d 796 (1998).

 THE MAJORITY OVERRULES WILMERS WITHOUT ADDRESSING

THE CASE LAW RELIED ON IN THE DECISION

In the past, this Court interpreted the WDCA and its

predecessors broadly. For example, in Wells v Firestone Tire

& Rubber Co,3 Justice Cavanagh wrote for the majority:

The statutory workers' compensation scheme was

enacted for the protection of both employees and

employers who work and do business in this state.

The system assures covered employees that they will

be compensated in the event of employment-related

injuries. In addition, employers are assured of the

parameters of their liability for such injuries. By

agreeing to assume responsibility for all

employment-related injuries, employers protect

themselves from the possibility of potentially

excessive damage awards. In order to effectuate

these policies, the statute has been liberally

construed to provide broad coverage for injured

workers.

Wells reflected the Court's view that "[t]he social and

remedial purposes of the [WDCA] were structured to quickly and

assuredly compensate employees for injuries suffered."

Farrell v Dearborn Mfg Co, 416 Mich 267, 280; 330 NW2d 397

(1982). Until recently, Michigan courts adhered to this view.4

3

421 Mich 641, 651; 364 NW2d 760 (1984).

4
See, e.g., Hagerman v Gencorp Automotive, 457 Mich 720,

739; 579 NW2d 347 (1998); Derr v Murphy Motor Freight Lines,

452 Mich 375, 388; 550 NW2d 759 (1996); Sobotka v Chrysler

Corp (After Remand), 447 Mich 1, 20, n 18; 523 NW2d 454

(1994); Paschke v Retool Indus, 445 Mich 502, 511; 519 NW2d

441 (1994); Bower v Whitehall Leather Co, 412 Mich 172, 191;

312 NW2d 640 (1981); Century Indemnity Co v Schmick, 351 Mich

622, 626; 88 NW2d 622 (1958); McCaul v Modern Tile & Carpet,

Inc, 248 Mich App 610, 619; 640 NW2d 589 (2001); James v

Commercial Carriers, Inc, 230 Mich App 533, 538-539; 583 NW2d

(continued...)

2

 In Wilmers, the Court of Appeals interpreted the statute

consistently with precedent. Specifically, the Wilmers Court

reasoned:

The Worker's Disability Compensation Act is

remedial legislation that should be interpreted

liberally in a humanitarian manner in favor of the

injured employee. Wells v Firestone Tire & Rubber

Co, [supra at 651]; Matney v Southfield Bowl, 218

Mich App 475, 486; 554 NW2d 356 (1996). Literal

constructions that produce unreasonable or unjust

results that are inconsistent with the purpose of

the act should be avoided. Rowell v Security Steel

Processing Co, 445 Mich 347, 354; 518 NW2d 409

(1994). . . . [T]he clear purpose of § 315(1) is to

provide the injured employee with such services and

products as are reasonably necessary to cure or

relieve the effects of injury. Here, plaintiff's

evidence (which was never rejected by the magistrate

or the WCAC) indicated that one of the effects of

his injury is a loss of mobility, including an

inability to use an ordinary car, or even a

specially equipped one, for transportation. We

conclude that under these circumstances the entire

specially equipped van that plaintiff requires for

transportation, and not just its special

modifications, may be considered a reasonably

necessary "appliance" for purposes of § 315(1).

[Wilmers, supra at 345-346 (emphasis added).]

Today, the Court rejects Wilmers and the cases on which

it relied. It does so without addressing Wilmers'

interpretation of the WDCA, focusing instead on Judge Young's

4
(...continued)

913 (1998); Tulppo v Ontonagon Co, 207 Mich App 277, 283; 523

NW2d 883 (1994); Isom v Limitorque Corp, 193 Mich App 518,

522-523; 484 NW2d 716 (1992); Andriacchi v Cleveland Cliffs

Iron Co, 174 Mich App 600, 606; 436 NW2d 707 (1989); Gross v

Great Atlantic & Pacific Tea Co, 87 Mich App 448, 450; 274

NW2d 817 (1978); Welch v Westran Corp, 45 Mich App 1, 5; 205

NW2d 828 (1973), aff'd 395 Mich 169 (1975).

3

dissent.

This omission is not surprising. Earlier, the majority

was confronted with the fact that the WDCA has long been

broadly interpreted, and the majority chose to ignore that

fact. For instance, in Crowe v Detroit,5 the dissent noted

that the majority "ignores our duty to recognize that the WDCA

is a remedial statute that should be liberally construed in

favor of the employee, and must be construed to grant rather

than deny benefits." Id. at 22 (Cavanagh, Weaver, and Kelly,

JJ., dissenting).

The majority reacted dismissively, stating:

We do not think that the statute at issue is

ambiguous.

In any event, if the statutory language were

ambiguous, our first duty is to attempt to discern

the legislative intent underlying the ambiguous

words. Only if that inquiry is fruitless, or

produces no clear demonstration of intent, does a

court resort to the remedial preferential rule

relied on in the dissent. [Id. at 13.]

The response indicates the majority's preferred method of

legislative interpretation. However, it avoids the fact that

Michigan courts have consistently applied a different

interpretation than the majority does to the WDCA. Thus,

without overruling or distinguishing it, the majority ignores

past case law because the majority disagrees with it.

Likewise, the majority disregarded the accepted

5

465 Mich 1; 631 NW2d 293 (2001).

4

interpretation of the WDCA in DiBenedetto v West Shore Hosp,

461 Mich 394; 605 NW2d 300 (2000). There, the majority noted

the accepted interpretation, but ignored it, holding that the

"plain language of the statute" precluded a broad

interpretation, "no matter how liberally that language is

construed." Id. at 406. Moreover, the majority did not

acknowledge that "any inquiry into the applicability of the

[WDCA]" involved principles of liberal construction, but

instead restricted those principles to where the statutory

language was ambiguous. Hagerman v Gencorp Automotive, 457

Mich 720, 739; 579 NW2d 347 (1998).

The Court of Appeals in Wilmers applied our longstanding

broad interpretation of the WDCA. The majority would overrule

the result the Wilmers Court reached without confronting or

even acknowledging the precedent that Wilmers relied on.

Of course, a dearth of analysis begs a dearth of

argument. It is difficult to analyze the majority's reasoning

in changing the law when it provides no reasoning to question.

The opinion states why the majority's view is correct, but

fails to state why the old view is wrong.

THE WILMERS COURT REASONABLY CONCLUDED THAT A VAN

COULD BE AN "APPLIANCE" UNDER SUBSECTION 315(1)

The Wilmers Court held that a specially modified van

could be an "appliance" under subsection 315(1). The section

5

at issue provides:

The employer shall also supply to the injured

employee dental service, crutches, artificial limbs,

eyes, teeth, eyeglasses, hearing apparatus, and

other appliances necessary to cure, so far as

reasonably possible, and relieve from the effects of

the injury. . . . [MCL 418.315(1) (emphasis

added).]

Specifically, Wilmers held that loss of mobility was a

consequence of the appellant's injury and that a van was

necessary to give the appellant a sense of normalcy. Wilmers,

supra at 345-346.

The dissent in Wilmers and the majority here assert that

"appliance" cannot mean a van because a van is not similar to

or related to the other items listed in MCL 418.315(1). Ante

at 6. They would restrict "appliance" to mean "artificial

adaptive aids that serve to directly ameliorate the effects of

a medical condition." Ante at 6.

As in Wilmers, the plaintiff here cannot walk without

difficulty.6 This lack of mobility is the result of a work­

related medical condition in both cases. What could

ameliorate a lack of mobility? I submit that a van reasonably

falls within the majority's definition of an appliance in

6
The Worker's Compensation Appellate Commission rejected

plaintiff's claim for reimbursement for the van on the basis

of factual distinctions between this case and Wilmers, even

though it applied Wilmers. However, the majority opinion

today would foreclose the possibility of a van being

considered as an appliance under the WDCA in any factual

situation.

6

certain cases.

The majority argues that a van is unlike crutches,

prostheses, or hearing aids. However, in some cases a van

serves the same purpose as crutches or prostheses because it

allows an individual freedom of movement. Moreover,

subsection 315(1) also includes the term "dental service" as

well as artificial teeth. Dental service is a broad term that

is unlike any of the others and it may include anything from

cosmetic surgery to jaw repair.

The Wilmers Court was not alone in holding that the term

"appliance" may include a van in a worker's compensation

context. It noted:

Our conclusion is supported by the decisions of

courts in several other states that have held that

specially equipped vans for paraplegics may

constitute, in their entirety, a compensable

"appliance" or "apparatus" under worker's

compensation statutes similar to § 315(1). Terry

Grantham Co v Industrial Comm, 154 Ariz 180; 741 P2d

313 (Ariz App, 1987); Aino's Custom Slip Covers v

DeLucia, 533 So 2d 862 (Fla App, 1988); Edgewood

Boys' Ranch Foundation v Robinson, 451 So 2d 532

(Fla App, 1984); Manpower Temporary Services v

Sioson, 529 NW2d 259 (Iowa, 1995); Mississippi

Transportation Comm v Dewease, 691 So 2d 1007 (Miss,

1997). We find the following passage from the Iowa

Supreme Court's decision in Manpower Temporary

Services particularly instructive:

"We begin with the unusually strong medical

evidence of necessity and of the record that [the

injured employee's] family status and past lifestyle

reveal no other use for the van. That evidence

refutes any contention that the van is a frill or

luxury and reveals what can be described as an

appliance, not greatly different from crutches or a

7

wheelchair. The point is that a van is necessary in

order to make [the injured employee's] wheelchair

fully useful.

"In another context, like other courts, we have

agreed with the dictionary definition that describes

the term 'appliance' as 'a means to an end.' Murray

v Royal Indem Co, 247 Iowa 1299, 1301; 78 NW2d 786,

787 (1956). The 'end' of the van is merely an

extension of [the injured employee's] 300-pound

wheelchair. Without a van she is, more than need be,

a prisoner of her severe paralysis. The [factfinder]

could thus reasonably view the van as an appliance,

a necessary part of [the injured employee's] care.

[529 NW2d 264.]"

We acknowledge that there are decisions from

courts in some other states that deny worker's

compensation coverage for specially equipped cars

and vans on the ground that such vehicles simply do

not constitute a medical apparatus or device, and

decisions from courts in still other states that

allow reimbursement only for the cost of the special

vehicle modifications or allow the employer to

offset the cost of the vehicle before modification

with the cost of an average, midpriced car of the

same year. However, we are persuaded that, under

the circumstances of this case, and given the kind

of substantial vehicle modifications that this

plaintiff requires, the entire vehicle may here be

considered an "appliance" covered by § 315(1), even

though it is not actually necessary to rebuild the

entire vehicle to accommodate the handicap. The

WCAC's interpretation of the term "appliance" is

unduly restrictive and contrary to the principle of

interpreting the Worker's Disability Compensation

Act in a liberal and humanitarian manner so as to

effectuate the remedial goal of relieving injured

workers from the effects of injury. [Wilmers, supra

at 346-347.]

CONCLUSION

Therefore, considering the majority's own malleable

8

definition of "appliance"7 and other jurisdictions' decisions,

I submit that the Wilmers Court reasonably concluded that a

van could be an "appliance" under subsection 315(1). I would

reaffirm Wilmers as good law.

Marilyn Kelly

7

Ante at 5.

9