Scott M Cain v. Waste Management Inc

Mich 236 REMAND) (AFTER MANAGEMENT, CAIN v WASTE INC (Calendar 3). 9,2004 125111, 125180.Argued Docket Nos. November No. May 3, Decided 2005. brought compensation claim Scott M. Cain a for worker’s benefits Inc., against employer, Management, insurer, his and its Waste claiming permanent disability ampu- and as a total result of the right leg leg following tation ofhis and the loss of the use ofhis left injuries employment. magistrate in A suffered the course his granted permanent disability benefits, finding total and that the plaintiff legs. The had lost the industrial use of both Worker’s (WCAC) Compensation Appellate reversed, holding Commission magistrate failing that the erred in to use a “corrected” standard assessing leg. Appeals, in the usefulness of the left The Court of Fitzgerald, RJ., JJ., part Saad and affirmed in and and Whitbeck, curiam, part unpublished opinion per reversed in in an issued (Docket 214445), May holding No. that the WCAC had authority applying Supreme its exceeded in the corrected test. The part judgment Appeals Court in reversed the of the Court of and plaintiffs remanded the matter to the WCAC to the consider claim, specific holding permanent disability that total and proofs not demonstrated the that a where indicate braced limb is support that, evaluating functional and can industrial use and a 418.361(3)(g), claim under MCL the corrected standard should be (2002). applied. remand, 465 Mich 509 On the WCACconcluded competent, material, that there was and substantial evidence to support magistrate’s finding plaintiff that the had sustained 418.361(2)(k) “specific legunder that, loss” ofhis left and having specific leg, plaintiff shown the loss of each is entitled permanent disability employer to total and benefits. The and its appealed by Appeals granted, insurer to the Court of and leave Injury appealed granted Second Fund leave from the same appeals Appeals, order. The were consolidated. The Court of RJ., J., concurring part J. Fitzgerald, (Kelly, Cooper, dissenting part), affirmed, holding properly that the WCAC magistrate’s plaintiff affirmed the determination suffered specific leg, 418.361(2)(k), loss of his left under MCL where plaintiff lost the industrial use of his left in its uncorrected properly plaintiff perma- state. The WCAC awarded the total and (Aft Rem) Cain v Waste 418.361(3)03) under MCL for his nent benefits (industrial) (anatomical) right leg loss of his and the leg. App Supreme granted his left Court appeal by Management applications and the for leave Waste appeals argued Injury Fund and ordered the to be Second together. 470 Mich 870 submitted opinion joined Chief Justice Justices In an Taylor, by by Supreme Court, and Corrigan, Cavanagh, Young, Markman, remand, after held: 418.361(2) Specific require loss benefits under MCL do not amputation. qualify It is sufficient to for such if the limb benefits regard body part has lost its usefulness. to total and or With 361(3)(b), permanent disability § under benefits which covers loss, legs, specific legs loss of both as with if the have lost their usefulness, though amputated, qualifies even not for worker permanent disability total and benefits. original understanding 1. The the word “loss” carried when plain ordinary meaning, the act was enacted was its and consis- tent it had construed in the with how been context of insurance Thus, only amputation law. “loss” includes not but also loss of original meaning usefulness. The of the word “loss” in the specific provisions require does not severance. There can be a loss where the claimant suffers the loss of usefulness of the member. Compensation Appellate prop- 2. The Worker’s Commission erly applied proper apply the “uncorrected” standard. It is to specific

uncorrected standard to loss claims. damage appellate finding 3. The commission’s that the to the plaintiffs leg “equated and left with anatomical loss that the limb is, essence, utility” no in he lost the retains substantial leg. finding supported by Because that factual is usefulness evidence, competent Appeals it must be affirmed. The Court of grafted erred when it a loss of industrial use standard onto the findings Nonetheless, factual of the commission. it reached the regard plaintiffs eligibility. to the benefit The correct result with plaintiff eligible his is loss benefits for the loss of left leg. 361(3)(b) proper § The 4. construction the word “loss” 361(2). meaning given § has the same it in The corrected it 361(3)(b), apply 361(3)(g). § § Benefits standard does not to unlike 361(3)(b) payable only § are when there is anatomical under practical also limbs have no usefulness. Section loss but when the 361(3)(g), permanent with its reference to and total loss use, wage-earning capac- the fact-finder to look to industrial calls industry. ity injured ability to function in These and the worker’s 472 MICH 236 [May- something simple inquiry demand words distinct from the under 361(3)(b) legs amputated § of whether the or feet have been 361(3)(b) practical 361(3)(g) have no usefulness. Sections and things. cover different apply 361(3)(b), § 5. The corrected standard does not to 361(3)(g). 361(3)(g), per- § unlike Section with its utilization of language, compels and manent total loss a conclusion that if the correctable, permanent condition is isit not and total. There is no 361(3)(b) permanent language requirement § and total and the 361(3)(b). looking correctability § is absent from plaintiff amputated right 6. leg has suffered the loss of his and, appellate commission, leg as found his has no left practical Thus, legs usefulness. he has suffered a loss of both 361(3)(b), qualifying § falls within for an of total award 361(3)(b). permanent disability § benefits under plaintiff 7. The has suffered the loss of his left 361(2) qualifies permanent under for an award total and 418.361(3)(b). disability benefits under MCL The decisions of the Appeals appellate Court of and the commission must be affirmed. joined by concurring, Justice Justice stated that Weaver, Kelly, 418.361(2)(k) “loss,” the word as used both MCL and MCL 418.361(3)(b), only amputation includes not but also situations in which there is a loss of the usefulness of the limb or member. There support appellate is sufficient evidenceto commission’sfactual finding plaintiff leg that the lost the usefulness his left and is specific entitled to leg loss benefits for the loss of his left under 361(2)(k). plaintiff § legs has suffered the loss of both under 361(3)(b) right leg § amputated because his has been and he has lost leg. Consequently, the usefulness ofhis left he is entitled to total and permanent 361(3)(b). disability benefits under The decisions of appellate Appeals commission and the Court of should be affirmed. Affirmed. — — Compensation Specific

1. Worker’s Loss Total and Permanent Disabil- Legs— — ity Amputations. 418.361(2) Specificloss require amputa- benefits under MCL do not may body tion and part be awarded where the limb or has lost its usefulness; permanent disability total and benefits under MCL 418.361(3)(b) proper legs are where have lost both their useful- ness, though they amputated. even have not been — 2. Worker’s — Loss. Compensation Words and Phrases “loss,” provision The word compensation as used in a of the worker’s relating permanent disability act arising to total and out of the loss (Aft Cain v Waste legs, meaning provision has in another of both has the same it (MCL 418.361[2], relating specific act to the loss of a the 418.361[3][b]). — — Disability 3. Worker’s Compensation and Permanent Corrected Total Standard of Loss. apply to a determination of The “corrected” standard does not disability qualifies permanent for total and whether a worker legs, apply the loss of both but does to a determination benefits for disability qualification permanent for total and benefits for the (MCL legs permanent and total loss of the industrial use of both 418.361[3][b], [g]). Smith, Hulswit, (by & LLP Edward Pinsky, Fayette Bratt), M. and Pamela K. for the plaintiff. Smith Cox, General, Michael A. Thomas L. Attorney Casey, Cardew, General, Jr., Ray Solicitor W. Assistant Attor- General, Marcinkoski, and ney Special Gerald M. Assis- General, Attorney Injury tant for the Second Fund. Straub, Allen, PC. (by Seaman & Daniel W.Grow Straub), Inc., Management, James M. for Waste Transportation Company. Insurance Amici Curiae:

Martin L. Critchell for Ford Motor Company. Royal Michigan Lawyers for Trial Daryl Association.

AFTER REMAND TAYLOR, C.J. At issue in this worker’s compensation case an ampu- is whether worker must suffer actual body part qualify tation of a limb or order to (also either loss benefits described as scheduled benefits) benefits. permanent or total hold that loss benefits under We 418.361(2) It require amputation. do not an is sufficient if body part for such benefits the limb or has qualify 472 MICH236 lost its total and Regarding permanent usefulness. 418.361(3)(b), benefits under MCL which legs, loss, covers the loss of both as with if the legs usefulness, have their though lost even not ampu- tated, qualifies the worker for total and permanent disability benefits. We therefore affirm the decisions Appeals Court of and the Compensation Worker’s (WCAC). Appellate Commission

BACKGROUND previously This case was before us Cain v Waste (2002) (Cain Mgt, Inc, 509, 513; NW2d I), where we summarized the facts describing plaintiffs injuries as follows:

Plaintiff Scott M. Cain worked as a truck driver and defendant, Management, trash collector for Waste Inc. In October standing as he was behind his vehicle container, emptying by a rubbish he was struck an auto- mobile that crashed into the back of the truck. Mr. Cain’s legs Physicians amputated were crushed. right Mr. Cain’s leg leg above the knee. His left was saved with extensive surgery bracing. February 1990, Mr. Cain right leg was fitted with a

prosthesis, begin and he walking. was able to He returned employment to his Management at Waste and started performing clerical duties.

Mr. Cain’s left continued to deteriorate. In October 1990, he suffered a distal diagnosed tibia fracture. Doctors it as a preexisting stress fracture caused weakness from injury sustained in the physi- accident. After extensive therapy surgery knee, cal and further on his left Mr. Cain was able to return to Management August 1991, Waste working dispatcher first as a and then in the depart- sales ment. Management voluntarily paid

Waste Mr. Cain 215 weeks compensation of worker’s benefits for the loss of (Aft Cain Waste Opinion of the Court 418.361(2)(k). However, there was leg. MCL right his to addi- concerning he was entitled whether disagreement tional benefits. issue, at it is that are the benefits

To understand of the Worker’s sections to review several necessary 418.101 et (WDCA), MCL Act Disability Compensation MCL are under payable benefits seq. Specific loss. 418.361(2)(k) leg. the loss of” “for employee to an 418.361(2) reads: text of MCL The full schedule, following the cases included period specified, for the considered to continue each case shall be injury paid personal shall be 80% compensation for the subject wage maximum and average weekly to the the after-tax compensation the loss of the under this act for rates of minimum following: (a) Thumb, 65 weeks.

(b) finger, First 38 weeks.

(c) finger, 33 weeks. Second (d) finger, 22 Third weeks.

(e) finger, Fourth 16 weeks. thumb, any finger, phalange or of first The loss of the equal that thumb or xh to the loss of considered to be shall be specified. compensation above finger, xk be of the amount shall phalange considered as the loss than 1 shall be The loss of more finger for more than thumb. The amount received of the entire provided finger in this schedule not exceed the amount shall loss of a hand. (f) toe, 33 weeks. Great toe, great

(g) weeks. A toe other than any phalange considered to toe shall be of the first The loss toe, compensation shall be xk equal xh the loss of of that be specified. of the amount above (cid:127) permanent disability payable Total and benefits are resulting per for work from a incapacity “[w]hile total,” 418.351(1), injury sonal and MCL 418.361(3) defines “total and permanent what disabil ity” Of particular means.2 relevance here are two of the phalange The loss of more than 1 shall be considered as the loss

of the entire toe. (h) Hand, 215 weeks.

(i) Arm, 269 weeks. amputation An between elbow wrist that is 6 or more hand, inches below the elbow shall be considered a and an amputation point above that shall be considered an arm. (j) Foot, 162 weeks.

(k) Leg, 215 weeks. amputation An between the knee and foot 7 or more inches (plateau) foot, below the tibial table shall be considered a and an amputation point leg. above that shall be considered a (l) Eye, 162 weeks. Eighty percent eye loss of of 1 vision shall constitute the total eye.

loss of that 2.Thesubsection reads in full: permanent disability, compensation Total and for which is

provided in section 351 means: (a) permanent sight eyes. Total and loss of of both (b) legs Loss of both or both feet at or the ankle. above (c) Loss both arms or both hands at or above the wrist. (d) any (a), Loss of 2 of the members or faculties in subdivisions (c). (b), or (e) complete paralysis legs Permanent and of both or both arms leg or of 1 and 1 arm. (Aet v Cain Waste found in permanent definitions of total 418.361(3)(b), or feet at or legs MCL “Loss of both both ankle,” “Permanent 418.361(3)(g), and MCL above legs and total loss of industrial use of both both leg arms or 1 and 1 arm . .. hands or both Mr. had I, In Cain we determined that because Cain him to return to a brace on his left that enabled work, legs, he had not lost industrial use both as 418.361(3)(g). We noted there is required specific difference loss and loss of industrial between use, analysis and we as our own” the “adopt[ed] at April opinion. supra in its Cain 521. WCAC held that the analysis, accord with that we “corrected” to claims for and total applies permanent standard 418.361(3)(g), use under MCL and we industrial plaintiffs specific remanded to the “to consider WCAC I, remand, On supra loss claim.” Cain at 524. WCAC unnecessary qualify determined actual is amputation and, plaintiffs leg loss benefits because anatomical useless, essentially injury “equated his with cited v authority Chrysler loss.” WCAC as Hutsko 99; (1968), and Corp, 381 Mich 158 NW2d 874 Tew Hillsdale Tool & Mfg App NW2d Both are cases in which loss claims use, were allowed where there had been a loss of but not an anatomical loss. The then concluded WCAC without further explanation “[h]aving specific shown

(f) insanity imbecility. Incurable or (g) legs Permanent and total loss of industrial use of both arm; leg purpose both hands or both arms or 1 and 1 for the of this permanency subdivision such shall be determined not less than 30 days expiration injury. before the of 500 weeks from the date of procedural The reader is directed to Cain I for a full discussion of the history point, including opinions of details of the of the the case to WCAC, magistrate, Appeals. and the the Court 472 MICH236 total and leg, plaintiff permanent of each is entitled to Appeals On the Court of appeal, benefits.” Co, Tool & Die 410 Mich majority, citing Leese Pipe (1981), the 510; affirmed decision 302 NW2d (2003). 350; It App 674 NW2d WCAC. legs qualified that each of plaintiffs concluded (one specific through amputation loss benefits one use), losses, through lost industrial and that these when together, equaled legs” considered a “loss of both under 418.361(3)(b), entitling plaintiff to total and MCL thus permanent disability benefits. employer Injury

Both the defendant and the Second sought appeal. granted applica- Fund leave to We both leave, ordering appeals argued tions for the to be together. submitted 470 Mich 870 We directed among to include parties appeals both issues briefed of industrial use” be whether “loss may to claims of loss under applied standard be 418.361(2) and should be Pipe, supra, whether parties overruled. further directed the in Docket We No. 125180 to address issues whether WCAC ex- scope by ceeded this Court’s remand order awarding plaintiff permanent disability total and ben- total and permanent disability efits whether ben- 418.361(3) (b) (loss legs) under MCL may efits both (anatomi- on the of plaintiffs specific be awarded basis cal) (industrial use) loss of one and his leg. of the other

STANDARD OF REVIEW de questions We review novo law worker’s cases. Mudel v Atlantic & compensation Great Pacific (2000). Tea 697 n 614 NW2d 607 Entitlement to worker’s benefits must be compensation statutory language determined reference to the 245 (Aft Cain v Waste creating Co, those benefits. v Browne-Morse 402 Nulf (1978). 309, 312; Mich NW2d As we have noted in the past, statute, when we construe a primary our goal give is to effect to the intent of Legislature and step process our first in that to language is review the the statute itself. In re MCI Complaint, Telecom (1999). 396, 411; Mich Legislature NW2d 164 The has specified proper approach to construing statu- tory saying in language, MCL 8.3a: phrases

All words and shall be construed and under- according stood approved usage to the common and language; but technical phrases, words and and such as may acquired peculiar appropriate have a meaning in law, shall he construed and according understood peculiar appropriate meaning.[4] such

ANALYSIS: SPECIFIC LOSS We turn first to the question of specific loss and 418.361(2). therefore analysis focus our on MCL provision loss of this section repeatedly has been held to be intended to compensate workers who have suffered one of the losses enumerated in provision, this regard less of the effect on the earning worker’s Cain capacity.5 I, 524; supra at Sparks-Withington Redfern (1978). 63, 80-81; 268 NW2d 28 This if means a worker, example, arm, thumb, loses an finger, leg, workplace so on in a injury, specific benefits, loss as set 4 However, specifically given term, when a statute defines a Theatres, Dep’t Revenue, definition alone controls. WS Inc v Butterfield 91 NW2d 269 418.354(16), providing noteWe that MCL for coordination of social security benefits, recognizes stating principle, part, and other this “It 361(2) legislature that, is the intent of the because benefits under section (3) recognize substantially are benefits which human factors wage concept, addition to the coordination of benefits should not apply to such benefits.” 472 Mich 236 Opinion Court if no time schedule, be awarded even forth in the will a limb work. At issue here is whether missed from severed, (here, crushed is to be treated as leg), but injured worker to lost, entitling thus benefits. argue unambigu-

Defendants that the word “loss” especially in the context of ously “amputation,” means 361(2)(k), amputation. mentions As expressly which it, they argue amputation required is because 418.361(2)(k) the of a provides benefits for stating:

Leg, 215 weeks. amputation An between the knee and foot 7 or more (plateau) inches below the tibial table shall be considered a foot, amputation point an that shall be above consid- leg. ered a

Thus, amputation defendants the lan- assert guage, regarding legs, at least limits the word “loss” in the to mean that are only amputations statute com- pensable.

Plaintiff, hand, the agreeing on other while the unambiguous, statute is that defendants’ argues ap proach disregards original is flawed because it meaning provisions when the WDCA enacted a in favor of a century ago was almost modern perception meaning. original of the word’s mean asserts, because, ing, plaintiff controlling although is many the statute has been amended times since its 1912, enactment the word “loss” has remained or limi unchanged express qualifications without analogizes determining tations. Plaintiff our task in of “loss” to that undertook in meaning which we Title Treasurer, Office, Inc Van Buren Co (2004), 676 NW2d 207 where we determined what plain ordinary meaning “transcript” was in (Aft Cain v Waste analytical approach plaintiff 1895. This is sound. “loss,” Because statute itself does not define we agree plaintiff original with that we must ascertain the meaning the word “loss” had when the statute was enacted 1912. common,

“When determining ordinary meaning phrase, consulting dictionary of a word or appro- Inc, priate.” Office, Title at 522. In the dictionar- supra from the era of original legislation, ies the definition fairly “Perdition, of “loss” is ruin, destruction; broad: ‘lost,’ the condition or fact of being destroyed, or ruined,” (1908); English Dictionary New “State or fact being ruin; lost or destroyed; destruction; perdition; sea,” as Loss of a vessel at Int’l Webster’s New Dictio- nary (1921); the English Language hold, “Failure to keep, preserve or one possession; what has had in his disappearance use, from possession, knowledge; dep- rivation of that which one as, has had: the loss of money by of gaming, reputation, loss health or loss of children: opposed to gain,” Century Dictionary and Cylopedia (1911). From this we can see severance is but one way may occur; a loss loss also occurs when something destroyed, ruined, disappears or when it from use. We conclude that amputation required is not in order for a person to have suffered the of a specified body part.

Having commonly ascertained the understood mean- ing “loss,” of the word analysis our substantive of its complete. Homes, definition is Gladych Family v New Inc, 594, 597; 664 705 NW2d Our conclusion is by reinforced the fact the same meaning for the word “loss” is found in the cases late construing nineteenth-century private in- liability surance plans injured for the aid of that were, workers part, models for the body-part provisions of When, our first compensation worker’s act. in special 472 MICH236 act, that first session, Legislature passed Act,”6 Michigan’s Compensation known as “Workmen’s five-person the efforts it was the culmination of of Liability Compensation and Employers’ Workmen’s S, Osborn in appointed by Commission Governor Chase 1911.7 The commission had been formed because at the time as “wide dissatisfaction” what was described liability injuries with the at common law for employer’s by employees. Report Employers’ suffered his Liability Compensation and Commission Workmen’s (1911) Michigan, (Report). the State of The commis- “investigate report plan sion was directed to and for legislative provide compensation action to for accidental injuries arising or death out of and in the course of commission, employment....” report, Id. In its concluding existing negligence-based sys- after that the (1) sufficiently encourage prevention tem failed to (2) accidents, not protect employers against did exces- (3) verdicts, in inadequate compensation sive resulted (4) workers, injured engendered animosity and strife, recommended a statute on provi- based similar Massachusetts, Wisconsin, already sions enacted Jersey.8 Legislature, very New with changes few language, briskly pro- the recommended enacted this (1st Sess) Ex PA 10. 7 1911 PA 245. European appeared These in turn were modeled after laws that first in the and that end mid-1800s were well established of that century, swept along by occurring massive industrialization at the same throughout Harger, history, Europe. compensation, time Worker’s a brief (accessed 22,2004). <www.fldfs.com/WC/history.html> December In this country, compensation the first constitutional worker’s law was the 1908 Employer’s Liability Acts, 45 USC 51-60. In the first states followed, by 1913, twenty-three comparable Harger, states had laws. By 1948, supra. all the states had at least some form of worker’s compensation, including Harger, the territories Alaska Hawaii. supra. (Aet Cain v Waste act less posal Michigan’s compensation as workmen’s three after the bill was introduced. 1912 than weeks (1st Sess) 13, Ex 149-150. Journal House today

In what is described as total and dealing with § the 1912 stated in 9: permanent disability, statute injury incapacity resulting for work from the While total, paid employer pay, is shall or cause to be as injured provided, employee weekly to the hereinafter a weekly compensation equal average wages, to one-half his but not more than ten dollars nor less them four a dollars week; by period and in no case shall the covered such weeks, compensation greater be than five hundred nor compensation shall the total amount of all exceed four (1st Sess) 10, II, § part [1912 thousand dollars. Ex PA 9.] dealing with partial incapacity, statute stated §at 10: incapacity injury resulting

While the for work from the partial, employer pay, paid shall cause to be as provided, injured weekly hereinafter to the employee a compensation equal to one-half the difference between his average weekly wages injury average before the and the weekly wages thereafter, he which is able to earn but week; more than ten dollars and in no case shall the by period compensation greater covered such be than three injury. hundred weeks from the date of the In cases following included schedule the in each such case shall be deemed to continue period for the specified, compensation paid injury and the so for such therein, specified shall be as to wit: fifty leg, per average weekly For the of a centum of wages during seventy-five [1912 one hundred and weeks. (1st Sess) II, part Ex PA 10.] wage-based paid Section 9 allowed benefits to be totally work, workers who were from incapacitated Mich 236 Opinion of the Court injury caused regardless type of the work-related § when the provided benefits incapacity, while Moreover, the latter incapacitated. partially worker was specific its schedule of benefits for part of with of weeks that benefits losses, allowed a set amount a worker suffered one of the be awarded when would so, doing In it was intention- specific injuries described. of the ally provisions after the patterned liability insurance employers’ private above-referenced provide to work- plans, designed which were benefits job. on injured Report, supra,9 ers insurance in that construing policies The cases such era, elsewhere, unmistakably indi- Michigan from report appendix The commission’s even included in its the text of two VII, plans “typical” Report, supra, Appendix at the time. 143-146. The Company” pro “Benefit and Relief Plans of the Cleveland-Cliffs Iron vided: monthly payments, In benefit other amounts addition to injuries, paid

are for certain serious as follows: arm, leg eye, or $166.66. Loss one arms, legs eyes, $500. Loss of both Similarly, Mining the “Benefit and Relief Plans of the Oliver Iron Company” provided: injuries amounts, following specified have and others in

proportion injuries: to these (a) hand, wages. For the loss of a twelve months’ (b) arm, eighteen wages. For the loss of an months’ (c) foot, wages. For the loss of a nine months’ (d) leg, wages. For the loss of a twelve months’ (e) eye, wages. For the loss of six months’ one incorporated language of the Sections 9 and 10 1912 act similar to plans. these insurance (Aft Cain v Waste “loss,” just cate that the word as it did in dictionaries of time, just meant not severance or but amputation also the destruction of the usefulness member. Michigan, our Court Fuller v Locomotive Engineers’ Mut Ass’n, 548, 553; & Accident Ins Life (1899), construing NW 326 provision an policy, just this, insurance said indicating that policy against

where an insurance insures the loss of a member, member, or the loss of an entire the word “loss” should be construed to mean the destruction of the useful- member, member, ness of the purposes or the entire for the which, condition, in its normal susceptible it was application.

Simply stated, policy under such a in Michigan, no amputation necessary was for a loss. The rationale for not limiting just to amputation was the under- standing by and, this Court explain, by as we will other American courts that the term “loss” in such policies given should be ordinary its and popular meaning, enough which was broad to include loss of usefulness. As the Supreme Missouri Court said on topic, this word “loss” in policies insurance used in “was its ordinary and popular and [did] sense not mean that there should be a [member], total destruction of the anatomically speaking, but that the loss of the use of it for the purposes to which [the is adapted member] would be a loss of it....” Sisson v Supreme Court of Honor, 54, 60; 104 Mo App 78 SW 297 Kansas Supreme Court stated it “The similarly: loss of a member of body, as used in an accident insurance policy, unless restricted or modified other language, carries the meaning ‘loss,’ common of the term which is the loss of the beneficial use of the Obviously member. may this occur when there is not a complete severance body.” member from the Noel v Continental Cas Mich 236 (1933). The Kansas 136, 139; P2d 610 Co, Kan citing thirteen cases holding by reinforced its then court early the late nineteenth from ten other states from centuries, to the same effect.10 holding twentieth that, early in the analysis our buttressing Also of the Indus existence, the decisions of the act’s years (IAB), predecessor, the WCAC’s Accident Board trial dictionary. That in the “loss” as defined construed also meaning. commonly understood with its is consistent IAB half of the four board because consequential This is commission on Osborn’s had served Governor members we are very language “loss” had recommended these board interpretation find the considering.11 We way in the same useful gave to statute members committees can be “use drafting that the comments Gla construing statutes. See aids” for interpretive ful in Lardie Grand IAB, n 4. The supra at 601 dych, Co, Case Compensation Rapids Show 1916 Workmen’s loss, that “courts have 17, 19, discussing stated Cases in- policies of accident provisions construed uniformly (Tex 1926); Richmond, App, 284 SW 698 Civ Travelers’ Ins Co v (1928); Linn, Ky 328; Jones v 10 SW2d 1079 Cas Co v Continental (1920); 678; Locomotive 189 Iowa 179 NW Continental Cas Meeks, 127 So 699 Engineers’ Co v 157 Miss Mut & Accident Ins Life (1915); 47; Bowling Co, (1930); 146 P 151 Ins 75 Or Moore v Aetna Life (1930); 491; Virginia, App Citizens’ 177 NE 531 Ins Co 39 Ohio v Life of (Tex 1933); App, Kennedy, Sneck v 57 265 Civ Mut Ass’n v SW2d Life 94; (1895); Co, Sheanon v Mut Hun 34 NYS 545 Travelers’ Ins 88 Pacific 618; (1890); Co, Mut Accident 799 Lord vAmerican Ins 77 Wis 46 NW Life Co, (1894); 19; 175 Ass’n, v New York Ins 61 NW 293 Berset 89 Wis Life Honor, (1928); Supreme 210; 104 Mo Sisson v Court Minn 220 NW 561 (1904); Rogers, 54; 163 421 App Int’l Ass’n v SW 78 297 Travelers’ SW 1914). (Tex App, Civ secretary one and Ora E. Reaves was Richard L. Drake was its first remained on the board until at commissioners. Reaves of three hoard Manual, Directory Legislative Michigan 1913- 1920. Official least 1915-1916, 1917-1918, 1914, and 1919-1920. (Apt Cain v Waste suring against of member, a to cover cases where the usefulness of the member destroyed was accident without in resulting severance or amputation.” Id., Fuller, citing supra at 553. Similarly, that in “loss” the context of compensation worker’s specific loss ben- efits did not mean only amputations, but also included of usefulness, was indicated by the IAB’s decisions in an unnamed case cited in Bd, Industrial Accident 3, Bulletin (1913);12 No Co, Rider v HC Little Bd, Industrial Accident supra at (1913); Hirsch- kom v Fiege Co, Desk 239; 184 Mich 150 NW 851 (1915); Purdy Marie, v Sault Ste 573, 579; 188 Mich (1915); NW 597 Cline v Studebaker 514; 189 Mich Corp, Lardie, (1915); NW 519 supra; Carpenter Detroit Co, 191 Forging 45; (1916); 157 NW 374 Packer v Works, Olds Motor 195 Mich 497; 162 (1917); NW 80 Adomites v Royal Co, Furniture 162 NW

The same can be seen in large in part this Court’s jurisprudence of the time. For example, in Purdy, supra at 579, the Court affirmed the IAB’s loss award for a leg.13 crushed In Lovalo v Michigan Stamping

12The board stated in that case: surgeon amputating action of the finger, failing inor amputate it, choosing point or in amputation is not controlling in all cases of this depends kind. Each case for its upon particular relating decision finger, facts to the and these might point amputation, relate to the finger or the fact that the portion or a thereof had being been rendered useless without amputated.... The opinion Board is further of the case no

part finger amputated injury entirely and the is such as to destroy phalange finger, usefulness of the first or the entire injured person that event the phalange has lost the first or the finger, may be, completely as the case as as if the same had been amputated. 13 The IAB’s Compensation decision is at 1916 Workmen’s Cases 65. Mich 236 472 (1918), the Court held 85, 89; 167 NW 904 Mich hand of his the loss claimant had suffered the ampu- palm all the were nearly fingers four where the and all of palm of all the tated, that “the loss saying reasonably considered hand could ... be fingers Indeed, only expressly the entire hand.” the loss of the & Foundry Clarage in this era is Wilcox contrary case (1917), the where 165 NW Mfg facts, that the determined Court, in with difficult a case The anatomical loss. required provision holding its effort to reconcile made no Court Wilcox “loss,” understanding clearly the IAB’s stated with instead to analogized but Purdy, Fuller or nor with partial had losses suffered plaintiffs cases where rather complete, required proof had and this Court that, given its outlier loss.14 conclude partial, than We it seeks fact that the construction status, well as the as with term “loss” is inconsistent to the give act, was incor- of “loss” in the Wilcox original meaning its Thus, overrule Wilcox so rectly decided. we our will be removed from confusing shadow potentially case law.15 then, this issue of summarize, regarding

To com- comes from its of “loss”: the definition definition the time of enactment. meaning at monly understood the word are corrobora- uses of contemporaneous of this definition. reinforcing tive amputation, requiring was as Wilcox if those cases can be read Even that, tracing by than its fact rather in a broader sense flawed itself, template, might one in a used as a as to the act it rationale construing case, prior the act. cases common-law aberrant the fact in our notion that Wilcox is We are reinforced contrary just Court, reaching holding one to Wilcox that the Lovalo Wilcox, strength suggesting later, continuing year unaddressed the left to its facts. considered it confined that the Court (Aft Cain v Waste Opinion Court that, given conclusion,

Defendants assert even this the 1927 amendments forever altered the definition of the Legislature, “loss.” for the time in the only century, twentieth the consequentially spe- amended cific of provi- loss section the statute the adding to sion a regarding language: amputation the “An knee between the and foot six or more inches below the foot, knee be a point shall considered above this a leg[.]”16 1927 PA Keying amendment, 63. off of this urge defendants that language implicitly this was de- signed any to alter previously understanding broad of the “loss” so word that after the amendment there could no be loss without an amputation. We think explanation this insufficiently appreciates that the amendment came in the wake of a of series cases where this Court had made debatable calls on the nature the amputation.17 is, loss after an That at what on the a point just limb had not become of a arm, hand but an of a just not foot a leg? but of We goal believe the of the amendment bring was to cer- tainty to this discrete set of once determinations there amputation. was an It is hard to otherwise, conclude given in Legislature, amendment, that its did not alter or expressly redefine the word “loss” itself and given especially quite that meaning word’s clear in the of the dictionaries time well as as the above-referenced 16 Similarly, provision arm, the amendment to added an “An amputation between the elbow and wrist 6 or more inches below the hand, point elbow shall be considered a above this an arm.” Co, (1919) Body 1; Stocin C Rv Wilson 205 Mich 171 NW 352 (holding arm, hand, just a that claimant had lost his not his where it was upper atrophied), severed below the elbow and the arm was Curtis v (1920) Co, Hayes 260; (holding Wheel Mich 178 NW 675 that the just amputation claimant lost had foot where his four occurred to five knee), 572; Holmes, inches below and Reno v 214 NW 174 (1927) (holding foot, leg, just that a claimant had lost his his not where knee). it was severed inches below the 5V2 [May- Mich 236 Opinion the Court Moreover, this IAB and this Court. of the decisions in the 1930s decision leading postamendment Court’s this understand- is consistent with of loss18 on the issue not intended was amendment the 1927 ing Court on what the IAB and this holdings of reverse ais loss. law, that loss does our case theme of

This dominant throughout can be seen amputation, require Later false starts.19 mid-century, albeit with some & Die Tool Leese Pipe century, determined, (1981), correctly the Court 302 NW2d the act understanding original with the consistent discussed, amputa- have the earlier cases we to a “loss.” prerequisite not a tion was frequently these however, phrase in a used Pipe, as “loss cases, this loss of usefulness described Id. at 527. “loss of phrase industrial use....” in anywhere specific the appear does not industrial use” as been intended seems to have and provisions, loss of the to the condition shorthand describe judicial in of its use standpoint the member from injured causes confu- However, description this employment. the capture proper adequately it does not sion because to be determined standard, that loss is which is 18 Co, 286 Mich 314; Kalamazoo Stove & Furnace 282 NW See Bench v (1938), hands where for loss of two the Court allowed an award 162 where fingers plaintiffs and he had suffered had been severed most of the his hands. total loss of use of both 19 Co, Hlady Bolt century, v Wolverine 325 the with In the middle of Co, v Ottawa Metal (1949), as well as Utter 23; Mich 37 NW2d 576 Co, Kelsey-Hayes Wheel (1949), and Barnett v 450; Mich 40 NW2d 218 contrary (1950), 37; cases to this this Court decided Mich 43 NW2d 55 provisions. are understanding But these cases original loss understanding proper and we note of the statute with the inconsistent Hlady all, expressly was followed, they hesitatingly if at that were Assemblies, Inc, 368, 380; Mich Mitchell v Metal overruled. NW2d (Apt Cain Waste Opinion Court earning without reference to the plaintiffs capacity ability to is, to return work. That it if the has paid been incurred and it is not relevant whether worker can work after the Miller v Prod loss. Sullivan Milk ucts, Inc, 659; (1971); 189 NW2d 304 Shumate v American Stamping 99 NW2d 374 (1959). We believe it this concept Pipe was attempting Court was to articulate and we clarify opinion holding. means this clear, To be we are endeavoring here not to craft a standard, clearly new but articulate the standard enacted 1912. We find that the original understand- ing the word “loss” carried when the WDCA was enacted was its plain ordinary meaning, consistent with how it had been construed in the context of Thus, insurance law. only “loss” includes not amputa- tion hut also usefulness.20 It was intent of 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. More- over, law, in our case this Court has with considerable consistency, albeit not unfailingly, upheld this construc- again tion. We do so today, believing as have courts give before us that the meaning we to the word “loss” 418.361(2) is meaning originally intended. approach require Defendants’ would us to ignore the statutory drafters’ enactors’ turn-of-the-twentieth- century understanding of the common and approved meaning of a purportedly “loss” favor different contemporary understanding, divorced from its roots. we This cannot do. any We are free to substitute nonstatutory other definition of a or term word for the meaning it in indisputably 1912, had and has main- Pipe, supra 1, 530, supra again 524, in Cain In at at we referred equivalent. to this as loss or anatomical its MICH 236 Opinion the Court traces to duty century. This for almost tained “in the a statute construe are to that we notion simple of its at the date existing the circumstances light of develop subsequent light in the enactment, not in the taken must be of a statute . . . ‘The ments. words time when at the understood they were which sense ” Comm’rs Bd Wayne Co enacted.’ the statute was of Rd 235-236; 291 NW 879 229, Clerk, 293 Mich Co Wayne hold therefore RCL, p 959. We (1940), quoting in the “loss” meaning of the word original to and there require severance it does provisions: the loss the claimant suffers where can be a “loss” member. usefulness properly the WCAC addition, conclude we discussed standard. We “uncorrected” applied applying I, 521-523, the propriety at supra Cain and the loss claims to standard “uncorrected” permanent to total “corrected” standard today. rule reaffirm that claims. We left Mr. damage to Cain’s found The WCAC retains and that the limb anatomical loss with “equated is, finding factual utility.” WCAC’s no substantial Because leg. of his essence, he the usefulness lost evidence by competent finding supported is that factual Mudel, at 701. supra be affirmed. record, in the it must a loss of grafted it erred when Appeals The Court of findings of the the factual onto industrial use standard Nonetheless, it reached tribunal. administrative eligibil- benefit regard plaintiffs to result with correct specific loss eligible plaintiff ity. Accordingly, leg. of his left for the loss benefits DISABILITY PERMANENT TOTAL AND ANALYSIS: correctly the WCAC analyze whether next turn We perma- the total under benefits plaintiff allowed y (Aft Cain Waste 259 418.361(3). nent provisions, MCL Our task in is, interpreting Legislature’s work if possible, to 361(3) read the seven eligibility requirements §in so as to read none of them out or as an unnecessary duplica- tion of another. In particular, we must endeavor to harmonize the three provisions concerning and legs to in read them a way does not make any language surplusage. Patel, 158, Jenkins v 471 Mich (2004); 346 NW2d State Farm &Fire Cas Co v Republic Co, 142, 146; Old Ins Mich 644 NW2d 715 (2002). short, read we the words in a statute to- gether, to harmonize meaning of the clauses and give effect to the whole. CG Timmis & Co v Guardian (2003). Alarm 416, 421; 662 NW2d 710 Defendants argue that we cannot construe in “[l]oss” 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 sur- plusage. disagree. We We find the proper construction of 361(3)(b) the word in “[l]oss” § is that it has the same 361(2).21 given meaning § it This conclusion is unsur- 361(2) prising, believe, we given the juxtaposition §§of 361(3), and which is itself compelling give reason to them the See, same meaning. e.g., Sibley Smith, Furthermore, so, doing as we will 361(3) explain, causes no part §of to duplicative be 361(3)(b) nugatory. Dealing first, §with we find that using this definition of loss means that benefits are payable under only this section not when there is loss, anatomical but also when the limbs have no practical usefulness. Section 361(3)(g), on the other hand, as we I, discussed in Cain with its reference to permanent and total use, industrial calls the 361(3)(c) meaning apply We note that §§ this would also and 361(3)(d). Mich 236 Opinion the Court capacity wage-earning to look fact-finder industry. As ability to function injured worker’s from something distinct words demand these apparent, 361(3) (b)’s legs regarding whether simple inquiry § usefulness. practical or have no amputated or feet are 361(3)(b) may § covered under that what is This means formally, more 361(3)(g). Stated under covered be 361(3)(b) things cover different 361(3)(g) §§ either not make here does as we have defining loss distinc- may make this example An nugatory. provision can be useless but If the are rendered legs clearer. tion job of performance to make the so as braced 361(3)(b) no § under but been loss there has possible, worker, § This 361(3)(g). under of industrial use" loss reading qualify this Cain, under indeed like Mr. would under disability benefits and permanent for total 361(3)(b) a worker Conversely, 361(3)(g). § not § but function, i.e., practically are legs have basic whose if industrial use even have no useful, legs but whose (such under ballerina), qualify would a as braced 361(3)(b). § 361(3)(g) § but limn that the “corrected” standard examples These § 361(3)(b), 361(3)(g). § unlike to apply does not I, 361(3)(g), § in Cain is, explained as we reason lan- and total permanent utilization of with its if the condition a conclusion that guage, compels I, Cain correctable, supra and total. permanent it is not else- fact, language appears In when this at 519-520. 361(3)(a) 361(3)(e), §§ and 361(3), §in as where such Because there correctability applies. also the doctrine language triggering and total permanent is no such looking 361(3)(b), requirement that the §in it follows correctability is absent.22 to 361(3)(c) 361(3)(d) similarly Again, §§ are worded. and (Aft Waste Cain v Concurring Opinion by Weaver, J. sum,

In clearly Mr. Cain has suffered the loss of his amputated leg and the found that left right WCAC his is, leg utility.” leg has “no That his has no substantial practical Thus, he usefulness. has suffered “loss of 361(3)(b), legs” both and within qualifying falls for an permanent disability award of total and benefits under provision.23 Accordingly, the WCAC the Court are Appeals decisions affirmed.24

CONCLUSION conclusion, find we that Mr. Cain has suffered the 418.361(2) left leg loss of his under MCL that he for an qualifies permanent award of total and 418.361(3)(b). under Therefore, benefits we affirm of Appeals the decisions the Court and the WCAC. JJ., con-

Cavanagh, Corrigan, Young, Markman, curred with C.J. Taylor,

WEAVER, J. I in the (concurring). concur result of the majority opinion and its that plaintiff conclusions suf- fered a loss of his left under MCL and, preclude potential confusion, We have read the concurrence only note that its conclusion is identical to ours. 24 that, although We also made conclude the WCAC an error of law in interpretation 361(3)(b), properly § its scope of it was within its on legal remand to reach conclusions based on reassessment its of the facts. (1983). Corp, Modreski v GenMotors NW2d 231 While precluded reaching contrary the WCAC from was a decision to that of this Court, question plaintiff I Cain did not address the whether had suffered 361(3)(b). permanent disability Although § total and under the WCAC’s 361(3)(b) requirements § determination on remand that he met the opposite had the from outcome its initial determination that he was not qualified 361(3)(g), finding its legal under on a was based different theory. addressing legal questions it Weconcludethat did not err in raised by its new factual determination. MICH236 Opinion Concurring Weaver, J. 418.361(2)(k) award of total for an qualifies that he MCL under disability permanent benefits 418.361(3)(b). “loss,” as both subsec- used The word but statute, only amputation includes tions of the of the there is a loss in which situations also those by Chief As noted the limb or member.1 usefulness Appellate Compensation the Worker’s Justice TAYLOR, (WCAC) that on these found essentially Commission leg left and that of his facts, lost the usefulness plaintiff loss benefits entitled to accordingly was he 418.361(2)(k). Ante at MCL leg his left under the loss of support competent evidence 258. There to the must defer WCAC finding and we factual WCAC’s & Tea Atlantic finding. Mudel Great on this Pacific (2000). Further, 691, 703; 614 NW2d legs” under both “[l]oss has suffered plaintiff 418.361(3)(b) amputated has been right his because leg. of his left Conse- usefulness and he has lost the permanent to total and he is entitled quently, Therefore, I the decisions agree benefits. affirmed.2 should be Appeals and Court WCAC J. J., concurred with WEAVER, KELLY, preserve Dictionary “failure to of the word “loss” include: definitions “destruction, New ruin.” Random House Webster’s maintain” and Dictionary College majority, as agree basic conclusions of the I with some of the While concurring separately, I do not I from the fact that am should he evident majority lengthy analysis relies to sign on which the all of the on to support its conclusions.

Case Details

Case Name: Scott M Cain v. Waste Management Inc

Court Name: Michigan Supreme Court

Date Published: May 3, 2005

Citation: 472 Mich. 236

Docket Number: Docket 125111, 125180

Court Abbreviation: Mich.