*1 339 Rеm) v (On (ON REMAND) TRANSPORTATION COMPANY WILMERS GATEWAY 1997, February 18, Jan at Detroit. Decided Docket No. 194264. Submitted Mich_. uary denied, 16, 1998, appeal at 9:05 A.M. Leave to 457 paraplegic Wilmers, limited Ronald R. who was rendered a with right as a a work-related automobile acci- use of his arm result of equipped that, dent, replacement specially sought after the by employer’s accident, provided his insurer as a his was to him Disability 315(1) expense § benefit of the Worker’s medical under Compensation Act, 17.237(315)(1). 418.315(1); A MCL MSA compensation magistrate, relying aon decision of the worker’s Appellate a van Commission held that Worker’s “appliance” 315(1), § does constitute an under found that the not Gateway Transportation Company, employer, and its successor Casualty Guaranty Michigan Property Association, insurer, were plaintiff van, required required provide but not to the with a were provide special equipment neces- the and vehicle modifications sary physical handicap. The wcac affirmed that accommodate portion magistrate’s Appeals denied of the decision. The Court May appeal unpublished order, leave to in an entered 181602). Court, (Docket Supreme grant- No. The in lieu of Appeals ing appeal, to the leave to remanded the matter Court of granted. for as on 451 Mich consideration leave by parties appeal regard not to additional issues decided did defendant, Injury concerning an additional the Second wcac Fund. held,-. remand, Appeals On the Court of provide injured purpose 1. of § The clear is to employee products reasonably as are neces- with such services and Here, sary injury. plaintiffs relieve the evi- cure or effects injury dence that one of effects of his was a loss of indicated ordinary inability car, mobility, including an or even a to use equipped one, transportation. for Under the circum- case, plaintiffs work- of this where a combination stances inability injuries hеight 7”) get (6’ and his result in his related plaintiff requires car, specially equipped van that out of just may special modification, transportation, and not its reasonably necessary “appliance” purposes of considered a case, given kind 315(1). of this Under the circumstances 227 Mich Opinion of the Court plaintiff requires, substantial vehicle modifications that entire vehicle here be considered covered 315(1), actually necessary though even it is not to rebuild the handicap. vehicle entire to accommodate the specially equipped merely van, 2. for a need *2 special equipment, injury. is related to his work Even if or all most plaintiffs strictly personal the in of travel the van is in nature and injuries, unrelated to treatment for his his need for the van remains purposes 315(1). § work-related for of part plaintiff 3. The order of the wcac that denied the replacement 315(1) cost full of a van § under must be reversed and granting the matter must be remanded for an order replacement special full cost of the van and its modifications. part Reversed in and remanded. Young, P.J., dissenting, stated that van is not an meaning Legislature’s 315(1). within selection phrase appliances” 315(1) preceded by specific “other in § that was examples adaptive (such crutches, hearing aids, of artificial aids as dentures, eyeglasses), unambiguous legislative creates an employer obligated only supply intent to mandate to properly devices of like van kind. A is not considered be like a to crutch, hearing aid, teeth, eyeglasses. false reasona- wcac’s interpretation 315(1) ble §of should be affirmed. — — Compensation Appliances Specially Equipped Worker’s Vehicles. specially equipped vehicle, opposed merely A special as to its modifi- cations, may compensable appliance constitute under Disability Compensation the Worker’s Act where the need for the vehicle, merely special equipment, not related employee’s injury (MCL418.315[1); work 17.237[315][1]). MSA Daryl Royal, plaintiff. for the & Lacey (by Jones Michael T Reinholm), for Gate- way Transportation Company and Michigan Property Casualty Guaranty Association.
ON REMAND Before: Young, P.J., and S. J. Latreelle*, Grebbs JJ.
*
judge, sitting
Appeals
assignment.
Circuit
on the Court of
Gateway
(On Rem)
Opinion
the Court
appeals
a November
Plaintiff
from
J.
Gribbs,
Appellate
1994, order of Worker’s
plaintiff’s employer is
which
Commission,
held
equipped
purchase
required
new
injuries.
plaintiff’s
work-related
accommodate
application
plaintiff’s
previously
denied
This Court
May
unpublished
appeal
ordеr,
in an
entered
leave to
Supreme
181602),
(Docket
Court,
but our
25, 1995
No.
appeal,
granting
has remanded the
in lieu of
leave
consideration
on leave
matter to this Court for
granted.
reverse.
Initially, plaintiff’s paid benefits were previous compensation insurer, Carriers worker’s Company. benefits, Insurance In addition to other plaintiff provided with van that been Carriers a had special equipment with his modified to accommodate injuries, wheelchair, such as a for his hand con- lift Apparently, power trols, seats, and automatic doors. plaintiff provided a Carriers expense the van to as medical Disa- benefit under of the Worker’s disputes concerning proceedings below involved number plaintiff totally permanently such as whether disabled and matters purposes benefits, of basic but for of this the calculation and differential specially appeal, for a we are concerned claim equipped van.
Opinion of the Court bility 418.315(1); Act, MCL MSA pertinent part: 17.237(315)(1), provides, in which employer furnish, furnished, shall or to be cause employee personal injury arising who receives out of employment, medical, and in the course of reasonable sur- gical, hospital medicines, services and or other attend- by recognized ance or treatment the laws of this state as legal, they employer when are needed. . . . The shall also supply injured employee service, to the crutches, dental limbs, teeth, eyes, eyeglasses, artificial hearing apparatus, appliances necessary cure, and other so as reasona- far bly possible, injury. and relieve If from effects of employer fails, neglects, do, or refuses so to employee expense shall be reimbursed for the reasonable by paid payment may employee, be made in behalf of employee persons unpaid expenses may to whom the owing, compensation be magis- order of the worker’s [Emphasis trate. added.] provided gas
Plaintiff and maintenance for the van expense. at own When Carriers later went bank- rupt, Michigan Property Casualty defendant & Guar- anty liability Gateway’s Association assumed compensation worker’s insurer. using equipped
After for number years, plaintiff Casualty Michigan Property asked Guaranty Association to furnish him awith new van replace previously provided to request one, but his hearing
was denied. theAt before worker’s magistrate, testified that the replaced mileage van needed to because its was quite getting high require beginning and it was both major repairs frequently. minor and more Plaintiff *4 presented expert testimony treating also from his physician opined who that because of a combination plaintiff’s injuries work-related and his somewhat (On Rem) Wilmers v Gateway
Opinion of the Court plaintiff get (6’ 7”), height to in and is unable unusual specially equipped onе, and there- car, of a even a out medically required. a van is use of fore Relying decision,2 where the WCAC on earlier handicap use does not van modified for held that a magis- 315(1), under constitute required provide not found trate special equip- only plaintiff but itself, with the van necessary to accom- modifications ment and vehicle handicap3. magistrate physical ruled: his modate replacement or sub- has for either the Plaintiff asked Apparently, repairs made to his van. mechanical stantial company provided him. original this van to insurance Corporation, General Motors Blake v upon Based (1991), I will order 4 MI WCLR 1072 not WACO Nо However, provide plaintiff I will with a van. defendants pay any require which must modifications defendants may plaintiff a van or automobile which be made to plaintiff’s para- required purchase as a which are result (Plaintiff six seven plegia testified that he is feet and size. requires ceil- tall, modification to the inches and therefore height). ing of his of his van because por- adopted appeal, the wcac and affirmed this On rejecting plaintiff’s magistrate’s decision, tion attempt distinguish the Blake case on the basis of equipped fact that Corp, 1991 Mich ACO 98. Blake General Motors Injury magistrate also that defendant Second Fund ruled cоmpany-provided car a credit for the van as substitute take through employment, previously which is one of the received fringe determining used in the amount of benefits discontinued Gateway. weekly wage average us in this That issue is not before at appeal appeal, affirmance of the is no cross from the wcac’s because there regard. magistrate’s in this decision *5 App Opinion of the Court of transportation method can use because of unique injuries and size: argument essentially magistrate’s Plaintiffs turns on the interpretation “reasonable,” of the word and asserts that Corp, #98, upon v Blake General Motors relied ACO magistrate, distinguishable. disagree. We In order magistrate issue, for us to reverse the on this we would obliged appliance. to characterize the as entire vehicle beyond stretching legisla- We would be the statute the clear Granted, plaintiff presents if tive intent we did so. some unique with; characteristics to be dealt he has severe handicap (but extraordinary) and he is of unusual height. convinced, however, We are not that the entire van would have be rebuilt to accommodate these characteris- We correct, tics. believe that the rationale Blake is magistrate affirm the on this issue.
A decision of
subject
the WCAC to reversal
legal error, such as when the
findings
WCAC bases its
on misconception
of
correctly apply
law or fails to
law.
Jones-Jennings
Hosp
(On
v Hutzel
Remand),
94,
223 Mich App
105;
Our conclusion is decisions in spe courts several other states that have held that cially equipped vans for paraplegics constitute, entirety, compensable “appliance” their “appa ratus” under worker’s statutes similar 315(1). Terry Grantham Co Comm, v Industrial Aino’s 180; 154 Ariz 741 P2d (Ariz App, 1987); Slip Custom v DeLucia, Covers (Fla 533 So 2d 862 App, 1988); Edgewood Boys’ Ranch Foundation v Robinson, 451 So 2d 532 (Fla App, 1984); Manpower Temporary Sioson, Services NW2d 259 (Iowa, Mississippi Transportation Comm v Dewease, 1995); 1997). So 2d 1007 (Miss, We find the following passage Supreme from the Iowa Court’s decision in Manpower Temporary Services particularly instructive: begin unusually strong
We with the medical evidence of necessity injured employee’s] and of the record that [the family past lifеstyle status and reveal no other use any That van. evidence refutes contention that the van is a *7 luxury frill or and reveals what can be described as an appliance, greatly not different from or a crutches wheel- point necessary chair. is a van that order to make injured employee’s] fully wheelchair useful. [the context, courts, agreed In another like other we have dictionary “appli- the definition that term describes the as Murray Royal Co, ance” “a means to an end.” v Indem 1299, 1301, (1956). 247 Iowa NW2d 78 787 The “end” of merely injured employee’s] the van is an of extension [the 300-pound is, wheelchair. Without van she than more need be, prisоner paralysis. of her severe could [factfinder] reasonably necessary appliance, thus view the part injured employee’s] of care. NW2d [the [529 264.] v 347 (On Rem) Opinion of the Court are decisions from that there acknowledge
We
deny worker’s com-
states that
courts in some other
and
specially equipped cars
pensation coverage
simply
vehicles
do
that such
ground
vans on
device,4
or
deci-
apparatus
constitute medical
allow
reim-
in still other states
sions from courts
special
vehicle
bursement
cost
employer
to offset the cost
or allow
modifications
the cost of an
modificatiоn with
of the vehicle before
However,
midpriced
year.5
car of the same
average,
that,
the circumstances
persuaded
we are
under
the kind of substantial vehicle
case,
given
this
plaintiff requires,
the entire
modifications
cov-
“appliance”
considered
vehicle
here be
actually
it is not
neces-
though
even
315(1),
ered
sary
entire vehicle
accommodate
to rebuild the
of the term
handicap.6
interpretation
The wcac’s
contrary
unduly
restrictive and
Disability
Worker’s
Com-
principle
interpreting
Act in a liberal and humanitarian manner
pensation
relieving
goal
the remedial
so as to effectuate
injury.
injured
from the effects
workers
plaintiff is
reject
contention that
We
defendants’
had
he would need whether he
seeking “something
possible
work
not.” While it is
injured at
ever been
4
Judge,
514;
(1991);
In re
R
The order of the wcac in part, reversed plaintiff extent it denies the full replacement cost van under 315(1), and this case is remanded entry wcac an order granting full replacement cost of the van, not merely special modifications. We jurisdiction. do not retain
S. J., J. concurred. Latreille, Young, P.J. (dissenting). Because I believe that the Worker’s Appellate cor- Commission rectly decided underlying claim, I would affirm. Accordingly, respectfully I dissent.
FACTUAL AND PROCEDURAL BACKGROUND February On 15, 1977, while in the course employment, plaintiff injured in was an automobile Plaintiff, accident. explained for reasons not in the (On Rem) by Young, *9 a initially suppliеd was record, Transportation van defendant equipped by compensation insurance then worker’s Company's bankrupt, later That carrier became carrier. insurance has Gateway Transportation since and defendant Property Michigan Defendant doing ceased business. responsi- Casualty Guarantee Association assumed & compensation worker’s bility Gateway’s previous carrier’s liabilities. insurance van plaintiff requested original that the Eventually, high of its mile- supplied replaced be because he was Plaintiff’s of maintenance. age increasing and its cost Casualty. by Property & request Michigan was denied рroceeding that fol- At the worker’s plaintiffs to to accede as a result of refusal lowed testimony presented van, plaintiff a request for new continuing of his work- that, of the nature because he was unable disability height (6’ 7”), and related car, specially equipped of a even get to in and out was Consequently, suggested it was one. required. medically compensation proceeding
At in worker’s issue Disa- 315(1) the Worker’s was the construction MSA bility 418.315(1); MCL Compensation Act, provides relevant Section 17.237(315)(1). part: employee supply injured employer also shall eye- eyes, teeth, service, crutches, limbs, artificial
dental necessary appliances apparatus, other glasses, hearing reasonably possible, from the cure, and relieve so far as injury. [Emphasis effects of the added.] magistrate, prior relying interpreta- on wcac’s 315(1),1 Michigan Property tion of held that Casu- alty required buy was van, but was obligated any to pay special adaptive equipment of modifying supplied plaintiff. costs vehicle appealed Plaintiff the magistrate’s decision and the affirming wcac affirmed. In the magis- the decision of the WCAC trate, stated: magistrate issue,
In order for us to reverse the on this we obligated would characterize entire vehicle as an appliance. beyond stretching We would be the statute legislative clear intent if we did so. initially
This Court denied application for *10 to appeal leave in an unpublished order, May entered 25, (Docket 1995 No. 181602). However, Supreme Court, in of granting lieu leave to appeal, remanded the case for on consideration as leave granted. 451 Mich 863 (1996).
ANALYSIS Simply put, the merit of claim for a new van, opposed compensation as for the modifica- tions made to a supplied by vehicle him, turns upon the construction of the term appliances” “other found in 315(1). Although previously interpreted by the this statute has judicially never been construed wcac, by this Consequently, Court. plain- the rеsolution of pure tiff’s claim question involves law.
Judicial review of worker’s appeals questions is generally limited to law; reviewing courts not reweigh evidence, and the findings [1] Blake v General Motors Corp, 1991 Mich ACO 98. 351 (On Wilmers v Rem) by Young, by the are conclusive adopted
fact made
wcac
any competent evidence in the
appeal if there is
on
Co,
Ford Motor
439
support
them. Holden v
record to
484
227
263;
(1992). Although
NW2d
257,
Mich
novo,
questions of law
Cardinal
de
Court reviews
Michigan High School Athletic
Mooney High School v
we
75, 80;
(1991),
gen-
I believe that the wcac’s construction compensation act reasonable worker’s both plain language with thе meaning consistent *11 “appli- Legislature chose when it enacted 315. An § appara- as “instrument, ance” defined generally is a The Random tus, particular purpose.” or device English Language: Una- Dictionary House of unpersuaded I that p 73. am bridged (1973), Edition van falls within the ambit vehicle) a other (or normally kind of articles one would consider be “appliances.” appliance of is
This construction
buttressed
remaining
of
language
because the term
315(1),
preceded by
appliances”
“other
of
iteration
no
fewer than seven other
examples
illustrative
medi-
cal devices or
designed
artificial aids
to enhance an
injured employee’s ability to overcome the effects of
disability. I
conclude
Legislature’s selection
the phrase
appliances,”
preceded by
“other
when
spe-
examples
cific
adaptive
of artificial
(such
aids
crutches,
aids,
hearing
dentures, glasses,
creates
etc.),
an unambiguous legislative intent to
that an
mandate
employer
is obligated
supply
devices
like
kind. In giving construction to statutes, words are to
“ ‘
be taken
“in
they
the sense
which
are under-
”
stood in common
. .
language
.
Romano
South
Range Constr Co,
App 533, 538;
8 Mich
In reaching the conclusion not an appliance within meaning I 315(1), am mind- majority’s ful of the admonition that the worker’s *12 353 Rem) (On by Young, P.J. Dissent bеing compensation nature, must be in remedial act, proposition broadly a can- However, such construed. interpret judicial statutes license as not be utilized plain foreign See Dillon v terms. to their in a manner App Secretary 591; 233 NW2d Mich State, 61 of response any (1975). most direct event, In the 96 proposition the worker’s is that derogation being law, must be common of the in act, literally Industries, 445 v Retool Paschke construed. stated, 441 As 519 NW2d 502, 510-511; Mich compelling provided Legislature basis for has the construing defining “other the term and therefore examples by supplying appliances” kind of the seven appliances adaptive prosthetiс had in mind. it of relieving legislative goal Consequently, the the conjunction injury in must be read of an effects specifi- Legislature devices the illustrative the kind of cally in the statute. to include chose upon pains majority to focus has taken obvious
The unique opinion characteristics to the and limit its disability. plaintiff However, work-related and his particularly basis either unsuitable find this to be I statutory general for determin- in construction for ing concerning Legislature’s statute intent opinion gives majority also in this case.2 involved portion emphasis particular of the statute that to the “necessary supply appliances employers requires reasonably possible, and relieve from far as cure, so plaintiff’s placed primary majority focus on such a has that the Given plaintiff receiving an needs, appropriate to note that it is claimed compen part $4,250 of his worker’s approximate allowance as car annual why majority question may, consequence, One as sation benefits. entirely abrogate sensible inter case to has chosen wcac’s compen effect, require and, pretation this statute transportation needs. sated twice for injury” construing as basis effects appliances” expansively. majority the term “other any effеctively term defines the device will serve to ameliorate the effects work- injury.3 actually Legislature’s related If it were require provision any intent to device that *13 injury possible would regard cure the much as without the of device, nature the one would have expected Legislature by explicitly the to have done so eliminating exemplar appliances all the it included to appliances.” define the term “other My majority’s criticism of the construction best by plaintiff’s illustrated rejected one of claims that was appealed. below but has not been Plaintiff requested Michigan Property Casualty below that in-ground swimming poоl property install an on his pool provide therapeutic because a would him a properly means of exercise. This claim was denied pool rejected swimming below. A claim for a must be my reading pool in-ground § under because an is not and cannot be considered an within meaning the However, statute. I believe that majority’s the construction of the statute would require (or preclude) contrary at least would not majority result because the concludes that the statute requires provision “products reasonably the as are necessary injury.” to cure or relieve the effects of plaintiff’s request Ante at 345. Thus, for thе installa- pool in-ground tion of an have would merit under presumably why majority emphasizes plaintiff’s unique This is the “appli as a characteristics rationale for its determination that a van is an play large ance.” The fact so role in characteristics the majority’s leading major construction of statute is a indicator ity’s approach Legislature’ determining nontextual intent. (On Rem) pool provide 315 to the extent would relief injury.4 plaintiffs
Despite attempt provide some limitation on majority’s its construction of this statute, con- or struction admits of no real determinate basis for in deciding properly future cases what char- appliance. Moreover, majority acterized as an essentially adopts concedes that the rule it has not accepted majority jurisdictions. been Having expand scope beyond undertaken to of the statute meaning bear, I believe that its will language majority explanation owes not regarding how far its will construction take us but what factors must particular be considered whether a determining requested appliance device more something an appliance. majority clearly than has not done so.
Finally,
majority
rests
its construction
on Davis v
Co,
Citizens Ins
195 Mich
323, 327;
vehicle in order to around his acre homestead. Plaintiff has requested pay that defendant for vehicle since it is the by portions property. means which he can reach the outer of his magistrate reimbursement, requiring declined to order full instead Property Casualty any necessary Miсhigan pay & modifications. However, majority’s opinion issued, plaintiff again once the is and requests Property Casualty Michigan purchase modified him, possible I tractor for cannot determine how it would be then under majority’s 315(1) deny request. § construction of that [Jan. requires, personal no-fault act as a reimbursable injury protection expense, charges reasonable (pip) “reasonably necessary products” as well as ser- 500.3107(a); vices and accommodations. See MCL 24.13107(a) (emphasis added). MSA However, there are at least three fundamental problems majority’s upon with the reliance Davis. listing First, the no-fault act cоntains no of illustrative “products” provide potential a limitation on the meaning Consequently, of that term. the no-fault act markedly materially 315(1), differs from Legislature attempted wherein the to define exam- ple appliances.” duty the term “other Second, the supply “reasonably under the no-fault act to sary products,” neces- 500.3107(a); 24.13107(a), MCL MSA considerably expansive obligation more than the compensation under of the worker’s act to provide appliances.” might “other A van well be a product; easily I do not believe van can appliance, particularly light deemed an examples prosthetic аdaptive Leg- devices the appliances islature chose to illustrate the kind of employer obligated provide under the worker’s despite Third, act. what I consider to be material differences between the statutes, two arguendo, if, even I concluded that these differences persua- were material, I do not find Davis to be authority exceedingly sive in this case. Davis is an spare opinion. quoting Other than statute, no-fault analysis Davis contains almost no textual of the no- language merely fault at issue. Davis affirms the trial pip expense court’s award as a reimbursable the full purchased by costs of a modified van buy after the insurer refused to the vehicle. Nowhere *15 Rem) (On parties appeal, apparent that the raised on is it surely purport opinion address, does not the Davis expenses question whether reimbursable PIP encompass modifications, should only they apportioned should be to include whether made to the van to accommodate the modifications disabilities of the insured. gave I believe that the wcac a reasonable Because interpretation act and of the worker’s interpretation reasonable, but is not because comports plain meaning the terms the with the establishing Legislature the contours of an chose employer’s obligation aids to to furnish rehabilitative injured employees, I affirm the decision of the would WCAC.