Clark v. Chrysler Corp. , 377 Mich. 140 ( 1966 )

Souris, J.

On November 27, 1954, plaintiff Clark suffered an industrial accident while in the employ of defendant Chrysler Corporation. His left hand was amputated above the wrist and the thumb, index, and middle fingers of his right hand also were amputated. In 1961 a referee of the workmen’s compensation department awarded plaintiff compensation benefits for the specific loss of each hand for two consecutive periods of 215 weeks. The referee had concluded that plaintiff’s right hand was so badly injured by amputation of the thumb and two fingers that he no longer had the industrial use of that hand, thus qualifying for specific loss benefits for loss of that hand¹ as well as for loss of his amputated left hand pursuant to the specific loss provisions of section 10, part 2² of the act as amended by PA 1954, No 175. Plaintiff appealed the referee’s ruling to the appeal board claiming to be totally and permanently disabled and entitled not only to weekly benefits for a period of, 800 weeks from the date of injury as provided in 1954 by section 9, part 2³ of the act, but, as well, to differential benefit payments from the second injury fund as provided by section 9 after its amendment by PA 3955, No 250 and by PA 1956, No 195. The appeal board, by split decision, rejected plaintiff’s claims for total and permanent disability benefits and for differential benefit payments from the second injury fund and affirmed the decision of the referee awarding plaintiff a total of 430 weeks compensation benefits for his specific losses of both hands.

This case of Clark is somewhat similar to Liesinger v. Owen-Ames-Kimball Company, 377 Mich 158. A significant factual difference exists, however, which requires in this case our consideration of the applicability of the 1956 amendment to a prior injury found to have resulted in loss of industrial use of both of claimant’s hands. Plaintiff Clark’s injury occurred in November of 1954, after the August 13, 1954 effective date of PA 1954, No 175, and before the August 1, 1956 effective date of PA 1956, No 195. Before and after that interim period our workmen’s compensation law provided total and permanent disability benefits for those injured employees who had lost the industrial use of both their hands, by judicial construction prior to the 1954 act, see Rench v. Kalamazoo Stove and Furnace Co. (1938), 286 Mich 314, and by the following italicized statutory language after amendment of section 10 by the 1956 act:

“Total and permanent disability, compensation for which is provided in section 9 hereof, means:

“(1) Total and permanent loss of sight of both eyes.

“(2) Loss of both legs or both feet at or above the ankle.

“(3) Loss of both arms or both hands at or above the wrist.

“(4) Loss of any 2 of the members or faculties enumerated in (1), (2) or (3).

“(5) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.

“(6) Incurable insanity or imbecility.

“(7) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subsection (7) such permanency to be determined not less than 30 days before the expiration of 500 weeks from the date of injury.”

The statutory language we construed in Bench, supra, to include industrial loss of use of both hands as total and permanent disability, which language remained in section 10 of the act until its 1954 amendment, read as follows:

“The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any 2 thereof, shall constitute total and permanent disability, to be compensated according to the provisions of section 9.”

As I pointed out in my opinion in Liesinger, supra, we construed that language in Rench, supra, as nonexclusive of other injuries which could be found to be total and permanent disabilities. Such a construction hardly can be given the amendatory language first appearing in 1954 which commences, “Total and permanent disability * * * means:” and then proceeds to list six specifically defined losses among which are “(3) Loss of both arms or both hands at or above the wrist” and “(5) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.” It is significant that in 1954 the legislature changed the statutory provision from language which described some, but not all, losses included among those described as total and permanent disabilities to language which purported to list definitively all such losses. Verberg v. Simplicity Pattern Company (1959), 357 Mich 636. It is significant, also, that permanent and complete paralysis of legs and arms is among the losses' listed in the 1954 amendment, suggesting to me that any diminution in use of legs and arms less than permanent and complete paralysis thereof was not included any longer in the meaning of total and permanent disability. If the legislature had intended, to adopt the Rench Case’s construction of the pre-1954 language as part of the construction of subsection (3) added by the 1954 amendment, “Loss of both arms or both hands at or above the wrist”, it would have been unnecessary to add subsection (5), “Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm”, for such paralysis certainly would have constituted loss of industrial use thereof within our holding-in Rench.

I do not regard the words “at or above the wrist”, appearing in subsection (3) of any significance to the question whether loss of industrial use of both hands is included in that subsection. Were it not for the presence of subsection (5) in the 1954 amendment, I would hold that subsection (3) should be construed to include loss of industrial use of both hands. We have had no difficulty construing quite similar language in section 10 which provides for payment of weekly benefits for specific periods for the loss of thumbs, fingers, toes and phalanges thereof; hands; arms; feet; legs; and eyes, to include the loss of industrial use of a hand as well as the amputation thereof and notwithstanding a provision in that part of the section that “An amputation between the elbow and wrist 6 or more inches below the elbow shall be considered a hand, above this point an arm”. See Shumate v. American Stamping Company (1959), 357 Mich. 689; Lentz v. Mumy Well Service (1954), 340 Mich 1; West v. Postum Co., Inc. (1932), 260 Mich 545; and Lovalo v. Michigan Stamping Co. (1918), 202 Mich 85.

Addition of subsection (7) by PA 1956, No 195, confirms for me the conclusion that between the 1954 and 1956 amendatory acts, for reasons which are inexplicable, the legislature did not provide for payment of total and permanent disability benefits to those injured employees whose injuries resulted in the loss of industrial use of both hands unless resulting from paralysis of both arms or from amputation of both hands. The question then becomes whether the 1956 addition of subsection (7) can be applied to qualify for total and permanent disability benefits an employee whose industrial injury in November of 1954 resulted in the loss of industrial use of his hands.

In Lahti v. Fosterling (1959), 357 Mich 578, this Court held that the legislature could, by amendment of the workmen’s compensation law, increase an employer’s liability thereafter for hospital and medical expenses of an employee injured before the amendment without violation of Federal or State constitutional provisions. Our holding in Lahti and the authorities relied upon therein, particularly Matter of Schmidt v. Wolf Contracting Co. (1945), 269 App Div 201 (55 NYS2d 162), affirmed 295 NY 748 (65 NE2d 568), and Matter of Hogan v. Lawlor & Cavanaugh Co. (1955), 286 App Div 600 (146 NYS2d 119), support my conclusion that the legislature lawfully can reclassify by amendatory act prior injuries even when the effect thereof is to increase the benefit payments payable therefor, at least when the employer’s liability for the increased benefit payments arises only after the effective date of the amendatory act. This, I believe, is what the legislature effectively accomplished by PA 1956, No 195.

The second clause of subsection (7), added to section 10 by the 1956 amendment, reads, “for the purpose of this subsection (7) such permanency [of loss of industrial use] to be determined not less than 30 days before the expiration of 500 weeks from the date of injury”. That language, applicable only to subsection (7) and not to the other six subsections, effectively limits its application to future injuries and to only those prior injuries which occurred within 30 days less than 500 weeks before the effective date of the act, thus precluding resurrection of ancient claims.

Furthermore, nothing in the amendment so much as suggests legislative effort to make the employer’s liability under subsection (7) for prior injuries retroactive in the sense that increased benefits be payable for periods preceding the effective date of the 1956 amendment. Absent any statutory language so purposed, the constitutionality of which we need not determine, subsection (7) must be construed to require payments to plaintiff by the employer of total and permanent disability benefits for loss of industrial use of legs, hands, or arms only on and after the effective date of the 1956 amendment. As a matter of fact, the 1956 amendment changed section 9 to provide that differential benefit payments required by that section to be paid from the second injury fund to certain permanently and totally disabled persons, as defined in sections 8a⁶ and 10, commence after the effective date of the 1956 amendment. Thus, both the employer’s liability and the second injury fund’s liability arising under subsection (7) commenced upon August 1, 1956, the effective date of PA 1956, No 195.⁷

Tbe appeal board should have modified the referee’s order to provide, after payment of specific loss benefits from November, 1954 to August, 1956, for payment to plaintiff by his employer of total and permanent disability benefits for the period commencing August 1, 1956 and ending 800 weeks from November 27, 1954, the date of plaintiff’s injury, at the benefit rate for total and permanent disability provided by the act on August 1, 1956.

Upon legislative increase in the benefit rate for total and permanent disability, plaintiff will be entitled to differential benefit payments from the second injury fund as provided in section 9 without application therefor.

I would vacate the order of the appeal board and remand for entry of an order in conformance with this opinion. Costs may be taxed in favor of plaintiff.

T. M. KÁvanagh, C. J., and Smith, and Adams, JJ., concurred with Souris, J. Black, J., concurred in result.

1 See Shumate v. American Stamping Company (1959), 357 Mich 689.

2 CL 1948, § 412.10, as amended by PA 1954, No 175 (Stat Ann, 1955 Cnm Supp § 17.160).

3 CL 1948, § 412.9, as amended by PA 1954, No 175 (Stat Ann 1.953-Oum Snpp § 17.159, as amended),

6 CLS 1961, § '112.8a (Stat Ann 1903 Cum Supp § 17.158 [1]).

7 There is disagreement and confusion among counsel and my Brethren regarding the significance of the reference to June 25, 1955, added to section 9 by the 1956 amendment. Before the 1956 amendment, section 9, as amended by PA 1955, No 250, contained the following language:

“Any person who is permanently and totally disabled and who is receiving payments of workmen’s compensation which are payable to such person under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lessor number of weeks than the duration of such permanent and total disability shall hereafter receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (e), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this aet for the duration of such permanent and total disability according to the full rate now provided in the schedule of benefits.”

The 1956 amendment changed the language to read:

“Any permanently and totally disabled person as defined in sections 8a and 10 who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this aet in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of this amendatory aet receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (e), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this aet for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.”

I suggest that the June 25, 1955, date was inserted in section 9 by the 1956 amendment in order to correct a legislative oversight in the adoption of PA 1955, No 250, in failing to refer in section 9 to section 8a when describing the persons permanently and totally disabled who would be entitled to the differential benefits from the second injury fund. Thus, the 1955 amendment, in the language above quoted, provided that those qualifying as permanently and totally disabled (as defined only in section 10) were entitled to differential benefit payments. But in the 1956 amendment the legislature included among those entitled to the differential benefits of section 9 those permanently and totally disabled as defined in section 8a, as well as in section 10, and in order to rectify its 1955 oversight, as to section 8a claimants, made the provision retroactively applicable to those qualified to receive total and permanent disability benefits on or after June 25, 1955, the effective date of PA 1955, No 250. Of course, those so qualified by the definitions of section 10 were already covered as of June 25, 1955, the effective date of PA 1955, No 250, by the reference in the 1955 amendment to section 10 definitions. Thus, reference .to that effective date in the 1956 act can apply only to those injured employees defined as totally and permanently disabled by-section 8a. Whether inclusion of that date was effective to entitle section 8a claimants to differential benefit payments as of June 25, 1955, and thus on a parity with section 10 claimants who fell within the original six classifications of total and permanent disability, is doubtful in view of the later provision in section 9, also added by the 1956 amendment, that the 1956 amendments to section 9 would not be effective until the effective date of PA 1956, No 195. Whether effective or not, that is the only rational explanation I can perceive for the legislature’s reference to June 25, 1955, in the 1956 amendment of section 9. In any event, it does not lend any support to defendant Chrysler’s claim that the 1956 amendment is not applicable to impose liability upon employers for injuries occurring prior to the 1‘95(S amendments. ' '