Hutsko v. Chrysler Corporation , 381 Mich. 99 ( 1968 )

381 Mich. 99 (1968) 158 N.W.2d 874

HUTSKO
v.
CHRYSLER CORPORATION.

Calendar No. 4, Docket No. 51,803.

Supreme Court of Michigan.

Decided June 10, 1968.

Rothe, Marston, Mazey, Sachs & O'Connell (B.M. Freid, of counsel), for plaintiff.

Lacey & Jones (E.R. Whinham, Jr., of counsel), for defendant.

O'HARA, J.

This is an appeal on leave granted to review a decision of the Court of Appeals. The decision reversed the workmen's compensation appeal board. There is no fact issue involved. The question presented is one of law. It is:

Where a claimant has lost the industrial use of his hand in his particular skill but retains a measure of general unskilled industrial use thereof, has he sustained the loss of the hand within the meaning of the specific loss schedule of the workmen's compensation law?^[1]

Plaintiff was employed as a millwright by defendant company. His hand was caught in a fan he was repairing. As a result his little finger was amputated. He has restricted use of his middle and ring fingers, a consequential deformity of his index finger, but a normal thumb and palm. All of the medical testimony is in substantial agreement that he has lost the industrial use of the hand in his skill and retains some general industrial use. He is now retired. He has received and continues to receive wage loss disability payments while unemployed. His claim is for benefits within the schedule loss period while he was employed and receiving wages equal to those he received when working at his skilled trade before his injury.

Michigan has 2 types of workmen's compensation benefits, wage loss disability payments and specific or schedule loss payments. The first type is dependent upon proof of a wage loss resulting from an industrial injury. It is a differential payment computed on what wage the injured workman is able to earn after his injury and the wage he was earning at the time he was injured. If there is no difference he receives no benefits. The second type is a specific loss benefit paid under a schedule of losses applicable to certain designated organs or anatomical members. To this benefit the injured workman is entitled during the period provided in the schedule, irrespective of any wages he receives whether greater or less than those he received at the time of his injury. As to the second type we recently held:^[2]

"We point out that a specific loss award is not made as compensation for diminution of use of the involved organ or member. It is not awarded to compensate for loss of earnings or earning capacity. It is awarded irrespective of either fact or both."

However, in order to qualify for the specific loss payment where there has not been the actual physical loss of the member as by amputation, there must be that total incapacitating loss of use which renders the organ or member industrially useless for any type of work, skilled or unskilled. To hold otherwise we think would be a logical contradiction. Plaintiff's injury has not amounted to the actual physical loss tantamount to destruction or amputation contemplated by the specific loss schedule. The test is not the degree of loss measured by the requirements of the skill of the injured workman. The test is the degree of loss as compared with the actual physical loss by destruction or amputation. We hardly need add that where the specific loss schedule makes an exception as in the case of an eye, the percentage of loss legislatively specified obtains.

Plaintiff-appellant relies generally on the theory that we have long recognized a distinction between skilled and unskilled labor in the field of workmen's compensation law. In particular he urges that Collins v. Albert A. Albrecht Co., 212 Mich 147, is authority for his position.

We readily agree that for several purposes in workmen's compensation cases the difference between skilled and unskilled work has been recognized. We do not find the distinction to have been made applicable to the question of what degree of loss of use amounts to actual physical loss so as to qualify a claimant for specific loss benefits.

We recognize that in Collins, supra, this Court used language that could be interpreted to sustain a contrary conclusion. However, we find no other similar instance in our case law. We conclude that in Collins the Court used the phrases "at his trade" and "as a carpenter" as descriptive only. It should be carefully noted in Collins that earlier in the decision the Court said, at p 148:

"After considering with some care the testimony bearing on the loss of vision of plaintiff's injured eye we have concluded that plaintiff has lost an eye within the meaning of the compensation law." (Emphasis supplied.)

In simple substance then we construe a specific schedule loss to be that loss of industrial use or function equal to actual physical loss as by destruction or amputation, except as before noted when otherwise provided in the act. This holding, we think, accords with the legislative intent which awards benefits in a schedule loss irrespective of wage loss disability.

Affirmed. Under the circumstances of this case we award no costs by reason of the statutory construction involved.

DETHMERS, C.J., and KELLY, BLACK, SOURIS, ADAMS, and T.E. BRENNAN, JJ., concurred with O'HARA, J.

T.M. KAVANAGH, J., concurred in the result.

NOTES

[1] CLS 1961, § 412.10 (Stat Ann 1960 Rev § 17.160).

[2] Lindsay v. Glennie Industries, Inc. (1967), 379 Mich 573, 578.