Modreski v. General Motors Corp.

417 Mich. 323 (1983) 337 N.W.2d 231

MODRESKI
v.
GENERAL MOTORS CORPORATION

Docket No. 67570, (Calendar No. 5).

Supreme Court of Michigan.

Argued April 5, 1983. Decided August 22, 1983.

Goodman, Eden, Millender & Bedrosian (by Morton A. Eden and Diane M. Kwitoski; Gary Granader, of counsel) for the plaintiff.

Otis M. Smith, General Counsel, General Motors Corporation, and Willard W. Wallace (E.R. Whinham, of counsel) for defendant General Motors Corporation.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard F. Zapala, Assistant Attorney General, for defendant Second Injury Fund.

CAVANAGH, J.

In this case, we are asked to revisit the definitions of work-related incurable insanity and imbecility set forth in Redfern v Sparks-Withington Co, 403 Mich. 63; 268 NW2d 28 (1978).^[1]

I

Plaintiff began working for defendant General Motors Corporation in 1955. On December 29, 1961, she suffered a work-related injury when an automobile door fell on her right hand. After the injury, she returned to work, but her condition worsened. She worked intermittently, and weekly general disability benefits were paid when she did not. Finally, on September 12, 1966, GMC placed plaintiff on total disability and paid her general disability benefits through February 27, 1972, the date on which 500 weeks of benefits had been paid for the 1961 injury.

On March 22, 1972, plaintiff petitioned for total and permanent disability benefits, alleging both incurable insanity and the loss of industrial use of her right arm and right leg.^[2] After a hearing, the hearing referee found, inter alia, "that plaintiff became totally and permanently disabled as defined pursuant to the test as set forth in Sprute v Herlihy Mid-Continent Co, 32 Mich. App. 574; 189 NW2d 89 (1971) in MCL 418.361(2)(f); MSA 17.237(361)(2)(f) on 9-12-66 as a result of the injury of 12-29-61 aggravated by the further work that she did until 3-6-66 and 9-12-66". GMC was ordered to "pay compensation * * * until further order of the bureau, ``but not in excess of 800 weeks from 9-12-66'", while defendant Second Injury Fund was ordered to pay differential benefits from September 12, 1966. A five-member Workers' Compensation Appeal Board panel affirmed the hearing referee's decision, finding that "[t]he proofs in this cause show plaintiff to be totally and permanently disabled by mental illness and as a result unemployable". By order issued December 5, 1975, the Court of Appeals denied defendants' applications for leave to appeal.

Thereafter, on March 24, 1976, this Court ordered that defendants' applications for leave to appeal be held in abeyance, pending disposition of Redfern and other cases requiring an examination of incurable insanity or imbecility under the Worker's Disability Compensation Act.^[3]Redfern was decided on July 17, 1978, and, by order of this Court issued January 8, 1979,^[4] the present case was remanded to the WCAB for reconsideration in light of Redfern.

On remand, the WCAB, by a 3 to 2 decision, set aside the previous award for total and permanent disability, finding, inter alia, that:

"This record establishes neurological or orthopedic disability on a functional basis. The organic basis that the disability might well have is not demonstrated. That disability on a functional basis is not incurable insanity has been established once and for all, at last, by the following comprehensive test set forth at 403 Mich. 63, 85:

"``We conclude that a worker's mental illness is "insanity" if he suffers severe social dysfunction and that a worker's intellectual impairment is "imbecility" if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is "severe" if it affects the quality of the worker's personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.'

"To circumvent these words by a finding that a two-member functionally-based loss (falling short of industrial loss of use as measured by the standards of Burke [v Ontonagon Road Comm, 391 Mich. 103; 214 NW2d 797 (1974)], and DeGeer [v DeGeer Farm Equipment Co, 391 Mich. 96; 214 NW2d 794 (1974)]), is indeed equal to the loss of the two members referred to in Redfern, supra, is a contradiction on its face. It would, moreover, welcome the reappearance of Sprute-attendant inequities listed hereinbefore.

"The facts of the instant case are not unlike those of Redfern, supra, as set forth in 403 Mich. 63, 71, fn 2. See 1978 WCABO 3149. The Redfern Court refers, not to somatic disability with functional basis, but to ``the employee's mental capacity' 403 Mich. 63, 78; ``mental illness', id. at 81; and ``loss of mental function' ibid.

"Plaintiff's ``mental capacity' remains much the same that it was before work-related injury. Indeed, it was that mental predisposition with which defendant accepted plaintiff, which turned a hand injury into a constellation of neurological and orthopedic complaints. While there is some reciprocal effect of worsening symptoms on mental condition, it is minimal. Plaintiff has no mental illness resulting in severe social dysfunction affecting the quality of her personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes.

"Plaintiff would still be working had not the machinations attendant upon her various maladies become too much for defendant to cope with. There is nothing to indicate that, with the exception of her relationship with one young foreman, plaintiff's ability to get along with both fellow workers and superiors was not the best.

* * *

"While plaintiff has physical difficulties, she is no recluse. * * *

"Plaintiff's relations with her neighbors are good. * * *

"What is most important is plaintiff's excellent relationship with her sons and with their wives. * * *

"Plaintiff is conversant with her financial situation[] * * *

"It thus appears that plaintiff has efficiently organized her life to accommodate her physical problems. Even with these, she enjoys a certain amount of independence and can count on a great deal of family support as needed for a physical, not a mental, condition. * * *

* * *

"That the resulting condition is work-related is established. That it is incurable insanity (as opposed to general disability on a functional basis) is not. * * *

* * *

"[P]laintiff is not incurably insane as a matter of fact according to the legal standards set forth in Redfern, supra." 1979 WCABO 3051, 3056-3061.

The Court of Appeals granted plaintiff leave to appeal, and affirmed the WCAB. In pertinent part, the Court of Appeals stated:

"If the Redfern definition of incurable insanity is interpreted as focusing only on the mental aspects of a disability — a claimant's grasp on reality and ability to interact with his or her environment in a healthy manner — plaintiff is not incurably insane. On the other hand, if the Redfern definition of incurable insanity is interpreted as being applicable to a claimant whose ``insanity' is substantially manifested in a panoply of physically disabling symptoms, there is support for the dissenting board members' claim that plaintiff is incurably insane.

"We believe that the majority was correct in adopting the first of these interpretations and, thereby, finding that plaintiff was not incurably insane for purposes of receiving total and permanent disability benefits under MCL 418.361(3)(f); MSA 17.237(361)(3)(f).

"The record in the instant case does not establish severe social dysfunction such as to satisfy the Redfern standard. Plaintiff appears to be very capable of meeting her daily needs, arranging for her future, dealing with her physical maladies, and communicating with her neighbors, friends, and relatives." Modreski v General Motors Corp, 119 Mich. App. 198, 205; 326 NW2d 386 (1981).^[5]

We granted leave to appeal on August 6, 1982.^[6]

II

Prior to appellate judicial comment on the subject, the WCAB determined that a worker is "insane" when his injury "affects or destroys his mental capacity to the degree that he is deranged and unfit to be employed because of the unreliability of his behavior with concomitant danger to himself and others". Borg v Fisher Body Division of General Motors Corp, 1969 WCABO 1246, 1258. However, in Redfern, supra, p 84, we stated that the foregoing test was "too restrictive for the purposes of the act to require evidence that the mental illness poses a risk of physical harm."

Subsequent to the decision in Borg, the Court of Appeals, in Sprute v Herlihy Mid-Continent Co, 32 Mich. App. 574, 579; 189 NW2d 89 (1971), lv den 385 Mich. 784 (1971), held that:

"An employee is incurably insane under MCL 412.10(b)(6); MSA 17.160(b)(6) if the occupationally related mental or emotional illness which impairs the employee's mental processes is of totally disabling proportions and is likely to be of long and indefinite duration, thus making gainful employment impossible." (Footnotes omitted.)

As noted by this Court,

"Sprute says, in effect, that a worker can recover total and permanent disability benefits for incurable insanity if

"(1) he has a mental or emotional illness,

"(2) the illness is work related,

"(3) the impairment of his mental processes is of totally disabling proportions,

"(4) it is likely to be of long and indefinite duration, and

"(5) gainful employment is impossible.

"We accept criteria 1, 2 and 4; the incapacity must be attributable to work-related mental illness expected to be of long duration. We do not accept criteria 3 and 5, requiring that the impairment of mental processes be totally disabling precluding gainful employment." (Footnote omitted.) Redfern, supra, p 79.

Accordingly, we shifted the focus of the test from the ability to work to the ability to function outside the work setting.

"We conclude that a worker's mental illness is ``insanity' if he suffers severe social dysfunction and that a worker's intellectual impairment is ``imbecility' if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is ``severe' if it affects the quality of the worker's personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored. The question whether the mental illness or intellectual impairment is work-related is to be decided in accordance with Deziel v Difco Laboratories, Inc (After Remand), 403 Mich. 1; 268 NW2d 1 (1978)." Redfern, supra, p 85.

III

Plaintiff would have us declare that functional disability which results from mental illness can serve as a basis for finding a person incurably insane. Specifically, plaintiff claims: (1) that she has lost the functional use of both her legs and of her right arm as a result of her mental illness, and (2) that such loss has affected the quality of her nonvocational life so as to amount to a severe social dysfunction.

Although we stated in Redfern "that it is better that further definition evolve in the administrative and judicial decision of individual cases"^[7] and implied "that an organic disorder affecting the brain or nervous system and resulting in physical manifestations * * * [might] constitute ``mental illness' or give rise to ``social dysfunction'",^[8] we believe that the WCAB and the Court of Appeals properly applied the Redfern test in this case. The Redfern test analogy to physical manifestations "comparabl[e] to the loss of two members or sight of both eyes" was just that — an analogy. It was not meant to imply that physical manifestations which cause functional disabilities and which result from mental illness or from intellectual impairment necessarily constitute a basis for a finding of incurable insanity or imbecility.

Indeed, unless the physical manifestations themselves cause functional disabilities which qualify as total and permanent disability, the requirements of the WDCA are circumvented,^[9]i.e., something less than totally and permanently disabling physical consequences of a work-related injury serve as the basis for a finding of totally and permanently disabling incurable insanity or imbecility. Obviously, that is an anomaly not intended by the workers' disability compensation scheme. Thus, we must reaffirm the requirement that severe social or cognitive dysfunction is that which "affects the quality of the worker's personal, non-vocational life in significant activity comparably to the loss of two members or sight of both eyes". Redfern, supra, p 85.

IV

Although plaintiff failed to demonstrate that she is incurably insane within the meaning of the WDCA, we must order remand to the WCAB so that her claim for total and permanent disability benefits based on the alleged loss of industrial use of her right arm and right leg can be adjudicated. Contrary to the opinions of the WCAB and the Court of Appeals and to defendants' contention, plaintiff did not abandon that claim. Indeed, the hearing referee, resting solely on a finding of incurable insanity, never addressed that claim. Thus, plaintiff had no obligation to cross-appeal to preserve the issue because it was not adjudicated adversely to her.

Likewise, in its first opinion in this matter, the WCAB did not address the issue, instead affirming the hearing referee in toto. Further, this Court's remand order for reconsideration in light of Redfern did not limit the claims which could be addressed, i.e., if plaintiff was found not to be incurably insane, consideration of her claim of loss of industrial use was not precluded. In other words, her claim of loss of industrial use was not outside the scope of the remand order. See, generally, The Vogue v Shopping Centers, Inc (After Remand), 402 Mich. 546, 552-553; 266 NW2d 148 (1978); Howard v Detroit, 377 Mich. 102, 110-111; 139 NW2d 677 (1966); Bernstein v Shifman, 355 Mich. 398, 402-403; 94 NW2d 821 (1959); Kleynenberg v Highlands Realty Corp. 340 Mich. 339, 342-343; 65 NW2d 769 (1954); Vogue Cleaners & Dyers, Inc v Berkowitz, 296 Mich. 565; 296 N.W. 680 (1941); Schneyder v Cadillac Motor Car Co, 280 Mich. 127; 273 N.W. 418 (1937). Indeed, since the WCAB reversed its first decision, thereby denying plaintiff benefits, fairness dictates that it then should have addressed her other claim which had not previously been considered.

Affirmed in part, reversed in part, and remanded to the WCAB for consideration on the merits of plaintiff's claim for total and permanent disability benefits based on the alleged loss of industrial use of her right arm and right leg.

WILLIAMS, C.J., and KAVANAGH, LEVIN, RYAN, BRICKLEY, and BOYLE, JJ., concurred with CAVANAGH, J.

NOTES

[1] Costs awarded sub nom Legut v Detroit Window Cleaning Co, 406 Mich. 1124 (1979).

[2] MCL 418.361(2); MSA 17.237(361)(2), then in effect, read as follows:

"Total and permanent disability, compensation for which is provided in section 351 means:

"(a) Total and permanent loss of sight of both eyes.

"(b) Loss of both legs or both feet at or above the ankle.

"(c) Loss of both arms or both hands at or above the wrist.

"(d) Loss of any 2 of the members or faculties enumerated in (a), (b) or (c).

"(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.

"(f) Incurable insanity or imbecility.

"(g) 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 subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury."

See MCL 418.361(3); MSA 17.237(361)(3) for the current version of this subsection.

[3] MCL 418.101 et seq.; MSA 17.237(101) et seq.

[4] 404 Mich. 823 (1979).

[5] We note, as did the WCAB and the Court of Appeals, that, as a result of her 1961 injury, plaintiff was entitled to general disability benefits for the period between September 12, 1966, and February 27, 1972. However, contrary to any implications of the WCAB and the Court of Appeals, plaintiff was not awarded general disability benefits by the hearing referee as a result of her 1966 injury, although the rates of payment between September 12, 1966, and February 27, 1972, were adjusted. Indeed, plaintiff did not seek such benefits as a result of her 1966 injury. Instead, she sought scheduled benefits for specific medical losses based on two allegedly total and permanent disabilities, i.e., incurable insanity and the loss of industrial use of her right arm and right leg. See Redfern, supra, pp 79-83, and the authorities cited therein, for further explanation of the distinction between scheduled benefits and general disability benefits.

[6] 414 Mich. 866 (1982).

[7] Redfern, supra, p 83.

[8] Redfern, supra, p 85, fn 20. Perhaps also implicit was that a psychotic disorder resulting in physical manifestations might constitute mental illness or give rise to social dysfunction.

[9] Of course, if the physical manifestations cause functional disabilities which qualify as total and permanent disability, or even as partial disability, the worker is entitled to recover benefits under the WDCA. Likewise, physical manifestations causing functional disabilities which do not amount to total and permanent disability might still qualify a person for general disability benefits. See, generally, Redfern, supra, pp 80-83.