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«TIMOTHY L. TRAMMEL, PLAINTIFF, V DOCKET #08-0226 CONSUMERS ENERGY COMPANY, SELF INSURED, DEFENDANT. APPEAL FROM MAGISTRATE DECKER. MARGARET A. ...»

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2009 ACO # 126

STATE OF MICHIGAN

WORKERS’ COMPENSATION APPELLATE COMMISSION

TIMOTHY L. TRAMMEL,

PLAINTIFF,

V DOCKET #08-0226

CONSUMERS ENERGY COMPANY,

SELF INSURED,

DEFENDANT.

APPEAL FROM MAGISTRATE DECKER.

MARGARET A. O’DONNELL FOR PLAINTIFF,

GERALD M. MARCINKOSKI FOR DEFENDANT.

OPINION

GRIT, COMMISSIONER

The defendant appeals a closed period of general disability benefits and an award for specific loss benefits. The defendant argues the magistrate erred by not applying the retiree presumption in § 373, erred in finding a specific loss, erred by failing to perform a disability evaluation for the closed period under Stokes v Chrysler LLC, 481 Mich 266 (2008) and erred by failing to apply the significant manner test in § 301(2).

This appeal presents legal challenges to the magistrate’s decision. We review alleged legal errors de novo. Mudel v Great Atlantic & Pacific Tea Company, 462 Mich 691 (2000).

We affirm with modification. We affirm the award of medical benefits and the award for specific loss benefits. Because the magistrate did not find the date the specific event injury occurred, we make that factual finding and modify the order. The closed award for general disability benefits is moot, because it runs concurrent with the specific loss benefits.

Case Summary Mr. Trammel began working for Consumers Energy in 1968, the same year he graduated from high school. Over the years he performed four different jobs for the defendant; meter reader, unskilled laborer, gas line worker and gas mechanic. The magistrate accurately

summarized the plaintiff’s work history. We adopt his summary as our own:

Mr. Trammel testified that his first job for Consumers was as a “meter reader.” The job required a great deal of walking. He would walk a route from meter to meter for both residential and commercial units. The meters were sometimes outside and sometimes inside the buildings and homes. He performed this job for two and a half years. He had no physical problems.

He then joined the distribution department and was classified as an “Advanced Unskilled Worker.” This job required him to handle shovels and rakes (plaintiff’s exhibit B). The job description for this position included 1) grading and bracing trenches, 2) operating pneumatic tools, 3) route barring of gas lines, 4) cutting, threading, and assisting in connecting up pipe, 5) preparing materials for joint making or pipe coating, and 6) performing other similar or related work. He worked in the distribution department for 12 years as an advanced unskilled worker.

Mr. Trammel testified he was then transferred into another department as a “Gas Line Worker.” This position would require him to operate trenching machines, jack hammers, and tunneling equipment. The job would involve climbing into holes that he termed “excavations”. He would kneel, squat, and carry heavy equipment. He performed this work until January of 2000.

Mr. Trammel testified that he then became a “Gas Mechanic.” In this job he would overhaul regulators. The job would require him to climb onto roofs and into holes, tubs, vaults, and pits that were all underground and covered.

Sometimes the covers were made of steel and quite heavy. According to Mr.

Trammel the job required a lot of kneeling and squatting. The main tool he handled was a two-foot crescent wrench. The regulators that he handled weighed between 25 to 100 pounds. He never installed meters. The gas mechanic job was the last position he held before his retirement. [Magistrate’s opinion at 4.] The magistrate found the plaintiff suffered a specific event left knee injury in June of

1984. Mr. Trammel was stepping down from the back of a truck and twisted his left knee. He underwent arthroscopic surgery and returned to work without restrictions after three months.

[Magistrate’s opinion at 10, Trial transcript at 46-47.] The magistrate also found the plaintiff suffered a second specific event left knee injury on December 12, 2005. Mr. Trammel stepped in a hole and jammed his left knee. [Magistrate’s opinion at 10, Trial transcript at 51.] The plaintiff underwent a total knee replacement surgery on April 12, 2006. He returned to work, without restrictions, July 10, 2006. Mr. Trammel retired from active employment in October of 2007.

The magistrate granted a closed period of wage loss benefits, plus medical benefits and specific loss benefits, all related to the left knee/left leg. The defendant filed a timely appeal.

–  –  –

The defendant claims the magistrate erred by failing to apply the disability standard in § 373(1). The defendant argues because the plaintiff retired from active employment, the disability standard in § 373(1) controls. We disagree.

The Court of Appeals has directly addressed the issue of whether the retiree presumption in § 373(1) applies to specific loss benefits. The Court found the retiree presumption did not apply. In Holbrook v General Motors Corporation, 204 Mich App 637, 642-643, the Court





stated:

We agree with plaintiff and hold that the retiree presumption is not applicable to specific loss benefits.

Two types of benefits are available under Michigan's workers' compensation system. General discharge or wage loss benefits depend upon proof of lost wage-earning capacity as a result of personal injury or occupational disease. Specific loss benefits are paid pursuant to a statutory schedule of losses upon proof of the loss, irrespective of loss of earnings or earning capacity.

An employee who proves a specific loss is entitled to benefits during the statutory period regardless of whether the employee receives greater or less wages during that period. Lindsay v Glennie Industries, Inc, 379 Mich 573, 578; 153 NW2d 642 (1967); Hutsko v Chrysler Corp, 381 Mich 99, 102; 158 NW2d 874 (1968); Miller v Sullivan Milk Products, Inc, 385 Mich 659, 666; 189 NW2d 304 (1971).

Section 373(1) provides that a retired employee is “presumed not to have a loss of earnings or earning capacity as the result of a compensable injury or disease.” Because an employee is entitled to specific loss benefits regardless of whether the employee has lost earnings or earning capacity, the retiree presumption is not applicable to claims of specific loss.

Holbrook is controlling law on this issue. The retiree presumption does not apply to specific loss benefits.

–  –  –

The defendant argues the magistrate legally erred in granting specific loss benefits. We start with a review of two cases; Cain v Waste Management, Inc, 465 Mich 509 (2002), commonly referred to as “Cain I” and Cain v Waste Management, Inc, (After Remand), 472 Mich 236 (2005), commonly referred to as “Cain II.” 3 Mr. Cain suffered crushing injuries to both legs in a 1988 work-related accident. The right leg was amputated. He was voluntarily paid 215 weeks of specific loss benefits for the right leg. He underwent surgery and bracing for the left leg. He returned to work in a clerical job. He alleged his non-amputated left leg continued to deteriorate, resulting in a specific loss and/or total and permanent disability as a result of the loss of industrial use of both legs. The magistrate found both. He found the plaintiff suffered the specific loss of the left leg, because the deterioration of the left leg was “tantamount to amputation.” Cain I at 514. Because the right leg had been amputated and because he found the left leg condition was the equivalent of amputation, the magistrate granted total and permanent benefits for loss of industrial use of the legs.

When the case made it to the Michigan Supreme Court, the Court addressed a single issue. That issue was whether the permanent and total loss of the industrial use of both legs under § 361(3)(g) should involve a “corrected” or “uncorrected” test. The Cain I Court did not address whether the injury to the non-amputated left leg constituted a specific loss. What the Court did address was whether the corrected or uncorrected test should be used for claims of loss of industrial use under § 361(3)(g).

Sometimes the provisions of § 361 are all lumped together as the “specific loss provisions.” In addressing the § 361(3)(g) issue, the Court noted there are different statutory provisions for different categories of loss. First, § 361(2) outlines the scheduled or specific losses for named body parts, such as legs, arms, hands, fingers, etc. Then § 361(3) outlines total and permanent disability claims based on the loss of more than one body part.1 Finally, under § 361(3)(g) are claims for permanent and total loss of “industrial use” of both legs, both arms or a combination of the two. Because the statutory language for each type of claim is different, each needs to be evaluated separately. Cain I at 521-522.

Because Mr. Cain had sought benefits under § 363(3)(g), the loss of industrial use provision, Cain I held he had to prove his disability in the “corrected” state. The Court reasoned the phrase “industrial use” focused on the function of the limbs in their corrected state. In addition, the Court noted the words “permanent” and “total” referred to a corrected state. The

Court stated:

…the ordinary meaning of the word “permanent” suggests a condition or injury that cannot be improved or made functional.

The word “total” similarly suggests a situation that cannot be corrected.

Further, the use of the phrase “industrial use” in this section itself implies the kind of functional analysis that is implicit in the “corrected” standard of MCL 418.351.

This phrase modifies “permanent and total loss” and effectively limits the coverage of this provision to only certain kinds of permanent and total losses, to wit, those that have adverse implications for the ability of an employee to carry

–  –  –

Because Mr. Cain retained the “industrial use” of the non-amputated left leg, the Cain I Court reversed the decision that the plaintiff was entitled to permanent and total benefits under § 361(3)(g).

The Cain I Court remanded to the WCAC for consideration of whether the nonamputated left leg constituted a specific loss. The WCAC affirmed the magistrate’s finding that the plaintiff had suffered the specific loss of the left leg, even though the leg had not been

severed. The WCAC held:

The magistrate reasonably accepted the testimony that the injury to plaintiff’s left leg equates with anatomical loss and that the limb retains no substantial utility.

Though Dr. Mahaney testified that plaintiff can walk without the brace, the magistrate was free to accept the countervailing testimony of plaintiff that he cannot ambulate without the brace, as well as plaintiff’s wife’s testimony that she has never seen him walk without the brace. Given such support, we affirm his findings. [Cain v Waste Management, Inc., 2002 ACO #130 at 6.] The issue of whether the non-amputated left leg should be evaluated in its corrected state was addressed by the Supreme Court in Cain II. In Cain II, (at 247 and 257, emphasis added) the Court discussed the definition of the word “loss” as used in § 361(2) and (3) and found that it was not necessary to suffer an amputation in order to suffer a specific loss. The Court defined

loss as follows:

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

*** 5 To be clear, we are endeavoring here not to craft a new standard, but to articulate clearly the standard enacted in 1912. We find that the original understanding the word “loss” carried when the WDCA was enacted was its plain and ordinary meaning, consistent with how it had been construed in the context of insurance law. Thus, “loss” includes not only amputation but also loss of usefulness.20 It was the intent of the 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. Moreover, in our case law, this Court has with considerable consistency, albeit not unfailingly, upheld this construction. We do so again today, believing as courts have before us that the meaning we give to the word “loss” in MCL 418.361(2) is the meaning originally intended.

20 In Pipe, supra at 530, and again in Cain I, supra at 524, we referred to this as anatomical loss or its equivalent.

Mr. Trammel did not allege loss of industrial use or total and permanent disability. He alleged a claim for specific loss benefits. Therefore, under Cain I and II, the correct standard to be applied is the “uncorrected” standard. We look to the condition of the plaintiff’s leg before surgery, not afterward.

The defendant relies on two cases from the Court of Appeals: Tew v Hillsdale Tool & Manufacturing Company, 142 Mich App 29 (1985) and O’Connor v Binney Auto Parts, 203 Mich App 522 (1994). The defendant claims these two cases should control our analysis. We disagree.



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