Hakala v. Burroughs Corp. , 399 Mich. 162 ( 1976 )

Levin, J.

I concur in part I of the memorandum opinion but dissent as to part II.

In 1962, Edward Hakala suffered a compensable injury while working for Burroughs Corporation. He suffered the loss of his right hand and portions of the first and second fingers of his left hand. Burroughs Corporation voluntarily paid workmen’s compensation benefits for these specific losses.

In 1968, Hakala filed for second injury benefits (§ 8a of part II of the act) claiming that when he suffered the compensable injury resulting in loss of a hand he had a "permanent disability in the form of the loss of a[n] * * * eye.”¹

At the time Hakala lost his right hand, the vision in his left eye was 20/300 uncorrected, 20/ 50 minus one corrected.

The parties appear to agree that reference should be made to the specific loss provision, § 10(a) of part II (1965 PA 44, part 2, § 10) where the loss of an eye is defined, "for the purpose of this act [as an] 80% loss of vision in 1 eye”.

Hakala’s vision loss uncorrected exceeds 80%; corrected, his vision loss is less than 80%.

Hakala contends that the proper test by which to determine whether he had suffered "permanent disability in the form of the loss of an eye” is the statutory test ("80% loss of vision”) as interpreted by Lindsay v Glennie Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967), and adopted by Hilton v Oldsmobile Division of General Motors Corp, 390 Mich 43; 210 NW2d 316 (1973)—i.e., 80% loss of vision uncorrected.

In Lindsay, this Court said, in a case where the worker had suffered a work-related injury, that for purposes of determining entitlement to specific loss benefits under § 10(a) an uncorrected vision test would be utilized. In Hilton, we extended application of the uncorrected vision standard to Second Injury Fund benefits where the claimant’s first loss was removal of the natural lens.²

Burroughs Corporation and the Second Injury Fund counter that Hilton and Lindsay, both involving removal of the natural lens, are unique cases and represent exceptions to the usual rule of corrected vision as the standard for determining loss of an eye.³

I

The question is whether Hakala’s loss of vision, conceding that it fits within the Lindsay definition for determining specific loss of an eye for purposes of § 10(a), constituted "permanent disability ” contemplated by the Legislature when it provided for Second Injury Fund benefits in § 8a.⁴

The legislative purpose in creating the Second Injury Fund was "to enhance the prospects for employment of certain handicapped persons who had previously sustained specific losses, so that they and their families would have a means of livelihood”. Verberg v Simplicity Pattern Co, 357 Mich 636, 643; 99 NW2d 508 (1959).

Section 10(a), the specific loss provision, defining loss of an eye "for the purpose of this act [as an] 80% loss of vision”, does not indicate whether a corrected or uncorrected vision test should be applied. The Legislature has here, as in other statutes, adopted an inartful standard and left to the courts the task of devising common-sense rules for its application in particular factual situations. Our conclusion in Lindsay that an uncorrected vision standard should be employed for purposes of determining entitlement to specific loss benefits where a worker suffers a work-related injury to his eye does not compel use of an uncorrected vision test in all cases. Until the Legislature speaks with greater clarity, the courts should decide second injury cases guided primarily by the legislative purpose in enacting the Second Injury Fund — to help the handicapped obtain and maintain employment.

We agree with Justice Coleman that the memorandum opinion portends results not in accord with "the original purpose of the Second Injury Fund, which was to encourage hiring of the handicapped”, but we do not agree with her that corrected vision is the standard by which loss of an eye is to be measured in all workmen’s compensation cases.

These cases, involving claims arising out of disparate factual situations and based on different sections of a frequently amended act, do not lend themselves to flat rules.

II

The memorandum opinion rests on the Lindsay construction of § 10(a), which, as amended in 1943, defined the loss of an eye as an "80% loss of vision”. It states that "Lindsay held that the plain meaning of this amended language required the eye to be tested without the benefit of any artificial device”.

Lindsay concerned payment for specific loss of an eye as the result of an injury arising out of and in the course of claimant’s employment. In that context, this Court held that "[t]he surgical removal of the natural lens made necessary by an injury arising out of and in the course of claimant’s employment is loss of an eye within the meaning of the amended statute.” 379 Mich 573, 578 (1967). So saying, however, gives no reason for applying this rule to a second-injury claim.

To merely state that the "plain meaning” of the § 10(a) statutory language, defining the loss of an eye as an "80% loss of vision”, requires an uncorrected vision test for Second Injury Fund purposes ignores the act’s silence on this point and eschews proper analysis.

Many cases which raise issues of statutory construction can be decided either way. To contend, without more, that the meaning of a statute is "plain” is to ignore that the parties have in good faith litigated the question to the highest court in this state, that other courts have reached contrary results on similar statutory language, that Justice Coleman has presented for consideration a contrary, yet maintainable, position and that the appeal board in this case applied a corrected loss of vision test and found that Hakala "has not met the definition of permanent and total disability within the meaning of [the Second Injury Fund provision].”

Carl Llewellyn observed, only infrequently "a legislative intent with some concrete reality can be uncovered in circumstance or legislative history. For the rest, the court’s work is not to ñnd, any more than it is with case law. It is to do, responsibly, fittingly, intelligently, with and within the given frame.” (Emphasis by author.) Llewellyn, The Common Law Tradition, Deciding Appeals, p 382.

The memorandum opinion suggests that all persons with an 80% loss of vision, regardless of whether it can be corrected, have a permanent disability entitling them to Second Injury Fund benefits if they suffer "second” injuries.

While we agree that in one sense it may be said that all persons with an 80% loss of vision, regardless of whether it can be corrected, have a "permanent disability”, we do not agree that that is the sense in which the Legislature used that phrase in section 8a.

As noted by Justice Coleman, the uncorrected vision of at least two of the Justices on this Court and countless other citizens of this state is 20% or less (i.e., at least 80% loss). In this connection it is relevant, as stated in part I of the memorandum opinion, that the first loss for Second Injury Fund purposes need not be work-related and need not be the result of an injury. See Hilton, supra, at 47. The Legislature has provided a general definition of the first loss for Second Injury Fund purposes ("permanent disability in the form of the loss of an eye”) and left to the courts the task of applying it to claims arising out of various factual situations.

The ultimate question is whether the first loss was a permanent disability within the legislative purpose of aiding the handicapped in obtaining and maintaining employment. We are considering not just the 80%-loss-of-vision provision in isolation, but in the context of eligibility for second injury benefits. Surely, the Legislature did not intend that persons suffering nothing worse than near- or farsightedness should be considered permanently disabled and therefore eligible for Second Injury Fund benefits should a "second” loss occur.

We are not sufficiently informed as to the true nature of Hakala’s condition to allow us to decide this case.⁵ The appeal board erred in deciding this claim on the basis of whether Hakala’s vision could be corrected, not whether Hakala was "permanently disabled in the form of the loss of a[n] * * * eye”

We should remand to the appeal board for determination whether Hakala’s loss of vision rendered him permanently disabled in the sense that term is used for purposes of Second Injury Fund coverage. In retrospect, it may have been better to have remanded Hilton to the appeal board for further consideration rather than to have decided that case as a matter of law.

We would remand to the appeal board for further proceedings.

Kavanagh, C. J., and Fitzgerald, Lindemer, and Ryan, JJ., concurred with Levin, J.

1 "If an employee has at the time of injury permanent disability in the form of the loss of a hand or arm or foot or leg or eye and at the time of such injury incurs further permanent disability in the form of the loss of a hand or arm or foot or leg or eye, he shall be deemed to he totally and permanently disabled and shall be paid, from the funds provided in this section, compensation for total and permanent disability after subtracting the amount of compensation received by the employee for both such losses. The payment of compensation under this section shall begin at the conclusion of the payments made for the second permanent disability”. 1948 CL 412.8a; MSA 17.158(1) (now MCLA 418.521; MSA 17.237[521]).

2 This Court held that the claimant who, as the result of an injury-arising out of and in the course of his employment, lost the industrial use of his left leg and who at the age of ten had undergone a bilateral cataract extraction, qualified for payments from the Second Injury Fund. Relying on Lindsay as authority as to specific loss, this Court determined that Hilton, who had the natural lenses removed from his eyes, qualified for Second Injury Fund benefits regardless of the fact that with contact lens and glasses, his corrected vision in both eyes was 20/25.

3 The Workmen’s Compensation Appeal Board found the ultimate question was whether a corrected or an uncorrected vision standard should be applied:

“If, as plaintiff contends, the Court in Lindsay has established the rule that the test of uncorrected vision is the proper test in such cases then he should prevail. If, on the other hand, Lindsay is not applicable to the facts of this case, then the Court’s prior holdings in Hirschkorn v Fiege Desk Co, 184 Mich 239 [150 NW 851 (1915)] and Cline v Studebaker Corp, 189 Mich 514 [155 NW 519; 1916C LRA 1139 (1915)], wherein corrected vision loss was the test, controls in this case.”

The board then distinguished Lindsay on the ground that in that case the natural lens of the eye was removed. Hakala, having suffered nothing more than a loss of vision which was corrected with glasses, was found not to have lost an eye so as to qualify as permanently disabled within the meaning of the Second Injury Fund provision.

4 We appreciate that the Legislature has for purposes of § 10(b) of the act eschewed an "in fact” determination of total and permanent disability. The Legislature adopted specific definitions of total and permanent disability thereby limiting the scope of § 10(b) coverage. Thus, a person who is in fact totally and permanently disabled may not receive benefits under § 10(b) unless he can fit within one of the enumerated definitions; likewise, a person who fits within the literal reading of a specific definition may receive benefits even though he is not in fact disabled.

We note, without expressing either a favorable or unfavorable opinion, that the Court of Appeals is incorporating a disabled, unemployable concept into cases under § 10(b). See Sprute v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971), and Legut v Detroit Window Cleaning Co, 54 Mich App 404; 221 NW2d 232 (1974), leave to appeal granted. 393 Mich 767 (1974).

Hakala is not claiming under § 10(b). Hakala seeks benefits under § 8(a) as a person who had suffered a "permanent disability in the form of the loss of an eye.”

5 See fn 1 of the memorandum opinion.