
    BURKE v ONTONAGON COUNTY ROAD COMMISSION
    1. Workmen’s Compensation — Loss of Industrial Use — Employment-Related Injury.
    Under a section of the Workmen’s Compensation Act, loss of industrial use of limbs must result from an employment-related injury (MCLA 418.361[2] [g]).
    2. Workmen’s Compensation — Loss of Use of Legs — Loss of Industrial Use — Employment-Related Injury.
    Under a section of the Workmen’s Compensation Act, there is permanent and total loss of industrial use of both legs where, inter alia: (1) an employment-related injury in one or both legs causes pain or other condition that prevents use of both legs in industry, (2) the use of one or both legs, whether or not injured, triggers an employment-related injury or malady in any part of the body, including one or both legs, that causes pain or other condition that prevents use of both legs in industry (MCLA 418.361[2][g]).
    Reference for Points in Headnotes
    
       58 Am Jur, Workmen’s Compensation §§ 282, 283, 287, 288.
    Appeal from Court of Appeals, Division 2, Danhof, P. J., and Quinn and McGregor, JJ., denying application for leave to appeal from an order of the Workmen’s Compensation Appeal Board.
    Submitted January 9, 1974.
    (No. 10
    January Term 1974,
    Docket No. 54,641.)
    Decided February 14, 1974.
    Claim by Emil E. Burke against Ontonagon County Road Commission, Michigan State Accident Fund and the Second Injury Fund for workmen’s compensation for permanent and total loss of industrial use of both legs. Linda Burke substituted as party plaintiff upon the death of Emil E. Burke. Award denied. Court of Appeals denied plaintiffs application for leave to appeal. Plaintiff appeals.
    Reversed and remanded to the Workmen’s Compensation Appeal Board for further proceedings.
    
      Wisti & Jaaskelainen, for plaintiff.
    
      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P. C. (by James A. Sullivan), for defendant Ontonagon County Road Commission and Michigan State Accident Fund.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and David J. Watts and A. C. Stoddard, Assistants Attorney General, for Second Injury Fund.
   Williams, J.

In this case it is not disputed that the claimant (plaintiffs decedent) injured one leg in an employment-related accident. Subsequent movement had debilitating consequences for his other leg, because his injured leg had to be favored. The claimant was unable to return to work. The Workmen’s Compensation Appeal Board, in determining whether the employment-related injury caused "permanent and total loss of industrial use of both legs” under § (b)(7) of the Workmen’s Compensation Act used the following hypothetical test:

"[Assuming plaintiffs left leg was not disabled [it actually was], would the right leg be industrially useless?”

We disapprove of this test, and set out the proper test, which views the claimant "as a whole man”, later in this opinion.

I. FACTS

The claimant, while working for defendant Road Commission, slipped and fell into a hole, injuring his left knee. The next day he returned to work lifting 100 lb. bags. However, the third day he had to go to the hospital for treatment of his swollen leg. He again returned to work loading 100 lb. sacks on the sixth day after the accident. Thereafter, however, he was never again able to work. He underwent surgery, was treated frequently by his family physician for calluses, had injections in both knees for pain, and took páin pills daily for a number of years. A few years after the injury, he was unable to walk without experiencing pain, and without the aid of crutches. Because the injury to his left leg caused faulty weightbearing, his right leg went, in claimant’s words, "on the bum.”

After exhausting 500 weeks with specific Compensation, claimant sought benefits for "permanent and total loss of industrial use of both legs.” His family physician and treating orthopedic specialist both testified claimant had no industrial capacity in either leg. Defendant’s orthopedic surgeon, however, testified equivocally. When asked "considering his right leg alone” whether Burke was industrially disabled, he responded: "Burke has some abnormality or disability in his right leg, but this, in my opinion, would not disable him for ordinary labor”. But he admitted that, viewing him "as a whole man” Burke was not able to work.

The referee denied additional compensation. The perturbed Appeal Board said:

"The poignant question is, is the right leg, in and of itself industrially useless, or assuming plaintiff’s left leg was not disabled, would the right leg be industrially useless?”

Then the Appeal Board, relying on the answer to the "considering his right leg alone” question posed by defendant’s expert, held that the claimant had not sustained the burden of proving industrial loss of use of both legs. The Court of Appeals denied leave to appeal.

II. PERTINENT PRECEDENT

The leading case in this area is Paulson v Muskegon Heights Tile Co, 371 Mich 312; 123 NW2d 715 (1963). The claimant in that case suffered a punctured bladder and a fractured pelvis in an automobile accident in the course of his employment. The consequence of £he accident was that the claimant suffered constant urine drainage from the bladder through sinus tracts in this area of his body. There was no injury to the legs whatsoever. In Paulson, the treating physician testified as follows:

'A. His disability results from the presence of the fistulous tract, the fistulous sinus, with pain resulting from any pressure being borne by either leg, especially his right leg, so that even walking after a period of time or for short distances of a half a block will prevent him or cause him to stop and rest, shifting his weight primarily to the left side, to the left leg.” (Emphasis in Paulson 371 Mich 312, 314).

This Court disposed of Paulson as follows:

"Appellants would have us read the act as follows: total and permanent disability occurs when, among other ways, there is a total loss of industrial use of both legs, occasioned by direct injury to both legs. Of course, a reading of subsection (7) [MCLA 412.10; MSA 17.160] *. * * presents no such restriction * * * We construe the statute to mean that permanent and total loss of industrial use, insofar as the facts in this case are concerned, is that leg-connected disabling pain associated primarily with the use of the legs, which is so severe as to make use of the legs in industry practically impossible. Testimony of the treating physician, quoted above, assigned the disability to the presence of a fistula tract, with pain resulting from any pressure being borne by either leg. Therefore, the disability would seem fairly within the scope of the statute.” (371 Mich 312, 319.)

This last quotation makes two things clear. First, there may be a total industrial loss of use of both legs without direct injury to both legs or, in fact, without direct injury to either leg. Second, Paulson establishes the following test for permanent and total loss of industrial use of both legs:

"[I]s that leg-connected disabling pain * * * so severe as to make usé of the legs in industry practically impossible”? (371 Mich 312, 319).

Paulson was followed in Lockwood v Continental Motors Corp, 27 Mich App 597; 183 NW2d 807 (1970). There, the claimant suffered serious impairment of hearing due to factory noise and acquired vertigo "which is precipitated when he uses his legs”. (27 Mich App 597, 599.) The Court of Appeals found that he had sustained "permanent and total loss of industrial use of both legs” and was entitled to compensation for permanent and total disability, although claimant’s "legs themselves were not injured or affected.” (27 Mich App 597, 601.)

The opposition to finding loss of industrial use in Lockwood was based, as in Paulson, on the fact that the legs themselves were not impaired. Writing for the Court of Appeals, Judge, now Justice Levin, however, observed as follows:

"But the appeal board ruled that Lockwood’s case was different than Paulson’s because Lockwood’s 'disabling symptoms are not traceable to the use of the lower limbs per se but are due to an impairment of the balance mechanism in his inner ear which is aggravated by any movement and/or noise’.
"We think that the appeal board misreads Paulson; a teaching of Paulson is that disabling symptoms are traceable to the use of the lower limbs when they are due to an impairment of another bodily mechanism which is aggravated by leg movement, that compensation for total and permanent disability is payable when a non-leg malady is triggered by the use of the legs and it is that condition which prevents use of the legs in industry.” (27 Mich App 597, 603.)

Lockwood reemphasizes that there may be total industrial loss of use of both legs without direct injury to both legs or to either leg. Lockwood rephrases the "leg-connected disabling pain” rule as follows:

"[W]hen a non-leg malady is triggered by the use of the legs and it is that condition which prevents use of the legs in industry.”

Paulson and Lockwood examine whether loss of industrial use of both legs can have its source in physical injuries which are not leg-related. A third case in this area, Miller v Sullivan Milk Products Inc, 385 Mich 659; 189 NW2d 304 (1971), explores loss of industrial use from a significantly different, though seemingly analogous, angle. It analyzes primarily whether the loss of industrial use of both legs arises from an employment-related or non-employment-related cause.

The claimant in Miller suffered permanent injury to his left leg when he slipped on ice while delivering milk. It was undisputed that there was no impairment or injury of the right leg. While claimant’s movements were reduced, he did work intermittently after the injury. The referee and Appeal Board found loss of industrial use confined to the left leg alone. While the Court of Appeals in effect found industrial loss of use of both legs, this Court affirmed the Appeal Board.

This Court made two observations pertinent to our analysis.

“The basic issue in connection with claims of total and permanent disability is one of fact. Each claim must be weighed carefully. Some claims will fail and some will prevail, depending upon the quality of the proofs presented at the hearing. When the limb cannot be used industrially simply because of other disabling infirmities, it would do violence to the statutory intent to hold that the industrial loss of use of such limb has occurred.” (385 Mich 659, 667.)
"Based upon the testimony in this case, the Court of Appeals might also have found that plaintiff weighed 300 pounds at the time of the hearing and during the last ten years has weighed as much as 377 pounds; that his doctor told him he should lose weight; that for two years he worked at a friend’s garage where he answered the phone and kept track of car parts.” (385 Mich 659, 668.)

Miller does not change the rule in Paulson which it recognized. (385 Mich 659, 666.) Nor does it change the rule in Lockwood.

As the two above quotations from Miller indicate, the claimant in Miller failed to prove that such loss of industrial use as he suffered was due to his employment-related injury. Note that the first quotation specifies:

"When the limb cannot be used industrially simply because of other disabling infirmities, it would do violence to the statutory intent to hold that the industrial loss of use of such limb has occurred.” (Emphasis supplied.)

The second quotation then refers to the claimant’s heavy weight despite his doctor’s order to reduce.

The teaching of Miller is that loss of industrial use must result from an employment-related injury. In other words, claimant Miller did not prove that his loss of industrial use to both legs resulted from the employment-related injury to his left leg.

In Paulson and Lockwood there was ample showing that the loss of industrial use was caused by an employment-related injury. In Paulson the employment-related injury was the bladder, punctured in an employment-related accident. It was the pain from this bladder when Paulson used his legs that was "so severe as to make the use of the legs in indústry practically impossible.” In Lockwood tine employment-related vertigo "triggered by the use of the legs” created a "condition which prevents use of the legs in industry.”

In summary, Paulson and Lockwood lay down two tests for determining whether an employment-related injury statutorily causes the "permanent and total loss of industrial use of both legs”:

1. It is not necessary that both legs or either leg be injured at all.
c 2. The industrial loss of use of both legs may result from "leg-connected disabling pain * * * so severe as to make use of the legs in industry practically impossible” even though that pain is generated from an injury elsewhere in the body (Paulson) or it may result "when a non-leg malady is triggered by use of the legs and it is that condition which prevents use of the legs in industry” (Lockwood).

Miller rules, while Paulson and Lockwood take for granted that:

The "leg-connected disabling pain” or the "non-leg malady” must be the consequence of an employment-related injury.

III. PAULSON-LOCKWOOD AND MILLER TESTS v THE APPEAL BOARD’S BURKE TEST

Before weighing the validity of the Appeal Board’s Burke test "assuming plaintiffs left leg was not disabled [it actually was], would the right leg be industrially useless?”, in the light of Paul-son, Lockwood and Miller, let us examine the context in which this test is presented. The pertinent párt of the Appeal Board’s opinion follows:

"Plaintiff’s decedent did suffer an extension of disability because his industrially useless left leg caused extra strain over the years on his right knee, but it must be determined that this extension of disability amounted to the industrial loss of use of the right knee as a separate member. The right knee in conjunction with the left leg was continuing the progression of injury and disability until plaintiff’s decedent’s death.
"The poignant question is, is the right leg, in and of itself industrially useless, or assuming plaintiff’s left leg was not disabled, would the right leg be industrially useless?
"Applying the medical testimony to the questions, it is clear that the answers are 'No.’ The plaintiff has failed to meet the burden of proof to show plaintiff’s decedent had lost the industrial use of both legs.” (Emphasis added.)

It is quite clear that the real issue in Burke is whether there actually was an industrial loss of use of both legs caused by the injury he suffered (Paulson issue) rather than whether the industrial loss suffered arose out of an employment-related or non-employment-related injury (Miller issue). It is evident from the dispositive portion of the Appeal Board opinion, quoted above, that the issue it was dealing with was not whether Burke’s injury was employment-related but whether his injury caused the industrial loss of use of both legs. It demonstrates this because it recognizes that the left leg was industrially useless and asks "assuming plaintiff’s left leg was not disabled, would the right leg be industrially useless?”

In other words, the Burke issue is not a Miller issue — "was the cause of the industrial loss an employment-related injury?” Likewise, the Appeal Board’s test in Burke which goes to the connection between the injury suffered and the industrial loss, is not related to Miller nor Miller to it. So nothing further need be said about Miller’s connection with this case beyond saying that it may be inferred that the Appeal Board opinion does not dispute that if there was an industrial loss of use of both legs it arose from an employment-related injury, as Miller prescribes.

We come, then, to considering the Appeal Board’s test in Burke in light of Paulson and Lockwood. It is clear from the excerpt from the Appeal Board opinion quoted above that the Board’s test requires both injury and industrial loss in each leg, hypothetically separated from every other member of the body. This requirement is specified in three places in the above quotation.

1. " * * * it must be determined that this extension of disability amounted to the industrial loss of use of the right knee as a separate member”
2. " * * * is the right leg, in and of itself industrially useless * * * ”
3. " * * * assuming plaintiff’s left leg was not disabled, would the right leg be industrially useless * * * »

From this it is clear that the Appeal Board’s test is out of tune with the Paulson and Lockwood tests.

It is out of tune with the first test — "[i]t is not necessary that both legs or either leg be injured at all” — because it requires each leg be considered in hypothetical isolation from the other members of the body and to have its own injury. In both Paulson and Lockwood neither leg was industrially injured. Under the test applied in Burke there could not have been recovery in either case.

It is out of tune with the second test — "[t]he industrial loss of use of both legs” may result from "leg-connected disabling pain * * * so severe as to make use of the legs in industry practically impossible” even though that pain is generated from an injury elsewhere in the body (Paulson) or it may result "when a non-leg malady is triggered by use of the legs and it is that condition which prevents use of legs in industry” (Lockwood). It is out of tune with the second test because it requires each member of the body to be found industrially useless from an injury in that very member in hypothetical separation from the other members of the body. In Paulson and Lockwood the leg-connected pain was generated from the interplay of use of the legs and an injury in another part of the body.

We find nothing in the reasoning of the Appeal Board to cause us to overrule Paulson or Lockwood. We are satisfied that these cases correctly interpret the Workmen’s Compensation Act and provide a reasonable and logical policy. We reaffirm Paulson and approve Lockwood.

As for the application of Paulson and Lockwood to the facts in Burke, it makes little sense to hold that there is permanent and total loss of industrial use of both legs where a malady in the head or in the area of the groin may interact with movement of the legs to cause a condition in the legs that makes their use in industry practically impossible and yet turn around and say that just because the malady is in one leg, rather than in the head or groin thére is no industrial loss of use of both legs, although physically there is such loss. We reject such a rule as wholly unnatural, unreasonable and illogical. We therefore amplify and consolidate the tests in Paulson and Lockwood, as follows:

There is permanent and total loss of industrial use of both legs where, inter alia,

1. An employment-related injury in one or both legs causes pain or other condition that prevents use of both legs in industry.
2. The use of one or both legs, whether or not injured, triggers an employment-related injury or malady in any part of the body, including one or both legs, that causes pain or other condition that prevents use of both legs in industry.

In conclusion, as we consider the hypothetical test the Appeal Board applied in Burke contrary to the approved tests of Paulson and Lockwood, we reverse and remand this case to the Appeal Board for further proceedings not inconsistent with this opinion. Costs to plaintiff-appellant.

T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Levin, M. S. Coleman, and J. W. Fitzgerald, JJ., concurred with Williams, J. 
      
       MCLA 412.10; MSA 17.160, presently MCLA 418.361 (2)(g); MSA 17.237 (361)(2)(g).
     