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Cain v. WCAC Waste Management Inc.11/6/2003
two limbs are awarded for the claimant's disability. Id. at 523-524 (adopting WCAC's opinion). Accordingly, the test for total and permanent disability is a corrected test, whereas a specific loss is viewed in its uncorrected state, with an emphasis on the actual loss of the organ. Id.
Therefore, to import a specific loss from MCL 418.361(2) that is based on the industrial loss of a limb in its uncorrected state as the predicate for an award of total and permanent disability benefits under MCL 418.361(3) undermines the purposes of the separate statutory provisions and misses the policy distinctions between awarding benefits under MCL 418.361(2) and (3).
Our Supreme Court found that plaintiff had not demonstrated the loss of industrial use of his left leg because his left leg, when braced, was functional and could support industrial use. Cain, supra at 524. Therefore, within the total and permanent disability setting, plaintiff has suffered only the anatomical loss of his right leg and not the industrial loss of his left leg. Consequently, he cannot claim an award of total and permanent disability benefits under MCL 418.361(3)(b) for the " oss of both legs." I would reverse the WCAC's apparent conclusion that the industrial loss of plaintiff's leg in its uncorrected state could constitute one of the two required losses for awarding plaintiff total and permanent disability benefits under MCL 418.361(3)(b).
Kirsten Frank Kelly
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