Opinion
Docket No. 66510.
Argued January 5, 1982 (Calendar No. 12).
Decided December 23, 1982.
Kelman, Loria, Downing, Schneider Simpson (by Robert W. Howes) for the plaintiff.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Eileen D. Zielesch, Assistant Attorney General, for the Second Injury Fund.
This case concerns the question of whether the liability of the Second Injury Fund for workers' compensation benefits is "derivative" from the liability of an employer and whether the fund may dispute its liability for basic and differential benefits in a case wherein the employer has stipulated to or agreed with the employee's entitlement to compensation for a prior loss.
We hold the Court of Appeals was correct in remanding this case to the Workers' Compensation Appeal Board and accordingly affirm its decision.
On June 25, 1976, following a hearing, plaintiff was awarded compensation for the loss of industrial use of his left leg in an August, 1973, work-related accident. It was stipulated that defendant's responsibility did not extend beyond payment for the 215 weeks of scheduled loss benefits. The employer and insurer did not appeal from what is referred to as a "stipulation award".
On July 28, 1976, plaintiff filed a petition seeking benefits for total and permanent disability. Plaintiff alleged the loss of industrial use of the left leg preceded by the loss of an eye. At a hearing held on August 26, 1977, plaintiff testified that he had had the lenses removed from his left and right eyes in August 1970 and January 1974. Medical testimony was received from Dr. Lawrence Hoffman on behalf of the Second Injury Fund and from Dr. Lawrence Stocker on behalf of the plaintiff. Dr. Stocker, an opthalmologist, testified that he began treating plaintiff in December 1967, and on August 18, 1970, performed a cataract extraction of the natural lens of the left eye. On January 29, 1974, a similar operation was performed on plaintiff's right eye. The operations left plaintiff with only "protective vision", i.e., vision which would enable plaintiff to see the outlines of objects but not to read, drive a car, etc. Following each surgical operation, plaintiff was fitted with a contact lens which returned his vision in the affected eye to 20/20 or better. Dr. Stocker believed that plaintiff's contact lenses might cause him difficulty in a dusty environment, and that pain might also interfere with the wearing of the lenses.
MCL 418.521(1); MSA 17.237(521)(1) provides:
"If an employee has a permanent disability in the form of the loss of a hand, arm, foot, leg or eye and subsequently has an injury arising out of and in the course of his employment which results in another permanent disability in the form of the loss of a hand, arm, foot, leg or eye, at the conclusion of payments made for the second permanent disability he shall be conclusively presumed to be totally and permanently disabled and paid compensation for total and permanent disability after subtracting the number of weeks of compensation received by the employee for both such losses. The payment of compensation under this section shall be made by the second injury fund, and shall begin at the conclusion of the payments for the second permanent disability."
Dr. Hoffman, also an opthalmologist, examined plaintiff on March 9, 1977, at the request of the Second Injury Fund. Dr. Hoffman testified that plaintiff's corrected vision was 20/30+ in the right eye and 20/20- in the left eye. Uncorrected vision was 20/200 in both eyes.
On the basis of the above evidence, the hearing referee issued a decision on December 13, 1977, finding total and permanent disability and assigning liability to the Second Injury Fund, specifying that plaintiff "had a permanent disability in the form of the loss of his left eye as of 8/18/70, and, subsequently, on 7/1/74, lost the industrial use of his left leg as a result of the injury of 8/13/73".
The Second Injury Fund appealed. At oral argument on January 4, 1979, defendant Cadillac Gage agreed with plaintiff as to the claimant's prior eye loss. The WCAB found that this admission and the stipulation of loss of leg were binding on the Second Injury Fund.
The Second Injury Fund appealed to the Court of Appeals. In a published opinion released November 19, 1980, the Court reversed and remanded to allow the WCAB to address the merits of the appeal. Clark v Cadillac Gage, 101 Mich. App. 513; 300 N.W.2d 622 (1980).
In finding the Second Injury Fund bound by the employer's admission of eye loss and stipulation of leg loss, the appeal board relied upon White v Weinberger Builders, Inc, 397 Mich. 23; 242 N.W.2d 427 (1976). In White, the employees' claims for compensation benefits were disputed by their employers, and in each case the employer's liability was terminated by a redemption agreement and lump-sum settlement. The redemption was made without admitting liability. Each claimant in White subsequently petitioned the Second Injury Fund seeking differential benefits under MCL 418.521(2); MSA 17.237(521)(2). The fund denied liability on the basis that the liability of the employers had not been admitted or adjudicated at a hearing. The Court of Appeals and this Court agreed, holding that establishment of employer liability was a prerequisite to Second Injury Fund liability. Both opinions contained language indicating that the fund's liability was derivative of that of the employer.
White "binds the fund to the stipulation and admission entered into by the defendant employer" in the appeal board's opinion. The Court of Appeals disagreed with this analysis:
"We do not believe White is controlling in the present case, which does not involve the differential benefits provision of the act. Derivative liability and a passive role for the Second Injury Fund make sense where the employer and its insurer have a sufficient stake in the outcome of the case to resist a dubious claim. The instant case does not present such a situation since only the Second Injury Fund would have been required to pay benefits for total and permanent disability if plaintiff prevailed. By admitting that plaintiff had a preexisting disabling eye injury, the employer did not render itself `liable' for any additional benefits." 101 Mich. App. 516.
Plaintiff argues that the above decision is erroneous in several respects. First, the fund's liability is always derivative of the employer's liability, and the fund may not relitigate issues determined between the employee and the employer or carrier.
The Second Injury Fund responds that the Court of Appeals correctly found White inapplicable because White did not involve a stipulation by the employer or the fund's assumption of liability for basic compensation.
We recognize the distinction between "basic compensation" and "differential benefits" which the Court of Appeals used to explain its decision distinguishing this case from White. We base our agreement with their conclusion on other grounds, however.
Because White involved a redemption of employer liability prior to the assertion of a claim against the Second Injury Fund it does not control disposition of this case wherein no redemption is involved.
We are now persuaded that the language approved in White — "liability of the Second Injury Fund is derivative from that of the employer" and "a prior determination of employer liability" must be limited to that case only.
The phrase "derivative from" refers to a source. The liability of the fund "derives" from the statute as does the liability of the employer. The fact that the statute provides fund liability only under circumstances wherein it provides employer liability does not convert employer liability into the source of the fund's liability. The only source of liability is the statute.
Likewise unless we be concerned only with procedural regulation, in giving effect to the statute, the phrase "prior determination of employer liability" should be read "determination of (prior) employer liability", for the statute provides fund liability without regard to time but only to the circumstance of employer liability.
The time when such determination is made, apart from a matter of procedure, should make no difference. The statute provides fund liability only under circumstances giving rise to employer liability.
Here there was a determination of liability by the referee upon the evidence adduced at a hearing. The correctness of that determination was properly subject to review by the appeal board. The board's acceptance of the employer's "stipulation" or "agreement" to the prior eye injury suggests that it did not consider the sufficiency of the other evidence because of the stipulation. The fund was entitled to the appeal board's ruling on the adequacy of the evidence despite the stipulation.
For this reason the Court of Appeals remand to the WCAB was in order.
Affirmed.
FITZGERALD, C.J., and WILLIAMS and LEVIN, JJ., concurred with KAVANAGH, J.
I concur separately, basing my agreement in the result on different grounds. Unlike my colleague, I do not believe that the theory of White v Weinberger Builders, Inc, 397 Mich. 23; 242 N.W.2d 427 (1976), which was upheld in Grice v General Motors Corp, 407 Mich. 465; 286 N.W.2d 238 (1979), needs to be limited to that case only.
In White, we affirmed the lower court's holding that the "`liability of the Second Injury Fund is derivative from that of the employer, so that the fund cannot be subjected to a separate, independent hearing as to liability for differential payments once the employer's alleged prospective liability has been redeemed via a negotiated settlement'". White, supra, p 30, quoting 49 Mich. App. 430, 432; 212 N.W.2d 307 (1973). This "derivative liability" language of White does not mean that the Second Injury Fund is precluded from fully litigating the issue of the plaintiff's eye injury in this case.
The operative proposition is simply this: if the Second Injury Fund is to be liable, then the employer must first be found liable. In White, the employer had not been found liable by adjudication or stipulation, thus the Second Injury Fund was not liable — an eminently logical conclusion given the proposition.
Logic teaches us that the converse of the proposition is not necessarily true, and the converse is what the plaintiff is trying to establish: if the employer is found liable, as he was, then the Second Injury Fund is liable. White does not stand for that, and the Workers' Compensation Appeal Board improperly cited it as authority.
Simple fairness also prompts our affirmance of the decision below. The factual scenario in this case reveals that the employer had no incentive to fully litigate the issue of whether the plaintiff had a preexisting disabling eye injury. As the Court of Appeals noted: "By admitting that plaintiff had a preexisting disabling eye injury, the employer did not render itself `liable' for any additional benefits". Clark v Cadillac Gage, 101 Mich. App. 513, 516; 300 N.W.2d 622 (1980). Since the employer had no real interest at stake in stipulating that the plaintiff suffered a disabling eye injury, it would be unfair to hold the Second Injury Fund to the employer's stipulation.
COLEMAN, J., concurred with RYAN, J.
RILEY, J., took no part in the decision of this case.