
TOTAL AND PERMANENT DISABILITY: CORRECTED VERSUS UNCORRECTED STANDARD.
In a 2-1 decision, dated November 6, 2003, the Michigan Court of Appeals, Cain v Waste Management, Inc., (COA case #242104) noted a distinction between subparts (g) and (b) of the statutory provision regarding total and permanent disability, MCL 418.361(3). In an earlier decision, the Michigan Supreme Court interpreted subpart (g) of MCL 418.361(3). It held that, under that provision, loss of industrial use of a limb for purposes of determining “permanent and total loss of industrial use” was to be determined using a “corrected” (i.e., measured with the help of prosthetics) standard to examine whether a limb could support industrial use. On remand, the Court of Appeals affirmed the Workers’ Compensation Appellate Commission in finding that, under a different subsection, subpart (b) (MCL 418.361(3)(b)), loss of industrial use of a limb is to be determined without regard to whether the limb could be made functional in industry with the help of a prosthetic or brace. In other words, the Court of Appeals held that, although subpart (g) (MCL 418.361(3)(g)) employs a corrected standard for determining loss of industrial use of a limb, subpart (b) (MCL 418.361(3)(b)) does not use a corrected standard and determines loss of industrial use without regard to enhancement of a limb’s function by use of a prosthetic or brace.

