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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JANUARY 23, 2002
 

SCOTT M. CAIN, 


Plaintiff-Appellee,
 

v	 No. 116389
 

WASTE MANAGEMENT, INC. and


TRANSPORTATION INSURANCE COMPANY,
 

Defendants-Appellants.
 

SCOTT M. CAIN, 


Plaintiff-Appellee,


Cross-Appellant,
 

v	 No. 116945
 

WASTE MANAGEMENT, INC. and


TRANSPORTATION INSURANCE COMPANY,
 

Defendants-Appellees,


and
 

SECOND INJURY FUND (TOTAL AND


PERMANENT DISABILITY PROVISION).
 

Defendant-Appellant,


Cross-Appellee.
 
________________________________ 

v 

SCOTT M. CAIN, 


Plaintiff-Appellee,
 

No. 116953
 

WASTE MANAGEMENT, INC. and


TRANSPORTATION INSURANCE COMPANY,
 

Defendants-Appellants,


and
 

SECOND INJURY FUND (TOTAL AND


PERMANENT DISABILITY PROVISION).
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH
 

TAYLOR, J.
 

The issue in this case concerns the proper standard for
 

determining whether an injured employee is entitled to collect
 

worker’s compensation benefits for total and permanent
 

disability pursuant to MCL 418.361(3)(g).1 Specifically, the
 

question is whether such a person’s injured limb or member
 

should be evaluated in its “corrected” or “uncorrected” state.
 

The Worker’s Compensation Appellate Commission (WCAC) held
 

1 We also are satisfied that the WCAC should have
 

considered plaintiff’s specific loss claim regarding his left


leg. While this claim may not have been pleaded as


specifically as it should have been, we discern no prejudice


or surprise. Accordingly, we remand this claim to the WCAC


for resolution. As for the remaining issues in this case, we


are no longer persuaded that they should be reviewed by this


Court. Therefore, we vacate our order granting leave to


appeal regarding all other issues and deny leave to appeal


regarding those issues. 


2
 
that a “corrected standard” should be applied, whereas the
 

Court of Appeals held that an “uncorrected standard” was
 

applicable. 


In keeping with prior decisions of this Court, and for
 

the reasons set forth below, we reverse in part the judgment
 

of the Court of Appeals and hold that § 361(3)(g) envisions
 

that a “corrected” standard be applied. 


I
 

We begin by noting that this case involves a fairly
 

uncommon kind of claim for worker’s compensation benefits.
 

The worker’s compensation act provides, if certain conditions
 

are met, for payments to workers who are injured or become
 

disabled on the job. MCL 418.101 et seq. The most common
 

situation is controlled by the general disability provision.
 

MCL 418.301(1) provides that an employee, who receives a
 

personal injury arising out of and in the course of employment
 

for an employer who is subject to this act at the time of the
 

injury, shall be paid compensation as provided in this act.
 

If such a showing is made, one must then determine if the
 

disability is total or partial. Payment formulas are set by
 

statute. 


In addition to these more common claims for disability
 

benefits, the act provides compensation for the loss of
 

certain body parts. These are known as “scheduled”
 

3
 
disabilities. MCL 418.361(2). For example, if a worker loses
 

his foot at work he is given payments for 162 weeks. Loss of
 

an arm results in payments for 269 weeks. These are known as
 

“specific loss” benefits. 


If a worker suffers from certain enumerated injuries,
 

such as loss of both hands or both feet, he may be entitled to
 

benefits for total and permanent disability, as defined by MCL
 

418.361(3). As explained more fully hereinafter, such total
 

and permanent disability benefits are a type of scheduled
 

benefit, but they are distinct from the scheduled specific
 

loss benefits. Total and permanent disability benefits are
 

intended for those who sustain the more catastrophic loss of
 

more than one member. 


“Loss of industrial use” is a special category of total
 

and permanent disability benefits found in MCL 418.361(3)(g).
 

This category allows recovery for total and permanent
 

disability where there is no anatomical loss, but where there
 

is a loss of industrial use. Hence, for example, even if an
 

employee does not suffer actual amputation of one or both legs
 

so as to qualify for specific loss benefits, he may
 

nevertheless be entitled to scheduled benefits for injury to
 

both legs if he has lost the “industrial use” of his legs. In
 

this way the “loss of industrial use” category of total and
 

permanent benefits differs from other total and permanent
 

4
 
categories.2
 

The case at bar involves this distinctive “loss of
 

industrial use” kind of total and permanent disability claim.
 

II
 

Plaintiff Scott M. Cain worked as a truck driver and
 

trash collector for defendant, Waste Management, Inc. In
 

October 1988, as he was standing behind his vehicle emptying
 

a rubbish container, he was struck by an automobile that
 

crashed into the back of the truck. Mr. Cain’s legs were
 

crushed. Physicians amputated Mr. Cain’s right leg above the
 

knee. His left leg was saved with extensive surgery and
 

bracing.
 

In February 1990, Mr. Cain was fitted with a right leg
 

prosthesis, and he was able to begin walking. He returned to
 

his employment at Waste Management and started performing
 

clerical duties. 


Mr. Cain’s left leg continued to deteriorate. In October
 

1990, he suffered a distal tibia fracture. Doctors diagnosed
 

it as a stress fracture caused by preexisting weakness from
 

the injury sustained in the accident. After extensive
 

physical therapy and further surgery on his left knee, Mr.
 

2

 Total and permanent benefits are payable without regard


to loss of wage earning capacity except for the distinctive


industrial use loss category. Redfern v Sparks-Withington Co,


403 Mich 63, 80; 268 NW2d 28 (1978).
 

5
 
Cain was able to return to Waste Management in August 1991,
 

first working as a dispatcher and then in the sales
 

department. 


Waste Management voluntarily paid Mr. Cain 215 weeks of
 

worker’s compensation benefits for the specific loss of his
 

right leg. MCL 418.361(2)(k). However, there was
 

disagreement concerning whether he was entitled to additional
 

benefits.
 

III
 

In August 1992, Cain filed a petition with the Bureau of
 

Worker’s Compensation, seeking total and permanent disability
 

benefits, which stated:
 

My legs were crushed in a motor vehicle


accident resulting in an amputation above the knee


of my right leg. The severity of my injuries to my


left leg result [sic] in the industrial loss of use


of both legs. I am, therefore, entitled to


permanent and total disability benefits.
 

At the end of the second day of the hearing, Mr. Cain
 

moved to amend his petition to include a claim for the
 

specific loss of his left leg. The magistrate denied the
 

motion. Less than a week later, Mr. Cain filed a petition
 

requesting benefits for the specific loss of the left leg:
 

In addition to my initial application, I am


claiming specific loss of my left lower extremity


for dates of injury of 10/25/88 and 10/21/90. On
 

10/21/90, while walking down a ramp at home, I


refractured my left tibia causing it to become


necessary for me to wear a permanent brace on my


left leg.
 

6
 
In December 1993, the magistrate awarded specific loss
 

benefits (to be paid consecutively) for the loss of both legs.
 

Although he had denied the motion to add a claim for the
 

specific loss of the left leg, the magistrate nonetheless
 

awarded the benefits, reasoning that Mr. Cain’s assertion of
 

the loss of the industrial use of both legs implicitly
 

included a claim for the specific loss of the left leg. 


The magistrate found that the left leg had been
 

effectively lost in October 1990, when the stress fracture
 

occurred and “any hope of restoring the member was abandoned.”
 

The condition of the Plaintiff’s left leg


subsequent to 10/21/90 appears to be tantamount to


amputation. He cannot support himself without the


brace which was fashioned for him. The Plaintiff
 

is in effect wearing a prosthetic device on the


left leg.
 

Thus, he ruled that the Second Injury Fund would be obligated
 

to pay benefits for total and permanent disability because
 

Mr. Cain had lost the industrial use of both legs.3
 

Waste Management and its insurer appealed to the WCAC,
 

which reversed the judgment of the magistrate in April 1997.
 

3 Total and permanent disability, compensation for which


is provided in MCL 418.351, means:
 

(g) Permanent and total loss of industrial use


of both legs or both hands or both arms or 1 leg


and 1 arm; for the purpose of this subdivision such


permanency shall be determined not less than 30


days before the expiration of 500 weeks from the


date of injury. [MCL 418.361(3)]
 

7
 
The WCAC ruled that, in light of the phrasing of Mr. Cain’s
 

initial petition to the bureau, the magistrate had erred in
 

awarding benefits for the specific loss of the left leg. The
 

WCAC also held that the magistrate had committed legal error
 

in his analysis of the total and permanent disability claim,
 

since he had failed to use a “corrected” standard to examine
 

the remaining usefulness of Mr. Cain’s braced leg. Applying
 

such a standard, the WCAC concluded that Mr. Cain is not
 

totally and permanently disabled.
 

In May 2000, the Court of Appeals affirmed in part,
 

reversed in part, vacated in part, and remanded for further
 

proceedings.4

 The Court of Appeals affirmed the WCAC’s denial
 

of specific loss benefits, agreeing that Mr. Cain’s petition
 

did not state a claim for such benefits. However, the Court
 

of Appeals reversed and vacated with regard to the finding of
 

total and permanent disability, stating:
 

We reverse that portion of the WCAC’s decision


which holds that a claim for [total and permanent]


disability benefits must be analyzed under the


corrected test. While use of the corrected test is
 

mandated in vision cases, [Hakala v Burroughs Corp
 

(After Remand), 417 Mich 359; 338 NW2d 165 (1983)],


and has been expanded to cases involving implants,
 

4 When Mr. Cain first applied for leave to appeal, his


application was denied by the Court of Appeals. Unpublished


order, entered August 7, 1997 (Docket No. 203539). However,


this Court remanded the case for consideration as on leave
 

granted. 459 Mich 863 (1998). The Court of Appeals decision


was by unpublished opinion per curiam, issued May 2, 2000


(Docket No. 214445).
 

8
 
[O’Connor v Binney Auto Parts, 203 Mich App 522;


513 NW2d 818 (1994)], its use has not been extended


to cases involving prosthetics or braces. In the
 

instant case, plaintiff wears a prosthetic right


leg and a brace on his left leg. The brace is not
 

permanently attached to plaintiff’s leg. In
 

holding that use of the corrected test was required


in this case, the WCAC read Hakala, supra, and


O’Connor, supra, too broadly.
 

The issue whether a claimant has suffered loss
 

of industrial use is one of fact. Pipe v Leese
 

Tool & Die Co, 410 Mich 510, 527; 302 NW2d 526


(1981). We hold that the WCAC exceeded its
 

authority by applying the corrected test to make


initial findings of fact regarding whether
 

plaintiff had suffered the loss of industrial use


of his legs. Such initial findings are within the


exclusive province of the magistrate. [Layman v
 

Newkirk Electric Associates, Inc, 458 Mich 494; 581
 

NW2d 244 (1998)].[5] We vacate that portion of the
 

WCAC’s decision denying plaintiff’s claim for
 

[total and permanent] disability benefits and
 

remand with instructions that the WCAC apply the


uncorrected test to plaintiff’s claim. If
 

necessary, the WCAC may further remand the case to


the magistrate for additional findings of fact.


Id.; MCL 418.861a(12); MSA 17.237(861a)(12).
 

Applications for leave to appeal were filed by Waste
 

Management, Inc., and the Second Injury Fund. Mr. Cain
 

responded with an application for leave to appeal as crossappellant. We granted all three applications and invited
 

amicus curiae participation.6
 

5 We overruled Layman to the extent that it clearly


misstated the law with regard to the WCAC's authority to make


independent factual findings in Mudel v Great Atlantic &
 

Pacific Tea Co, 462 Mich 691, 697; 614 NW2d 607 (2000). Our
 

opinion in Mudel was issued approximately two months after the


Court of Appeals issued its opinion. 


6 463 Mich 995-996 (2001). 


9
 
IV
 

We address only one issue: whether the “corrected”
 

standard of Hakala, applied to a vision claim pursuant to MCL
 

418.361, should be applied to a permanent and total loss of
 

industrial use of both legs claim pursuant to MCL
 

418.361(3)(g).
 

In Hakala, a worker with a preexisting vision disability7
 

suffered the loss of a hand. This second loss gave rise to
 

the issue whether he was totally and permanently disabled
 

under the predecessor of MCL 418.521(1). The parties turned
 

to the predecessor of MCL 418.361(2)(l) for the rule that
 

eighty percent loss of vision in an eye constitutes total loss
 

of that eye. As it happened, Mr. Hakala’s uncorrected vision
 

loss was greater than eighty percent, but his corrected vision
 

did not constitute an eighty-percent loss.8
 

The question whether to gauge Mr. Hakala’s vision in its
 

corrected or uncorrected state had led to a division in the
 

Worker’s Compensation Appeal Board panel that decided the
 

7

 The vision disability was not work-related. 417 Mich
 

361. See also 399 Mich 162, 176, n 1; 249 NW2d 20 (1976), and


393 Mich 153, 157, n 1; 224 NW2d 27 (1974).
 

8 The “correction” at issue in Hakala was evidently the


product of ordinary corrective-lens glasses. See Hakala v
 

Burroughs Corp, 393 Mich 153, 160; 224 NW2d 27 (1974) (opinion


of SWAINSON, J.), on rehearing 399 Mich 162; 249 NW2d 20


(1976).
 

10
 
case. In our Hakala opinion,9 we resolved the matter in this
 

fashion:
 

In Nulf [v Browne-Morse Co, 402 Mich 309; 262


NW2d 664 (1978)], we refused to extend the
 

“uncorrected” vision test to total and permanent


claims, although we had adopted such a test for


specific loss claims in Lindsay v Glennie
 

Industries, Inc, 379 Mich 573; 153 NW2d 642 (1967).
 

We observed:
 

“In Hakala v Burroughs Corp (On Rehearing)


[399 Mich 162; 249 NW2d 20 (1976)], this Court


recognized that the question of Second Injury Fund


benefits in situations involving the loss of an eye


could not be adequately resolved by the universal


adoption of either the “uncorrected vision” test or


the “corrected vision” test. The Court held that
 

the question of entitlement to Second Injury Fund


benefits must be determined by reference to the


statutory language creating those benefits found in


MCL 418.521; MSA 17.237(521), which requires a


determination of whether the employee has suffered


a “permanent disability in the form of the loss of


a[n] . . . eye.” The determination of whether a
 

loss is a permanent disability within the meaning


of that section must be evaluated in terms of the
 

underlying legislative purpose of aiding the
 

handicapped in obtaining and maintaining


employment.” [Nulf] 402 Mich 312-313.
 

We are persuaded that the Legislature intended


compensation for a specific loss without regard to


whether the vision could be "corrected" or restored
 

after the injury. Lindsay, supra.
 

We are now persuaded that the Legislature


intended that a different standard be used in
 

determining total and permanent disability inasmuch


as it provided that only "total and permanent loss


of sight" would constitute the qualifying eye loss


for such benefits. We are satisfied that to carry
 

9

 As indicated in footnote 7, this actually was our third


opinion in Hakala.
 

11
 
 

out the legislative intent a "corrected" vision


standard should hereafter be used in assaying


claims for total and permanent disability involving


the loss of sight.
 

We conclude that in this connection that is
 

the sense in which the term "permanently disabled"


is used for the purposes of the Second Injury Fund.


[417 Mich 363-364.]
 

We have not had occasion subsequently to elaborate upon
 

or clarify the rule of Hakala. As noted in its opinion in the
 

present case, the Court of Appeals has extended the principle
 

only so far as cases involving “implants,” such as the knee
 

replacement surgery discussed in O’Connor.10 203 Mich App 522.
 

10 In O’Connor, supra at 534, the Court of Appeals


approved a distinction offered by an earlier panel in Tew v
 

Hillsdale Tool & Mfg Co, 142 Mich App 29, 35-37; 369 NW2d 254


(1985), where an employee was forced to wear a special


orthopedic boot following an injury that resulted in
 

amputation of a great toe:
 

If by some medical procedure an object or


device is attached to or implanted in the injured


member, it has become part of the body. . . . In
 

contrast, plaintiff's boot is not part of the foot


on which he wears it. Medical science has done to
 

better the condition of the foot itself. An arm or
 

leg which contains a surgically inserted pin is,


nevertheless, an arm usable in industry without an


external aid.
 

* * *
 

[A] similar distinction can and should be made


between artificial devices or objects which are


made part of the body, and external aids which


merely enable a person to accomplish what the limb


or member cannot do on its own.
 

12
 
V
 

The question whether MCL 418.361(3)(g) requires
 

application of a “corrected” or “uncorrected” standard in the
 

present case is a legal question, which we review de novo.
 

Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 697, n
 

3; 614 NW2d 607 (2000). 


Ultimately, entitlement to worker’s compensation benefits
 

must be determined by reference to the statutory language
 

creating those benefits. Nulf at 312. 


As previously indicated, total and permanent disability,
 

compensation for which is provided in MCL 418.351, means:
 

(g) Permanent and total loss of industrial use


of both legs or both hands or both arms or 1 leg


and 1 arm . . . . [MCL 418.361(3).]
 

We conclude that the words “permanent” and “total”
 

indicate the Legislature intended a “corrected” test. We
 

agree with the O’Connor Court, supra at 533, that
 

[t]he concept of permanence is necessarily one of


status, involving an assessment of medical
 

deterioration, stabilization, or improvement, and


consideration of medical treatment options.[11]
 

Moreover, as indicated in Hakala and Nulf, the ordinary
 

meaning of the word “permanent” suggests a condition or injury
 

that cannot be improved or made functional.
 

The word “total” similarly suggests a situation that
 

cannot be corrected. Further, the use of the phrase
 

“industrial use” in this section itself implies the kind of
 

13
 
functional analysis that is implicit in the “corrected”
 

standard of MCL 418.351. This phrase modifies “permanent and
 

total loss” and effectively limits the coverage of this
 

provision to only certain kinds of permanent and total losses,
 

to wit, those that have adverse implications for the ability
 

of an employee to carry out his industrial responsibilities.
 

Different forms of serious injury may carry altogether
 

different consequences in terms of the ability of an employee
 

to perform his “industrial” responsibilities. The express
 

language of MCL 418.351, in particular the phrase “industrial
 

use,” makes these different consequences relevant.
 

There certainly exist conditions that can be overcome,
 

and we have previously held that the Legislature intended that
 

poor vision, correctable with glasses, be evaluated in its
 

corrected state. No sound distinction would lead to a
 

different result in the case of a limb that, like vision
 

corrected by glasses, can function with the aid of an external
 

device. Where the legal inquiry is the effect of the work
 

injury on a worker’s use of members in industry, that effect
 

can only be reasonably measured by use of the members as aided
 

and corrected, whether by the devices listed in MCL
 

418.315(1)11 or otherwise. 


11 We note that pursuant to MCL 418.315(1), employers


subject to the act must provide injured employees
 

14
 
 

The Court of Appeals opined that the WCAC had read Hakala
 

and O’Connor too broadly. However, in actuality, and as
 

indicated above, it is the Court of Appeals that read Hakala
 

too narrowly.12
 

In considering the present issue, we have remained
 

cognizant of the distinction between specific loss benefits
 

and total and permanent disability benefits. As mentioned at
 

the beginning of the opinion, they are unique categories with
 

substantial differences. In its April 1997 decision, the WCAC
 

included this analysis, which we adopt as our own:
 

We believe that the historical distinction
 

repeatedly recognized by the appellate courts
 

throughout the long interpretational history of the


two statutory provisions continues to provide an


important divider between the specific loss
 

entitlements and the total and permanent disability


entitlements established under the statute.
 

crutches, artificial limbs, eyes, teeth,


eyeglasses, hearing apparatus, and other appliances


necessary to cure, so far as is reasonably


possible, and relieve from the effects of injury.
 

12 As indicated in n 10, both Tew and O’Conner
 

distinguished between artificial devices or objects that are


made part of the body and external aids that merely enable a


person to accomplish what the limb or member cannot do on its


own. O’Conner at 534, citing Tew at 36-37. We cannot agree


with this distinction because it has no basis in the language


of the statute. The distinction is also contrary to Hakala,


which required consideration of glasses that clearly are an


external device. Whether a corrective device is external or
 

internal is of no importance in determining whether a claimant


has suffered a permanent and total loss of the industrial use


of a limb. 


15
 
An even more significant contrast between the


two entitlements concerns the question of whether


loss is measured with the help of prosthetics or


without. The test for specific loss is clearly an


uncorrected test. In Lindsay v Glennie Industries
 

Inc, 379 Mich [573] (1967), the plaintiff suffered


an injury that compelled surgical removal of his


cataract, but even though he had virtually no sight


in that eye, the subsequent use of contact lenses


enabled him to enjoy virtually full vision. The
 

Supreme Court reversed the lower court’s finding


that no specific loss could be found because
 

plaintiff’s vision had been restored, and stated


that the proper analysis should take place without


the corrective procedure. The Lindsay Court
 

stated:
 

“We recognize that substituting an artificial


lens has ‘restored’ vision to the otherwise
 

sightless eye. We point out that a specific loss


award is not made as compensation for diminution of


the use of the involved organ or member. It is not
 

awarded to compensate for loss of earnings or


earning capacity. It is awarded irrespective of


either fact or both.” Id. at 578.
 

The Court noted that a plain reading of the


statutory wording put forth a loss regardless of


the correctability of the problem. Because the
 

Court placed emphasis on the actual loss of the


member or organ when determining specific loss, it


viewed the loss in its uncorrected state.
 

Likewise, in Tew v Hillsdale Tool & Mfg, 142


Mich App 29 (1985), plaintiff caught his right foot


in a conveyor, and suffered the amputation of his


great toe. There was also loss of tissue from the
 

second toe which decreased stability of the foot.


Plaintiff wore a special shoe to aid in his walking


ability. The Court held that prosthetic devices
 

are not taken into account when determining


specific loss in an industrial use analysis. The
 

Tew court stated “We do not hold that anyone who


wears any sort of prosthetic device has a valid


specific loss claim, but only that the device


should not be considered in measuring the
 

disability.” Id. at 35.
 

16
 
On the other hand, the test for total and


permanent disability is a corrected test. In
 

Hakala v Burroughs Corp (After Remand), 417 Mich


359 (1983), plaintiff claimed total and permanent


loss by bringing forth a pre-existing nonoccupational impairment of vision with the workrelated loss of his right hand. The Supreme Court


denied total and permanent loss benefits due to the


fact that the “corrected” standard had to be used.
 

“We are persuaded that the Legislature


intended compensation for a specific loss without


regard to whether the vision could be ‘corrected’


or restored after the injury. Lindsay, supra.
 

“We are now persuaded that the Legislature


intended that a different standard be used in
 

determining total and permanent disability inasmuch


as it provided that only ‘total and permanent loss


of sight’ would constitute the qualifying eye loss


for such benefits. We are satisfied that to carry


out the legislative intent a ‘corrected’ vision


standard should hereafter be used in assaying


claims for total and permanent disability involving


the loss of sight.” Id. at 364.
 

With this statement a clear distinction was
 

established for total and permanent disability


benefits, using the corrected status of the member


or organ. A closer look at why this distinction


was made reveals a logic that leads back to the


main purpose of having separate statutory


provisions. The courts allow correction in the
 

total and permanent setting because the focus is on


the function of the member or organ that enables


the claimant to earn a living. On the other hand,


specific loss awards the claimant for the loss of


the anatomical member, . . . and thus the
 

uncorrected test is more appropriate.
 

In O’Connor v Binney Auto Parts, 203 Mich App


522 (1994), the Court determined that the corrected


test applies beyond the special category of vision.


In O’Connor, an amputee with a prosthesis below the


left knee sought total and permanent loss benefits


for his legs because the right leg was aggravated.


The Court held that any corrective surgery to the


right knee that would improve the claimant’s
 

17
 
condition should be included in the evaluation as
 

to whether claimant suffered industrial loss of use
 

of his legs. . . . Essentially, O’Connor confirms
 

the distinction that for determining specific loss


benefits, prostheses are not considered, while when


determining total and permanent loss, prosthetic


devices and implants must be taken into
 

consideration.
 

In summary, the specific loss and total and


permanent disability entitlements in the statute


are unique categories with substantial differences.


They are separately identified in their own
 

subsections. The focus of specific loss is on


anatomical loss or its equivalent, irrespective of


wage earning ability. In contrast, the focus of


total and permanent disability is on the loss of


wage earning capacity. While the test for specific


loss is an uncorrected test, the test for total and


permanent disability is a corrected test.
 

We conclude that the “corrected” standard applied in
 

Hakala accords with the intent of the Legislature as expressed
 

in the language of MCL 418.361(3)(g) and is properly applied
 

in the present case.13 In sum, total and permanent disability
 

is not demonstrated where the proofs indicate that a braced
 

limb is functional and can support “industrial use.” MCL
 

418.361(3)(g).
 

13 We note that our holding today, while not required by,


is consistent with our holding in Chmielewski v Xermac, Inc,


457 Mich 593, 609; 580 NW2d 817 (1998) (whether a person is


disabled under the Persons With Disabilities Civil Rights Act,


MCL 37.1101 et seq., is generally determined considering


mitigating measures), and with Sutton v United Airlines, Inc,


527 US 471, 475; 119 S Ct 2139; 144 L Ed 2d 450 (1999)


(whether a person is disabled under the federal Americans with


Disabilities Act, 40 USC 12101 et seq., should be made with


reference to measures that mitigate the individual’s
 

impairment). 


18
 
VI
 

For these reasons, we reverse in part the May 2000
 

judgment of the Court of Appeals. We remand to the WCAC to
 

consider plaintiff’s specific loss claim. MCR 7.302(F)(1).
 

CORRIGAN, C.J., and CAVANAGH, WEAVER, YOUNG, and MARKMAN, JJ.,
 

concurred with TAYLOR, J.
 

KELLY, J., concurred in the result only.
 

19