                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 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.

                ________________________________
SCOTT M. CAIN, 


            Plaintiff-Appellee,


v                                                         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 cross­

appellant.     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 non­
occupational impairment of vision with the work­
related 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

