The opinion
*96 Danhop, J.
(dissenting). I must dissent. It is not possible, without doing violence to the legislative intent;' to fit Clayton Drake’s disability within the definition of total and permanent disability due to loss of industrial use of the limbs. MCLA 412.10(b)(7); MSA 17.160(b)(7). 1 This becomes evident when the instant case is contrasted with Paulson and Lockwood.
Paulson worked intermittently and was able to use his legs in industry between 1949, the year of his injury, and 1957 when granuloma developed as a result of that injury and surgery was required. The Supreme Court there found that Paulson’s leg-connected pain was associated primarily with the use of his legs and was so severe as to make use of his legs in industry impossible.
Lockwood’s non-leg malady, a defect in the balance mechanism of his inner ear, was triggered whenever he attempted to use his legs. That he was not suffering from general bodily decline is evidenced by the finding that although Lockwood could engage in sedentary work, he still could not use his legs in industry.
In the case at bar, the testimony of Clayton Drake’s own treating physician indicates that Drake’s disability was neither primarily associated with nor triggered by the use of his legs. He was, at the time of his application for differential and additional weekly benefits, 75 years of age and suffering from general bodily decline due to chronic heart disease, as symptomized by chest pains, breathing problems, and overall weakness. Drake, who had not worked since his heart attack, was unable to engage in any employment, even that involving merely mental strain. The following *97 quotations from the deposition of Drake’s physician, Dr. Lambert Geerlings, are illustrative:
"Q. Do you recall treating him for anything that was directly related to his arms or his legs?
"A No.
"Q. Does this man have any skeletal, muscular or nerve defect in either his legs or his arms?
"A I don’t recall. I don’t think he ever complained of muscular pain.
* * *
”Q. Doctor, in the treatment of this patient, would you treat anything but his heart, or his heart and related circulatory problems?
"A In his condition, just his heart, because he never complains of anything else — nothing else there.
* * *
”Q. Aside from the exertion of his arms or his legs, any type of exertion could cause him trouble; isn’t that right, Doctor? For example, he could move his head back and forth, and if he did it long enough that would be too much exertion for him, wouldn’t it?
"A. Of course, I have never tested him out for that. If he exerted his whole body and walked and exercised, he couldn’t do that.
”Q. Isn’t it generally true with any heart patient that they do have to be careful of overexertion in any form? "A Yes.
* * *
”The Reporter [reading back]:
"Now, Doctor, if you were called upon to state that this man was unable to be employed in common labor, and you had to state as succinctly as possible what the reason was that he was unable to be employed, would you state it was an inability to use his arms and legs or hands, or would you state that it was because he had heart trouble?
'A. I would state it was because he has heart trouble.
”Q. So, even if he could sit down all the time, he *98 wouldn’t have been able to work with his condition; is that correct?
"A. This is correct.
"Q. This would have been too much exertion?
”A. That would be, yes.”
Implicit in the controlling opinion of the appeal board is the finding that the inability of plaintiffs decedent to walk in excess of 20 yards was as much the result of his shortness of breath as of the edema within his legs. Concerning edema, 1 Schmidt’s Attorneys’ Dictionary of Medicine states:
"There are many reasons for this condition. One is partial heart failure in which the blood of the capillaries is under high pressure and therefore does not take in the fluid from the tissues.”
This case is not the one to extend the PaulsonLockwood rule. Although I concurred in Lockwood, Judge Levin in his opinion, in footnote 10, was careful to distinguish claims of loss of industrial use grounded in disabling injuries resulting in weakness of the body as a whole:
"Furthermore, it may well be that where compensation is claimed for heart or lung disease that some limitation may be appropriate in the light of the special history of the compensation of incapacity traceable to such diseases. That is not, however, a good reason for imposing a limitation in a case such as this where the worker’s inability to use his limbs is not attributable to a general reduction of bodily function, but rather to an injury which even if it had been suffered by a young person otherwise sound and healthy would make impossible movement of his limbs in gainful employment.
* * *
"The Paulson and Lockwood cases are different from the case of the heart disease patient where the disease *99 affects all functions and activities more or less in the same way and where there has been a general decline in bodily function.” 27 Mich App 597, 606 ; 183 NW2d 807, 811-812 (1970). (Emphasis supplied.)
The Second Injury Fund, in urging the above distinction, is not attempting to reargue the issue of whether Clayton Drake’s heart attack was a compensable injury.
No one contests that Clayton Drake suffered permanent and total disability as a matter of fact on January 24, 1953. He had been compensated accordingly for 750 weeks. What is at issue here is whether Mr. Drake’s disability fits within the definition of permanent and total disability as a matter of law. Because of a tangled and complex interplay of amendments to our compensation law, if Mr. Drake’s illness cannot be so defined, he was not entitled from the Second Injury Fund to differential benefits, Verberg v Simplicity Pattern Co, 357 Mich 636 ; 99 NW2d 508 (1959).
The majority opinion attempts to correct by artificial construction a statutory inadequacy already recognized and corrected by the Legislature. The seven categories listed under the total and permanent disability provisions are very specific. Obviously there are many severely injured employees who would not qualify under those provisions. By 1965 PA 44 , MCLA 412.9(a); MSA 17.159(a) 2 now provides for compensation to be paid to the totally disabled claimant, as distinguished from the totally and permanently disabled claimant, for the duration of his disability even though he does not qualify under the exclusive definition of total and permanent disability.
My disagreement with the majority opinion is not with its attempt to arrive at greater equality *100 of compensation for those injured prior to September 1, 1965 (the effective date of 1965 PA 44 ). However, by doing violence to the statutory words "loss of industrial use”, I fear that the majority opinion will result in future confusion on whether an injury is to be defined as total disability, entitling a successful claimant to compensation for loss of wage earning capacity, or total and permanent disability, entitling a successful claimant to schedule benefits "irrespective of any wages he receives whether greater or less than those he received at the time of his injury”. Miller v Sullivan Milk Products, Inc, 385 Mich 659, 665-666 ; 189 NW2d 304, 307 (1971), quoting from Hutsko v Chrysler Corp, 381 Mich 99, 102 ; 158 NW2d 874, 876 (1968). The distinction between compensation for wage loss and schedule benefits remains an integral part of present Michigan compensation law and should not be blurred by a well-intentioned judicial attempt to remedy a past statutory inadequacy.
Further the Miller case, the most recent pronouncement of our Supreme Court on the issue at hand, cannot be dispensed with as easily as the majority indicates. It is too facile to say that the "other disabling infirmities” of claimant Miller was an injury to his left ankle as opposed to a disabled heart. What is at stake is the language of the statute:
"When the limb cannot be used industrially simply because of other disabling infirmities, it would do violence to the statutory intent to hold that the industrial loss of use of such limb has occurred.” Miller v Sullivan Milk Products, Inc, 385 Mich 659, 667; 189 NW2d 304, 308 (1971).
Since, as the majority indicates, the finding of *101 the Workmen’s Compensation Appeal Board was based primarily on a legal definition of "loss of industrial use” and was not merely a factual determination, I vote to reverse.
Currently MCLA 418.361(2)(g); MSA 17.237(361)(2)(g).
Currently MCLA 418.351; MSA 17.237(351).