220 Mich. App. 494 | Mich. Ct. App. | 1996
Lead Opinion
The Supreme Court remanded this case to the Court of Appeals for consideration as on leave granted. 448 Mich 913 (1995). Thus, plaintiff appeals
Plaintiff’s decedent worked as an assembler for General Motors Corporation from 1975 until April 16, 1987.
From April 15, 1985, to February 4, 1988, plaintiff’s decedent did occasional part-time work for Shortway Northstar Lines as a shuttle bus driver. On May 8, 1988, she began working for Suburban Mobility Authority for Regional Transportation (smart), also as a bus driver. Before being hired, she obtained a vocationally handicapped worker’s certificate on the basis of her back injury. The certificate limits the liability of smart pursuant to MCL 418.901 et seq.; MSA 17.237(901) et seq.
The rigors of driving a bus aggravated decedent’s back condition to the point of disability. Her last day of work with SMART was March 1, 1989. She filed her claim for compensation benefits against her prior employers and the Second Injury Fund on December 11, 1989. Following a hearing, the worker’s compensation magistrate awarded plaintiff benefits payable by General Motors from December 11, 1987, to May 8, 1988, when she began working for smart. The award
On appeal, the WCAC affirmed the award, but extended the liability of General Motors to March 1, 1989, decedent’s last day of work with SMART. The WCAC held that liability after that date fell wholly on SMART and the Second Injury Fund for the new injury date caused by the work-related aggravation of decedent’s back condition while employed by smart.
On appeal, plaintiff argues that the WCAC committed legal error by failing to apply MCL 418.301(5)(e); MSA 17.237(301)(5)(e), which provides:
If the employee, after having been employed pursuant to this subsection for less than 100 weeks loses his or her job for whatever reason, the employee shall receive compensation based upon his or her wage at the original date of injury.
Plaintiff misconstrues the effect of § 301(5). Section 301 is a partial codification of the former judicially created favored-work doctrine. Pulver v Dundee Cement Co, 445 Mich 68, 74; 515 NW2d 728 (1994). The subparts of subsection 301(5) all deal with the level of benefits to be paid, not whether benefits are to be paid in a particular circumstance. Lee v Koegel Meats, 199 Mich App 696, 702; 502 NW2d 711 (1993). The statute did not declare a right to compensation different from existing law.
The existing law applied by the WCAC is the Massachusetts-Michigan rule governing subsequent injuries or aggravations of initial injuries. The employer at the time of a subsequent disabling injury or aggravation of a prior injury is wholly liable for payment of com
Here, it is uncontested that decedent’s work as a bus driver aggravated her prior back injury. Thus, smart and the Second Injury Fund are wholly liable for the payment of compensation benefits. We hold that the Legislature did not intend § 301(5)(e) to apply when an employee receives an aggravation of a prior injury in later employment. Reading the provisions of the subsections together, Miles v Russell Memorial Hosp, 202 Mich App 6, 10; 507 NW2d 784 (1993), the reference in subsection e to losing a job for any reason should be construed in light of the restriction in subsection d, which limits benefits to the situation where an employee becomes unemployed through no fault of the employee. Thus, the broad language of subsection e was intended to cover situations where an employee, regardless of fault, loses favored work. It was not intended to cover situations where an employee is required to leave subsequent employment with another employer because of another compensable injury.
Affirmed.
Bernetta C. Arnold died during the pendency of the appeal, and her executor was substituted as plaintiff.
Concurrence in Part
(concurring in part and dissenting in part). The decision of the Worker’s Compensation Appellate Commission should be affirmed in part and reversed in part. It should be affirmed in its extending the liability of General Motors Corporation to March 1, 1989, decedent’s last day of work with smart. It should be reversed with respect to benefits payable after March 1, 1989, with Suburban Mobility Authority for Regional Transportation (smart) and the Second Injury Fund being ordered to pay compensation benefits based on the wages Bemetta C. Arnold was earning as of the last day of her employment with smart and with General Motors being ordered to continue to pay partial compensation benefits from March 1, 1989, to the date of her death as if she were still earning wages from SMART. See Welch, Worker’s Compensation in Michigan: Law & Practice (3d ed, 1996), § 10.26; pp 10-21 to 10-22.
MCL 18.301(5)(e); MSA 17.237(301)(5)(e) provides:
If the employee, after having been employed pursuant to this subsection for less than 100 weeks loses his or her job for whatever reason, the employee shall receive compensation based on his or her wage at the original date of injury.
The fact that the deceased aggravated her condition during her subsequent employment should not result in a reduction of her weekly benefit rate under § 301(5)(e), MCL 18.301(5)(e); MSA 17.237(201)(5)(e). To so hold would result in an absurdity. A worker who is fired or laid off during the first one hundred weeks of subsequent employment would be in a better position than a worker who had to stop working because of an aggravation of a preexisting work-related condition. If such were the law, any claimant
I therefore dissent from that part of the majority opinion that holds otherwise.
