*1 City Saginaw 1982] Bannan SAGINAW v CITY OF
BANNAN v CITY OF SAGINAW
GIFFIN OF SAGINAW
KAUFMAN v CITY OF SAGINAW
HALE v CITY at Lansing. 15, 1982, Decided October 7, 1982. Leave to appeal applied for. July Submitted 57322-57325.
Docket Nos. applied appeal for. to Leave Kaufman, Giffin, Bannan, George J. Gerald W. H. James fighters for the Raymond all former fire J. Hale are given duty and Hale were were retired. Bannan who pen- nonduty disability given pensions. a Giffin was pension. given regular retirement Each Kaufman was sion. benefits, disability compensation paid workers’ was also pursuant against pension city benefits offset All created benefits. ordinance which of the city years. passed The continued of 55 have four men against disability compensation benefits offset the workers’ age. man reached after each Sagi- Bannan, Kaufman, brought separate actions in Hale seeking judgments each was entitled naw Circuit Court any offset for the benefits without his full Giffin, receiving. disability compensation also benefits he was action, compelling sought retirement separate mandamus duty disability pension change nonduty board to court, disability pension. The actions were consolidated. McDonald, J., Joseph that the workers’ R. determined Headnotes References for Points in 2d, 73 Am Jur Statutes 254. § 2d, 214-216. 73 Am Jur Statutes §§ 2d, seq. 73 Am Jur Statutes 194 et § 2d, 250. § 73 Am Jur Statutes 2d, 4. and Retirement Funds § 60 Am Jur Pensions 2d, Compensation 180. § 81 Am Jur Workmen’s 2d, 52 Am Jur Mandamus 5.§ 2d, Am Mandamus 80. Jur 2d, Law 650-652. 2 Am Jur Administrative §§ 2d, Compensation Am Workmen’s §§ Jur 2d, Compensation 240. Workmen’s
82 Am Jur applicable language dis- offset was paid pension payments regular after the ability employee. birthday The court further of the disabled 55th its discretion the retirement board abused determined that disability pension gave nonduty than a it Giffin a when rather *2 repay city duty disability pension. ordered to with The was pensions as a workers’ deducted from the interest all sums plaintiff had become 55 of after each offset further, deducting enjoined age. city, future was from The plaintiffs’ pension compensation benefits from the
workers’ city appeals. Held: benefits. pension provision duty disability of the ordinance 1. The compensation offset a clear intent that the workers’ evidences duty disability pension only provision apply until the to a shall specific employee retirement of 55. The reaches the normal provi- duty disability pension legislative intent evidenced in the though provision properly given effect even the offset sion is contrary general intent. evidences a provision Disability in the Worker’s 2. The "like benefits” applicable pension Compensation not since these benefits Act is charter, by by than the ordi- were created ordinance rather benefits, require an election of and the nance does pension pension being paid regular retirement is in lieu of pension amount. The benefits are therefore benefits of a like not "like benefits”. ordering the board to 3. The trial court erred in pension change pension nonduty disability to a Gifiin’s from a board, disability pension. granting The retirement pension, by was not bound the determination on the workers’ disability, compensation claim a work related there was duty disability pension since the standard for entitlement disability compensation differs from the for a standard workers’ capri- arbitrary claim. Since the board’s action was not cious, appropriate. mandamus was not part, part.
Affirmed in reversed in J., He, however, Martin, R. B. not reach concurred. would question "like of whether the benefits were not benefits,
benefits” to it clear that the since is provision Compensa- Disability "like benefits” in the Worker’s applicable provision applies only tion Act is not because that benefits created charter and these were created ordinance. Bannan the Court —
1. Judicial Statutes Construction. unambiguous it
A statute is enforced as written where on its is exists, face; ambiguity an a to be read in its where statute is and, possible, entirety if all sections of the statute are to be whole. harmonized to create a consistent —
2. Judicial Construction. Statutes give expression of effect to an are construed so as Statutes expression apparent legislative specific intent where such legislative expression general intent. with an conflict —
3. Judicial Construction. Statutes statute, purpose construing presumed, that all for the It is phrase language meaning and no of the is to have word surplusage nugatory if be statute should treated as or rendered possible. at all —
4. Judicial Construction. Statutes construing Statutory provisions are to be read as whole when intent and effect a statute. — — — Laws Reme- Statutes Judicial Construction Pension dial Statutes. *3 nature, laws, being liberally con- remedial in should be Pension persons in favor of intended to strued be benefited. — Compensation —
6. Pensions Workers’ Policemen Firemen „ Like Benefits. Disability pension policeman or fireman are not "like benefits of a provision within of the Worker’s benefits” the "like benefits” Compensation Disability pension benefits are Act where the charter, by does created ordinance rather than the ordinance benefits, require an election of and the being regular pension' paid are of a in lieu (MCL418.161; 17.237[161]). benefit of a like amount MSA — 7. Remedies. Mandamus only may extraordinary remedy issue is an Mandamus under limited circumstances. Legal Right Legal Duty — — —(cid:127) — Minis-
8. Mandamus Remedies terial Acts. plaintiff proves only he has a clear will if the Mandamus issue sought performance specific duty legal right to be legal compelled has clear and that the defendant act; requested perform ordinarily, to be enforced such the act Opinion of the Court ministerial, although may must be the execution of act require the exercise of discretion. Appeal — — Law Courts. Administrative involving An the exercise of discretion is administrative decision subject by only the evidence to reversal the courts where agency by establishes that the has abused its discretion arbi- trary action. Compensation — — —
10. Workers’ Pensions Proximate Cause Causal Nexus. city pension apply A board is not bound to the decision made respect disability compensation with to a claim related in its work existed determination of whether employee duty disability pension is entitled rather nonduty disability pension than a where the standard in the creating proximate is one of ordinance rather cause determining than the causal nexus standard used in the work- disability compensation ers’ claim. by Martin, R. B. J.
Concurrence Compensation — —
11. Workers’ Policemen and Firemen Pensions Like Benefits. unnecessary policemen It is to determine whether a and Aremen duty disability pension and workers’ beneAts are Disability ”like beneAts” within the of the Worker’s Compensation ordinance, Act where the is created provision clearly applies only since the "like beneAts” of the act (MCL pensions provision 418.161; created a charter MSA 17.236[161]). Benschoten, Benschoten, van Hurlburt & van Hurlburt), P.C. Lawrence A. (by plaintiffs. Murphy
Braun, Kendrick, Finkbeiner, Schafer & Dalrymple), (by Bruce L. for defendant. P.J.,
Before: Cynar and R. B. Mart Allen, JJ. in,* *4 Defendant, of City Saginaw, ap-
Per Curiam. peals right as of judgments trial court’s four
* judge, sitting by assignment. Appeals Circuit on the Court of City Saginaw Bannan v Opinion op the Court April ordering city 7, 1981,
entered to reim- plaintiffs, interest,
burse all four with the sums city
the pensions. deducted from their retirement judgments enjoined further defen- deducting plaintiffs
dant from the amount of each compensation
future workers’ pension benefits from their principal appeal
benefits. The issue on applicability City Saginaw’s of 129 of the D,
Ordinance which mandates the offset of work- compensation
ers’ benefits from all
benefits. Saginaw fight-
Plaintiffs are former fire
ers who retired due to disabilities. Plaintiff Ban- fighter years
nan was a fire until
February 28, 1967. The Bureau of Workers’ Dis-
ability Compensation weekly awarded Bannan annually, $69, $3,588
benefits of from that date. city began old,
When Bannan paying became duty disability pension pursuant
him a
defendant’s Ordinance D. Bannan was entitled to
an ever, $3,479. annual How-
pursuant provision to an offset in Ordinance
D, defendant withheld and continues to withhold
all of Bannan’s benefits. stopped working fighter
Plaintiff Giffin as a fire approximately years. 25, 1973,
on October after voluntarily 29, 1973,
On October defendant com- paying compensation
menced Giffin workers’ bene- pursuant Compensa- Disability
fits to the Worker’s (WDCA); seq.;
tion Act of 1969 MCL 418.101 et 17.237(101) seq., per MSA et in the amount of $98 annually. $5,096
week or 1, 1973, On November
Giffin retired. He was then entitled to an annual
disability pension $6,041.62. On October
1974, Giffin turned 55. The defendant did deduct $5,096
and continues to deduct Giffin’s benefits from his benefits. *5 Opinion of the Court duty date, for a twice filed Giffin Prior to Instead, Board of defendant’s retirement. Saginaw Policemen Firemen Trustees of (board) eligible System for found Giffin Retirement nonduty disability 1, 1973, November on a report upon its medical director’s based chronic ill- suffered from several
indicated Giffin were indicate the illnesses work but did not nesses 26, 1974, Giffin asked the November related. On application duty for disabil- board reconsider ity 1974, 11, defendant sent On December benefits. meeting noticing a board on
Giffin letter meeting, 17, the board 1974. At that December request and Giffin’s said: noted reports history of various
"The board reviewed originally at the time Mr. Giffin that were considered applied It was their considered for benefits. time, opinion upon the evidence at that that based non-duty disability grant Mr. Giffin decision Potthoff, It Mr. was correct. was moved Muellerweiss, adopted unani- supported by Mr. Giffin
mously, the communication from Gerald W.
be received and filed.” Raymond Hale discontinued work-
Plaintiff also ing years after almost 25 on March for defendant following voluntarily day, 8, 1974. The defendant paying disability bene- commenced Hale workers’ pursuant fits to WDCA in the amount $106 per September annually. 14, $5,512 week or On granted application 1974, defendant’s board Hale’s duty disability pension for in the amount of annually. $8,035.30 Defendant’s board deducted $5,512 and continues to deduct disability pension annually. from Hale’s working as a
Plaintiff Kaufman discontinued fighter September 1973, 20, fire on after City op Saginaw Bannan v Opinion of the Court 21, 1974, of service. On November city voluntarily commenced paying Kaufman the amount of $104 $5,408
weekly annually. On June Kauf- applied
man a duty pension but Instead,
defendant’s board denied the same. Kauf- eligible
man became on his last of work day
regular $10,408.84. pension retirement Kauf-
man turned 55 in years old 1971. The defendant’s
board $5,408 deducted and continues to deduct the
annual workers’ compensation benefits from Kauf- pension
man’s benefits. plaintiffs
The filed their against suits the city on
various dates in seeking reimbursement
the amounts deducted from pensions their and a
court enjoining order the defendant from further
deducting the amounts of their workers’ compensa-
tion benefits from their disability pensions. More-
over, plaintiffs Giffin and Kaufman each sought a
writ of mandamus ordering the defendant’s board
to find him eligible for a duty disability pension as
opposed to a nonduty disability pension or a regu-
lar pension. D,
Defendant’s Saginaw Ordinance Administra- Code,
tive ch which contains the provisions
governing the city’s Policemen and Firemen Re-
tirement System, requires the offset of workers’
compensation from all retirement benefits: "Any compensation workmen’s may paid which be or payable member, retirant beneficiary on account city employment against shall any be offset pensions payable member, to such retirant or benefi- ciary. In present case the value of the workmen’s compensation is less than pension reserves for the pensions payable ordinance, under this present
value of such workmen’s shall be de-
ducted from may such reserves pensions and such as provided be by reserves so reduced App op the Court article.” under the of this payable
shall be §129. 102.1(h) defines retir- of that ordinance
Section with a as, who retires "any ant member Section system”. retirement
payable l(u) voluntary age: retirement 102. also defines " age age’ years for 'Voluntary means for the retirement policemen: Pro- age 52 years firemen member, voluntary original vided, case of an age age years for firemen and age means retirement acquires or the at which he years policemen service, occurs first.” whichever of credited fighters fire must contribute
All system:
pension/retirement Deposit Fund.
"Section Members It hereby fund deposit created. "131.1 members accumulated, at shall shall regular the the fund be be interest, the contributions made members made system, and from which shall be *7 contributions, as of accumulated refunds and transfers provided in this article. to the retire- "131.2 The contributions of a member 1965, 1, of February percent be system ment to shall January to compensation.
his From after 1, 1968, shall the contributions of member November From after percent compensation. be of his 31, 1968, mem- a fireman October contributions of percent compensation.” ber shall be 7 of his Saginaw fighters fire do contribute Instead, social con- security program. they
federal city’s mandatory pension program. tribute to the fund also city contributes fluctuating based on a annual actuarial annually support. evaluation of the system’s means for provide D
Sections 121-122 Ordinance Bannan v op the Court Such retirements. disability pensions nonduty pro- Section not work related. are
disabilities
vides: Disability Pension. Non-duty
"Section disability, retires on account A member who "122.1 hereof, a dis- shall receive in Section provided as ability 118.1 according computed to subsections prior to his retires the said member 118.3. If and attainment of increased, be service shall age his credited computing only of purpose the exclusive for years, and the number of pension, by disability his years, period in the not to exceed year, of a fraction from the he to the date disability retirement date of his disability pension His said years. attain would Upon his 128 and 129. Sections subject
shall be elect, in lieu of a right to have the he shall retirement straight disability his pension, to receive life in Section 120.” provided for option an pension under added.) (Emphasis D provide 123-124 of Ordinance
Sections work re- are Such disabilities pensions. in part: 123 provides Section
lated. board, by committee certifies "If the medical physically or member opinion, such
majority mentally totally policeman duty as a incapacitated for city, and the board employ of the in the or fireman finds the the natural and as disability to have occurred in the arising of and of causes out such
proximate result shall member city, employment with course filed application upon the board written be retired head. department by said member or with the board entitled Upon his retirement he shall be added.) (Emphasis provided in 124.” Section part: provides
Section 124 Pension. Duty Disability
"Section 124. *8 member, his attain- at or after
"124.1 A who retires App 307 the Court of pro- disability, as of account age years on ment pension disability 123, a shall receive in Section vided computed Upon 118. his retirement according to Section elect, straight of his in lieu right to have he shall life under pension disability his pension, to receive disability in Section provided for option an prior to his attainment who retires "124.2 A member in disability, provided as account of age years on computed disability pension receive shall Section exclu- 118.3. For the 118.1 and according to subsections disability computing his purpose only of sive by the number of increased shall be his credited service period from the year, in the fraction of a years, and he would to the date disability retirement of his date age Upon his attainment age years. attain years final ries at used of using recomputed disability pension shall be his according the sala- average salary determined ranks age years time for the he attains average salary at the time computing his final such In no event shall disability his retirement. disability recomputed disability pension be less than the pension he received Upon his retirement attaining age years. prior elect, right to he shall have the pension, to receive his straight life lieu of a option provided for in Sec- disability pension under an years his disabil- tion 120. To his attainment ” subject 128 and 129. ity shall be to Sections 127.1(b)-127.1(e) provide pen-
Similarly, §§ widow, children, dependents sions payable of a member of the dies in system retirement who of duty subject line are 129 offset.
The trial opinions court issued two on March Hale, Bannan, 1981. The opinion in the and Kauf- man actions relied on the earlier trial court’s opinion in Zittel Saginaw, a 1973 deci- Zittel, sion. In plaintiff was a retired fighter
fire to whom defendant awarded a before he reached age, old, pursuant 124.2. Defendant paid Zittel voluntary bene- *9 Saginaw of Bannan op the Court from board deducted the defendant’s which fits that, found under trial court pension.
Zittel’s 124.2, a such language of above-emphasized §
the was appli- duty disability from
deduction 55 years was under recipient the only while
cable age.
of City of ruling this that defendant of court is the "It plaintiff payments off the entitled set
Saginaw was compensation against his under workmen’s received duty-disability plaintiff up to the time that pension benefits plaintiff age 55. After reached of the reached the 124.2 of entitled under age 55 he was §
the to full benefits Code Saginaw Administrative he compensation benefits any workmen’s irrespective of might also receive. 124.2, supra, sentence The last § periodic providing the implies that sections clearly off- compensation and workmen’s re-evaluation medical until a retirant attains applicable only set shall be provision This inapplicable thereafter. logical language, and would seem plain in expressed is as member retire permits in of 124.1 view § attaining age after related a result of a 55 offsetting provision without the
"There, generally that workmen’s com- provides 129§ be offset
pensation against pension less, payable to a retirant shall benefits similarly payable. Neverthe- benefits specifi- relating to retirants duty-disability 124.2 appli- is general provision cally indicates that the offset the retiring attains only until individual so cable age an ordinance 55. The reasonable construction the provision governs applicability of speciñc Therefore,
general provision. general offset of work- applicability has no
men’s benefits years of he duty-disability retirant after attains added.) age.” (Emphásis appealed by city.
Zittel was not opinion pertained
The trial court’s second claim differed
action The Giffin by filed Giffin. Opinion op the Court Hale, Bannan, Kaufman,
from the claims of that Giffin had been denied duty disability status the board the fact despite city had voluntarily payment commenced of workers’ com- pensation Giffin’s was aggravated caused or employment as a In fireman. the second opinion the trial court first Trustees, Braun v Board of noted that an ear- case,1 lier Circuit Court the court had held that governing test entitlement to work- *10 compensation ers’ benefits was virtually identical to the eligibility requirements for duty disability pensions under 123-124 of Ordinance D. The §§ proceeded court then to hold: "In in Braun and ruling view of this court’s City Saginaw’s voluntary payment compensa- of workers’ benefits,
tion this court holds that the defendant acted arbitrarily and capriciously denying plaintiffs appli- cation for duty disability retirement status.” The trial court ordered the board to award Giffin a duty disability pension with reimbursement for all pension offsets.
I Did the trial court err in construing Ordinance D as prohibiting the deduction plaintiffs’
compensation beneñts from their duty disability
pensions? Defendant initially argues plain
unambiguous language of 129 mandates that all § pensions retiree must be offset by the amount of workers’ compensation benefits paid retired fire fighters. Where a statute is unambiguous on its
1Saginaw Circuit Court Docket No. 78-01945-AW-4. Bannan v Court as written. Dussia
face, it is to be enforced System, Retirement County Employees
Monroe (1971). 244, Standing 249; 191 NW2d Mich unambiguous. It plain clearly 129 is alone § * * * workmen’s "any provides No against any pensions payable”. be offset shall the section. is contained within
exception
However, with 129 is read connection when § fighters fire receive 124.2, who providing becoming pensions prior offset, ambiguity subject shall be to be in their en Statutes are read
introduced. and, if sections are to harmo possible, all be
tirety Em whole. Melia v to create a consistent
nized Comm, 544, 562; Security
ployment Mac Lake Carriers’ Ass’n v (1956);
NW2d
Mullen, 357, 363; 282 NW2d
(1979). us, In the before where one section case 129)
(§ contains no cross-reference to other sections statute, three sections
of the but where other 127) 124.2,
(§§ cross-reference being is far Accord unambiguous.
statute from well-recognized rules of construc statutory
ingly,
tion must be employed. *11 the
A rule construction is statutory basic of that, where, statute, there is principle in the same specific provision general provision a and also a in the
which would include matters embraced con- provision, provision shall specific specific the Harris, Corp Delight William’s App trol. 87 Mich YMCA Evanston
202, 208; (1978); 273 NW2d 911 Comm, v State 1, 8; 118 Camp Tax Mich (1962). statutes, statute construing NW2d In control
expressing particular legislative intent will People v general over a statute intent. expressing Smith, 561, 570; Bernard 266 NW2d App 307 120 Mich Opinion of the Court (1978). this rule of applied The trial court specific provision holding in that
construction precedence sentence of 124.2 took over in the last § of 129. general provision the more § statutory rule of construc-
(cid:127)A second well-settled language presumed that all to have tion is of a statute should meaning phrase and no word or or rendered if at surplusage nugatory be treated as Melia, 562-563; Baker v supra, pp possible. all 639, 665; Corp, General Motors (1980). argues Defendant the lan-
NW2d age attainment guage "To his subject shall be to Sections 128
and 129” in the last sentence of 124.2 appearing § indicate” that expressly was used "to under-55 duty-disabled subject retiree is 129 offset. § argument quoted Defendant’s makes words 129 includes all retirees redundant. For if re- § gardless age, the last sentence in 124.2 is § unnecessary surplusage. and Since lan- statutory guage surplusage, logi- is not to be considered language signified cal conclusion is that
the offset applies to attainment 55 but does thereafter. This is apply precisely what Zittel trial court in in held the instant cases.
A third well-observed principle statutory con- struction is the rule that statutory provisions are to be whole, construed as a whole. When read as a one is struck by the fact 129 is expressly § (1) referred to not just once but three times: in 122.1 relating to a retirant taking nonduty (2) 127.1(b)-127.1(e) disability retirement; per- §§ taining widows, children, to pensions payable to (3) dependents; 124.2, as previously noted, pertaining to a duty-disabled up retiree
55 years age. very fact that there are three *12 321 Bannan v Opinion of the Court states what 129 where the statute has places § general language suggests
stated in itself that im- provision
the oifset is not all inclusive. More (the applica- the fact that 124.1 section
portantly, § cases) not refer to to the instant does
ble § suggests general language that
forcefully when applies expressly cross-referred. only
§ reasons, conclude that foregoing
For the we court determined the offset correctly
trial 124.1 apply duty- do not
provisions § § attaining retirants who retire after
disabled II ñnding Did the trial court err not "like benefits” within the
pension beneñts are WDCA, 418.161; 161 of the MCL
meaning of § 17.237(161)?
MSA trial court
Without discussion the dismissed argument pensions are "like
city’s
benefits” as defined of the Worker’s Dis- (WDCA). In
ability Compensation Act relevant
part provides: officers, fighters, employees of the
"Police or fire or
police dependents, in mu- departments, or fire or their villages having
nicipalities or of this state charter benefits, pro-
provisions prescribing may like waive the that are accept
visions of this act and like benefits
prescribed in the charter but shall not be entitled
like this act. benefits from both their local charter and limiting, changing, This act shall not be construed as repealing any pality pensation, pensions, or of the of a charter of a munici- benefits, relating village of this com- state independent of this or retirement added.)
act, provided (Emphasis employees.” *13 the Court App Muskegon, 121; 232 61 Mich v Johnson In police (1972), that a Court held this NW2d disability pension duty com- workers’ and officer’s pensation as that were "like benefits” benefits supra. employed ar- Defendant in is term gues points controlling further is that Johnson payments periodic the dis- the that out plaintiffs provided are pensions ability to the four greater equal substantially the annualized than provided weekly the WDCA. under benefits distinguishable from the consolidated
Johnson
respects. In Johnson the
in three
us
cases before
pension
provided by
Here,
charter.
were
benefits
provided by
While de-
ordinance.
are
the benefits
argues
elevates form
this distinction
that
fendant
recognizes
pension
substance,
that
this Court
over
laws,
liberally
being
nature,
in
should be
remedial
persons intended to be
in favor of
construed
thereby.
&
v Dearborn Police
O’Connell
benefited
208;
ordinance in the situation form over substance. precedential Finally, we note recently been of Johnson has value Dep’t Teddy this Court’s decision weakened Police, 412; 301 NW2d of State
(1980). right police case, officer’s In that a state compensation
draw both workers’ grounds challenged
pension on benefits was prohibited under the two were "like benefits” Teddy, p 121 said: 161. This Court depends on the benefits are like benefits "Whether pension or a whether the was a Bannan v Opinion of the Court pension. granting leave, In its order this requested regarding pen- Court sion. The further information parties prepared stipulation in answer to order, this which was certified to this Court February Although stipulation WCABon does not retirement or expressly state that the was either a disability pension, the documents at- stipulation, incorporated by tached to the reference, clearly establish was a retirement pension.” plaintiffs situation,
In the instant were not re-
quired compensation to elect between workers’ disability pension. city voluntarily
benefits and a
paid benefits to all but *14 plaintiffs plaintiffs began drawing
one of disability pension they
at 55 when otherwise drawing regular
would be the retirement benefits in Thus,
same amount. the benefits can primarily
be considered as benefits, Teddy, which, under are not a like benefit. Accord- ingly, we holding hold the trial court did not err in
that the retirement benefits were not supra.
"like § 161, benefits” under Ill plaintiff In the case Giffin, did the trial court by issuing
abuse its discretion a writ of mandamus
ordering approve petition the board to Gifñn’s
duty disability beneñts? eligible Because the board had found Giffin for a
nonduty disability pension §§ under 121-122 of the
ordinance, expressly and because 122.1 cross-ref-
erences to the offset §of Giffin was
subject to the workers’ offset. How- question ever, the raised is whether Giffin was so qualified
clearly duty-disabled pensioner as a App op the Court issuing legally justified trial court was of mandamus.
writ extraordinary remedy is
Mandamus an Det limited circumstances. under only issue may 652, 655; 228 Twp, App 58 Mich Brighton tore v Mid-Michigan v Tele Johnston (1975); NW2d (1980). Co, 364; phone App 290 NW2d 95 Mich unless writ of mandamus not issue a may A court legal right clear he or she has a proves a plaintiff sought to specific of the performance duty legal has a clear compelled and the defendant be Dettore, action. 654. Ordinar perform must be to be enforced requested act ily, of the act ministerial, although may the execution Brown, 76 Mich Pilarowski v require discretion. (1977). 666, 674; NW2d An adminis
App involving the exercise of discretion trative decision the courts where subject only to reversal has abused its agency establishes evidence action. Evans v United arbitrary discretion Co, 457; 152 States Rubber NW2d 702, 716; Michigan, Crider
(1967); 110 Mich (1981). 313 NW2d D,
Pursuant Ordinance discretion, upon the board did have the based *15 report, medical if Giifin director’s determine oc- was due to a incapacitated result of proximate curred as the "natural or arising employ- causes out of and in the course of in that ment with the There is no mandate city”. the decision of the apply
section for board to the Giifin’s separate deciding agency administrative Furthermore, the compensation workers’ claim.
standards under WDCA are and the
precisely the same. Bannan Opinion op the Court for
The standard entitlement to workers’ com- varies from the standard
pensation set in the ordinance for entitlement to retire-
forth 123 employs Section a "natural and
ment benefits. arising of causes out of and in
proximate result standard. This is called employment”
the course In cause test. his treatise on work- proximate
the compensation
men’s Professor Larson notes that proximate
the cause test is different from the test
"causal used nexus” Larson, Law, Workmen’s Compensation
cases. 6.00-13.23, Whetro v Awker- 3-1 to 3-435. In pp
§§
man, 235; (1970), NW2d our
Supreme Court disavowed the proximate cause
test.
Plaintiff Giffin contends that because the min-
utes of the board disclose that at its December
1974, meeting, the board determined to "receive request reconsideration,
and file” Giffin’s arbitrarily
board acted and capriciously. Counsel viz.: vote
argues that had duty, board but one down, application up either but under no
circumstances avoid a decision by merely receiving filing. it
While is true that voted eventually board file”,
to "receive it only did so after first
thoroughly reviewing considering totality
of the evidence it. meeting submitted to At the on 17, 1974,
December reports board reviewed the
of two doctors filed applied when for bene- Giffin.
fits. Included with those were a reports laboratory
report, a pulmonary function an electrocar- study,
diogram report, x-ray and two consultation re-
ports. Neither doctor recommended that Giffin be
placed on pension. The evidence
on tall, file disclosed that 11" weighed Giffin was 5' *16 App 307 Mich
326 Opinion op the Court history cigarette long pounds had a and 257 smoking. reviewed, material the substantial Given reasonably conclude that Giffin’s the board could proximate re and not the natural was was as a fireman but instead of his work sult heavy obesity proximate result
natural cigarette by Supreme smoking. As stated was County, Wayne 376, Mich v Court Bischoff (1948), quoting sylla from the 386; 31 NW2d Spokane Reilly v Civil Service in State ex rel bus (1941): Comm, 498; 2d 112 P2d Wash " involving not in matters discre- 'Mandamus will lie public agency action part of a unless its is tion on the capricious as to evidence a total failure arbitrary and so ” discretion.’ to exercise Wayne Twp County, also,
See, v Brownstown (1976). 251-252; NW2d that, have assumed if The trial court seems to compensation, applicant draws workers’ applicant automatically qualifies duty for disabil- ity D, However, § 122 of Ordinance retirement. express contemplates
its reference to nonduty may disability retirees receive workers’ up It then to the board to benefits. employee drawing determine whether an compensation nonduty disability ity fully §§ 121-122 benefits falls within the
provisions duty §or 124 disabil- of the care- ordinance. The board the decision reviewed evidence made change it that would not its earlier determination problem related. Giffin’s medical was arriving only It this was after at conclusion applica-
the board and file” the voted "receive tion reconsideration. above,
Under described we the circumstances arbitrary, unreason- cannot find the board’s action City op Saginaw Bannan R. B. J. Martin, Concurrence able, or capricious. Under the ordinance the board
was vested with discretion to determine whether *17 subject’s disability was or duty re- nonduty
lated. The board carefully exercised that discre-
tion. Mandamus does not for a lie discretionary
determination unless the determination is arbi- Twp, supra. Brownstown
trary capricious. For
these we reasons find trial court abused in concluding
its discretion the board acted arbitrarily capriciously. Accordingly, and it was to the writ of error issue mandamus as to Giffin. Bannan, Kaufman, judgments as are The judgment
Hale affirmed. as to Giffin is costs, questions of public reversed. No interest
being involved. Martin, B. (concurring). concur,
R. J. I but do not find it necessary to determine if disabil-
ity pension and workers’ disability benefits are "like benefits” 418.161; under MCL 17.237(161); Muskegon, Johnson v MSA 61 Mich 121; (1975); MacKay v Port NW2d 325
Huron, 129; (1939). NW 671 John-
son’s benefits were provided by charter. Here,
appellees’ by ordinance provided benefits were controlled 161 of the Worker’s Disability Act,
Compensation charter refers solely prohibiting entitlement like bene- question
fits. The of the constitutional propriety
having ordinance pension plans created fall into
different classification than charter created pen- plans raised, sion was not we do not consider
it.