The narrow dispositive issue in this workmen’s compensation appeal is whether the benefits under the disability retirement pension provision of the Muskegon City Charter, which does not include medical care рrovisions, are "like benefits” to the provisions of the workmen’s compensation statutes, within the meaning *123 of MCLA 411.7(1); MSA 17.147(1) (now MCLA 418.161; MSA 17.237C161]). 1
On October 15, 1968, plaintiff, a police officer for the City of Muskegon, suffered a disabling injury as a result оf being kicked in the back of the head while making an arrest. Workmen’s compensation benefits were paid to the plaintiff until he returned to light duty, on March 18, 1969.
On November 20, 1969, plaintiff applied for a duty disability retirement. He was notified by the police and fire retirement board on January 6, 1970, that his duty disability retirement was granted, the effective date to be "established at such a time as your case is determined by workmen’s compensation”. On January 20, 1970, the board notified plaintiff that his retirement date had been set as January 25, 1970, and plaintiff retired on that date.
The duty disability pension provided for a payment to plaintiff in the amount оf $411.09 per month until age 55, when he would be entitled to retirement pension benefits for the remainder of his life. However, the city charter does not provide for medical insurance although the city counсil has provided plaintiff with a medical insurance policy which covers nonwork-related injuries. 2
On January 5, 1970, plaintiff signed an application for workmen’s compensation benefits wherein he sought total disability workmen’s compensation benefits for the injury of October 15, 1968.
The referee’s award found plaintiff totally dis *124 abled and ordered total disability benefits in the amount of $75.00 per week, based upon the dependency of plaintiffs wife and son, from January 6, 1969, until further order of the bureau.
Following a remand to the referee for additional testimony, the matter was appealed to the Workmen’s Compensation Appeal Board and, on August 24, 1973, the apрeal board upheld the award and further held that, since the benefits provided by the city charter did not provide medical insurance for work-related injuries and the workmen’s compensation benefit did, the city charter and the workmen’s compensation coverage were not "like benefits”. Therefore, the board held that the proscription against plaintiff being "entitled to like benefits from both” did not рrevent plaintiff from obtaining both the monthly pension disability benefits and the weekly workmen’s compensation disability benefits. MCLA 418.161; MSA 17.237(161). 3
Defendant City of Muskegon and its workmen’s compensation insurer appeal by leavе granted.
During the workmen’s compensation proceeding, the compensation insurer asked plaintiff to elect between the benefits under the pension and the workmen’s compensation benefits. At that time plaintiff refused, claiming that, since the benefits were not "like benefits”, an election was not required. The appeal board later agreed with plaintiff on this issue. However, both plaintiff and the appeal board were incorrect. 3 4
*125
In resolving this narrow, though perplexing issue, we must examine the two Supreme Court cases which have dealt with the interpretation of "like benefits” under this statute. In
MacKay v Port Huron,
In reaching this determination, the Court in MacKay reasoned, at page 134, as follows:
"Clearly plaintiff cannot have both benefits for a single cause unless it be held there is no relation within the meaning of the statute between the two benefits. That such a relation exists is manifest and should be recognized and given effect, unless there is, in this *126 instance, such inequality as to exclude the statutory operation upon acceptance of the charter benefits. The term 'like benefits,’ employed in the statute, does not mеan identical benefits or co-extensive in every detail but, considering the full scope thereof, similar in its salient features. The charter benefit of $75 a month, or $900 per year, continues for life unless plаintiff remarries; while the compensation award of $18 per week, or $936 per year, carries, if there is no remarriage, for 300 weeks at the longest. The $36 per year difference, if considered an inequality, loses sense as such when we give consideration to the time of continuance of each benefit. The statute provides for funeral expenses and the charter benefit does not, but this was wаived in taking the longer time benefit.”
The relation in the case at bar is as "manifest” as in MacKay. The salient feature in MacKay was held to be precisely the salient feature in the case at bar, periodic payments for disability. Further, we cannot say that the absence of medical benеfits is such an "inequality” as to exclude the operation of the statute. Like MacKay, the benefits in this case are not "identical” or "co-extensive in every detail”, nor are they required to be. Just as the plaintiff in MacKay waived the funeral expenses benefit by electing to receive the pension, so too did the plaintiff in the case at bar waive the medical benefits by accepting the longer benefits under the disаbility pension.
While the Workmen’s Compensation Appeal Board did not cite
MacKay
in their opinion, they did rely upon
Cichecki v Hamtramck,
In the instant matter, plaintiff and the appeal board misapplied Ciehecki. Unlike the children’s rights in Ciehecki, plaintiff and only plaintiff was the person entitled to either pension rights or workmen’s compensation rights. Since plaintiff was entitled to either the pеnsion or the award, but not both, the reasoning in Ciehecki, although consistent with MacKay, is irrelevant to the disposition of this appeal.
Since the benefits under the disability pension and the workmen’s compensation statute are "like benefits” the plaintiff must elect between the two, and be bound by such an election.
Slater v Grand Rapids,
In order to alleviate the prejudice created by the ambiguity of the statute, we direct the referees at the workmen’s compensation hearings to explain *128 to the рlaintiffs that they must make an election between the benefits under a disability pension and the Workmen’s Compensation Act.
Upon affirming the referee’s award, the appeal board changed the intеrest rate from 5% per annum to 6% per annum. On the issue of interest, we remand to the appeal board for the entry of an order forthwith modifying the award of benefits to provide that interest shall be payаble at the rate of 5% per annum from the date each weekly payment was due until paid and holding in abeyance payment of the additional 1% per annum of any amount so due, pending resolution by the Michigan Supreme Court or the Michigan Legislature of the split in this Court in
White v Extra Labor Power of America,
Reversed and remanded for further proceedings consistent with this opinion. No costs; we do not retain jurisdiction.
Notes
The statute provides: "Poliсemen or firemen * * * , or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof suсh like benefits as are prescribed in such charter, but shall not be entitled to like benefits from both.”
The pension benefits are provided in the city charter, pursuant to the home rule act, MCLA 117.4i; MSA 5.2082.
Under the city chаrter, the workmen’s compensation benefits are set off against their greater pension benefits, by either requiring the plaintiff to sign over the workmen’s compensation checks and receiving his full pensiоn, or by accounting for the amount of the workmen’s compensation benefits and receiving from the pension fund only the difference between the workmen’s compensation benefits and the pensiоn benefits. Since the propriety of this practice was not raised as an issue on appeal, we will not pass judgment on this question.
The real problem in this case is created by the ambiguity of *125 MCLA 418.161(lXa); MSA 17.237(161)(lXa). Under the statute, the provision that plaintiff "may waive the provisions of this act” indicates that by accepting pension benefits all of the provisions of workmen’s compensation are waived. The immediately following phrase "and accept in lieu thereof such like benefits as are prescribed in the charter”, seems to indicate the possibility of selectively waiving only those workmen’s compensation benefits that are alike to thоse benefits provided under the pension program. The ambiguity of this statute, which creates the hope of pyramiding benefits, without specifically allowing for such pyramiding, led this plaintiff, and possible future plaintiffs, into this dilemma. We commend to the Legislature the resolution of this problem.