Lincoln v. General Motors Corp.

App 262 231 Mich 262 v LINCOLN GENERALMOTORSCORPORATION April 9, 1998, August

Docket No. 204560. Submitted at Detroit. Decided 21, 1998, appeal sought. at 9:00 A.M. Leave to Arthur L. Lincoln sustained a work-related in 1966 while employed by Corporation General Motors and was awarded total permanent compensation worker’s benefits. He continued to Injury receive benefits from General Motors and the Second Fund expiration eight statutory after period of the hundred-week presumed disability. age sixty-five He reached the in 1981. twenty-five the fund reduced Lincoln’s differential benefits to percent average weekly wage pursuant Lopez of the state’s Nursery, App (1982). Flower Basket 122 Mich 680 The fund further recoup overpayment reduced the benefits to of benefits in the previous timely twelve challenge months. Lincoln did not these application seeking reductions. He thereafter filed an reinstatement pursuant of the reduced benefits to Wozniak v General Motors Corp, App (1993) (Wozniak I). magistrate 198 Mich A con- employer cluded that the and the fund were entitled to continue to age sixty-five pursuant take the Chrysler reduction to Rotondi v Corp, App (1993), but did not reach the other issues presented. Compensation Appellate The Worker’s Commission magistrate’s affirmed the reliance on Rotondi and noted that (wcac) plaintiff’s benefits could not be reduced below the minimum 418.351(2); level established 17.237(351)(2). MCL MSA The WCAC pursuant Corp observed that (After to Wozniak v General Motors Remand), (1995) (Wozniak one-year-back II), rule, 418.833(1); 17.237(833)(1), MSA does not to limit recovery any underpayments in 351(2). violation of subsection Appeals application The Court of denied the fund’s for leave to appeal unpublished September in an order entered (Docket 194191). Supreme Court, No. granting The in lieu of leave appeal, Appeals remanded the matter to the Court of for consid- granted eration as on leave of the issue whether Wozniak I is retro- object active favor of those who did not to the reduction in ben- pursuant Lopez. (1997). efits made 455 Mich 852 remand, Appeals On the Court of held: Lopez panel application age sixty- sanctioned the five 418.357(1); benefits set forth in MCL v General Motors sixty-five employees age 17.237(357)(1) after who reached the July Lopez wrongly I concluded that decided 1968. Wozniak provision 351(2) was in subsection and that the minimum-benefit reduction. Wozniak I held that not affected injury pre- totally permanently disabled workers whose date of and sixty-five July 1, 1968, age in subsection cedes reduction the minimum established reduce the worker’s benefit below cannot by 351(2). exceptions general Supreme to the rule 2. The Court has made complete effect, judicial given retroactive while decisions are usually legislative changes prospective, Court has are where the that have an effect similar to the announcement issued decisions law. a new rule of dilemma, court, retroactive-prospective A resolve the must 3. rule, purpose weigh to be served the new the extent of reli- retroactivity rule, on the adminis- ance on the old and the effect of justice. tration of application I is mandated in this case. 4. Retroactive of Wozniak holding misappli- purpose I was to correct a The Wozniak a workers who cation of the reduction to class of injured Legislature were before 1968. The did not intend to reduce level benefits for this class of workers below the minimum Lopez misplaced 351(2). of subsection The fund’s reliance on extensively and, age sixty-five because the reduction has been liti- Disability gated Compensation in the Bureau of Worker’s since Lopez, Lopez aware that did not the fund should have been well retroactively definitively question. Applying Wozniak I decide justice. compen- would further the administration of The burden of placed sating legal on an for an erroneous decision should not be elderly workers, they paid group and should be the full of disabled they entitled. amount of the benefits to which are plaintiff timely object applica- to the 5. The fact that the failed to Lopez disqualify receiving does not him from tion of the application given of Wozniak I. Where a decision is the retroactive retroactivity, application its is not limited to those who raised full timely manner. the issue attempt payments improperly plaintiff’s with- 6. The to recover application compensation further held does not constitute an one-year-back rule, 418.833(1); 17.237(833)(1), MCL MSA which the two-year-back rule, 418.381(2); applies. MSA The where, here, plaintiff 17.237(381)(2), inapplicable has been disability permanent receiving benefits for an total July 1, given I should be full retro- received before 1968. Wozniak initially object to the effect in favor of those who did active one-year-back pursuant Lopez reduction of benefits where the two-year-back inapplicable. rule and the rule are Affirmed. P.J., concurring majority, in the result reached Whitbeck, separately give

wrote to state that the decision to Wozniak I full retroactive effect should be based not on a consideration of the economic fairness of the result as it relates to Lincoln and others similarly situated but on the fact that Wozniak I did not establish a principle new of law. Age — — Compensation Sixty-Five

1. Worker’s Reduction of Benefits Minimum Benefits. age sixty-five compensation reduction in worker’s set benefits 418.357(1); 17.237(357)(1) forth in MCL MSA cannot reduce a permanently disabled worker’s benefits below the mini- 418.351(2); 17.237(351)(2) mum established in MCL where the July 1, worker was — — — 2. Worker’s Compensation New Rules of Law Retroactive Effect Prospective Effect. generally given complete Judicial decisions are retroactive effect and legislative changes usually prospective; Supreme are Court has exceptions general made to the rule when it has issued worker’s compensation decisions that have had an effect similar to the law; resolving announcement of a new in rule of the retroactive- prospective dilemma, weigh purpose a court must to be served rule, rule, the new the extent of reliance on the old and the retroactivity justice. effect of on administration of Age — 3. Worker’s Compensation Sixty-Five. Reduction of Benefits application holding Full retroactive of the in Wozniak v General Corp, App (1993), misappli- Motors 198 Mich which corrected a age sixty-five compensation cation of the in worker’s benefits ato class of workers who were before is not timely misapplication limited to those who raised the issue of the (MCL418.357[1]; 17.237[357][1]). MSA — — 4. Worker’s Compensation One-Year-Back Rule Two-Year-Back Rule — — Compensation. Words and Phrases Further attempt compensation An worker’s to recover worker’s bene- improperly application fits withheld does not constitute an for fur- compensation purposes one-year-back rule; ther for of the the two- year-back plaintiff rule does not where the has been receiv- ing permanent disability injury total and benefits for an suffered July 1, (MCL418.381[2],418.833[1]; 17.237[381][2], 17.237[833][1]). v General Motors Opinion of the Court Caryl (Kelman, Simpson, Randall K. Loria, Will, Harvey Thompson, Curry Thompson, & Ann plaintiff. Counsel), Attorney Kelley, Frank J. General, Thomas L. Casey, General, Zack, Solicitor and Morrison Assis- Attorney Injury General, tant for the Second Fund. Whitbeck, P.J., Before: and Mackenzie Murphy, JJ. Supreme

Murphy, J. On remand from the Court for granted, consideration as on leave 455 Mich 852 appeals Injury (1997), defendant Second Fund a deci- Compensation Appellate sion of the Worker’s Com- affirming magistrate’s plain- mission modification of tiff’s benefit award. We affirm.

Plaintiff sustained a work-related in 1966 employed by Corpo- while defendant General Motors permanent ration was awarded total and disabil- ity benefits on the basis of the loss of the industrial legs. use of both Plaintiff remained disabled after the expiration eight statutory period hundred-week disability presumed and continued to receive bene- fits from both defendants. Plaintiff reached the Injury 1981,and 1985the Second Fund plaintiff’s weekly reduced differential benefits to twenty-five percent average of the state’s wage pursuant Lopez Nursery, v Flower Basket (1982). 680; 332 NW2d fund recoup plaintiff’s further reduced benefits to the over- payment previous in the twelve benefits months. timely challenge Plaintiff did not these reductions. application seeking Plaintiff filed an reinstatement pursuant of the reduced benefits to Wozniak v Gen- App 231 Mich Opinion of the Court App Corp, 172; eral Motors 198 Mich 497 NW2d 562 (Wozniak (1993) I). magistrate The concluded that age defendants were entitled to continue to take the sixty-five pursuant Chrysler to Rotondi v Corp, App (1993), 504 NW2d 901 but 368; appeal, did not reach the other issues. On Compensation Appellate Worker’s Commission magistrate’s affirmed the reliance on Rotondi and plaintiff’s noted benefits could not be reduced below the minimum level established MCL 418.351(2); 17.237(351)(2). MSA Pursuant to Woz- Corp (After Remand), niak v General Motors (Wozniak (1995) II), 40; 536 NW2d841 one-year-back commission observed that rule, 418.833(1); 17.237(833)(1), MSA does not recovery any underpayments to limit in violation of 351(2). application This Court denied the fund’s for leave appeal unpublished September in an order entered (Docket 194191). Supreme 11, 1996 No. Court, granting appeal, lieu of leave to remanded the matter Appeals to the Court of for consideration as on leave granted, directing this Court to address whether Woz- applied retroactively plaintiffs niak I should be timely object who failed to when their benefits were pursuant Lopez. reduced panel Lopez, appli- of this Court sanctioned the sixty-five age cation of the reduction in benefits set 418.357(1); 17.237(357)(1) forth in MCL employees age sixty-five who reached after July 1, 1968. In Wozniak I this Court conducted a analysis gov- detailed of the revisions in the statutes erning reduction and the law case interpreting Lopez those statutes and concluded that 267 General Motors

Opinion of the Court I Wozniak wrongly decided. Court con- provision cluded that the minimum-benefit of MCL 418.351(2); 17.237(351)(2) by was not affected perma- the reduction. For nently injury pre- disabled workers whose date of July 1, 1968, age sixty-five cedes the reduction in sub- section cannot reduce worker’s benefit below the minimum by established subsection 351(2). I, supra Wozniak at rule, judicial

As a general decisions are com- given plete effect, retroactive while legislative are changes usually prospective. Riley v Northland Geriatric (After Center Remand), 632, 647; 431 Mich 433 NW2d (1988). the context of compensation worker’s law, Supreme exceptions Court has made to the general rule when it has issued decisions that have had an effect similar to the announcement of a new rule of law. In Gusler v Fairview Tubular Products, 270; Mich 315 NW2d 388 (1981), the Court cor- rected a misinterpretation of the act with regard adjustment of minimum benefits under MCL 418.351; MSA 17.237(351). The Court gave its hold- prospective ing application, stating:

Although holding perceive our is based on what we Legislature have been the intent of the at the time of enact- provisions discussed, practical ment effect, given contrary interpretations of the law the Director of Compensation the Bureau of Workers’ and the bureau’s sub- divisions, Compensation Appeal the Workers’ Board and its hearing referees, Appeals, today’s holding and the Court of is not unlike the announcement of a new rule of law. Its application accordingly. therefore should be treated See Awkerman, Whetro v 235; (1970); Mich 174 NW2d 783 Hospital, Parker v Port Huron 1; 361 Mich 105 NW2d 1 Opinion of the Court Green, 218; 21 NW2d 105 (1960); Bricker v supra [Gusler, (1946). at 298.] prospective application of revisited the The Court certain The Court noted that Riley, supra. Gusler in provide guidance principles rules or have evolved dilemma. A retroactive-prospective resolving be served purpose must weigh (1) court rule, reliance on the old rule, (2) new the extent of retroactivity on the administra- the effect of (3) justice. supra at 645-646. Riley, tion of principles these mandate applied case, As to this purpose of Wozniak I. The application the retroactive . misapplica- holding of the Wozniak I was to correct sixty-five to a class of work- age tion of the Legislative before 1968. The ers who were reduce benefits for this class of intent was never to the minimum level of subsec- injured workers below may have Injury While the Second Fund 351(2). tion Lopez, on this Court’s in its reliance was ruling relied misplaced. application The of the reduc- extensively in the bureau since litigated tion has been aware Lopez, and the fund should have been well definitively question. decide the Woz- Lopez did not supra. retroactively Wozniak I I, Applying niak justice. the administration of While the would further Injury may liabilities, Fund incur additional Second paid workers should be the full amount they are The burden of the benefits to which entitled. for an erroneous decision should compensating legal placed elderly group not be on an of disabled work- timely object plaintiff ers. The fact that failed to application Lopez reduction does not dis- applica- qualify plaintiff receiving from the retroactive I. a decision is full ret- given tion of Wozniak Where v General Motors by Whitbeck, reactivity, application its is not limited to those who timely Riley, supra in a raised issue manner. n 649, 11. any retroactivity argues

Defendant fund should by one-year-back 418.833(1); rule, be limited MCL question 17.237(833)(1). MSA However, this has been conclusively decided the successor case of Woz- supra. plaintiffs attempt pay- A II, niak to recover improperly ments withheld an does not constitute application compensation for further as defined two-year-back 418.381(2); rule, the statute. The inapplicable 17.237(381)(2), plain- where the permanent disability receiving tiff has been total and July benefits for an received before Save-Way Center, Brecht Food 743; (1980). one-year-back two-year- NW2d 576 provide limiting rules back structure for back Disability Compensation benefits the Worker’s Act contemplated Legislature. Where these rules inapplicable, given are I be full Wozniak should retro- initially active effect in favor of who those did object pursuant Lopez. the reduction benefits

Affirmed. J.,

Mackenzie, concurred. (concurring). P.J. I concur with the Whitbeck, majority opinion, through result of the a but different analysis. place First, I believe we must this matter legislative within the context of the overall scheme Disability Compensation the Worker’s Act (wdca), seq.-, 17.237(101) seq., et MCL 418.101 et compensation Although worker’s in this state. agonizingly complex—indeed, might scheme is one incomprehensible ordinary claim that it to the 231 Mich App by Whitbeck, ordinary appel- ordinary attorney, or the claimant, provide attempt judge—I we should believe late important, clarity regarding context of the some endlessly principles involved. Fur- controversial, and analysis only through one can an such ther, it is position fully appreciate taken the lack of merit of Injury defendant-appellant by Fund in this Second setting Consequently, although the con- matter. process although lengthy I a and tedious text is may purest entering ground which even the onto be attempted seraphim below to tread, fear to I have provide such a context. responds only majority’s opinion one

Second, the aspect Supreme us in this Court’s remand to Supreme to consider Court directed us matter. The Corp, 198 Mich v General Motors “whether Wozniak (1993) (Wozniak I)], App is retro- [497 NW2d562 object to the in favor of those who did not active Lopez pursuant in benefits made Nursery, [332 NW2d Flower Basket sup- (1997) (emphasis (1982).” 455 Mich 852 majority clearly plied). determines that While the retroactively, applied it does not Wozniak I should be by directly alleged failure the issue of the address object plaintiff-appellee to the Arthur Lincoln to I so, made the fund. do reduction in his benefits very briefly. although importantly, disagree perhaps I most

Third, and majority uses to Woz- with the basis that the correctly majority retroactively. Although I niak three-part which we are to test articulates retroactive-prospective dilemma, it con- resolve by stating “[t]he burden of discussion cludes its legal compensating decision should for an erroneous Lincoln General Motors by Whitbeck, placed elderly group not be on an of disabled work- judicial 268. In the ers.” Ante at world outside the my personal exactly context, would, view, this in be why correct: is no reason a man Lincoln, there bom parties agree permanently in 1916 and whom all is through disabled the loss of industrial legs use both because of a horrific accident that plant, in occurred 1966 at a General Motors should consequences bear the economic of the fund’s unilat- eral is, his benefits. Such a result in the proper world of the of burdens, economic allocation simply not fair. duty

Yet, our under law as I see it in case simply does not involve consideration the eco- nomic fairness the result it relates similarly Rather, and others situated. we must ask the question: Did threshold the decision in I Wozniak principle my establish a new of law? Because answer question no, to this I reach same result the majority by quite in reaches this case but a different majority’s holding route. I in therefore concur given Wozniak I should be full retroactive effect. I. THE WORKER’S SCHEME COMPENSATION IN MICHIGAN

A. THE ORIGINAL ACT adopted Michigan its first worker’s com- pensation As act.1 outlined Welch, Worker’s Com- pensation Michigan: (3d in Law & Practice ed & 1998 Supp): direct 2 I rely extensively quotations (1st Ex Sess) simply PA 10. as “Welch.” this section on this treatise, cited hereafter by Whitbeck, P.J. Concurrence system, essentially under remedy a no-fault was new

The prove negligence on longer had to no which a worker employer’s defenses employer three and the part of require an was to intent The law’s were eliminated. any injury suffered compensate a worker for employer to employment, regardless of who the worker’s the course of fault. was at liability, [original] this almost automatic

In return for recover. Work- a worker could the amount that Act limited only wage benefits (1) certain loss ers are now entitled .., (3) certain , medical treatment. (2) . . the cost of . p [Welch, 1.2, § .... 1-3.]3 rehabilitation services is a sub- compensation worker’s because Importantly, sue that worker’s right worker’s for a stitute remedy for an ordinarily the exclusive it is employer, injury incurred for an employer an employee against by As noted employment.4 course of covered in the Welch: any against may make other claim

The worker employer’s employer, was the fault. if the even employer fault, if the Regardless and even of who was clearly blame, entitled to such a worker is [worker’s] [Welch, 1.13, p nothing compensation § more. benefits and 1-9.] J., joined Ballou, Crilly 353 Mich 308-309 (Smith, See also v J., concurring JJ.), in this Kavanagh, (Edwards, Black, Voelker, opinion); (1958) (With

part the enactment 91 NW2d 493 of Justice Smith’s gave up original act, action and could his common-law the worker jury; longer damages worker’s limited a in return for the seek from no certainty get monetary recovery, that he should it was intended payments litigation.). adequate compensatory without recourse to doctrine, capacity” persona” recognize see the “dual or “dual I 12-13; (1997), Detroit, App 7, NW2d 473 and the Atkinson v 17.237(131)(1), exception, 418.131(1); are nar tort intentional principle. exceptions this broad row General Motors Whitbeck,

B. BENEFITS WAGE-LOSS (1) THE PERCENTAGE CALCULATION Legislature substantially, has and often, original years amended the act5 over the and I will they discuss certain those as amendments, relate permanent Briefly disability, to total and below sum- currently provides marized, however, the act for two types weekly wage-loss basic first, benefits. The paid weekly period benefits, are if a worker a suffers disability compensable injury. result of Most weekly wage-loss percent- benefits are calculated as earnings, although of the worker’s there are cer- tain maxima and minima that establish a floor or ceil- ing percentages. on of the use these proper

Ascertaining percentage the is therefore the step weekly wage-loss first of the calculation bene- injuries January occurring fits. For on or after 1, 1982, incapacity per- and where the centage total, for work is the percent generally eighty is of the worker’s average weekly wage. 351(1) after-tax See subsection 418.351(1); 17.237(351)(1). of the MCL MSA WDCA, injuries January 1, For that occurred before and incapacity per- where the for is total, work the basic centage “average weekly wages.”6 is two-thirds of See 5 fact, In the current act is an new amended version of a Workmen’s Compensation Act, 317, adopted 1969 PA in 1969. 6 employed, disability partial Where the is the worker and is therefore total, eighty percent that worker is entitled to of the difference weekly wage between the worker’s after-tax of the date weekly wage the after-tax that worker is to earn able after the injury, weekly compensa of more date but not than the maximum rate of 301(5)(b) 418.301(5)(b); tion. See subsection of the MCL MSA wdca, 17.237(301)(5)(b). However, employed average if the but worker’s weekly weekly wage equal average wage is to or more than that the injury, worker received before the date of the the worker is not entitled to any wage-loss employment. for of benefits the duration such See subsec- App

274 231 Mich Whitbeck, 133, 138- Owens-Illinois, Inc, v Garvie amend that the (holding (1988) 421 NW2d 602 140; compen of the computation changed ments eighty gross wages rate from two-thirds sation weekly average wage worker’s after-tax percent of the January effec 1, 1982, only injuries after amendments). those tive date of

(2) MAXIMUM LIMITS January or after injuries occurring on For inju- weekly compensation rate of the maximum ninety year percent given within a occurring ries weekly prior as of the June average wage state See sub- multiple $1). the next upward to (adjusted 418.355(2); section wdca, Director, Bureau Alexander 17.237(355)(2); App 262; Compensation, Workmen’s injuries occurred before For (1974). NW2d January Welch observes: 1, 1982, compensation] were estab-

Before 1965 these [rates directly by legislature as deemed and amended lished specific appropriate. legislature established 1965 the years pro- through rates for the 1967 and maximum thereafter, that, increases in maximum rates would be vided average wage in state based on increases employment be the covered the Act. This continued to January 1, [Welch, 15.8, p § law until 15-7.]

(3) MINIMUM LIMITS January 1, injuries occurring on or after For weekly minimum benefit for total disabil- there is no MCL ity. 356(4) See subsection WDCA, 418.301(5)(c); 17.237(301)(5)(c). 301(5)(c) MCL MSA See tion of the wdca, 418.361(1); 17.237(361)(1). 361(1) also subsection of the wdca, Lincoln v General Motors by Whitbeck, 418.356(4); MSA 17.237(356)(4). No minimum partial benefit for disability was ever included injuries within the law. For that occurred before Janu- ary 1, 1982, Welch observes: January 1, 1982, provided Before the Act minimum bene- except partial disability.

fits in all cases for ... As with máximums, legislature revised the minimum benefits statutorily from time to time until 1965. The Act was provide amended in 1965 ... for automatic increases in the maximum changes benefits based on in the state aver- age weekly wage. In Advertising American Dis- Jolliff tributors, Inc, App 1, 49 Mich (1973), NW2d 260 appeals court of held that the minimum rates increased together with the maximum rates. From 1974 until Decem- 30, 1981, paid ber benefits assumption. were based on this During time, that it was assumed that the minimum rate for dependents a worker with per $27 no rose from week to per $144 week. Products, Gusler v Fairview Tubular 412 Mich (1981), reh’g gtd, NW2d 388 323 NW2d (1982), supreme Jolliff, court holding overruled the minimum rates remained at those established in 1965. The court held that no required worker should repay be already received, benefits but indicated holding its applied to workers with old dates who were cur- rently receiving wrong assumption. benefits under the As a result, many workers’ substantially. benefits were reduced [Welch, 15.9, p § 15-8.]

C. SPECIFICLOSSES The second type of weekly payable benefits compensable injuries under the WDCA are those for certain specific losses. These losses are set out in MCL 418.361(2); MSA wdca, 17.237(361)(2), payable and are for the period indi- cated (e.g., for the loss of a thumb, weeks), regardless of whether the worker returns to work or by P.J. Whitbeck, Concurrence disability general the a result of as a to have

is found January occurring injuries after on or For loss. percent eighty compensation of is 1982, the rate of subject weekly wage, average to the the after-tax compensation under of minimum rates maximum injuries Janu- that occurred Id. For the wdca. compensation ary of is two-thirds rate of 1982,the weekly wage. employee’s average PERMANENT DISABILITY D. TOTAL AND (1) AN INJURY TODAY up category losses, one of a third The act also sets might its distinctive to be—but for be considered specific- complexity—a variant of the nature and its permanent category category. total and This loss by 361(3)(g) disability, of the defined 17.237(361)(3)(g), 418.361(3)(g); as MSA MCL WDCA, permanent including of industrial and total loss legs arms or one hands or both or both use of both today leg were to be arm. If worker and one permanently disabled, that to be so as weekly paid benefit as a basic would receive worker percent employer eighty the worker’s after- of weekly 351(1) wage, average see subsection tax 17.237(351)(1), 418.351(1); but MSA MCL WDCA, weekly compen- rate than the maximum not more ninety percent currently (i.e., not more than sation prior average wage June as of the state 355(2) provided MCL in subsection wdca, Compensation 418.355(2); 17.237(355)(2). is to MSA disability, paid and for the duration of the be for the presumption eight of disabil- weeks the hundred first ity WDCA, Subsection is conclusive. eight 17.237(351)(1). 418.351(1); hundred After v General Motors Whitbeck, disability question is deter- weeks, however, they exist at with the facts as mined in accordance Corp, 414 Mich Kidd v General Motors Id.; that time. 589; (1982).7 327 NW2d 265 injured permanently a worker However, similarly today not limited to since were (nor, employer-paid basic to) workers limited the of the weekly 351(1) benefits under wdca, prede- MSA its 418.351(1); 17.237(351)(1) (or MCL the worker is also entitled to cessors). Rather, differ- paid by benefits to be the fund. The formula ential currently these differential benefits is calculating extraordinarily extraordinarily long set out in one sentence in subsection of the opaque WDCA, Welch 418.521(2); 17.237(521)(2). However, MSA succinctly: the situation describes The differential allow the worker to take advan- benefits subsequent tage annual raises in the minimum and maxi- weekly However, benefit rate the mum benefits. [i.e. employer-paid 418.351(1); rate under MCL may 17.237(351)(1)] prescribed percentage not exceed the weekly wage injury. average at the of the worker’s time words, employer always pays a fixed rate In other injury. subsequent years, date In established as of the employee the minimum and receives a benefit based on year greater current but never maximum available for the prescribed average weekly wage. percentage than the of the The difference between increased benefits and the liability—the employer’s original differential benefit—is pp paid by Injury [Welch, 13.9, § Fund. 13-8 to the Second 13-9.] however, (credit) against earnings.Kidd, Subject, actual to a setoff

supra at 595-601. 231 Whitbeck, Simply put, employer pays weekly benefit as injury. it was in effect on the date of the The fund pays weekly the difference between that benefit and percentage of increased maximum benefit levels proportionate percentage to the of the initial benefit to the maximum benefit level at the time of injury, subject percent eighty to the limit of after-tax; employee’s average wage. See Welch, id.8 (2) THE EVA KING PEOPLE dealing case, however, we are not with a injury today. worker who suffers an Rather, we are dealing with a worker bom in 1916 and approximately fifty years 1966,when he was old. Lin- King people.” coln is, therefore, one of the “Eva This sobriquet Michigan Supreme derives from the Court’s King Injury decision in v Second Fund, 382 Mich (1969), 480; Michigan 170 NW2d 1 in which the Supreme Court determined that a worker July 1, 1968,was entitled to receive full differ- payments. ential background King case is instructive. King employed Company

Eva was at Ford Motor on January employ- 16, 1948, when, in the course of her amputated ment, “her left arm was while she was Corp, See also App 202, Jenkins v Great 207-208; Lakes Steel (1993): 503 NW2d 668 521(2), On the calculating § basis of the method for the differen- by Injury tial benefits owed the Second Fund is to subtract paid by employer basic benefit pro- from the current amount by permanent

vided disability. statute for and total The difference figures by those two Injury is the amount owed the Second liability Fund. The fund has no unless there is an increase in bene- subsequent statutory fits accordance with amendments. [Citation omitted.] Motors General by Whitbeck, P.J. supra King, machine.” milling a straddle operating by the initially awarded benefits King Eva May 13, on Commission Compensation Workmen’s 1949. Id. Act was Compensation the then Workmen’s

In differential provide for by 1955 PA 250 amended of sub- The 1955 amendment by the fund. payments 17.159(a); part act, 2 of the 9(a) section the dif- payments as differential established 412.9(a), worker was “now what between ference week now per the amount week and receiving per disability” under and total permanent provided of amended paragraphs) (called various subsections of subsection The 1955 amendment 9 of the act. § from this second that, “Payments provided also 9(a) for which period after the injury fund shall continue compensa- entitled to any person such is otherwise permanent duration of such this act for the tion under provided full rate disability to the according and total Thereafter, King Eva benefits.” in the schedule of Company and the Ford Motor sought against benefits Febru- disability and on permanent for total and fund of total finding referee made a ary 19, 1964, hearing disability awarded her such bene- permanent supra at 482. King, fits. 2 of the act was 9(a) part this amend- PA 44. The effect of amended, 1965

again totally disabled permanently and regard ment with are shown below; deletions workers is shown capitals: all and additions strikeovers person AS DEFINED Any DISABLED PERMANENTLYANDTOTALLY totally-disabled who, is-permanently and and in THISACT june 25, 1955, receiving is entitled on or after who compensation which arc payments of workmen’s receive PJ. Whitbeck, payable person per under in amounts such this act week provided presently compen- of less than is workmen’s the permanent sation schedule of benefits for and total disabil- ity and for a lesser number of weeks than the duration of permanent disability such and total hereafter shall after EFFECTIVE OF AMENDATORY WHICH HIS DISA- THE ANY DATE BY ACT, AS IS DISABILITY TOTAL OR BILITY DEFINED PERMANENT AND BY WHICH WEEKLY FOR TOTAL DISABILITY THE BENEFIT PERMANENT AND weekly, is application, receive without from the increased, injury equal second an amount difference fund, per-week between what he now and receiving OR SHALL TO RECEIVE ENTITLED HEREAFTER BE FROM HIS EMPLOYER OF PROVISIONS THIS ACT AS UNDER THE THE SAME WAS EFFECT OF HIS AMOUNT IN AT THE TIME AND THE INJURY NOW PROVIDED HIS FOR TOTAL DISABILITY THIS PERMANENT AND BY any amendatory appropriate application other act with provisions paragraphs of of this (b), (c), (d) (e) injury Payments section since date from this second period any fund shall continue after for which person compensation such is otherwise entitled under permanent act duration of such total disa- bility provided to the full rate in the schedule according benefits.

Importantly, course, the 1965 amendment did not change the reference to the . . . pro- “amount now vided” or to the “full rate provided the schedule of benefits.”

After the 1965 amendment effective, became fund King’s denied Eva request that she be allowed the current benefit rate for a and permanently disabled worker and payments limited her to two- thirds of her average weekly rate at the time of her injury, King, supra 483, thereby applying the then- existing two-thirds average wage limitation v General Motors by Whitbeck, P.J. Concurrence weekly employer-paid to differential ben- benefits9 on by King paid Eva filed still another the fund. efits application, hearing in the denied, a referee

which limiting process two-thirds of her her to once more injury. weekly wage average Eva at the of her Id. time Compensation appealed King and the Workmen’s by upheld Appeal the decision Board, vote, a 4 to Supreme hearing Michigan Court Id. The referee. the Appeals bypass granted and consid- of the Court of King’s payments question Eva the whether ered weekly average of the be limited to two-thirds should injury, wage contended, her the fund at the time of as was to she entitled whether, contended, as she or provided from the fund the maximum amount receive became in the after the 1965 amendments act, dependents. for worker with no effective, a King adopted King’s Eva contention Court weekly limitation benefits to two-thirds the average wage the the time of worker’s only injury applied employer and not to the to ruling King, supra essence, at 494. In this fund.10 employer’s liability average two-thirds The limitation on to supra King, weekly wage in 1927 PA 63. at 493. contained quoted King’s regard point argument with to this The Court Eva verbatim: majority hearing appeal board “The referee and the legislative injury

ignored to the second fund intent establish employee permanently protection and disabled a to the wage rising living. against rising The deci- scales and cost employ ignore legislative to the second below intention sions price wage injury spread in the risk of inflation fund such ultimately consumers) through employers (and all to all scales . . . to the second fund. contributions fully very people Michigan legislature that the few “The intended permanent ‘total and disabil- who meet the restrictive definitions of provided very ity’ placed special class and with in needed be people recognized special that these will be disabled attention. It is App 262 by Whitbeck, Eva payments meant that differential King, similarly situated, time, others would rise over with changes accordance in the schedule of benefits decision, the maxima. In making the Court living argument by endorsed the cost of made Eva King Compensation and echoed Workmen’s Appeal Board Chairman in his Iverson dissent.12 As summa rized Welch: wage for the remainder of their lives and that the the structure and years living, passing, rising. recognized cost of with the It is that people special they will these living need attention because cannot earn a perform and must hire others to household cut tasks such as

ting grass, shoveling snow, per their their and other which tasks a seriously crippled perform son not be so would able to without help. person wage hired To limit such a to two-thirds of his the for extremely getting rest of his life would an mean he would be inadequate years when, later, wage small and amount the struc living alarming degree ture and of an cost has risen to and power dropped purchasing dollar of the has over one half.” [King, supra at 489-490.] 11Or, conceivably, practically, but not fall. quoted dissenting argument regarding The Court Chairman Iverson’s point verbatim: “I believe it must be retain admitted that to the two-thirds limita- theory underlying in tion such cases would defeat the the creation injury responsibilities. dealing of the second and fund its with beyond weeks, weekly wages cases we are confronted with economy years past. limit, scaled to an To the two-thirds therefore, injustice earning power cruelly does to those whose time, stopping halted at that them while cold co-workers continued gain earning purchasing power to in and which enables to them expensive inflationary increasingly economy live in the and today. Applying 15-year-old weekly wage two-thirds limit of slightly accomplish not does even for these unfortunate cast-asides purpose injury presumed what the of the fund second to do. Thus effectuating purpose, legisla- when I feel we must read the requiring injury pay per- ture’s intention second fund disability ‘according provided manent and total the full rate dissenting the schedule benefits’ be as defined [another appeal keeps persons member of the To do otherwise those board]. woefully give aon outdated standard and does them what sec- 9, para purports give (a) them, provided tion ‘the amount now v General Motors by Whitbeck, in effect language of the statute that was Based on July 1, 1968, supreme court June between permanent [King], disabil- that in cases of total held in period, enti- ity workers were dates within that with average regardless their maximum tled to benefits words, receive weekly wages. In these would other workers equal employers to either two-thirds from their benefits weekly average wage rate in effect or the maximum their They also injury, was less. would date of whichever on their Injury Fund to from the Second differential benefits receive up statutory benefit for bring to the maximum them subsequent year. through This continue would current eventually though in com- years, might it have resulted even only higher pensation than two-thirds benefits not original greater average wage but also than the pp [Welch, 13.8, wage 13-7to § itself. 13-8.] (3) IMPORTANT AMENDMENTS (a) AGE SIXTY-FIVE REDUCTION THE SUBSECTION 1965, the noted, September 1, I have effective As contained a enacted 1965 PA 44. This act Legislature for an worker provision reducing benefits sixty-five. (The worker after that reached is now 17.159[g], provision, 412.9[g]; new of the in subsection contained 357[1] WDCA, refer- ease of 418.357[1]; MSA For 17.237[357][1]. sixty- age phrase I use the “subsection ence, 357[1] these provisions” below to describe five reduction provided: The new provisions.) provision employee receiving weekly payments or an who is When weekly age payments the reaches the is entitled of sixty-fifth year following weekly payments his for each paid birthday weekly payment shall be reduced 5% awarding ‘the full rate disability’ by for his and total permanent ” [King, supra at 486-487.] in the schedule of benefits.’ provided 284 231 Mich 262 by Whitbeck, payable age 65, weekly or at but not to less than 50% of the payable 65; seventy- paid age benefit or so his that on birthday weekly payments fifth shall have been reduced by 50%; after which there shall no be further reduction for employee’s weekly of duration In no shall life. case payments be reduced below the minimum benefit as provided [Emphasis supplied.] in this act. July 1, 1968,

Effective Legislature amended sixty-five age provisions through the enactment 1968 PA 227. The amend- ments the above-emphasized portion of MCL 412.9(g); MSA 17.159(g) were follows: employee payments When receiving weekly an who is or weekly payments entitled reaches or has reached or ,13 passed age of 65 ... Importantly, this language only deals with a worker who was sixty-fifth after that worker’s birth- day. The fund that, states following amendment, this applied it subsection 357(1) age reduc- provisions only tion in those person cases where the July had been on after 1968. The fund also approach states that was consistent with “[t]his well-settled decisional law of long-standing had which held . various sections of . . to be prospec- [the wdca] tively applicable only.”14

This Court construed the subsection 357(1) sixty-five reduction provisions vWelch Westran 13 Supreme Michigan upheld version, against equal The Court an protection challenge, Grey v Cruz Chevrolet Iron Division General Corp, Motors 117; (1976). Mich 247 NW2d 764 Lansing Ed, Nicholson Bd 93; fund cites Railway Express Agency, (1985), Tarnow v 558, 563; NW2d 292 331 Mich Processing, (1951), NW2d and LaForest v Vincent Steel Division Industries, App 386, 399; Letts (1975). 229 NW2d 466 285 v General Motors by Whitbeck, aff’d 1, 4; (1973), 205 NW2d 828 App 45 Mich Corp, 169; 395 Mich grounds court on other equally divided primarily panel The Welch was NW2d 545 (1975). 235 September 1, period between with concerned July 1, 44, of PA date 1965 1965, the effective not Although of PA 227. date 1968 1968, the effective panel dealt with two different the Welch explicitly, as I will refer to two circumstances, “prongs” of sets of prong was the circumstance below. The first them sixty-five years was before injured who old an worker PA 44. date of 1965 1, 1965, the effective September 67; NW2d Johnson, App 197 Citing Pierce v 15 panel age-reduc held that the the Welch (1972), 109 not to an apply of 1965 PA 44 did provisions tion sixty-five September was before who worker explained further, presumably Although 1965.16 not 1, fairly an straightforward: was reasoning sixty-five age worker who had reached the 1, person not be a September 1965, could thereafter Although the Welch age who “reaches the 65.” prong under emphasize point, did this panel January was bom on decision, Welch—who sixty-four at time of aged and was therefore September effective date of 1965 PA 44 of provisions subject age 1965—was reduction PA 44. plaintiff seventy-nine PA 44 in 1965 when 1965 in Pierce Compensation Appeal that Workmen’s Board held became effective. The sixty-five provisions 357(1) age PA 44 of 1965 the subsection pas apply persons over the at time of the did not Pierce, panel simply, agree.” sage PA “We of 1965 44. The Pierce said supra at 68. question prior panel stated, the 1968 “There is no The Welch persons supra, 412.9(g), were 65 § did not who amendment supra Welch, years prior section in 1965.” old to the enactment P.J. Concurrence Whitbeck, prong

The second was where a the circumstance sixty-fifth after worker was birthday. that worker’s panel age The Welch held that the reduction provisions apply of 1965 PA 44 did not to such a panel explain Again, worker.17 the Welch did not presumably equally reasoning further but its was straightforward: “receiving” a such was worker “entitled” to receive benefits at the time that worker age sixty-five. prong reached the of Under this aged sixty-five January decision, Welch—whowas on days 22, 1966,and who was nine later Jan- on uary subject age 31, 1966—wasnot to the reduction provisions 44. of 1965PA panel

The Welch then with dealt the effect of the stating Legislature 1968PA amendments, that the “clearly July age indicated that after 1, 1968,” the provisions apply employees reduction “would who injured subsequent sixty-fifth birthday.” were to their panel Welch, at 6. The Welch declined to retroactively: 1968 PA 227 amendments However, persuaded we Legislature are not that purposes intended or that the humanitarian remedial by retrospectively the act be applying would served weekly compensation 1968 amendment to reduce the employees [i.e., similarly those Welch and those situated] injuries sixty-fifth birthday who suffered after their but prior July 1, Moreover, language there is no in the clear, unequivocal, 1968 amendment or otherwise which retrospective application. directs [Id.] can One therefore summarize the outcome the sec- prong straightforwardly: (1) ond of Welch hav- Welch, panel stated, equally language Welch “It is clear that the 1965 was 412.9(g), any supra, applicable person § such that was not who was injured subsequent birthday.” sixty-fifth supra Welch, to his at 4. 1998] v General Motors by Whitbeck, he days before sixty-five nine age ing turned pro- to the reduction subject age was not injured, PA amendments (2) visions of retroactively, if have sub- would, applied PA 227 provisions, (3) but jected to the Welch PA 227 the 1968 panel determined the Welch retroactively.18 applied should not be amendments opinion portion of the Welch is, however, There panel The Welch not so straightforward. decisional observed, paragraphs: [by provides section amended PA Since the employee receiving to is either or entitled that when the passed age payment and or has reached or receive reaches reduced, Legisla- will it is clear that the his benefits be 65 1, persons subsequent July 1968, all intended that ture provi- age subject 65 to the the are over reduced-benefit [Welch, injury sion, was no matter when the incurred. supra supplied).] (emphasis at 5 18 Plants, Division, Saginaw Casting Chevrolet Motor Brown v Metal Corp, 85, 90; (1976), held the Motor Mich NW2d General pro equal provision age on reduction to be unconstitutional 1965 PA grounds: tection injured statute, the workman the 1965-1968version of a [U]nder by 75, by age age of 64 has his benefits reduced 50% at the paid in is no whatsoever the benefits

while there person reduction age a rational Such a classification lacks basis. provision Consequently, in effect . . we hold that the reduction . unreasonably arbitrarily discriminates from 1965 to properly solely age, against be workers on the basis and cannot including injured during period, applied workers that time plaintiff. original Michigan Supreme in Brown and Court vacated decision The 13, supra. Cruz, light of its in n for reconsideration in decision remanded original remand, (1977). this Court adhered to its Mich 828 On See 399 per Supreme unpublished opinion there- curiam. Court in an decision (1977). appeal. 400 Mich 852 after denied leave App 262 231 Whitbeck, As I below, observation, outline that I will refer dicta,” to as “Welch would later return to haunt this Court. of the actual light Welch, decision however, fairly it is clear panel that what the Welch must have meant was: provides

Because section amended when employee receiving payment is either or entitled to receive sixty-five passed age reaches has reached or reduced, Legislature his will benefits be it is clear that the July 1, 1968, persons (except intended that after all those WHO WERE AGE OF SIXTY-FIVE BEFORE INJURED THE AFTER BUT JULY 1, 1968) sixty-five subject over the are to the provision, reduced-benefit no when matter was incurred.

Again, because Welch January was on 31, days nine 1966, he reached the age of after July but the effective date of the 1968 before amendments, PA 227 subject he to the age provisions contained those amendments.

(b) 1969 PA 317 comprehensively The entire act was reorganized by concept 1969 PA 317.19The of differential payments to be made the fund was kept intact and the amend- provided any ments who, July worker 1968, had been receiving or was entitled to receive from benefits the fund “shall continue to receive or be entitled receive such benefits” from the fund. MCL 418.521(3); MSA 17.237(521)(3). However, MCL 418.521(2); MSA was 17.237(521)(2) per- amended in part tinent as follows: 19Indeed, correctly the entire act nowis cited as “The Worker’s Disabil

ity Compensation 418.101; 17.237(101). Act of 1969.” See MCL MSA v General Motors Lincoln by Whitbeck, -injury fund SUCH PAYMENTS Payments second from this per- period as such THE for which continue after the shall compensation under this act entitled son is otherwise disability permanent and total THE duration of such provided according-to in the schedule of full rate benefits. 13-8, the 1969 PA 317 Welch, 13.8, p

According § effective date that after their amendments meant in differential benefits 1968,20 increases July 1, “the two-thirds of compensation equals when stop in his injury.” Lincoln asserts at the time wages law change was clear in the this brief “[s]ince Eva possible effect, however, retroactive with no full ever after entitled to the people remained King difference.”21 351(2) BETWEEN

(c) SUBSECTION AND PA 357: THE INTERPLAY SUBSECTION January parts PA of which were effective 357, 351(2), to the wdca new subsection added which reads 418.351(2); 17.237(351)(2), follows: employee permanently

A whose date disabled preceded July 1, compensa- is entitled to payable employee imme- tion under act that was to the diately subsection, before the effective date of this or com- pensation equal average wage as 50%of the state 418.355; MSA last determined under section 355 [MCL greater. 17.237(355)], whichever 20Which, coincidentally, perhaps was also as noted above date of 1968 PA 227. effective but, although King, supra, proposition PA for this cites Supreme Michigan passed King pending was when Court, King in the to it. there is no reference decision by Whitbeck, P.J. Concurrence PA 357 also added to the wdca a new subsection

356(3), 418.356(3); 17.237(356)(3), MSA which present at the time reads as follows: The minimum benefit 1 or more losses stated 361(2) 418.361(2); in section 17.237(361)(2)] MSA [MCL (3) 418.361(3); 17.237(361)(3)] MSA be shall 25% [MCL average weekly wage the state as determined under section 418.355; 17.237(355)]. [MCL interplay 351(2) between subsection and subsec- 356(3) tion wdca was be until reconciled this Court’s decision in Wozniak I.

(4) LOPEZ supra. Lopez, Lopez 1982, this Court decided apparently was bom sometime before October apparently fifty-sixyears because he was old when he lost industrial use both hands when on hearing October 1962.22 A referee determined that Lopez permanently was disabled, and the employer appealed and the fund to the Worker’sCom- pensation Appeal Lopez, Board. at 682. The board hearing affirmed the referee’s decision with certain modifications. Id. appeal, employer

On and the fund asserted that Compensation Appeal the Worker’s Board erred in not applying sixty-five age 357(1) the subsection reduc- provisions. (The Compensation Appeal tion Worker’s Board had refused to the subsection provisions they because were not 22 Notably, Lopez, supra 684-685, this Court in at first indicated that the injury underlying However, that case occurred on October panel inexplicably stated, years thereafter “Plaintiff was 56 old at the time injury April, of his 1962 . . . .” Id. at 687. General Motors by Whitbeck, 1962.) Lopez’ This time of in effect supra, the Welch, first that in Court Court noted question with whether faced provisions, sixty-five 357(1) age as reduction “ ‘retroactively operated to 227, PA amended 1968 plaintiff benefits of a who suffered reduce the birthday injury sixty-fifth compensable but after his prior July of the date the amend- 1, 1968, to effective ” supra supra quoting Lopez, at Welch, at 688, ment.’ holding Lopez Welch summarized the 5. The Court being was not to be [1968 statute PA “the retroactively plaintiff’s applied to benefits reduce July Lopez, supra prior at 1, 1968.” in that case 688. stop point to at this review

It worthwhile bidding. prong Welch, first the subsec- Under the of sixty-five provisions 357(1) age 1965 reduction of tion injured was PA 44 did to an worker who years Lopez sixty-five September 1, old before apparently fifty-nine time; therefore, at was prong Welch, of the subsection under first provisions sixty-five age PA 44 reduction 1965 applied have to him. would prong Welch, Under second sixty-five provisions 357(1) age PA of 1965 reduction injured apply to a after that 44 did not worker birthday. sixty-fifth Lopez injured, was at the worker’s apparently was earliest, 27, 1962, on when he October fifty-six, September or, latest, at the sometime before approximately would have been 1, 1965, when he fifty-six fifty-nine.23 Lopez was at Therefore, whether 23 Compensation Appeal Lopez panel Board The noted that Worker’s prior Septem Lopez permanently disabled found that “was 685, simply 1965,” supra Lopez, held was and then that there ber see 231 Whitbeck, fifty-nine the time of his at the of his time injury, prong Welch, under the second the subsec- sixty-five 357(1) age provisions tion reduction of 1965 applied PA also would have to him because he was injured sixty-fifth birthday. his before Lopes Lopez Court then noted that reached the sixty-five July “after Id. at 1968.” 689. As I analyzed Lopez sixty- have Welch,the fact that turned July 1, five after 1968, the effective date of PA 227, was irrelevant because the issue was not Lopez sixty-five July whether turned 1, 1968, after but Lopez rather whether was after he turned sixty-five. Lopez Because well he sixty-five, 357(1) age turned the subsection provisions applied PA himto regard July without 1968, effective date of regard PA and, indeed, without to whether applied retroactively pro- 1968PA 227 was to be and spectively prospectively only. or my Lopez panel

In view, the was led to its errone- by reasoning ous the Welch dicta I that described any In above. event, however, the Welch if dicta, even properly Lopez panel, understood the would not Lopez have affected the result in under the facts Lopez panel the law as the considered them. The fact Lopez fifty-nine years of the matter remains that was September old 1, 1965, on and therefore under prong 357(1) sixty- Welch, first of the subsection provisions applied five reduction of 1965 PA him. The fact the matter further remains that Lopez injured sixty-five was well before he turned competent support finding evidence on record to the board’s regard, id. at 686. Motors General by Whitbeck, Welch, prong under the second and therefore provisions sixty-five reduction 357(1) age him. within the applied Thus, 44 also of 1965 PA it reached Lopez panel considered, factors perhaps wrong for the reason. result, albeit right Lopez to note that critically important It subsec- interplay between panel did not discuss all. of the wdca at 356(3) tion and subsection 351(2) I (5) WOZNIAK (a) REDUCTION PROVI- THE SUBSECTION AGE SIXTY-FIVE RULING SIONS I. Wozniak this Court decided Wozniak turned the was bom sometime in because she had sixty-five I, in 1981. Wozniak at 178. She age of permanently disabled incurable been would insanity 1964,24 id., at when she since worth- forty-seven forty-eight. again have been It is prong to review the Under the first bidding. while sixty-five reduction Welch, 357(1) age the subsection provisions apply of 1965 PA 44 did not to an sixty-five September 1, worker who was forty-nine time; therefore, under Wozniak was Welch, 357(1) age the first the subsection prong sixty-five provisions of 1965 PA would reduction applied have to her. Welch, the subsection prong

Under the second PA provisions of 1965 357(1) age to a worker after that did not sixty-fifth birthday. “injured,” worker’s Wozniak included This was after 63, 70, in the definition of “total and 412.10; n 1; 268 NW2d 28 MSA 17.160. incurable (1978). insanity Redfern permanent “imbecility” Sparks-Withington disability” by statutorily 1954 PA Co, 231 Mich by Whitbeck, at in latest, when she was forty-eight. There- fore, under the second prong Welch, the subsection sixty-five 357(1) age provisions reduction of 1965 PA 44 would also applied have to her because she was sixty-fifth birthday. her panel

The Wozniak I was therefore faced with the same subsection provi- sions of the wdca were construed the Welch panel Lopez and the panel. The panel Wozniak I first Lopez panel stated that the “misconstrued the holding in portion Welch quoting of the opinion Welch out of context.” I, supra Wozniak at 176. The I Wozniak panel quoted then the Welch dicta and stated:

The Court Welch then concluded that 1968 PA 9(g) applied retrospectively § could not be in that situation. Lopez This Court’s decision in holding turned the Welch on its head. [Id. 177.]

In my view, this statement the Wozniak I decision is mistaken. Lopez did turn not holding Welch on its Rather, head.25 although perhaps utilizing wrong reasoning, Lopez appropriately applied the Welch holding to the facts before it.

The Wozniak I panel, however, added a new factor to the equation, a factor that neither the Welch panel Lopez nor the panel considered at all. The Woz- panel niak I went back to 3 of the repealer part § 1965 PA 44. This provided: section provisions All amendatory of this 1965 act shall

apply only personal injuries the date which Chrysler Corp, App 368, 378; See Rotondi v 604 NW2d 901 (1993): necessarily agree “We do Lopez with Wozniak’s discussion of reading . . . Lopez because our of Welch ... leads us to conclude that cor rectly read Welch." 295 v General Motors by Whitbeck, P.J. Concurrence act, except

occurs on or date as after effective specifically provided except otherwise in this act and part 2, 4, concerning the amendment to section selection of physicians provided [Emphasis supplied.] as in this act. panel pointed nothing The Wozniak I then out that in purported retroactivity 1968 PA 227 to alter the limit- ing provisions repealer part §of 3 of the of 1965 PA panel year Wozniak, concluded that whose injury, 1964, was before the effective date of both September 1965PA 44 and PA 227, 1, 1965, 1968 July respectively, exempt 1, 1968, was from the sub- sixty-five 357(1) age provisions section reduction supra I, under this section. Wozniak at 178. The panel Wozniak I went on to note that subsection 418.891(1); of 1969 PA retroactivity 17.237(891)(1), carried forward these provisions: limiting they herein, provi-

To the extent that are reenacted all the sions of former Act No. of the Public Acts of 1965 shall personal only injuries apply to the date which occurs on September 1, 1965, except provided as otherwise in after except part 2, such act and for the amendment section 4 act, concerning physicians provided of that selection of [Emphasis supplied.]26 in that act. provisions,

On I the basis of these two the Wozniak panel implicitly prongs overruled both of Welchwith injuries respect September 1, that occurred before explicitly overruling Lopez, and deter- 1965,as well as sixty-five 357(1) age reduc- mined that the subsection Rotondi, 25, supra “Nevertheless, recognize See also n at 378: we Lopez erroneously plaintiff in was decided on its facts because the Lopez injured a date to which the apply according uncompiled repealer part] § to the does not [of 1965 PA 44.” App 231 by Whitbeck, PA 44 and 1968 PA 227 sim- provisions tion injured who were before ply apply persons did not 1965. Because Wozniak was September 1, sixty-five reduction 357(1) age these subsection her.27 I provisions rule, did not The Wozniak fashion, arrived at in a tortuous is therefore although simple Septem- if a worker was one: sixty-five 1, 1965, 357(1) age ber the subsection in PA 44 provisions reduction as amended apply 1968 PA 227 do not to that worker but if the injured September 1, 1965, worker was after these sixty-five subsection 357(1) age provisions reduction apply. do

(b) 351(2) 356(3) THE SUBSECTION AND SUBSECTION RULING panel entirely The Wozniak I an then dealt with separate issue, that of the minimum rate to be applied totally permanently to a and disabled worker. The fund relied on 356(3) that, subsection at that provided: time, weekly

The minimum benefit for 1 or more losses stated 361(2) (3) average in section shall be 25% of the state weekly wage as determined under section 355. 361(2)

Subsection of the MCL 418.361(2); MSA WDCA, 17.237(361)(2), specific deals with losses and was not relevant. Subsection 361(3) wdca, 418.361(3); MSA deals 17.237(361)(3), with total and permanent disability. The fund contended, therefore, that under subsection 356(3) Wozniak was entitled to twenty-five a minimum benefit of percent of the state would also not but would By analogy, apply Welch, the subsection Lopez, who who was 357(1) age September 1, 1965, provisions v General Motors by Whitbeck, weekly average wage. Because that rate in 1992 was weekly average wage of Wozniak’s above two-thirds injury argued 1964, time of her the fund twenty-five percent properly minimum constituted compensation, her actual rate of ing in essence contend- twenty-five percent that the minimum was also compensation. Wozniak’smaximum rate of 351(2) Wozniak relied on that, as noted provides: above, permanently employee

A disabled whose date July preceded 1, 1968, compensa- is entitled to the payable employee tion under this act that was to the imme- diately subsection, before the effective date of this or com- pensation equal average wage to 50% of the state greater. last determined under section whichever is contended, Wozniak therefore, that under subsection fifty percent greater she was entitled to the average weekly wage of the state her benefit rate (the on December effective date of 1969 PA fifty percent 351). § average Because of the state weekly wage was above her benefit rate on December fifty argued percent 31, 1969, Wozniak that of the weekly average wage proper state was her minimum rate. panel agreed Apply-

The Wozniak I with Wozniak. ing statutory favoring the rule of construction specific general, panel over the found that subsec- 351(2) clearly specific tion was while subsection 356(3) clearly general and concluded: part

Given that the two sections were once of the same amendatory act, legislative intention, always which is paramount, manifestly 356(3) seems clear: is intended § permanently totally disabled workers App 262 231 Mich by Whitbeck, spe- July to all workers with on or after as well as injuries, establishing cific loss a minimum benefit rate of twenty-five percent average weekly wage. of the state Sec- fifty per- 351(2) minimum tion establishes a benefit rate of weekly average wage, cent of the state or the benefit rate 31, 1969, greater, effect on December whichever is permanently disabled workers whose date of injury precedes July 1, 1968.

Accordingly, declaring the commission erred that plaintiff’s twenty-five percent is minimum benefit rate fifty average wage, percent. state when it should be repeal by implica- Legislature § Had the intended to tion, phrase “notwithstanding it have would added injury,” effect, beginning date of words to at the 356(3). I, supra § [Wozniak 182.]

(6) II WOZNIAK In 1995, this Court decided Wozniak v General Corp Motors (After Remand), App 40; 536 NW2d 841 (1995) (Wozniak II). Following the I, decision in Wozniak Wozniak, surprisingly, sought to recover the benefits had been denied contended, to her. The fund and the Worker’s Com- pensation Appellate determined, Commission that the “one-year-back” attempt rule restricted Wozniak’s year recover these benefits to one back from the date application. “one-year-back” of her rule is con- tained in subsection 833(1), 418.833(1); 17.237(833)(1): payment compensation made,

If is other than medical expenses, application compensation and an for further bureau, compensation later filed with the no shall be any period year prior ordered for which is more than 1 application. filing the date of of such v General Motors by Whitbeck, previous Citing Compensa- decisions the Worker’s Appellate predecessor, tion Commission its panel one-year-back Wozniak II held that the rule apply injured request does not to an worker’s for a change “plaintiff rate or correction and stated that the one-year-back is not barred rule from collect- ing amounts that this Court held had been withheld wrongfully.” supra Importantly, Wozniak II, at 44. panel however, the Wozniak II stated: We decline defendants’ invitation to decide whether this previous [i.e., Court’s decision this case in Wozniak 7] applied retroactively employees should be who did not object to the benefit reduction. [Id.]

(7) CONCLUSION I conclusion, believe the state law as it currently respect stands is as follows. First, with to a injured September worker after 1, 1965, Welch good prong remains law. Therefore, under the first age sixty-five provisions Welch,the reduction of apply injured PA 44 do not to an worker who was sixty-five September (but before 1, 1965 who was injured July 1968). after that date but before Fur- prong ther, under the second Welch, reduc- provisions apply tion of 1965 PA 44 do not to a injured sixty-fifth birthday worker after that worker’s (again September if the occurred after 1, 1965, July 1968). respects, but before In all other the sub- 357(1) age provisions section do September to workers 1, 1965, after but July before 1, 1968. respect

Second, with to a worker September governs. 1, 1965, the rule Wozniak I Concurrence Whitbeck, in provisions rule, this the Under apply to by 1968 PA 227 do not PA 44 as amended that worker. totally perma-

Third, to rates for and respect with I also Wozniak nently workers, governs. disabled and applies permanently to Thus, 356(3) subsection injured July 1, on or after totally disabled workers specific inju- with loss 1968, as well as to all workers a minimum benefit rate of ries, and establishes twenty-five percent average wage. of the state totally applies subsection to and By contrast, 351(2) disabled workers whose date of permanently a minimum July 1968, and establishes preceded fifty percent average of the state benefit rate on Decem- weekly wage, or the benefit rate effect 31, 1969, greater. ber whichever is Fourth, II, as stated in Wozniak one-year-back WDCA, MCL 833(1) 418.833(1); rule subsection an apply does not to 17.237(833)(1), request change worker’s for a rate or correction. the issue whether the decision in Wozniak I Fifth, retroactively applied should be to workers object benefit reductions remains who did not open. pursuant It is this issue that we are to decide Supreme Court’s remand to us.

E. THE SECOND INJURY FUND exclusively fund, above, I have discussed the within disability. permanent the context of total and As by Welch, payments noted differential making permanently only disabled workers is one many purposes of the fund’s and was indeed not its puipose. Rather, Legislature created the original injuries.” provide compensation fund to for “second General Motors RJ. Whitbeck, purpose part 2, This was contained in old 8a § sobriquet act as amended “8a” original (hence now cases), WDCA, explains: MSA. As Welch 418.521(1); 17.237(521)(1). provides hand, This if section a worker has lost a arm, foot, eye, subsequently leg, or loses another as the injury, employer pay result of an industrial must bene- only specific that, fits for the loss. . . . After the Second Injury responsibility permanent Fund assumes for total and disability purpose provision benefits. The employability previously enhance the who workers have non—employment- a It if lost member. does not employment-related related loss of a an member follows provision apply, loss of a member. For this the second employment-related. [Welch, 14.2, p loss must be § 14-2.] The current sections of the act the fund are governing 501-561 of the MCL 418.501-418.561; §§ WDCA, by fund 17.237(501)-17.237(561). managed appointed by three who trustees are the Governor provided with senatorial advice and consent, as in 418.511; MCL § MSA 17.237(511). WDCA, by The fund is financed assessments on insurers and employers, provided self-insured in 551 of the § 418.551; MSA 17.237(551). The fund con- WDCA, fiduciary tends that its trustees act in a context. How- my ever, operate view is that the fund does not as a fiduciary any particular private party, but rather entity carry governmental functions as a state out functions. the Michigan Supreme As Court has stated: Injury

The Second Fund is a state insurance fund created Legislature to insure carriers and self-insured employers against occurring certain losses due to worker’s compensation Injury claims. The Second Fund does not belong employer to the carriers. No or has carrier a direct Rather, vested or interest in the the carriers and self- fund. 231 Whitbeck, employers pay fund. annual assessments to the insured public mon- paid, become these assessments state Once scheme, Injury any Fund eys. the Second Like insurance compensation among all the spreads risk of worker’s employers [McAvoy H B Sher- and carriers. self-insured 450; (1977) (citations Co, NW2d 414 man emphases emphasis original; omitted; first other supplied).]

n . THE LINCOLN CASE A. BASIC FACTS 6, 1916, on August Arthur Lincoln was bom injured 12, 1966, caught on June when he was was plant. at a Motors conveyor while at work General injury, approximately time of his Lincoln was At the therefore, important it is to review fifty. again, Once injured Septem- Lincoln is a worker after bidding. him, Therefore, regard with Welch ber 1965. Welch, law. the first prong remains Under good sixty-five provisions 357(1) age an PA 44 do worker who who September 1, 1965, before but was approximately after that date. Lincoln was fifty September 1, Therefore, under the sixty- the subsection prong Welch, first provisions apply reduction to him. five the the subsection prong Welch, Under second sixty-five provisions reduction of 1965 PA 357(1) after apply not a worker do to sixty-fifth birthday, again if the worker’s September 1965. was 1, occurred after Lincoln fifty. approximately Therefore, under when he 357(1) age the prong Welch, second subsection the also to him. provisions reduction Lincoln v General Motors by Whitbeck, retroactive-prospective issue this Court with to respect applicability therefore 357(1) age sixty-five the subsection provi- reduction Rather, retroactive-prospective sions. issue is respect with holding to other in Wozniak I: that applies permanently and preceded disabled workers of injury July whose date 1, 1968, and establishes a minimum benefit rate of fifty percent weekly average of the state or the wage, benefit rate in effect on the effective date of subsec- January 351(2), 1, 1982, tion greater.28 whichever is Clearly, Lincoln’s injury preceded July date of 1, 1968, equally clearly the fund on commenced June 1985, to reduce Lincoln’s differential benefits fifty to a rate percent below of the state average weekly wage continued this reduction until Feb- ruary 2, 1993. Under Wozniak I, therefore, the fund erred in reducing Lincoln’s differential benefits below fifty percent average the state wage or the January benefit in on effect 1982, whichever was greater.

B. PROCEDURAL HISTORY recognized The fund Lincoln’s right differential on benefits October 21, Following January 1974. 1, 1982, effective date of PA 357 adding subsec- prayer relief, position unequivocally: In his Lincoln states his unilateral, Because of defendant Fund’s in unlawful reduction statutory language, in requests

benefits violation of clear defendant-appellant repay Honorable Court order wrongfully Lincoln all withheld benefits from June it time began compensation Lincoln’s differential fifty percent (50%) Average Wage, Weekly rate below the State proper February, payment [Emphasis until it recommenced supplied.] App 304 262 by P.J. Concurrence- Whitbeck, began paying 351(2), Lincoln’s differen- the tion fund together the amount that, at a with tial benefits rate fifty equaled percent by employer, paid the weekly wage ensuing average for 1982and each state year. calendar Michigan Supreme 11, 1985, after the

On June Lopez, appeal in of the fund Court’s denial leave began reducing The differential benefits. Lincoln’s “[plaintiff’s bene- fund states that differential unambigu- rate thus the fit reduced reason of average holding Lopez, to state’s ous 25% the weekly wage, and thereafter maintained upon annually, 418.356(3); in amount reliance (Emphasis supplied.) 17.237(356)(3).” This completely no false. There was unam- statement Lopez biguous holding relating in to subsection solely 356(3). Lopez the dealt with provisions.29 one-year-back applied also The fund the rule recoup overpayments alleged for twelve preceding not, did 11, months June 1985. Lincoln any proceeding challenge bureau, direct petition he a either of these reductions until filed July sought hearing 20, 1993, a on in which he addi- through appli- differential tional benefits retroactive February 11, 1984, I from June cation of Wozniak 2, parties magistrate, who submitted briefs to January magis-

mailed on 1995. The her decision correctly this Court’s decision in Rotondi v trate used Indeed, the notice from the fund on June states provided by adjusted Section [pjayment be of the Worker’s shall os Disability Appeals Compensation interpreted Act as the Court Nursery], [Lopez v (1982).” Flower Basket 122 Mich General Motors by Whitbeck, Chrysler Corp, App 368; 504 NW2d analyze (1993), applicability issue age sixty-five provi- subsection 357(1) reduction magistrate sions.30 The in this case therefore held that “defendants fund and General are enti- [the Motors] tled apply provision to the age-65 reduction in this matter.” The fund appealed then to the Worker’s Com- pensation Appellate Commission The (the wcac). wcac affirmed the magistrate’s reliance on Rotondi. In a footnote, however, correctly the wcac also noted that age provisions Rotondi held that the reduction cannot operate to permanently reduce a disabled worker’s benefits below the minimum established in fifty 351(2): percent subsection average state wage the benefit in effect on the effective date 1, of the subsection (January 1982). The wcac cited proposition Wozniak II for the that the one- year-back apply recovery rule does not so as to limit of any underpayments in violation of subsection 351(2) and concluded to that Lincoln “is entitled all July 14, supra Rotondi, with Rotondi dealt a worker bom on 1911. at Lincoln, 370. As with in June the fund reduced Rotondi’s benefits to 357(1) age sixty-five provisions. account the subsection reduction supra Rotondi, panel, using exactly logic at 371. The Rotondi set out above, sixty-five 357(1) age provi found that subsection reduction “unambiguously” applied expressed legis sions to Rotondi and that “[t]he sixty-five age apply lative intent is that the injury reduction to cases where the September 1, Rotondi, supra occurred after 1965.” at 376-377. injured fifty-five. August 26,1966, was Rotondi on when he Id. prong Welch, 357(1) sixty-five age Under first the subsection reduc provisions apply injured sixty-five tion do not to an worker who was September but who was after that date. Rotondi exception. prong Welch, did not fall within that Under the second age 357(1) sixty-five provisions reduction not do sixty-fifth birthday, again worker after that worker’s if the September 1, after occurred 1965. Rotondi also did not fall within that exception. Therefore, sixty-five provi 357(1) age the subsection applied sions to Rotondi. 231 Mich by Whitbeck, rights Wozniak in Rotondi and the 1995 established Presumably, wcac had this meant decision.” sixty-five 357(1) age reduc- that the subsection ruled provisions apply to as do the limitations tion 351(2)—and limita- therefore that the in subsection 356(3) apply. ruling not This tions in subsection do exactly my view, correct. was, appeal sought but Court, fund leave to this application. However, as noted near we denied that Michigan beginning concurrence, Supreme remanded for “consideration of the Court [Wozniak 7] issue is retroactive in favor of whether object who the reduction in benefits those did pursuant [Lopez].” (1997). made Lopez Again, I note that the reduction benefits solely related to the subsection imprecision provisions. Despite in the the presume Supreme language, I that therefore, the actually asking was to consider whether the Court us respect I to decision this Court Wozniak with application made the of subsection should be all did retroactive in favor of Lincoln and others who object application fund’s not wrong to the erroneous

statutory provision, 356(3). subsection

HI. FAILURE TO OBJECT object Lincoln, to fund’s course, did not reduction of his differential benefits until after this my However, Court’s decision in Wozniak I. from precludes nothing review of the in that statute wdca, obtaining in Lincoln from a “retroactive” fashion the by incorrectly him were withheld from benefits that object fund. failure does not alter this Lincoln’s put, Simply fund, creature of the situation. v General Motors by Whttbeck, statute, obligated at all times pay differential benefits in accordance with that statute.

I with agree majority’s further both the reasoning one-year-back and its that neither conclusion rule, two-year-back 833(1), rule, nor 418.381(2); MSA limits Lincoln’s 17.237(381)(2), right recovery. my view, these rules are irrele- any by object vant to failure Lincoln to to the fund’s unilateral decision to reduce his differential benefits, majority. for the reasons well stated DILEMMA IV. THE RETROACTIVE-PROSPECTIVE A. OVERVIEW (1) THE TENSION MAKING BETWEEN DISCOVERING THE LAW AND

THE LAW As noted Moody31 former “[njotions Justice retrospectivity prospectivity have their roots in diametrically opposed two jurisprudence.” theories of view, widely first Blackstone, attributed to is that courts function to discover and declare law rather than to make it. Therefore, when judges change legal rules, they pretend

do law, not make a new but to vindicate the old misrepresentation. one from For if it be found that the for- manifestly mer unjust, decision is declared, absurd or it is law; such a sentence was bad but it was not law . . . .32

Michigan, ^{[69] [32] [31]} (emphasis n See Moody, Retroactive ^[1] Blackstone, 7; 85 Ct ^[28] S Wayne the 1731; Commentaries original). L R 14 Ed 2d 601 439, L ^[441] application Linkletter v See also on (1982). the Laws of (1965). of law-changing England (3d Walker, decisions 381 US 618, ed, 1884) in p 308 by Whitbeck, Moody a law- view, under this that, observed Justice merely a decision, it is statement because changing must always law, the “true” of neces- what had been retroactively sity applied.33 be only not discover judges A view asserts second theory, decisions that law but law.34Under this make automatically apply retro- law change the should is between these two views spectively. The tension jurisprudence regard- of our throughout evident much that, it is subject. any event, however, clear ing issues, are to the with to state-law we resolve regard without retroactivity-prospectivity regard dilemma by the principles. federal As stated constitutional Supreme Court in Northern R Co United States Great Co, 358, 364-365; & US Refining v Sunburst Oil L 145; (1932): 53 S Ct 77 Ed 360 upon We constitution has no voice the think federal subject. prece- defining limits A state of adherence to may principle a itself dent make choice for between may say operation of relation It forward and that backward. court, overruled, highest though its later that decisions of are the less ... On law none for intermediate transactions. hand, may dogma it the other hold to ancient law its ideal declared courts had Platonic or existence declaration, in which before the act event discredited been, will be as if it had never and the declaration viewed beginning. declaration as law from the . . . The reconsidered subject alternative is the same whether the of the new deci- any law sion common ... or statute. . . . The choice for may juristic philosophy state be determined conceptions judges courts, law, origin her its their Moody, 594-595 See Carpenter, n (1917). supra Court at 441. decisions and the common law, Colum L R v Motors 309 General P.J. by Concurrence Whitbeck, philosophies, but nature. We review not the wisdom of their legality of their acts. People Hampton, v 669, 674; Mich See also NW2d 404 (1971).

(2) CRIMINALMATTERSV CIVILMATTERS respect matters, With to criminal the United States Supreme Court has looked at three factors generally applied determine whether a law should be retro- actively prospectively. These are (1) or factors purpose rule, (2) general of the new reliance on rule, the old the effect on the administration (3) Shott, See Tehan v United States ex rel justice. Linkletter 15 L Ed 2d 406; 459; (1966); US 86 S Ct Walker, v L 618; 1731; 381 US 85 S Ct 14 Ed 2d 601 adopted These factors have been (1965). Michigan. Hampton, supra People v 674-679; See see also Sexton, 43, 57, 29; 458 Mich n 580 NW2d 404 (1998); People Markham, 530, 534-535; 245 NW2d 41 (1976). Supreme area, the civil the United States Court determining retroactivity

restated the criteria for Huson, Chevron Oil Co v 97, 106-107; 404 US 92 S Ct L 349; (1971): 30 Ed 2d 296 First, applied nonretroactively the decision to be must by principle law, overruling establish a new either clear past precedent may relied, by litigants on which ... or have deciding impression an issue of first whose resolution was clearly Second, foreshadowed .... it has been stressed weigh that “we must . . . the merits and demerits in each prior history looking question, case to the of the rule in purpose effect, retrospective operation and whether its operation.” Finally, will further or retard its . . . we have inequity imposed by application, weighed retroactive produce a of this Court could substantial decision “[w]here 231 Whitbeck, inequitable applied retroactively, results if ample there is avoiding ‘injustice basis in our hardship’ by cases for holding nonretroactivity.” [Citations omitted.] essentially applied three-part Thus, Chevron the same question: test with the addition of a threshold Does clearly principle the decision establish a new of law? People Quoting Phillips, v 416 Mich 63, 68; 330 NW2d (1982), quoting supra, Michigan 366 Supreme Chevron, “[prospective applica-

Court has held that holding appropriate holding tion of a is when the ‘ precedent overrules settled or decides an “issue of impression clearly first whose resolution was not ’” Lindsey Harper Hosp, foreshadowed.” v 455 Mich (1997). 56, 68; 564 NW2d 861 The Unites States Supreme Court has also stated that there is no dis- litigation tinction between civil and criminal with respect general retroactivity principles. Linkletter, supra three-part applied at 627. The test has been in Michigan including involving civil matters, matters Riley the wdca. See v Northland Geriatric Center (After Remand), 431 Mich 632, 645-646; 433 NW2d (1988) joined by 787 J., Riley, C.J., and (Griffin, J.).35 Levin,

(3) THE GENERAL RULE OF RETROACTIVITY Regardless, subject however, of whether the matter general judicial is criminal civil, or rule is that given decisions are to be full retroactive effect, Lind- sey, supra “[c]omplete prospective at 68, and that application generally has been limited to decisions which overrule clear and uncontradicted case law,” Hyde Michigan Regents, v Univ Bd 426 Mich Riley.

35 I majority there was note, however, no opinion 311 Motors v General by Whitbeck, decision judicial If a (1986). NW2d 847 240; the law light and “indefensible” “unexpected” is facts, retroac- underlying at the time of existing People problematic. of that decision application tive (1996). NW2d 627 93, 104; Mich Doyle, v full retroac- result from injustice might where Indeed, holdings has Supreme given Court tivity, Michigan Lindsey, effect. prospective limited retroactive accomplish the supra. This flexibility is intended to Tebo varied circumstances. justice under maximum 360; (1984) 343 NW2d 181 Havlik, v cit- Cavanagh JJ.), J., joined Boyle, (Brickley, Detroit, 231, 265-266; ing Williams spectrum, At the other end of (1961).36 NW2d application gener- has however, complete prospective clear and ally limited to decisions that overrule been Tebo, supra law. at 361-363. uncontradicted case application of the chevron B. test outset, important it is to understand At the issue to which the Chevron applied. test is to be As contends, whether accident above, the fund noted weekly Lincoln’s benefit it reduced design, or Lopez” of “unambiguous holding rate because of the twenty-five percent average of the state’s to weekly benefit maintained his and thereafter wage, annually upon “in reliance rate at that amount Simply put, 17.237(356)(3).” 418.356(3); differen- not, reduce Lincoln’s not, fund did and could 36 Hosp, 1, 28; NW2d 1 See also Parker v Port Huron 105 justice (applying fairness ... (1960) the interests of and the decision “[i]n arising after . . . the all future causes of action to the instant case and to Green, 236; opinion”); 21 Bricker v filing Mich date of the of this pending (1946) (applying and future “so far as NW2d 105 the decision concerned”). cases are Whitbeck, holding Lopez relating

tial benefits in reliance on a 356(3). Lopez solely to subsection dealt with the sub- 357(1) age provisions section and Lopez there was no mention of whatever the inter- play between subsection 356(3). Rather, this issue was decided in Wozniak I.37

Therefore, the issue before us is whether the hold- ing in Wozniak I (that subsection 351 ^[2] applies to permanently disabled workers whose date injury preceded July 1, 1968,and establishes a min- fifty percent average imum benefit rate the state weekly wage, benefit rate in effect on the January effective date of subsection 351[2], 1, 1982, greater), retroactively applied whichever is should be similarly to Lincoln and others situated whose differ- ential benefits fund reduced below these levels. my application three-part view, the of the test question unnecessary, simple is reason beyond that the fund cannot advance the threshold question posed ques in Chevron: does the decision in clearly principle tion establish new of law? Under Lindsey, supra,38 applied case, to this we are by examining subsidiary ques- resolve this issue two fund, may In fairness to the it have conflated the two issues because imprecision language Supreme in the Court’s remand in this referring object case who to “those did not reduction in benefits pursuant [Lopez]." made supra Phillips, articulating See also the standard as follows: any question application appellate Before of the retroactive of an arises, decision it must be clear that the decision announces a new principle purposes resolving of law. A of law rule is new for question application of its retroactive in the sense addressed in precedent ..

Linkletter . either when an established is overruled or impression when an issue of first which decided was not adum- by any appellate [Emphasis brated original.] earlier decision. in the General Motors by Whitbeck, (1) holding I set- in Wozniak overrule Did the tions: impres- (2) precedent decide an issue of first tled clearly was not foreshadowed? resolution sion whose questions yes, these is to either of If the answer three-part only apply the then—should we then—and issue of reliance the fund. and examine the test my to both of these however, the answer view, clearly prece- questions no. There was no settled is interplay concerning the between subsection dent 356(3) 351(2) before the decision subsection may upon have its I. While the fund relied Wozniak interpretation 356(3) Lin- of subsection to reduce own upon a benefits, it could not have relied coln’s any Indeed, of this or other court to do so. decision points out, the bureau and the WCAC have as Lincoln rejected persuade repeatedly the fund’s efforts to 356(3), than that subsection rather them similarly 351(2), and others situated. covered Lincoln light, argument the fund’s When viewed in this “long-standing administrative we should honor its practice” unpersuasive. argued Lin- best, is At by problem very coln, the fund is confronted here making. I, there much of its own Before Wozniak interplay precedent concerning no settled 356(3) and subsection between subsection contrary argument a lit- fund’s to the more than disingenuous. tle

Having that, it is also clear that Wozniak I said impression. per- I am not an issue of first dealt with defeats full retroac- however, that this alone suaded, Michigan Supreme application. As the Court tive supra quoting Lindsey, 68-69, Jahner v noted in Dep’t 111, 114; Corrections, 197 (1992): NW2d 168 231 by Whitbeck, P.J.

Concurrence may “The that a fact decision involve an issue of first impression justify prospec- giving not and of does itself it application tive where the decision does announce a change existing merely law, new law gives rule of an but interpretation previously subject that has not an been the appellate court decision.” Lindsey, supra

See also at 68. Simply put, type is issue here not the of first question impression supports prospective appli- panel cation. As found, the Wozniak I 351(2) quite specific 356(3) is while subsection is quite general. Because the two subsections were once part amendatory legislative of the same act, the intent manifestly clear: subsection established a fifty percent minimum benefit rate of of the state average weekly wage, or the benefit rate effect on greater, December whichever permanently disabled workers, such Lincoln, injury preceded July whose date of The fund’s purely internal and administrative determination to contrary persistent was in error its reliance support on that determination was without in the Applying interpre- Blackstone’s formulation, WDCA. always tation of in Wozniak I was “true WDCA given law” and must it therefore be full retroactive effect.

V.CONCLUSION readily I concede that the desire to do economic justice and social should be universal. I further con- permeates cede that this desire the WDCA and the interpretations by King, of it the courts. Indeed, in supra, virtually that desire dictated the outcome of may Nevertheless, the case. I must observe that what v General Motors Whitbeck, may compassion judge’s the next well be one be caprice. judge’s the result that the I concur with

Therefore, while agree majority I case, in this cannot has reached retroactively applying should Wozniak I the basis for elderly, work- fund, than disabled that the rather be consequences the economic ers, is better able to bear I we should resolve the Rather, believe, its actions. retroactivity-prospectivity applying the dilemma regarding law retroactive or rule of well-established prospective application judicial doing decisions. we the law rather than make so, discover and declare my view, Wozniak I did not “establish Because, it. principle prior law has inter- law,” a new case give preted phrase, agree we it full I should retroactive effect.

Case Details

Case Name: Lincoln v. General Motors Corp.

Court Name: Michigan Court of Appeals

Date Published: Nov 18, 1998

Citation: 586 N.W.2d 241

Docket Number: Docket 204560

Court Abbreviation: Mich. Ct. App.