SINGTON v CHRYSLER CORPORATION
Docket No. 119291
Supreme Court of Michigan
Decided July 31, 2002
467 Mich 144
Argued April 10, 2002 (Calendar No. 7).
In an opinion by Justice TAYLOR, joined by Chief Justice CORRIGAN, and Justices YOUNG and MARKMAN, the Supreme Court held:
1.
2. The Haske definition of disability, i.e., a personal injury or work-related disease that prevents an employee from performing any work, even a single job, within his qualifications and training, is untenable. The plain meaning of the definition of disability in
Justice WEAVER, concurring, stated that she concurred with the majority on parts one through five of the opinion and in its result, which is consistent with her partiаl concurrence and partial dissent in Haske v Transport Leasing, Inc, 455 Mich 628 (1997).
Vacated and remanded.
Justice CAVANAGH, concurring in part and dissenting in part, stated that Haske v Transport Leasing, Inc, 455 Mich 628 (1997), should not be overruled.
Justice KELLY, dissenting, stated that the majority‘s reading of
Zamler, Mellen & Shiffman, P.C. (by Paul S. Rosen) (Daryl Royal, of counsel), for the plaintiff-appellee.
Lacey & Jones (by Gerald M. Marcinkoski and Michael T. Reinholm) for the defendant-appellant.
Amici Curiae:
Martin L. Critchell for the Michigan Self-Insurers’ Association.
Evans, Pletkovic & Rhodes, P.C. (by William Nole Evans), for the Michigan Chamber of Commerce and the Detroit Regional Chamber.
Glotta, Skutt & Associates, P.C. (by Richard M. Skutt), for the Michigan Trial Lawyers Association.
Libner, VanLeuven, Evans, Portenga & Slater, P.C. (by John A. Braden), in support of the plaintiff.
OPINION OF THE COURT
TAYLOR, J. This case concerns eligibility for worker‘s compensation benefits pursuant to the Worker‘s Disability Compensation Act (WDCA) definition of disability at
I
A
A review of the relationship in the worker‘s compensation statute between “disability” and “favored work” (or as it is now formally called in thе WDCA, “reasonable employment“) is helpful in understanding what is at issue in this case.
There are circumstances in which a work-related injury might prevent an employee from continuing to perform one or even more of the complex of tasks in the job he was performing at the time of the injury, but in which, even with such a limitation, that employee may still be able to perform the job suffi
Historically, such a situation posed a dilemma for the worker‘s compensation system. As the courts dealt with difficult cases in which an employee could suffer a work-related injury and be limited, to one degree or another, in his ability to perform work, but not rendered altogether unable to work, judges developed the common-law mitigation doctrine of “favored work.” Under the favored-work doctrine, an employer could generally require an injured employee, eligible for worker‘s compensation benefits, to do other work that the employee was reasonably capable of performing. The wages earned in the “easier” job could be used by the employer as a setoff, or mitigation, against the employer‘s worker‘s compensation liability. If the employee unreasonably refused to participate in the favored work, i.e., the “easier job,” the penalty was loss of worker‘s compensation benefits.1
In 1982, the Legislature effectively displaced the common-law doctrine with the enactment of a statutory approach that drew heavily upon the favored-work doctrine3 (now called “reasonable employment“).4 Importantly, the legislation stated that, as a prerequisite to being considered a participant in rea
B
Plaintiff, Charles Sington, was employed by defendant, Chrysler Corporation, from July 1971 until March 1997. During his last fifteen years, he performed various production-related jobs as a “floater.” Until he was injured, plaintiff‘s physical activities in the course of his employment included reaching and stretching out above head level, and bending and picking up parts weighing up to thirty pounds.
In June 1994, plaintiff slipped and fell at work, injuring his left shoulder. It is undisputed that the 1994 injury arose in the course of his employment and that defendant voluntarily paid wage loss benefits following that injury. Plaintiff underwent surgery on his left shoulder. Upon returning to work in January 1995, he was restricted from performing work requiring him to reach above the left shoulder. He continued working as a floater with this work restriction until his right shoulder was injured outside his employment. Plaintiff underwent surgery on his right shoulder in August 1996 for a non-work-related injury
Plaintiff continued as a floater until March 1997 when he suffered a non-work-related stroke. After the stroke, plaintiff received sickness and accident benefits and was then granted a permanent and total disability pension by defendant.
Thereafter, plaintiff sought worker‘s compensation benefits related to his inability to work. Plaintiff asserted that he was working in “reasonable employment” under the WDCA when he performed his job with a work restriction after the left shoulder injury, and that he became entitled to worker‘s compensation benefits when he lost this reasonable employment because of the stroke. This claim is grounded in the interaction between § 301(4) and § 301(5). As mentioned earlier, note 5, if an employee is disabled under § 301(4) and then is afforded reasonable employment under § 301(5), should that employment be terminated before one hundred weeks pass, the employee receives worker‘s compensation benefits on the basis of the wage at the date of injury under § 301(5)(e). If, on the other hand, one hundred or more weeks have passed and the worker loses the employment through no fault of his own, eligibility for benefits is determined under § 301(5)(d).
While, in this case, no one disagrees with the rules of reasonable employment, there is dispute over whether plaintiff was “disabled” under § 301(4). Plaintiff asserts he was disabled because his left shoulder
Faced with the question whether plaintiff was disabled under § 301(4), the worker‘s compensation magistrate ruled that plaintiff was not engaged in reasonable employment under § 301(5). The magistrate opined that plaintiff had been “performing a regular plant job” after his left shoulder injury and that he was convinced that plaintiff “did not experience any wage loss, whatsoever” because of that injury. The magistrate further concluded that plaintiff was disabled because of his non-work-related stroke and that, but for the stroke, plaintiff “would have continued at his regular job, a job which was conveniently within his recommended restrictions.” Because plaintiff‘s wage loss was attributable to his stroke rather than his shoulder injury, “his partial disability, based on his . . . workplace injury, [was] not compensable . . . .”
The WCAC affirmed the magistrate‘s decision. It concluded that the factual record supported the magistrate‘s determination that plaintiff was performing his “regular job” when he returned to work after the left shoulder injury. Thus, the WCAC stated, the job “did not constitute an accommodation of [plaintiff‘s] in
The Court of Appeals reversed the WCAC. 245 Mich App 535; 630 NW2d 337 (2001). The panel held “as a matter of law that defendant offered plaintiff ‘reasonable employment’ within the meaning of”
Critical to the proper resolution of this appeal is how “disability” is defined in the WDCA,
An alternative view of disability advanced by defendant requires a reduction in an employee‘s actual wage earning capacity in all work suitable to his qualifications and training. Under this approach, an employee would not be disabled if a work-related injury rendered him unable to perform a particular job, but where that limitation did not affect the wages that he could earn. In particular, with regard to plaintiff, defendant argues that, if one examines overall wage earning capacity, plaintiff was not disabled because his postinjury work as a floater caused him no reduction in wage earning capacity. Thus, he was not entitled to be considered a participant in reasonable employment at the time of the stroke and, because the stroke was not work related, he is not entitled to benefits under § 301(5).
II
We review questions of law in final orders from the WCAC de novo. DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
A
We begin our analysis with the definition of “disability” in the WDCA:
As used in this chapter, “disability” means a limitation of an employee‘s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss. [
MCL 418.301(4) .]
As this language plainly expresses, a “disability” is, in relevant part, a limitation in “wage earning capacity” in work suitable to an employee‘s qualifications and training. The pertinent definition of “capacity” in a common dictionary is “maximum output or producing ability.” Webster‘s New World Dictionary (3d College ed). Accordingly, the plain language of
So understood, a condition that rendered an employee unable to perform a job paying the maximum salary, given the employee‘s qualifications and training, but leaving the employee free to perform an equally well-paying position suitable to his qualifications and training would not constitute a disability.9
Our analysis in this regard is consistent with the following conclusion of this Court in Rea v Regency Olds/Mazda/Volvo, 450 Mich 1201; 536 NW2d 542 (1995):
A majority of the Court is of the opinion that the 1987 definition of disability in the Worker‘s Disability Compensation Act10 requires a claimant to demonstrate how a physical limitation affects wage-earning capacity in work suitable to the claimant‘s qualifications and training. It is not enough for the claimant claiming partial disability to show an inability to return to the same or similar work. If the claimant‘s physical limitation does not affect the ability to earn
wages in work in which the claimant is qualified and trained, the claimant is not disabled.
The Rea formulation implicitly drew upon an earlier articulation on this topic in Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 423; 145 NW2d 40 (1966), in which this Court stated:
[T]he method of determining the employee‘s earning capacity, as that term is used in the act, is a complex of fact issues which are concerned with the nature of the work performed and the continuing availability of work of that kind, and the nature and extent of the disability and the wages earned.
While we recognize that Pulley was decided before the adoption of the current definition of “disability” in § 301(4) and, thus, some particulars of that opinion may not be controlling with regard to the current statutory scheme, we believe that this language is instructive in indicating that worker‘s compensation magistrates and the WCAC may have to consider various factual matters in determining whether an employee is disabled. Such matters could include the particular work that an employee is both trained and qualified to perform, whether there continues to be a substantial job market for such work, and the wages typically earned for such employment in comparison to the employee‘s wage at the time of the work-related injury. If the employee is no longer able to perform any of the jobs that pay the maximum wages, given the employee‘s training and qualifications, a disability has been established under § 301(4).
Under the Pulley and Rea approach, rather than concluding that any employee who is unable to perform a single job because of a work-related injury has
In sum, we conclude, as did the Rea Court before us, that “disability” as defined in
B
This conclusion stands in contrast to the one the Haske majority reached. In Haske, supra at 634, this Court concluded that § 301(4) defined disability as “a personal injury or work-related disease that prevents an employee from performing any work, even a single job, within his qualifications and training . . . .” Because of the words the Legislature used in § 301(4), the Haske definition of disability is untenable. The plain meaning of the definition of “disability” in § 301(4) as “a limitation of an employee‘s wage earning capacity in work suitable to his qualifications and training” precludes regarding a person as disabled when an inability to perform one particular job does not, in fact, reduce that person‘s wage earning capacity in other, equally well-paying work suitable to his qualifications and training. Section 301(4) specifically directs the reader to a consideration of whether there is a limitation in wage earning capacity, not of whether a person is merely limited in performing one (or more) particular jobs.
I believe that the most basic interpretation of “wage earning capacity” is that it describes an employee‘s ability to earn wages. Perhaps because an employee is theoretically able to earn wages in a great variety of ways, the Legislature restricted consideration to “work suitable to [an employee‘s] qualifications and training.” Where an employee is qualified and trained in more than one job, then his wage-earning capacity includes consideration of all those jobs under the plain meaning of subsection 301(4). Whether “a limitation” exists in an individual‘s “wage earning capacity” where that individual is qualified and trained in more than one job therefore requires consideration of the effect of the work-related disease or injury on earning capacity in all those jobs in which the individual is qualified and trained. The statute does not state or imply that inability to perform one job within the individual‘s qualifications and training necessarily results in “a limitation [in] wage earning capacity.” Thus, I cannot agree with the majority‘s conclusion that “an employee is disabled if there is at least a single job within his qualifications and training that he can no longer perform.” I believe the majority‘s conclusion fails to consider whether the overall wage-earning capacity of the individual was actually limited and, therefore, is not true to the plain language of subsection 301(4). [Haske, supra at 668 (WEAVER, J., concurring in pаrt and dissenting in part) (first emphasis in original, second emphasis added; citation omitted).]
We agree with Justice WEAVER that the language of § 301(4) requires a determination of overall, or in other words, maximum, wage earning capacity in all jobs suitable to an injured employee‘s qualifications and training.
We recognize that the Haske majority placed substantial reliance on the second sentence of § 301(4), which states that “[t]he establishment of disability
However, we do not believe that this concern was justified. As an initial matter, the focus of the inquiry is not on every single job suitable to an employee‘s qualifications and training—only those that produce the maximum income. Further, the second sentence reflects an understanding that there may be circumstances in which an employee, despite suffering a work-related injury that reduces wage earning capacity, does not suffer wage loss.11 For example, an employee might suffer a serious work-related injury on the last day before the employee was scheduled to retire with a firm intention to never work again. In such a circumstance, the employee would have suffered a disability, i.e., a reduction in wage earning capacity, but no wage loss because, even if the injury
In light of the inconsistency of Haske with the plain language of § 301(4), we overrule it and return to the rule established in Rea, which was harmonious with the language of the statute.
C
In overruling the Haske interpretation of disability, we return to the proper understanding of disability in case law that preceded Haske and that, in our judgment, was more faithful to the WDCA‘s statutory language.
We recognize that following prior decisions of this Court under the doctrine of stare decisis is generally the preferred course of action ” ‘because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). Nevertheless, stare decisis is “not to be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions determining the meaning of statutes.” Robinson, supra at 463. Rather, it is ” ‘our duty tо re-examine a precedent where its reasoning . . . is fairly called into question.’ ” Id. at 464, quoting Mitchell v WT Grant Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d 406 (1974) (Powell, J., concurring). In the present case, the treatment of the term “disability” as used in
In considering whether to overrule a prior decision of this Court, the first inquiry, of course, is whether that prior decision was wrongly decided. Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d 567 (2002); Robinson, supra at 464. For the reasons we have previously discussed, Haske was wrongly decided because it is clearly inconsistent with the plain language of the definition of “disability” in § 301(4).
Nevertheless, as we recognized in Robinson, that a prior case was wrongly decided “does not mean overruling it is invariably appropriate.” Robinson, supra at 465. We must consider whether overruling a prior erroneous decision would work an undue hardship because of reliance interests or expectations and, conversely, whether the prior decision defies “practical workability.” Robertson, supra at 757; Robinson, supra at 466. In particular,
the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone‘s expectations that to change it would produce not just readjustments, but practical real-world dislocations. It is in practice a prudential judgment for a court. [Id.]
In the present case, we see no significant reliance interest or expectation that will be disrupted by overruling Haske. Obviously, a work-related injury potentially compensable under the worker‘s compensation system is an unexpected event, so it is diffiсult to imagine actions that an employee would take in reliance on Haske. Moreover, it is doubtful that there could be a legitimate expectation interest in receiving
Further, it is particularly appropriate to overrule a prior erroneous decision of this Court that has failed to apply the plain language of a statute. As we observed in Robinson, supra at 467, “it is to the words of the statute itself that a citizen first looks for guidance in directing his actions.” Indeed, when a court confounds the legitimate expectations of a citizen by misreading a statute, “it is that court itself that has disrupted the reliance interest.” Id. As we observed in Robertson, supra at 756, the values underlying general respect for stare decisis are also enhanced “by a legal regime in which the public may read the plain words of its law and have confidence that such words mean what they say and are not the exclusive provinсe of lawyers.” Because Haske failed to apply the plain language of the definition of “disability” in § 301(4), and in light of the lack of a significant reliance interest in the Haske decision, we are impelled to overrule it.
IV
In our order granting leave to appeal in this case, we further directed the parties to address “whether Haske . . . and Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 (1979), are reconcilable.” 465
Moreover, Powell was decided under the old common-law “favored work” doctrine, before that doctrine was effectively codified by the Legislature in the
Subsection (5) [of the
WDCA , related to reasonable employment] was added to the statute in 1982. Before that time, the statute did not address “reasonable employment,” and this issue was governed by an area of the common law known as the “favored-work doctrine.” Now, however, the quoted statutory provisions establish the law in this area. The Legislature chose the words of the statute, and we are bound by them. Any cases decided under the common law before subsection (5) was enacted arе essentially irrelevant; to the extent that the common-law favored work doctrine is inconsistent with the plain language of the statute, the Legislature has changed the common law. [Citations omitted.]
Accordingly, in considering whether a person who has ceased working in a “reasonable employment” position is entitled to worker‘s compensation wage loss benefits, worker‘s compensation magistrates and the WCAC should examine the provisions of
V
We now turn to the circumstances of this case. Plaintiff was qualified and trained as a “floater,” although there is no indication in the record regarding whether plaintiff was qualified and trained in any other jobs. To illustrate the application of our analysis, we will assume for the moment that plaintiff‘s job as a floater produced the maximum wages in work suitable to plaintiff‘s qualifications and training, although the WCAC on remand may find otherwise. Plaintiff was evidently able to perform a variety of production-related tasks as a “floater.” His physical restriction after his left shoulder injury that precluded him from lifting above shoulder level is the only relevant restriction because the right shoulder injury was not work-related. In order to establish that he had a “disability” because of the left shoulder injury, рlaintiff had to show that that injury resulted in a limitation in his wage earning capacity in work suitable to his qualifications and training.
The magistrate and WCAC did not apply this test. Rather, they focused, pursuant to Haske, on the fact that plaintiff was working in a “regular job” after his left shoulder injury. While that may be a strong indication that the left shoulder injury did not amount to a disability, it is not, standing alone, dispositive. An inquiry must be made regarding whether the “regular job” was suitable to plaintiff‘s qualifications and training at the time of the injury. Also, if plaintiff‘s injuries only enabled him to perform that “regular job” because of accommodations provided by defendant,
VI
Justice KELLY‘s dissent merits a response. As Justice KELLY has pointed out, in the last three and a half years, there have been cases overruling past precedent of this Court. She cites sixteen.13 These should be seen in the context of the overall number of dispositions by this Court during the same period. From January 1, 1999 to June 30, 2002, there were 8,198 dispositions by this Court.14 Thus, it is rare (in fact, a frequency of under one-fifth of one percent) when precedent is overturned, but it does sometimes happen. During this period, the issue of treatment of prece
Repeatedly, since Robinson was decided, the rules established in that case, which it should be noted are themselves entitled to respect as precedents of this Court, have been disregarded in dissents authored by Justice KELLY without any indication of what part of the rules set forth in Robinson she would alter.16 Even more consequentially, she has failed to make clear what rules, if any, she would follow in determining when to affirm or reject precedents. What is it, for example, that distinguishes Lesner v Liquid Disposal, Inc 466 Mich 95; 643 NW2d 553 (2002), in which Justice KELLY would overrule an interpretation of a statute, from those cases in which she would not? Today, however, she has apparently set down her rules, and that is to be welcomed. She appears to approve the Robinson standard that stare decisis should not be
Further, under Robinson, if the prior Court decided wrongly, that was not the end of the stare decisis inquiry, because the Court must also consider whether there are reliance interests such that, to overrule the prior case, would produce real world dislocations. Id. at 466. If that were so, then even though a case had been decided incorrectly, stare decisis should be respected and the case should not be overruled. As to this point, Justice KELLY would seem to agree, more or less, as she states in her dissent that she would determine if customs had changed or there were unforeseen practices. Post at 184.
These, then, are the differences between the Robinson approach and Justice KELLY‘s approach. Robinson would allow the overruling of a prior case interpreting a statute if it was wrong unless there were reliance interests so great that overruling the prior decision would produce real world dislocations. Justice KELLY, on thе other hand, would not overrule such a decision unless the earlier Court was not merely in
She claims, correctly we acknowledge, that her approach, as contrasted with the Robinson approach, would likely produce fewer cases overruling precedent. Yet, is that the proper measure of the merits of these two approaches? We think not.
We think not because the proper measure of tests of stare decisis is not whether one approach overrules more than another, but rather which approach is more consistent with American constitutionalism. We believe the constitutional arrangement in our state and nation reposes in the legislative body the role of making public policy. That arrangement is distorted when the judiciary misconstrues statutes. The majority‘s view is that its approach to stare decisis, in overruling our prior erroneous interpretations of statutes, respects the democratic process by yielding to the constitutional authority of the Legislature its right to establish the state‘s policy.
Justice KELLY‘S approaсh is flawed because it gives the earlier Court and its judges far too much power—power beyond that which the constitution gave them. Nothing is clearer under our constitution than that the Legislature, when it has enacted a statute within its constitutional authority and, thus, has established public policy, must be obeyed even by the courts. Said more plainly, the difference in these approaches is that Justice KELLY feels less obligation to adhere to the direction of the people‘s representatives in the Legislature, and more obligation to defend past judges’ errors. We respectfully believe that this
As to Justice CAVANAGH‘s criticism of our response to Justice KELLY, it is important that the reader understand that, in the ordinary course of things on an appellate court, majority opinions are written and then dissents follow. The majority then responds to the dissent. In the instant case, this was the pattern of things. To fully argue the approaches of Robinson and Justice KELLY is not unseemly nor does it indicate a “manic sensitivity to criticism.” Rather, to respond fully to a dissent indicates that the majority is sufficiently respectful of the dissent, and those who could be persuaded by it, to want to ensure that the issue is fully understood. Justice CAVANAGH, on the occasions when he writes for the majority in the face of dissent, does no less—nor should he.17 We claim the same prerogative when he is not in the majority.
On the merits of this case, that is whether Haske was wrong, we consider Justice KELLY‘s critique of the majority opinion to be highly unconvincing. Contrary to the dissent‘s position, there obviously is a distinction between “wages earned” and “wage earning
We are frankly at a loss to understand the distinction that Justice KELLY would draw between “wage earning capacity” and “earning capacity.” Post at 182. An employee earns wages for his work. We cannot see any sensible distinction between “wage earning” and “earning” in the present context, let alone what difference such a distinction makes to the practical application of the definition of “disability” in
VII
For these reasons, we overrule the Haske definition of “disability” as that term is used in
CORRIGAN, C.J., and YOUNG and MARKMAN, JJ., concurred with TAYLOR, J.
WEAVER, J. (concurring). The dissents and the majority have chosen to engage in responses to each other that contain some inappropriate and unnecessary assertions. For this reason, and to emphasize this Court‘s treatment of the worker‘s compensation act‘s definition of disability since the Legislature amended the definition to its current form in 1987, I write separately.
As used in this chapter, “disability” means a limitation of an employee‘s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss.
Addressing this language for the first time at this level, the Rea Court stated as follows:
A majority of the Court is of the opinion that the 1987 definition of disability in the Worker‘s Disability Compensation Act requires a claimant to demonstrate how a physical limitation affects wage-earning capacity in work suitable to the claimant‘s qualifications and training. It is not enough for the claimant claiming partial disability to show an inability to return to the same or similar work. If the claimant‘s physical limitation does not affect the ability to earn wages in work in which the claimant is qualified and trained, the claimant is not disabled. [Id. at 1201.]
The relevant inquiry is not whether there is a theoretical job in the employee‘s general field of employment that the employee is no longer able to perform. Instead, the question is whether the employee‘s wage-earning capacity, i.e., ability to earn wages, has been limited, considering the employee‘s qualifications and training. [Id. at 493, n 19.]4
The majority decision in Haske abruptly broke from these prior interpretations of the
The problem with the Haske majority‘s holding is that, as I noted in my opinion, it returned disability analysis to its pre-1981 and 1987 state rendering the Legislature‘s amendments in those years meaningless. See, e.g., Powell v Casco Nelmor Corp, 406 Mich 332, 350; 279 NW2d 769 (1979) (holding that disability is the inability to perform work the claimant was doing when injured), and Pigue v Gen Motors Corp, 317 Mich 311, 315; 26 NW2d 900 (1947) (finding total disability where an employee was unable to do the same work after the injury).
The Haske Court found that the first sentence of
Subsection 301(4) ... requires the employee to prove a disability, i.e., that he is eligible for compensation, and then prove wage loss, i.e., that he is entitled to an award. This language codifies the prior approach in Michigan that injury is not compensable without wage loss. If the employee establishes a disability, he must further prove a wage loss because wage loss will not be presumed. See subsection 301(4). However, in order to рrove a wage loss, under the language of the statute and on the basis of our longstanding interpretation of related precedent, most recently confirmed in Sobotka [v Chrysler Corp (After Remand), 447 Mich 1, 17; 523 NW2d 454 (1994) (BOYLE, J., lead opinion)], the employee must establish a reduction in earning capacity.
With this conclusion, the definition of disability in subsection 301(4) cannot then be logically interpreted as a reduction of wage-earning capacity as long as wage loss is
also measured by a reduction in wage-earning capacity. See Lawrence v Toys R Us, 453 Mich 112, 121; 551 NW2d 155 (1996) (LEVIN, J., plurality opinion). Subsection 301(4)‘s second sentence eliminates the possibility that disability and wage loss are defined the same way when it provides that proof of a “disability does not create [a] presumption of wage loss.” [Haske at 654-655 (emphasis in original).]
Because I remain committed to the Court‘s decision in Haske, I respectfully dissent from the majority‘s decision to overrule Haske.
I also must express my disappointment with the majority‘s lengthy response to Justice KELLY‘s dissenting opinion. I appreciate that my colleagues feel the need to defend and substantiate their respective positions, after all, that is our duty as justices. However, I am uncomfortable with the majority‘s overzealous attack of Justice KELLY‘s discussion of stare decisis. It is completely unnecessary to add numerous pages defending the majority‘s decision to overrule precedent and attacking Justice KELLY‘s positions in previous cases. These lengthy sections have nothing to do with the merits of this case and do not add anything to the resolution of the question at hand. They do, however, speak volumes about the majority‘s manic sensitivity to criticism.
KELLY, J. (dissenting). I join Justice CAVANAGH dissenting in the overruling of Haske v Transport Leasing, Inc.1 I write separately to point out that the majority‘s pronouncement on the respect to be
I. THE MAJORITY AGAIN DISDAINS PRECEDENT
Today the majority once again discards a prior decision and replaces it with its preferred interpretation of the law.2 In announcing its new vision of disability law, it refers to its recent pronouncements about the value of precedent in Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), and Robertson v DaimlerChrysler Corp, 465 Mich 732; 641 NW2d 567 (2002). However, the sheer volume of this majority‘s decisions overturning precedent in the past four years raises serious questions about the degree to which the majority values the principle of stare decisis. Time after time, established law has been discarded on the basis that it was “wrongly decided.”3 It is an amazement to me how frequently the members of this
In the five-year period from 1993 through 1997, there were approximately twelve cases in which precedent was overturned by this Court.5 In the five-year period from 1998 through 2002, at least twenty-two cases were overturned.6 However, the number of dispositions went down.7
The test for overturning precedent articulated in Robinson, and again in Robertson includes two
The second Robinson prong is whether overruling the precedent of this Court would work an undue hardship on the basis of reliance interests. In сonsidering that question, the majority labels a worker‘s reliance on a disability determination under Haske an illegitimate and insignificant expectation. Ante at 162-163. It has apparently decided that the Haske decision strayed so far into error that no one should ever have relied on it. It seems to assume that even those having no legal education can and do distinguish
Contrary to the majority‘s assertions, I do not consider stare decisis a conclusive barrier to change. The majority‘s effort challenging me to explain some disagreement with Robinson would be better spent explaining the facility with which it excuses itself from exercising the judicial restraint Robinson embraces.
Stare decisis has long been venerated in the law and with good reason. Adherence to this doctrine promotes the evenhanded, predictable, and consistent development of legal principles and contributes to the integrity of the judicial process, both actual and perceived. Robinson, supra at 463, n 21, citing Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). It is a bedrock principle. When a Court pays no more than lip service to it, the basic integrity of the legal system itself is shaken.
II. HASKE WAS NOT WRONGLY DECIDED
Haske was correctly decided. The definition of disability that it adopted is supported by the fact that the statute treats “disability” and “wage loss” as separate concepts. Examining the language of
The majority‘s new definition of disability is: an incapacity after work-related injury or illness to earn
The starting point in analyzing this is the statutory expression “wage earning capacity.” The majority attempts to convince that a distinction exists between “wages earned” and “wage earning capacity.” In truth, capacity to earn wages and wages earned will rarely differ. This is illustrated by the fact that, when applying its definition to Charles Sington, the majority assumes they are the same. Ante at 165. Also, it cites with approval Justice WEAVER‘S words: “the most basic interpretation of ‘wage earning capacity’ is that it describes an employee‘s ability to earn wages.” Ante at 159.
The majority provides no persuasive examples how it could be that an employee would be earning at under capacity if not disabled. By definition, normally, what the employee earns is what the job will pay at any given time. Hence, “wage earning capacity” and “wages earned” are, practically speaking, synonymous. It follows, then that, as the majority reads it, the first sentence in
If one must prove a wage loss to make out a disability, the second sentence of
The Haske decision is based on the proposition that
The majority has defined “earning capacity” using a rigid textualist approach to statutory interpretation (and, as I have pointed out, it makes no meaningful distinction from “wages earned“). However, the statutory expression is not “earning capacity.” Rather, it is “wage earning capacity.”
A plain meaning interpretation of that expression is that “wage earning” is an expression akin to “wage earner,” which is defined as “a person who works for wages.” Random House Webster‘s College Dictionary (1995). Hence “wage earning capacity” means “the capacity of a person who works for wages.” Using that, the proper interpretation of the first sentence of
The majority‘s opinion is a study in confusion in other respects, in addition to its reading of
It concludes, “if defendant . . . would not have accommodated plaintiff‘s injury, except for it being work related, that would be indicative of a limitation in wage earning capacity.” Ante at 166, n 12. Hence, the fact that the employee obtained reasonable employment under
The majority‘s reading of
Haske accurately interpreted the statute. The majority‘s rationale for overturning it gives no deference to precedent. It simply replaces its interpretation of the first sentence of
Appellate courts, in the normal course of their work, are called upon continuously to reevaluate the lasting vigor of prior courts’ binding opinions. Of necessity, some must be found to be no longer valid because of subsequent legislative alterations of the law or changing customs and practices unforeseen by an earlier court. Very occasionally, a prior decision is found to work unexpected hardship. And rarely, a drastic error may be shown to have been made by a prior court in its reasoning or reading of a statute.9
So it is that, in the history of this and of the vast majority of supreme courts across the land, overrulings of precedent are infrequent. Yet, quite the opposite is true of the present Michigan Supreme Court. It is for that reason that, the majority‘s pronouncements to the contrary notwithstanding, one may wonder whether reasoned adherence to stare decisis may properly be considered a policy of this Court.
Notes
The Haske decision was decided by a four to two to one split. 455 Mich 628; 566 NW2d 896 (1997). The Michigan Reports erroneously failed to show me as “not participating” in the companion case to Haske. To correct that, I should be listed as not participating in Bailey v Leoni Twp (After Remand) decided sub nom Haske v Transport Leasing, Inc.The favored-work doctrine is a purely judicial creation. Favored, or light, work can be loosely defined as less strenuous post-injury wоrk. Wages from favored work may be used as a setoff against an employer‘s compensation liability, but favored-work wages do not establish an earning capacity, and when such wages cease, they neither suspend nor bar compensation.
The primary purpose of the doctrine is that of mitigation. It allows an employer to reduce or completely eliminate compensation payments by providing work within the injured employee‘s physical capacity. At the same time, it encourages the employee to return to productive employment rather than to remain idle, thus also serving a rehabilitative function. [Bower v Whitehall Leather Co, 412 Mich 172, 182; 312 NW2d 640 (1981) (citations omitted).]
In his Michales concurrence, Justice CAVANAGH summarized the statute‘s focus on wage-earning capacity:“Reasonablе employment,” as used in this section, means work that is within the employee‘s capacity to perform that poses no clear and proximate threat to that employee‘s health and safety, and that is within a reasonable distance from that employee‘s residence. The employee‘s capacity to perform shall not be limited to jobs in work suitable to his or her qualifications and training. [
MCL 418.301(9) .]
[B]oth an injury and a limitation in wage-earning capacity must be shown. A complete failure to introduce any evidence of a limitation in wage-earning capacity resulting from the injury simply precludes an award of benefits as a matter of law. [Id. at 496.]
In most of the cases in footnote 2, the majority overruled precedent because of its disagreement with earlier Courts’ interpretations of statutory or constitutional principles. See, e.g., Cornell, supra; Koontz, supra; Robertson, supra; Pohutski, supra; Glass, supra; Nawrocki, supra; Brown, supra; Mudel, supra; Lukity, supra; Kazmierczak, supra; McDougall, supra. In only two of them does the majority believe that precedent was rendered obsolete by the evolution of the law. Hardiman, supra; Robinson, supra. In others, it does not even acknowledge that precedent is being overturned, although the dissent points it out. Hanson, supra; Ritchie-Gamester, supra.Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285; 565 NW2d 650 (1997); People v Bailey, 451 Mich 657; 549 NW2d 325 (1996); WT Andrew Co, Inc v Mid-State Surety Corp, 450 Mich 655; 545 NW2d 351 (1996); Corl v Huron Castings, Inc, 450 Mich 620; 544 NW2d 278 (1996); People v Wood, 450 Mich 399; 538 NW2d 351 (1995); Sokolek v Gen Motors Corp, 450 Mich 133; 538 NW2d 369 (1995); People v Kevorkian, 447 Mich 436; 527 NW2d 714 (1994); Jennings v Southwood, 446 Mich 125; 521 NW2d 230 (1994); People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993); Auto Club Ins Ass‘n v Frederick & Herrud, Inc, 443 Mich 358; 505 NW2d 820 (1993); In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993); People v Fisher, 442 Mich 560; 503 NW2d 50 (1993).If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows:
*
*
*
(d) If the employee, after having been employed pursuant to this subsection for 100 weeks or more loses his or her job through no fault of the employee, the employee shall receive compensation under this act pursuant to the following:
(i) If after exhaustion of unemployment benefit eligibility of an employee, a worker‘s compensation magistrate or hearing referee, as applicable, determines for any employee covered under this subdivision, that the employments since the time of injury have not established a new wage earning capacity, the employee shall receive compensation based upon his or her wage at the original date of injury. There is a presumption of wage earning capacity established for employments totalling 250 weeks or more.
(ii) The employee must still be disabled as determined pursuant to subsection (4). If the employee is still disabled, he or she shall be entitled to wage loss benefits based on the difference between the normal and customary wages paid to those persons performing the same or similar employment, as determined at the time of termination of the employment of the employee, and the wages paid at the time of the injury.
(iii) If the employee becomes reemployed and the employee is still disabled, he or she shall then receive wage loss benefits as provided in subdivision (b).
(e) If the employee, after having been employed pursuant to this subsection for less than 100 weeks loses his or her job for whatever reason, the employee shall receive compensation based upon his or her wage at the original date of injury.
Sington, Hardiman, supra; Cornell, supra; Koontz, supra; Robertson, supra; Pohutski, supra; Hanson, supra; Brown, supra; Glass, supra; Nawrocki, supra; Mudel, supra; Stitt, supra; Robinson, supra; Kazmierczak, supra; McDougall, supra; Lukity, supra; Ritchie-Gamester, supra; People v Graves, 458 Mich 476; 581 NW2d 229 (1998); McKenzie v Auto Club Ins Ass‘n, 458 Mich 214; 580 NW2d 424 (1998); People v Kaufman, 457 Mich 266; 577 NW2d 466 (1998); AFSCME v Highland Park Bd of Ed, 457 Mich 74, 577 NW2d 79 (1998); People v Lemmon, 456 Mich 625; 576 NW2d 129 (1998).As used in this chapter, “disability” means a limitation of an employee‘s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss.
It is not, as the majority alleges here, a matter of my not understanding “who governs in a republic.” Nor is it a matter of defending “past judges’ errors” or feeling less obligation than they to “adhere to the direction of the people‘s representatives. . . .” Ante at 169-170. Rather, it is a matter of exercising judicial restraint and of avoiding concluding too easily that other experienced justices wrongly interpreted legislation. It is a matter of not falling prey to a zealot‘s conviction that what has been done in the past by others has been simply wrong.
Stare decisis is not an argument intended to resuscitate the dead hand of the judiciary. Adherence to it contributes to, not detracts from, the integrity of our constitutional system. As Justice Marshall once pointed out:
That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. [Vasquez v Hillery, 474 US 254, 265-266; 106 S Ct 617; 88 L Ed 2d 598 (1986).]
However, when the present definition of disability was adopted in 1987, the Legislature replaced its prior reference to a limitation in wage earning capacity in “the employee‘s general field of employment” with “work suitable to his or her qualifications and training.” This means that the inquiry is now focused on an employee‘s qualifications and training, not merely the general field of employment in which the employee happened to work at the time of a work-related injury. Thus, the prior common-law skilled/unskilled dichotomy has no significance under the current statutory language. Because there is no textual basis in the statute for the selection and application of either historical definition of “wage earning capacity,” we examine the plain meaning of the words found in the statute.
For instance, in Lesner v Liquid Disposal, Inc, 466 Mich 95; 643 NW2d 553 (2002), I found, as did the majority, that it was necessary to overrule Weems v Chrysler Corp, 448 Mich 679; 533 NW2d 287 (1995). This is because Weems provided a formula for the calculation of death benefits that was utterly nonsensical when multiple partial dependents were considered.