*1
121
Smittеr
SMITTER v THORNAPPLE TOWNSHIP
(Calendar
3).
Argued January 9,
Docket No. 144354.
2013
No.
Decided
19,
June
2013.
sought
compensation
Robert Smitter
workers’
benefits after he was
injured
working
firefighter
while
Thornapple Township.
as 'a
injury,
employed
At
time of his
Smitter was also
General
Corporation, earning approximately
Motors
percent
11
of his total
wages
township
percent
wages
with the
and 89
of his
with General
township paid
wage-loss
Motors. The
Disability Compensation
(WDCA),
Worker’s
Act
MCL 418.101 et
seq.
disability
Smitter also received benefits
to a
insur-
policy fully
township.
township
ance
funded
The
did not
compensation obligation by
reduce its
coordinating
workers’
Smit-
ter’s
disability
workers’
benefits with his
418.354(l)(b).
township
sought
under MCL
initially
The
reim-
bursement
from the Second
Fund under
the dual-
employment provisions,
418.372,
entirety
of Smitter’s
wage-loss
agreed
pay
benefits. The fund
it
amount would
township
have owed if the
had coordinated Smitter’s benefits. The
township
application
hearing
filed an
for a
with
Worker’s
Compensation
Magistrates, seeking
Board of
reimbursement
the fund
wage-loss
for the uncoordinated amount of
benefits.
Relying
Ed,
(2001),
on Rahman v
Bd
245
App
Detroit
Mich
103
magistrate
township
ordered the fund to reimburse the
for 89
wage-loss
of Smitter’s uncoordinated
benefits. The Work-
Compensation
(WCAC)1
Appellate
ers’
Commission
affirmed the
magistrate’s
Appeals
decision. The Court of
denied the fund’s
application
appeal.
Thornapple Twp, unpub-
for leave to
Smitter v
(Docket
Appeals,
April 5,
lished оrder of the Court of
entered
294768).
granting
appeal,
Supreme
No.
In lieu of
leave
Appeals
Court remanded the case
Court of
for consideration
(2010).
granted.
remand,
onas
leave
issued November
appeal.
granted leave
Court
*2
joined by
Justices
opinion
Chief Justice
Young,
In an
Supreme Court held-.
the
and Zahra,
Markman, Kelly,
employ-
injured
engaged
one
in more than
worker was
If an
liability
injury,
apportions
the
between
the
of
WDCA
ment at
time
Injury
injury
employment
and the Second
that caused the
the
employment provided
percent
injury
than
less
Fund. When the
required
employee’s wages,
is
to reimburse its
the fund
of the
employee. Because the fund’s
portion
due the
of the benefits
employer’s liability
liability
dependent
the
and coordination
is
on
required
employer’s
compulsory,
is
to
the fund
benefits
of the
of
portion
due on the basis
the
of the benefits
reimburse its
Ed,
v
Bd
Rahman Detroit
coordinated amount of benefits.
of
App
is overruled.
Mich
incapacity
418.351(1),
re-
the
for work
Under MCL
while
1.
total,
employer
pay
the
sulting
personal
shall
from
the
employee’s
injured employee weekly
percent
the
of 80
of
benefits
weekly
provides
average
wage.
for the
MCL 418.354
after-tax
obligation
benefits,
pay
reducing
employer’s
to
an
coordination of
injured employee
wage
weekly
under the WDCA when the
benefits
specified
simultaneously
payments in accordance with
receives
including
disability policy. Specifically,
programs,
the
benefit
“shall,”
statute,
mandatory
requires
using
the
the
word
compensation obligation
employer’s
reduced
the
worker’s
disability policy
payments
under a
after-tax amount
the
received
Rahman,
Contrary
employer.
coordination
the
permissive.
compulsory rather
than
under MCL
418.354(15),
significance of
to address the
Rahman failed
Legisla-
group
employers
that the
which identifies the narrow
benefits, including
permitted
ture
to waive the coordination
has
By
defining
employing
firefighters.
specifically
the
those
volunteer
employer may
under which an
waive coordination
circumstances
benefits,
prohibited
Legislature by implication
all other
the
employers
waiving
the
coordination of benefits. Because
statute,
plain language
holding
the
of the
in Rahman contravened
employments
Except
regard
iden-
with
to those
it was overruled.
418.354(15),
is manda-
in MCL
the coordination
benefits
tified
weekly
obligation
pay
wage-loss
tory
employer’s
and reduces
weekly wage-loss
Any
as a
of law.
additional sum of
matter
volitionally provided by
employer
no
on the
has
effect
weekly
employer’s obligation
pay
benefits under
law.
WDCA,
dual-employment provisions of
The
2.
418.372,
liability
injured
aрportion
employee’s
workers’
Smitter
employee
engaged
benefits when the
was
in more
injury.
provides
than one
at the time of
The statute
injury employment provided
percent
if
or less of the
employee’s average weekly wage
injury,
time
of the
injured
percentage
employ-
is liable for the same
of the
weekly
average weekly wage
ee’s
benefits as his or her
from the
injury employment
weekly wages.
bore to
his
her total
separately
dependently
Second
Fund is
but
liable for the
weekly
only
remainder of the
benefits. The fund is liable
for its
portion
employee.
of the benefits due the
The benefits due the
employee.
are
are those that
owed to the
The amount
employee by
portion
due
the fund is the fund’s
employer’s
remaining
act,
which is the
application
provisions.
balance due after the
of the coordination
required
any
The fund is not
to reimburse the
employer voluntarily
additional
provide
amount that the
elects to
injured employee.
to an
statutory scheme,
3.
township
obligated
Under the
was
wage-loss
pay
benefits in
amount of
*3
average weekly wage.
of his after-tax
Because Smitter also re-
pursuant
disability policy
township
ceived benefits
to a
that the
fully funded,
township’s
under MCL 418.354 the
worker’s com-
pensation obligation
by
had to be reduced
the after-tax
of
amount
disability policy.
benefits that Smitter
received under the
The
township’s rеmaining
compensation obligation
worker’s
was re-
duced to the
due
balance
after coordination. Under the dual-
employment provisions,
weekly wage-loss
Smitter’s
benefits had to
apportioned
township
be
Injury
between the
and the Second
Fund
township
because
percent
the
wages.
less than 80
of his
township
percent
was
for 11
liable
of Smitter’s coordinated
weekly benefits,
separately
the
dependently
fund was
but
remaining
percent
liable for the
of Smitter’s coordinated
weekly benefits.
Judgment
reversed;
Appeals
of the Court of
case
to
remanded
magistrate
proceedings.
the
for further
dissenting,
Justice
that
asserted
Smitter
awas
Cavanagh,
firefighter
purposes
volunteer
applying
418.354(15),
MCL
and, thus,
township
permitted
provide
that
the
was
to
with
majority recognized
uncoordinated benefits. Because the
418.354(15) permits
firefighter
MCL
the
aof volunteer
provide
employees
benefits,
major-
with uncoordinated
the
ity’s
mandatory except
conclusion that benefits coordination is
in
418.354(15)
the
circumstances listed in MCL
was
dictum,
Although
as was its decision to overrule
the
Rahman.
Mich 121
firefighter
a
was not volunteer
parties
conceded that Smitter
had
418.354(15), the
is not bound
applying
Court
purposes
MCL
418.354(15)
regarding
MCL
parties’
the law.
by
concessions
the
firefighters who are considered
applies to volunteer
which,
turn,
418.161(l)(a),
in
in
refers to those
to MCL
Applying
township
a
hire.
the
contract of
of a
the serviсe
require-
statutory language,
contract-of-hire
Smitter satisfied the
Shanty
Mgt,
majority
Creek
interpreted
the
in Hoste v
ment
Inc,
was
volunteer
Because Smitter
Justice took no in the decision of case. Viviano Injury — — Compensation Employment — Worker’s Dual Second Fund Coordination of Benefits. injured engaged If employment worker was more than one injury, Disability Compensation the time of the Worker’s Act liability apportions injury employer between the and the Second Injury Fund; injury employment provided when the less than 80 employee’s wages, required the fund is to reimburse portion employee; of the benefits due the required benefits, reducing compensa- to coordinate its worker’s injured employee simultaneously tion when the receives payments specified programs; accordance with benefit because liability dependent liability, the fund’s employer’s on the only required portion fund is to reimburse its of the benefits due (MCL on the basis of the coordinated amount of benefits 418.101 seq.). et Hebert, Reiter (by EC. James A. Reiter and Charfoos Ranta), James J. Township and the Michigan Municipal League Compensation Workers’ Fund. Schuette,
Bill Attorney General, John J. Bursch, General, Solicitor Bandstra, Richard A. Chief Legal Counsel, and Susan Przekop-Shaw, Raterink, Dennis Denner, and William F. Attorneys Assistant General, for the Second Fund.
Young, C. J. injured Plaintiff was in the course of his part-time as a firefighter for defendant At Thornapple Township. the time injury, of his plain- tiff was also employed by another employer. Thornapple paid Township plaintiff the maximum wage loss benefits under the Disability Worker’s Compensation (WDCA),1 Act and plaintiff additionally received ben- seq. MCL 418.101 et *5 MICH Opinion op Court the disability policy insurance ato
efits not reduce Township did township. Thornapple by the by coordinating liability its workers’ with his dis- compensation benefits workers’ plaintiff’s 418.354(l)(b). Subse- under MCL ability benefits sought reimbursement Township quently, Thornapple employ- the dual Fund2 under from the Second 418.372, on uncoordi- based the provisions, ment benefits. wage loss nated amount case the amount determined in this is issue to be employer an is to reimburse required the fund weekly benefits injured employee’s its of an portion hold benefits. We fails to coordinate employer when mandatory, except of benefits that the coordination inap- that are cirсumstances employment narrow very serves to of benefits in this case. Coordination plicable an weekly amount of reduce the under WDCA. legally obligated pay volitionally pro- Any additional sum the employer’s does not alter vided employee. injured statutory in more than one engaged was injured If an worker injury, apportions time of the WDCA employment that caused the liability employment between Injury Fund. When the and the Second less than 80 injury provided that caused fund is to reimburse wages, required employee’s ”3. . . employee. benefits due the “portion its liability upon is “dependent” fund’s Because the employer’s coordination of the liability, and employer’s reim- required fund compulsory, benefits is basis of the the benefits due on the portion burse judg- reverse the of benefits. We coordinated amount See 418.372(1)(b). Opinion of the Court ment of the Appeals Court of and remand this case to the magistrate for further proceedings consistent with opinion.
I. FACTS AND PROCEDURAL HISTORY *6 parties The submitted this case under stipulated Plaintiff, Smitter, facts. Robert was employed both as a part-time firefighter for Thornapple Township an employee of General Motors Corporation. Smitter earned approximately percent of his total wages with Thornapple Township of percent wages his with 3, 2005, General Motors. On May Smitter sustained a work-related fighting while a fire. He was dis- abled from both employments for approximаtely 26 weeks. Given his average weekly wage, Smitter was entitled to workers’ compensation wage loss benefits at the maximum rate of a week. Smitter $689 also received a week in $800 “Sickness & Accident” pursu- benefits ant to a disability insurance policy fully funded by Thornapple Township. The did not township coordinate paid disability policy insurance against its workers’ compensation obligation. Rather, the township voluntarily paid state maximum rate wage of loss plaintiff, benefits to in addition to the benefits plaintiff received pursuant to the insurance policy.
Initially, Thornapple Township sought reimburse- ment from the Second Injury Fund in the amount of $17,897.87 for the entirety of plaintiffs wage loss benefits. The fund agreed $2,077.99 to pay —the amount of its if liability the township had coordinated plaintiffs 2, 2007, benefits. On February Township filed an application for a hearing, seeking reimbursement from the Second Injury Fund for “wage loss benefits attributable earnings from General 494 MICH Opinion the Court of disability. period plaintiffs Corporation”
Motors Education,4 the Board v Detroit on Rahman Relying Thor- fund reimburse ordered magistrate $15,966.75, repre- in the amount Township napple loss wage the uncoordinated senting to Smitter. paid Commission Appellate Compensation The Workers’ (WCAC)5 magistrate. decision of the affirmed the required being the fund’s with commiserated majority treating policy Township’s public “support statutory require beyond to benefits firefighters “unfair to fund thаt it was with the ments,” agreeing and force coordination to forfeit allow an However, because that choice.”6 to fund party another case, the fund could the facts of the Rahman controlled entitle injury employer’s[7] advantage “not take coordinates unless the ment to coordination benefits.”8 the fund’s initially denied Appeals
The Court of
Court re-
but
appeal,9
for leave
application
*7
for consider-
Appeals
case to the Court of
manded the
remand,
the Court
granted.10 On
ation as on leave
The panel
of the WCAC.11
affirmed the decision
Appeals
to follow Rahman
noted that it was bound
4
(2001).
Ed,
103;
App
II. STANDARD review While of a this Court’s review decision limited, de WCAC is we review novo questions law in a Likewise, workers’ case.13 questions of statutory interpretation questions are of law reviewed de novo.14
In
interpreting
statute,
our
to discern
the legislative
intent
reasonably
be inferred
actually
the words
in the
“A
used
statute.15
funda
mental principle
statutory
construction is that
‘a
clear and unambiguous
room
statute leaves no
”16
judicial
or interpretation.’
construction
When the
statutory language
unambiguous,
role of
proper
judiciary
simply to
apply
terms of the statute
to the facts of the particular
addition,
case.17In
words
Legislature
used
must be construed and under
stood in accordance
common,
with their
ordinary meani
ng.18
12
(2012).
Thornapple Twp,
Smitter v
v
109, 113;
Continental Biomass
(2003),
468 Mich
III. ANALYSIS STATUTORY PROVISIONS A. RELEVANT the issues analyze properly presented In order to between case, interplay examine the must we of the provisions WDCA. several an received question plaintiff There is no with in the of his arising out course com- plaintiff was Thornapple Township.19 Because weeks, MCL approximately disabled for pletely weekly liability for township’s describes in relevant provides part: loss benefits. It wage resulting personal a incapacity work While paid as total, pay, or cause to be injury is shall weekly section, injured employee, to a provided in this average employee’s after-tax of 80% the weekly weekly wage, more the maximum rate but not than Compen- [MCL 418.355]. compensation, determined under disability. paid for the sation shall be duration of ben- for the coordination provides 418.354 weekly pay efits, reducing employer’s an employee when an wage benefits under WBCA with payments accordance simultaneously receives plaintiffs At time of specified programs. benefit part as injury,20 MCL 418.354 relevant follows:
(1)
lump
applicable
either
This
when
section
liability
as a
payments
sum
are made
result
418.351,
418.361,
418.835]
[MCL
old-age
respect
period for
with
to the same time
which
act,
security
social
payments
insurance
under the
benefit
1397f; payments
plan,
self-insurance
U.S.C.
19 MCL
See
418.301.
266,
Although
subsequently
amended
2011 PA
the statute was
substantively unaltered.
provisions
to this case have remained
relevant
*9
Thoenapple
Smittee v
(cid:127)
Opinion
the Court
wage
plan,
disability
policy
continuation
or a
insurance
provided by
employer-, pension
payments
the
or
or retirement
pursuant
plan
to a
program
by
or
established or maintained
by
employer,
being
are also received or
the
received
section,
employee. Except
provided
as otherwise
in this
employer’s obligation
pay or
paid weekly
cause to be
specific
than
[MCL
other
loss
under
benefits
418.361(2)]
benefits
(3)
and
shall be reduced
these amounts:
(b)
payments
being
amount
or
received
after-tax
plan,
a
wage
recеived under
self-insurance
a
continuation
plan,
disability
policy provided by
or
a
under
insurance
418.351,
employer
same
[MCL
whom
under
418.361,
418.835]
employee
MCL
or MCL
are received the
if
directly
plan
did not
payment
contribute
to the
or to the
premiums regarding
disability
policy....
insurance
(2)
satisfy any remaining obligations
[MCL
To
under
418.351,
418.361,
418.835],
MCL
or
pay or
paid
employee
shall
cause to
the balance
weekly
lump
due in
payments
either
or
sum
after
application
subsection
(15)
respect
fighters,
With
to volunteer fire
volunteer
safety
officers,
patrol
workers,
volunteer civil defense
and
volunteer ambulance drivers and attendants who are consid
ered
purposes
[MCL
act
418.161(1)(a)],
provided
the reduction of
(1)(b)
(c)
disability
payments
insurance
subsection
(11) may
subsection
be waived
employer.
An
is not a self-insurer
make
waiver
provided
only
for under this subsection
at the time a worker’s
renewed.[21]
policy
insurance
is entered into or
added).
(emphasis
418.354.
amended
Opinion of the Court provi- dual 418.372, employment as the known employee’s injured for an sion, liability apportions was employee when the compensation benefits workers’ at the time of employment in more than one engaged the statute injury, At the time of plaintiffs injury. as follows: part relevant (1) engaged than 1 in more If an was injury personal the time of employment death, injury resulting employer in personal resulting injury whose *10 injured employee’s for аll the death occurred liable Weekly medical, rehabilitation, and burial benefits. ben- apportioned as follows: efits shall (a) injury employment personal caused the If the which injured employee’s provided death more than 80% the or injury or average weekly wages personal the time of the at death, all of the the insurer liable for or self-insurer weekly benefits.
(b) injury personal If the which caused the average employee’s of the death 80% or less or death, wage personal injury weekly time of the or portion for or liable insurer self-insurer is weekly or employee’s as bears the ratio to his benefits same weekly average weekly wage from as the her total benefits personal injury death employment which caused the or wages. injury weekly to his or her total The second bears separately dependently but liable the remainder fund weekly insurer or has the benefits. self-insurer pay employee employee’sdependents obligation to or injury compensation. rate The second at the full fund quarterly reimburse shall the insurer self-insurer portion due the second fund’s benefits employee’s dependents. (3) apply public This section volunteer does to [MCL entitled to benefits Thornapple Smitter Opinion of the Court 418.161(1)(a)].[22]
Reading statutory these provisions together, it is that, clear starting point, as a Thornapple Township is obligated by MCL 418.351 to pay weekly wage loss benefits in the amount of of his after-tax average wage, weekly subject to the maximum weekly cap imposed by 418.355, for the duration of his disability.
Because Smitter received pursuant disability insurance policy provided by Thornapple Township respect “with time period”23 same the township’s obligation to pay wage loss 418.351, the coordination of benefits provisions are As implicated.
Township fully funded
disability policy,
“obliga-
tion
pay” weekly
wage loss benefits “shall he re-
duced”
the after-tax amount of benefits Smitter
received
policy.24
under the
The township’s “remaining
obligations” regarding
loss
wage
Smitter’s
benefits un-
der MCL 418.351 are thus
“the
reduced to
balance due”
after coordination.25
added).
418.372,
(emphasis
as added
was amended
2012 PA
which amended
subsection
read “This
*11
apply
section does not
to individuals
[MCL
entitled to benefits under
(o)].”
418.161(1)(d), (e),
(h), (i),
(f),
(j),
(g),
and
23 MCL 418.354.
24
418.354(1)(b)
added).
(emphasis
MCL
25
418.354(2).
argument,
parties agreed
plaintiff
At oral
firefighter,
very
employments
is not a volunteer
one of the
few
to which
weekly
“the
disability
reduction of
for
insurance
payments
employer.”
Indeed,
...
waived
parties
facts,
stipulated
including
submitted this case under
stipulation
“paid
employed
part-time
was
as a
fire
fighter
fact,
distinguished
stipulations
.. ..” This Court has
between
Corp Employment
binding
judiciary,
Security
Dana
which are
on the
Comm,
law,
107, 110;
(1963),
stipulations
371 Mich
Lastly, Smitter was because dual injury, of his at the time employment one 418.372 are applicаble. of MCL provisions for all of Township remains liable While benefits, Smitter’s medical and rehabilitation Smitter’s apportioned between weekly loss benefits are wage “the Fund the Second because township and injury” pro- the personal caused employment which wages of Smitter’s percent less than vided is liable the same township The injury.26 time of his average weekly benefits as his of Smitter’s percentage wages. to his total township from the bore weekly wage words, percent earned In other because Smitter it is for 11 township, liable wages his with the weekly “sepa- fund is percent weekly of Smitter’s benefits. remaining rately liable” for dependently but benefits, representing of Smitter’s attributable to weekly benefits Smitter’s percentage of township While General Motors.27 employment with rate weekly benefits to Smitter “at the full provide must to reimburse the compensation,” required the fund is em- of the benefits due the township “portion for its . . . .”28 ployee
B. COORDINATIONOF BENEFITS
Education,
Board
Rahman v Detroit
Relying on
argues that the fund is liable
Thornapple Township
of the uncoordinated
portion
reimbursement
of its
liability by
reduce
amount of
cannot
(1988). Thus,
Cavanagh’s
reliance on Union Guardian Trust
Justice
Zack,
108, 113;
(1936), which involved an
Co v
claiming amount, par- entitlement the coordinated given that ticularly township has “exercised right” not to coordinate benefits. Rahman, plaintiff
In suffered back of during the coursе his Detroit employment with the Board At injury, of Education. the time of Rahman was employed Detroit, also of city earning with the of percent his from wages the board of education the remaining 54 his percent wages city of of Detroit. The an magistrate open ordered award of benefits further held that the had fund reimburse- ment liability under the employment provisions dual because the board less than 80 wage. Rahman’s average weekly Rahman also received a pension from the board of education, although do not indicate facts whether the Board coordinated Rahman’s wage loss benefits. The fund argued the amount it was required to reimburse the board should be based on the coordinated amount benefits. The Court of Appeals rejected claim, fund’s providing analy- the following sis: provision [T]he applies coordination an benefits ... if employee compensation receives worker’s benefits pension
same time he receives or payments retirement plan program to a maintained established 418.354(1)] employer. provides [MCL that “the employer’s obligation pay paid weekly or cause to be specific benefits other than loss benefits ... shall be re- by [specified] duced A plain reading amounts ....” employer’s subsection indicates that the pay benefits be reduced amount pension employer pays employee. reject [Second
We аrgument Fund’s] that the total amount of payable worker’s plaintiff should pension be reduced the amount of the MICH Opinion the Court Again, we con plaintiff receives from board. *13 the unambiguous language of and statute.
sider the clear employer’s in an provides 418.354] reduction [MCL provides the employer if that obligation pay to clearly premised on pension. reduction is employee a This wage providing another employer the is the that fact employee; the to the the statute allows benefit to pay obligation to worker’s that benefit with coordinate employee. It wage-loss benefits to Legis of the that the apparent language from the statute employment whose lature intended that advantage of the coordi take caused an alone suggestion [Second that the provisions. There is no nation situation, Fund], may take in a dual to advantage injury-employer’s entitlement coordina argument Therefore, Injury Fund’s] the [Second tion. rejected.[29] unambiguous to Rahman claimed follow
While statute, Contrary it failed to do so. to language obligation pay holding employer’s that an Rahman’s 418.354(1) reduced,” MCL weekly “may re “shall be employer’s that provides requisite amounts listed the statute. duced” “shall” generally of the word Legislature’s use discretionary directive, not mandatory indicates a act.30
Furthermore,
failed
or address
recognize
Rahman
418.354(15).31
This
significance
provision
29
(third
original)
Rahman,
App
120-121
alteratiоn in
omitted).
altered) (citation
(emphasis
30
Servs,
403, 409;
Community Emergency
Mich
Med
475
716
Costa v
752-754;
745,
(2006);
City Hosp Corp, 471 Mich
NW2d
Burton v Reed
236
Comm,
661, 667;
(2005);
Mich
v Civil Serv
33Id.
(the
expressio
Under the doctrine of
unius est exclusio alterius
expression
thing
another),
specification
one
exclusion of
in a
particular
statute
one
class excludes all other classes.
Charter
Pittsfield
Co,
702, 712;
(2003);
v Washtenaw
468 Mich
Thus, exception with the 418.354(15), em- an in MCL the limits described within weekly benefits pay to obligation ployer’s amounts corresponding reduced” “shall be WDCA of benefits coordination listed in MCL employer’s an discretionary, and reduces mandatory, not benefits as a matter weekly wage loss obligation pay to worker consideration, injured an practical law. As a to consciously chooses employer if an unlikely protest requires. in excess of what the law employee pay wage loss benefits However, additional sum any own policy “[flor its volitionally pay employer’s no effect on the reasons” has law.36 under the weekly benefits LIABILITY FUND’S C. THE SECOND INJURY 418.372(1)(b) liability between apportions was when the injury employer fund and the his employment at the time of in more than one engaged percent or less and injury employer provided weekly wage.37 The statute employee’s averagе “shall,” unambiguous meaning Despite of the word Justice coordinating injury employer may opines avoid that an McCormack compensation obligation to hold otherwise under the WDCA because employees freely entering “employers into prohibit would Nothing they in this fit.” under terms as see contracts any right agree provide opinion an contrac affects the announced no it to offer. We have tual benefit to its that wishes principle prohibit injury employer, limiting legal either that would *15 providing negotiated provision, impulse gratuitous or a contract However, we do under the WDCA. in excess of its benefits WDCA, injury employer language conclude, applying of employment its munificence and must bear the cost of in a dual situation require choices. the fund to subsidize its cannot 37 injury employer provided of the more than 80 When liability. average weekly wage, apportionment of employee’s there no is weekly MCL injury employer benefits.” “liable for all of 418.372(1)(a). y Thornapple 139 Opinion of the Court does require not reimbursement of any additional amount that the employer voluntarily to provide elects only to an injured employee provides that the fund —it is liable for its “portion of the benefits due the em- . .. ployee Consistent with the common understand- ing “due,” the word the benefits due the are those that are employee.38 owed to the
In determining the amount “due” the employee, we note that under the explicit statute, language fund has or dependent contingent liability39 for the weekly remainder of the benefits for which employer would ordinarily be liable40but for the appor- tionment of liability Thus, MCL 418.372.41 the fund’s reimbursement liability expressly condi- tioned on the injury employer’s statutory As liability. above, discussed application of MCL 418.354 to reduce liability employer’s under the WDCA is compulsory and except very avoided narrow Therefore, circumstances.42 the amount “due employee”43 the portion fund’s the employer’s 38 College (1996), Random Dictionary p (defining House Webster’s 413 owed[.]”). “owing “due” as 39 College (1996), Dictionary Random House p (defining Webster’s 363 “dependent” by something else; “conditioned determined contin gente.]”). 418.351; See MCL MCL 418.361. 418.372(1)(b) liability imposes portion on the fund for that injured benefits employee’s attributable to the concurrent em ployment. Us, Toys 112, 128; See R Lawrence NW2d (1996) (“[T]he only subject liability respect fund is wage-earning capacity employment.”). lost concurrent very We employments note that permitted same to waive the specifically coordination are excluded apportionment liability from the employment provi under the dual Thus, sions to MCL when the coordination of waived, properly absolutely benefits is the fund has no reimbursement liability ain dual situation. 418.372(1)(b). *16 121 Mich 494
140
Opinion
the
of
Court
act,
described
the
is
which
“remaining obligationD”
pay-
sum
lump
either
due in
“the balance
as
provi-
cоordination
the
application
the
ments
of’
after
the
to reimburse
Thus,
obligated
is
the fund
sions.44
the em-
the benefits due
“portion
for
of
its
employer
MCL 418.354.46
the
of
application
after
ployee”45
any
employer
the
to reimburse
required
is not
fund
not reflect
benefits that do
of
additional amounts
act.
Lability under the
employer’s
“strong public
Township argues that
and that
position
its
support
considerations
policy”
com-
full workers’
firefighter
with
providing
injured
disability
provides
benefits well as
pensation
firefight-
in
engage
for its
an “incentive”
Michigan
However,
public policy
ing services.
majority
this Court
by
not to be determined
what
Rather,
time.
given
at a
appropriate
deems desirable
rooted
“clearly
must be
policy Michigan
the public
federal constitu-
in our state and
the law” as “reflected
Moreover,
statutes,
the common law.”47
tions,
our
policy preferences
not
this Court
substitute
clearly provided
that have been
policy
those
decisions
case, it
clear from the
In
instant
statute.48
44
added).
418.354(2) (emphasis
MCL
418.372(1)(b).
418.354(1)
supported
fact that MCL
This
is further
conclusion
appears
only
“obligation”
employer’s obligation.” The
time
to “the
refers
418.372(1)(b)
sentence,
“obligation”
addresses the
is in the third
which
compensation.”
“pay
employee...
rate
When MCL
at the full
418.372(1)(b)
alone,
provision
the fund
alone and
mentions
Therefore, it
to conclude that the
“liab[ilities].”
is reasonable
refers
their
employer’s оbligation” refers to “the
to “the
reference
just
compensation,”
alone
amount for which
rate of
full
coordinated,
liability to
the fund’s
If the
rate must
then
is “liable.”
full
employer necessarily
coordination.
occurs after
reimburse an
(2002).
Zwit, 467 Mich
56, 66-67;
Terrien v
Police employees police fire or of the or departments, fire dependents, or their municipalities or villages benefits, of providing may this state like waive the provisions accept of this act and like benefits that are provided by municipality village or but are not entitled municipality village to like benefits from both the or and However, this act. prohibit this waiver does not those dependents being or their reimbursed portion [MCL 418.315] for expenses the medical or expenses of medical that are not otherwise for municipality village. or This act shall not be construed limiting, changing, repealing any provisions of the municipality village charter of a relating of this state benefits, compensation, pensions, indepen- or retirement act, provided employees. dent of this Because the arguments policy advanced Township stand in stark contradiction public policy pronouncements the Legislature, they must fail.
IV CONCLUSION
We conclude that the Second Injury
required
Fund is
an employer
reimburse
portion
the fund’s
of the
Brewery Co,
293, 299-300;
See Drouillard v Stroh
449 Mich
NW2d 530
Detroit,
1, 8-10;
(2001)
See Crowe v
nated case to remand this Appeals of the Court ment with consistent proceedings for further magistrate opinion. JJ., with ZAHRA, concurred Markman, Kelly, Young, C.J. dissent from respectfully I (dissenting).
Cavanagh,
that Robert
I believe
because
majority opinion
for purposes
fire fighter[]”
was a “volunteer
Worker’s
Michigan
applying
and, thus,
(WDCA),1
Thor-
Act
Compensation
Disability
Smitter with
Township
provide
was permitted
napple
necessarily
do not
dis-
I
benefits. While
uncoordinated
conclusion
with Justice
agree
McCormack’s
whether
to decide
employers
allow all
WDCA
and disabil-
compensation benefits
coordinate workers’
*18
that it is neces-
benefits, I do not believe
ity insurance
Rather, because
that
in this case.
sary to decide
issue
418.354(15) permits
that MCL
majority recognizes
provide
firefighter
of a volunteer
benefits, I
that
believe
with uncoordinаted
employees
that benefits coordination
conclusion
majority’s
circumstances
mandatory except
418.354(15)
Like-
unnecessary dictum.
in MCL
listed
to overrule
decision
wise,
majority’s
I
that the
believe
103;
Ed,
Mich
App
v Detroit Bd
Rahman
of
(2001),
dictum.
is also
NW2d
argument
at oral
stated
Although
parties
both
of
for
firefighter
purposes
volunteer
was not a
Smitter
this
paid,
because he was
applying
regard-
concessions
parties’
by
is not bound
Court
seq.
418.101 et
Dissenting
Opinion
Cavanagh, ing
See,
e.g.,
law.
Union
Zack,
Guardian Trust Co v
(1936).2
108,
274 Mich
113;
In order to determine whether Smitter awas volun- firefighter teer for purposes 418.354(15), of MCL we must look more closely language of that subsec- tion: respect fighters,
With to volunteer fire safety- volunteer patrol officers, workers, volunteer civil defense and volun teer ambulance drivers and attendants who are considered purposes [the for pursuant WDCA] to section 161(l)(a),[3] provided reduction of (l)(b) disability payments insurance under subsection (c) (11) may and subsection waived employer. An that is not a self-insurer make the waiver only for under this subsection at the time a policy worker’s insurance is entered into or renewed.
Importantly, MCL provides that it applies fighters “volunteer fire . . . who are considered em ployees purposes [the WDCA] section 2 recognize I parties that the stipulated facts, submitted this case under including “paid part-time firefighter....” the fact that Smitter was a However, my subsequent analysis explains, paid employee may 418.354(15). nevertheless be a “volunteer” as that word is used in MCL Thus, my analysis engages statutory interpretation to determine the meaning “volunteer” as used MCL It is well established universally accepted statutory interpretation presents ques See, e.g., Charlevoix, City 289, tion law. 295; Klooster v (2011). Accordingly, contrary claim, NW2d 578 majority’s *19 by parties’ Court’s common regarding refusal to be bound concessions clearly applies interpretation the law meaning to this Court’s of the “volunteer” in as used MCL 3 418.161(1)(a). MCL 494 Mich 121 Opinion Dissenting Cavanagh, J. added.) 418.161(1)(a),
161(1)(a) ." (Emphasis ... in the service person “[a] turn, “employee” defines in or township, village, school state, county, city, a of the hire, or contract any district, appointment, added.) (Emphasis or implied, or oral written.” express to “volunteer refers Thus, although (15) view, applies in subsection my fire fighters,” . . . contract any who are “under firefighters volunteer firefighters.4 may include hire,” paid which language of hire” addressed the “contract This Court v Shanty Creek length in Hoste in MCL (1999).5 The 561; Inc, Mich 592 NW2d Mgt, that the “contract phrase first stated majority Hoste 574- kind.” Id. at payment of some “connote[s] hire” by noting that conclusion majority supported 575. “designed compensation wоrker’s the Legislature that ‘income maintenance safety provide to be a net to or regular whose who have met misfortune persons ” 575, quoting cut off.’ Id. at has been income source Div, 636, 654; 375 Pine Copper Franks White “of hire” explained Hoste NW2d 715 gratuity between portion phrase distinguishes major- payment. Specifically, a accommodation and may firefighter receive a The idea that “volunteer” example, foreign For concept in benefits. the realm recognizes Act, seq., Security Employment 421.1 et expressly firefighters paid a “volun excludes “volunteer” amount, fighter’s wages, up in a defined from consideration fire teer” 421.27(c)(2) determining unemployment benefit rate. MCL his or her (“The weekly under this subdivision for rate shall not be reduced benefit training services as volunteer received for on-call or remuneration $10,000.00 firefighter in a firefighter, receives less than if the volunteer added). firefighter.”) (emphasis year as a volunteer calendar for services Hoste, Mich at See to the dissent Hoste. I remain committed J., However, dissenting). I conclude that because (Marilyn 579-586 Kelly, majority dissenting under either the is the same the result this case Hoste, majority opinion purposes opinions apply of this I will dissent. *20 Thornapple Dissenting Opinion by Cavanagh, J.
ity gratuity stated that does not satisfy the “of hire” requirement because “worker’s provides compensation income; those who have a lost source it does provide benefits to those can longer who no take advantage gratuity or privilege that serves merely Hoste, as an accommodation.” 459 Mich at 575. Finally, Hoste by stating summarized in order to satisfy the “of hire” requirement 418.161(1), in MCL “compensation must be payment intended as wages,” which majority as “real, defined palpable and sub- stantial consideration as be expected would to induce a reasonable person give up the valuable right possible claim against the employer in a tort action and as would be expected to be understood as such employer.” Id. at 576.6
Applying the statutory language written, as my in view, Smitter satisfied the “contract of hire” require ment under the definition of “employee” interpreted as by the Hoste majority. Both parties agree that Smitter received wages compensation for the time he spent working firefighter. Thus, as a I think that Smitter was a “volunteer fighter[] fire . . . who [is] considered [an] 161(1)(a) employee[] .. pursuant . to section . . . .” MCL 418.354(15). Accordingly, I think that the next provi 418.354(15) sion of MCL applies: “the reduction of for disability insurance pay 418.354(1)(b)] ments under [MCL . . . bemay waived employer.” Therefore, I think that Thornapple may 418.161(1) recognize I place that the version MCL in at time expressly Hoste was decided firefighters included volunteer in the defi “employee,” Hoste, 578, nition of see Mich whereas the version of 418.161(1) applicable However, in this case does not. because MCL 418.161(1)(a), continues refer to MCL I bеlieve that analysis change Hoste’s statutory remains language relevant. The and impact on greater this case will he discussed detail later in this dissent. 494 MICH Dissenting Opinion Cavanagh, 418.354(l)(b) in MCL provision the coordination
forgo uncoordi- Smitter with provide case and instead disability insurance nated workers’ benefits. in this case applies
Accepting uncoor Smitter with provide allows that conclu benefits, next is how question dinated (SIF) liability Injury Fund’s Second affects the sion *21 an is That question benefits. workers’ statute, MCL reviewing apportionment swered injury, the time of Smitter’s Specifically, 418.372. 418.372(3) allocation stated that expressly to volunteer apply do “not MCL 418.372 provisions in section under entitled public employees 161(l)(a).”7 view, Smitter was a “volun because my In employeef] fighter” [an] who was “considered teer fire to section WDCA] of [the for purposes 161(1)(a)” 418.354(15), a he was “volunteer under MCL under section entitled to benefits employee[] public 418.372(3). Thus, 161(1)(a)” I of MCL purposes 418.372(3) apportion and the applies think that MCL Indeed, in this case. are provisions inapplicable ment this is the acknowledges opinion majority statutory provi of the relevant proper interpretation (“[T]he very employ same n 42 ante at 139 sions. See the coordination of to waive permitted ments 418.354(15) excluded specifically are under MCL employ liability dual apportionment 418.372(3).”). provisions pursuant ment case re- apply, does not this MCL 418.372 Because 418.351(1), which of MCL application a simple turns to or cause pay, “the shall provides employee, section, injured as in this paid after- the employee’s of 80% of weekly compensation 83. 2012 PA 418.372 was later amended Dissenting Opinion Cavanagh, short, tax . In average wage Thornapple for all of liable Smitter’s workers’ compensation ben- efits, liability.8 Again, SIF has no the majority agrees with this result. See ante at 139 n (stating 418.354(15) that when MCL and MCL apply, the SIF has “no reimbursement in liability a dual situation”). employment Thus, majority, because the in my view, erroneously exclusively relies on parties’ concessions that Smitter was not “volunteer fire fighter” of MCL purposes while other- wise agreeing that of a “volunteer fire fighter” may elect to forgo benefits, coordination of I believe that majority opinion reaches issues that need not be addressed in case. I Specifically, do think that it necessary to decide whether benefits coordination is mandatory employment circum- stances not listed MCL Moreover, be- Rahman, cause 103, App did not address 418.354(15), listed MCL I think that opinion and, thus, I distinguishable major- believe ity’s decision to overrule Rahman is dictum.
Finally, previously mentioned *22 in footnote 6 of this I opinion, recognize that the current version of MCL 418.161(1) from the differs version of MCL in place at the time in plaintiff injured Hoste was 1990. Specifically, former MCL 418.161(1)(a), as 103, amended PA explicitly volunteer addressed public employees, including “[m]embers of a volunteer fire department:” act, “employee”
As in this used means: 8 Thornapple “average would be weekly wage” liable for Smitter’s (General jobs based on his income from Thornapple). both Motors and (defining “average See MCL weekly wage” “the wage employee employee’s injury earned at the time of the in all .”) added). (emphasis employment. .. Mich Cavanagh, Opinion Dissenting state, (a) county, city, a person in the service of A district, any appoint- village, under
township, or school implied, hire, or ment, express or oral of contract or has by a who person employed contractor A written. township, village, county, city, school with a contracted shall not state, through representatives, district, its or the city, state, county, town- employee of the considered an be contract, made the village, district which ship, or school subject .. a this act.. Members the contractor when of village, township city, or department of a volunteer fire city, village, or employees of the to be considered shall be act of this when to all the benefits township, and entitled injured duties as members performance of personally added.] [Emphasis department. fire volunteer 418.161(1)(a) longer no of MCL The current version em public reference to “volunteer” specific includes a em of those rather, the statute’s discussion ployees; embers a including “[m] the referencе to ployments, from MCL removed department,” fire was volunteer 418.161(1)(a). subdivisions were However, several new to address “volunteer” that seem added statute of a fire including members “[o]n-call public employees department:” act, “employee” means:
As used (a) state, county, city, person in the service of A district, any appoint- village, township, or school hire, ment, express implied, oral or or or contract by a who has person employed contractor A written. village, county, township, city, school with a contracted state, district, through representatives, shall not state, city, county, town- considered an be contract, if the ship, village, district that made or school WDCA]. subject [the contractor (d) county, city, department of a members On-call fire village, township shall be considered *23 SMITTER V THORNAPPLE TWP 149 Dissenting Opinion by Cavanagh, J. county, city, village, township, or and entitled to all the personally injured performance benefits of this act if in the of department duties as on-call members of the fire whether department on-call paid member or of fire unpaid.... (e) department On-call members or an on-call fire of diving member of a volunteer underwater team that con tracts with or receives reimbursement from 1 or more counties, cities, villages, townships all entitled to personally injured performance act if in the of department of their duties as on-call members of fire оr as diving on-call member of a volunteer underwater team whether the department on-call member or the fire on-call member the volunteer diving underwater team is 418.161(1) added).][9] paid unpaid. (emphasis [MCL 418.354(15) Thus, the reference MCL to “volunteer fire . .. are fighters who considered employees for pur poses 161(1)(a),” [the WDCA] to section might be a relic reference to the former version of MCL 418.161(1)(a) that Legislature failed to revise when it altered language in MCL 418.161.
Possibly bolstering this conclusion is the fact that
418.372(3)
recently
was
amended
150
Opinion
Dissenting
Cavanagh, J.
depart
of a fire
members
including on-call
employees,
418.372(3),
as amended
MCL
ment. Specifically,
to individu
states,
apply
does not
83,
PA
“This section
161(1)(d), (e), (f),
section
benefits under
entitled to
als
added.)
(o).”
Thus,
(h), (i),
it
(Emphasis
and
(j),
(g),
418.354(15)
similarly
be
that MCL
should
appears
to
to
entitled
revised
refer to “individuals
(i),
(e), (f),
(h),
and
418.161(l)(d),
(g),
(j),
under MCL
(o)”
to
fire
than the current reference
“volunteer
rather
purposes
. . .
are considered
fighters
who
161(l)(a) . . . .”
to section
act
support
exists to
the conclusion
Although evidence
418.354(15)
in
MCL
to
that
the reference
418.161(1)(a)
oversight
to
a
in
appears
legislative
be
418.161(1),
amendments
to MCL
light
subsequent
attempt
to
apply
must nevertheless
this Court
v Total
Farrington
written. See
currently
statutes
(1993)
Petroleum,
201, 210;
Inc, Mich
McCormack, in a dual-employment context, Disability the Worker’s (WDCA)1 Compensation Act employer’s mandates an benefits, of coordination such that the Injury Second Fund2 is required to employer only reimburse an for pro rata share of the weekly coordinated amount of benefits. aAs consequence, the majority prohibits em- ployers and employees freely from entering into em- ployment contracts under terms they see I fit. While agree with the majority that this Court’s role is to apply the terms of an unambiguous the statute to facts of a particular case, here the applicable sections of the WDCA an defy unambiguous reading. fact, In the rel- evant statutory provisions at issue do not even refer to another, one much less unambiguously the require majority’s interpretation. Because amI generally reluc- tant to interpret ambiguous statutory terms impede contract, freedom of and moreover because major- the ity’s reading anomalously applies only minority of employers who part-time workers, hire while still
1 MCL 418.101 et sеq. See MCL 494 MICH Dissenting Opinion McCormack, into to enter majority employers of great
allowing the I they appropriate, deem contracts the dissent. respectfully
I. BACKGROUND for eligible two is working jobs employee When ser- benefits, employer in whose the wage-loss WDCA (the injury the at the time of the worked vice the full paying responsible injury employer) injury employer those benefits.3 When amount of injured employee’s or less percent of however, injury employer weekly wage, average only portion for that responsible ultimately portion corresponds wage-loss benefits em- weekly wage average employee’s ployer provided.4 case, Township provided Thornapple because
In average Robert Smitter’s only percent 10.87 for 10.87 ultimately Thornapple responsible was wage, paying his benefits: after full percent wage-loss wage-loss ben- amount of workers’ to reim- front, claimed entitlement Thornapple up efits Fund 89.13 Second bursement no paid Had paid. amount Smitter, question, there no other benefits to was *26 Thornapple been no dispute, there would have from Fund 89.13 to recover the Second entitled it Case Smitter. wage-loss paid benefits closed. however, offered Smitter Thornapple it happens,
As wage-loss benefits and compensation both workers’ 3 418.351(1). MCL 418.372(1)(b). MCL Thornapple Dissenting Opinion by McCormack, J. benefits, sickness and accident which hе accepted.5 benefits, course, Wage-loss compensate an as a wages injury. lost result of an Sickness and benefits, contrast, accident out-of-pocket cover ex- penses lifestyle changes associated with necessitated an The injury.6 WDCA allows an injury employer to “coordinate” benefits when that employer provides also benefits, alternative such injury employer’s initial to pay workers’ wage- loss benefits can be reduced the amount of other benefits the injury employer provides.7 statute explicitly disability benefits, states that such as those provided by to its part-time firefighters, are among the benefits that can coordinated.8 The cru- cial question they is whether must be. $800 Smitter received a week in sickness and accident benefits policy purchased by Thornapple. policy The benefit part-time firefighters. Thornapple Township covered hoped to incentiv job qualified ize this to better recruit candidates and therefore offered its employees disability along compensation wage- benefits with workers’ loss benefits. essentially benefits, disability Sickness and accident benefits are and parties dispute do not that these benefits are under a disability 418.354(1)(b). policy insurance as described in MCL “policy disability defines any insurance” to “included
policy against resulting or contract of insurance loss from sickness or bodily injury by accident, both, including or dеath or also the granting specifichospital medical, surgical and sick-care any person, family group benefits to Depending . . .”. on how the policy them, disability relevant insurance defines be used assistance, special transportation needs, for in-home uncompensated needs, consequences medical apart other of an from lost income. Disability especially dangerous occupations benefits are relevant in like firefighting, wages, in which risks are not limited to the lost injured likely require compensation greater are than that provided wage replacement. generally, More there is a robust market disability insurance. 418.354(1)(b). *27 MICH 121 494 by Opinion Dissenting J. McCormack, THE WDCA OP
II. PLAIN LANGUAGE 418.354(1) mandates that MCL majority holds The I am not convinced. coordinate benefits. employers that 354(1) employer’s § that “the part, states In relevant weekly benefits paid to be or cause obligation pay [MCL specific loss benefits than other (3)] agree ”9 I by amounts!.] these be reduced and shall accident policy and majority that sickness with the 354(1). by § is covered provided to Smitter required to Thornapple was is whether question it wage-loss benefits coverage that with the coordinate to do so. The it could elect or whether paid, also the word Legislature’s use of believes that majority dispositive. “shall” is generally implies majority
I with the that “shall” agree occasionally un- But context can mandatory dirеctive. ordinary usage general principle dercut is under- case, majority’s In conclusion applies.10 for three reasons. by text of the WDCA cut specifically states that First, MCL coordina- obligation may be reduced employer’s or the tion, Injury obligation the Second Fund’s plain language This bottom-line benefits. employee’s coordinate rests with mean that the decision to must Fund’s and that Second If the intended implicated. Legislature liability is not clearly it could have more mandatory benefit coordination ‘must,’ legal use, generally “Though writers sometimes ‘shall’ means ‘will,’ Mellinkoff, ‘should,’ ‘may.’ misuse, D. mean or even See ‘shall’ to (1992) (‘shall’ Dictionary Legal Usage 402-403 s of American Mellinkoff synonyms’ meaning ‘may’ ‘frequently and their treated are Garner, context); Dictionary Legal Usage depends B. of Modern on (2d 1995) (‘[Cjourts jurisdiction virtually every English-speaking ed. contexts, necessity means in some shall have —that held — versa.’)” 9; Lamagno, 417, 432-433 n de Martinez v 515 US Gutierrez vice 2227; Ct L Ed 2d 375 115 S SMITTER V THORNAPPLE TWP Dissenting Opinion McCormack, accomplished any ways. number Most it could simply, have omitted the “the phrase employ- er’s or cause to pay paid” *28 418.354(1). final of MCL sentence The sentence would then read: as “Except otherwise in . section, weekly . . benefits other specific than 418.361(2) (3)] loss [MCL shall be by reduced these amounts!.]”11 This language would support majority’s better the reading because it would be obvious the Legislature’s that intent was to ensure that employee’s wage-lоss benefits were reduced when the employee also received additional benefits. 418.372(1)(b)
Second, MCL unambiguously sets forth the formula which Second Injury is liability Fund’s subsection, determined. In that provides which that the Second Injury Fund “is separately but dependently liable for the remainder of the weekly benefits,” and “shall reimburse the insurer or quarterly self-insurer for the second injury portion fluid’s of the benefits due the employee or the employee’s dependents,” no is reference made to possibility of benefit coordination or to MCL 418.354 specifically.12 more There no language what soever to suggest that the phrase “due the employee” 418.372(1)(b) MCL should be read to incorporate ability to coordinate in MCL 418.354. The true; converse is also while the Legislature refers ex plicitly to the “second injury fund” and its liabilities the text of MCL 418.372(1)(b), any absence reference to the Injury Second Fund in MCL 418.354 is meaningful. The Legislature could have connected the sections, two but chose not to do so.13 See MCL 418.372(1)(b). argues majority Legislature’s “obliga that use of the word tion,” opposed “liability,” meaningful is a 494 MICH121 Dissenting Opinion McCormack, J. 418.354(15), that MCL
Third, majority argues sup- firefighters, volunteer governing the subsection coordination manda- that benefits ports position firefighters: that for volunteer The statute states tory. provided for disabil reduction of [T]he (1)(b)... may be payments under subsection ity insurance employer. An not self- by the waived provided for waiver under this insurer make the only compensation insur the time a worker’s subsection renewed.[14] policy is entered into ance explicitly 418.354(1), this refers provision As does MCL employer, made and decisions Fund or the of the Second liability believes majority benefits. The bottom-line employee’s only exception to delineates the reading neglects But this mandatory coordination. *29 in no there is second great majority of cases which injury as in the as well those which employer, injured employ- more than 80 provides percent Nothing prevent those weekly wage. will average ee’s ben- choosing provide to uncoordinated employers if injured even injured employees, efits to their firefighters or other first are not volunteer Instead, are free to con- employers those responders. they as fit with to benefits accor- respect tract see their needs. employment dance with majority’s under the point emphasis: This warrants 418.354(15) a dual- analysis implicated only MCL employer pro- context in which the injury 418.372(1) (b), that of MCL which states reference the third sentence pay full “[t]he ... insurer... has Again, Legislature had compensation.” I believe that if the rate of together, it would have indicated for the two to he read intended sections using cryptic explicitly such means. instead of Dissenting Opinion by McCormack, vides 80 or less injured employee’s average can, weekly wage therefore, request reim- bursement from the Injury Second Fund. But MCL plainly 418.354 on its face applies cases, all not just those which Second Fund is dependently If an employer may only liable. waive benefit coordina- tion firefighter under the volunteer provision of MCL 418.354(15), import what if would 418.354 have Thornapple had been only employer, Smitter’s or if General Motors had been the injury employer? In either case, employer surely could have chosen pay its employees whatever benefits it appro- deemed 418.354(1) priate without regard to MCL 418.354(1) To read MCL imposing requirement on a subset of injury employers in dual-employment cases renders supposedly mandatory language meaningless in majority of situations.15 The majority’s analysis us to assume requires away the textual clues that undercut of the application common understand- ing of the “shall” that, verb and to overlook the fact majority’s interpretation, language is inapplicable to most plain cases. The language of the WDCA analysis does make that easy. If the analysis touchstone of our remains the plain language statute, I would refrain from reading (15) such particular intent into MCL because there is no clear indication that this is what Legislature intended.16 statutory “It is a maxim of every construction that word aof statute way given meaning, should be read in such a as to be and a court should *30 any part avoid a construction that would surplusage render of the statute nugatory.” Complaint, 396,414; In re MCI Telecom 460 Mich 596 164 NW2d Legislature It seems irrational that the would announce manda
tory apply only minority situations, directive that would in a and I presume Legislature thoughtfully that the rationally. acts and 16 speculating Legislature’s "[A] court should refrain from about beyond employed intent MCI, the words in the statute.” In re at 414-415. MICH Opinion Dissenting McCormack, BY THE LEGISLATURE ARTICULATED THE PUBLIC POLICY
III. coordi- requires the statute that The view majority’s less provide who by injury employers nation of benefits in dual- wage employee’s of an than 80 percent (the minority injury employer) is contexts employment rule in which that is many contexts undermined noted, single employers previously As not enforceable. more than responsible are employers who seek weekly wage will never employee’s of an percent Fund are Injury from the Second reimbursement provide their free to contract with thus addition, In they appropriate. deem insurance as situation dual-employment in a non-injury employer with an insurance injured employee may provide to coordinate triggering any obligation benefit without from the Second seeking reimbursement before only addresses the coordina- Fund because the statute It employer.”17 the “same tion benefits provided pre- intended to Legislature imagine hard to benefits in those cases wage-loss beyond vent benefits dual- employer minority injury is a where there far more sense that the situation. It makes providing an give employer intended to Legislature wage-loss possibility and accident benefits both if reducing wage-loss obligation, deemed it appropriate. 418.354(1)(b) reiterate, only directs
To benefits. The fact that “same to coordinate employer” injured employee required coordination when a different an additional benefit from receives Legislature did not intend that that the evidence 418.354(1)(b). injury employer still seek reimburse would they employee’s wage, but if less ment non-injury disability coordinated with employer’s benefit would never be that amount. *31 Thornapple Smitter Dissenting Opinion by McCormack, J. to limit the amount of benefits an
section received,18 If had received accident insurance Motors, from there have been no dispute General would would have been responsible pay ing wage-loss full benefits and also been entitled to a Injury full reimbursement the Second Fund. This provision limitation of the coordination to the benefits provided by injury employer yet further evidence that coordination is not mandated before reimburse sought. Legislature’s ment decision not to re quire among coordination of benefits employers implies that the did Legislature anticipate that some apart would recover benefits from the weekly wage-loss benefits and did see need any not to address issue.
Furthermore, permitting minority injury employer a to coordinate instead of mandating coordination does in greater being passed result costs on to the Second Injury Any minority injury Fund. in a dual- employer might request situation that reimburse- ment from the Second Fund these Injury has choices: (1) employer could choose not to offer additional (2) all, insurance benefits at could employer choose benefits, to offer additional and then coordinate those benefits so that it wage-loss liability, would have lower (3) could choose to offer additional benefits, benefits and elect not to coordinate those paying wage-loss the full benefit addition to the additional Notably, minority injury employ- benefit. Injury er’s and the Second Fund’s are the liabilities scenarios, same in the first and last and both are lower in the minority injury second. The does not stand gain financially from the Second Fund under any option. 418.354(1)(b). See MCL 494 MICH
Dissenting Opinion by McCormack, minority injury employer According majority, providing to full reimbursement right loses correct, If majority benefit. additional insurance discourage intended to em- must have Legislature pro- hiring part-time employees who are ployers Surely that nar- viding employees. incentives for those *32 accomplished have been without policy goal row could statutory reading language the tenuous requiring fundamentally, But there is majority proposes. more Legislature sought to interfere suppose no reason employers of this subset of to enter prerogative with and their employment employeеs into contracts offer benefits the and em- whatever insurance contracts jointly Respecting employment elected. ployee especially important employers trying seems In tough attract first economic times. responders any worry injury absence of reason to that either the advantage or the be taken employee would transaction, in their free market or that both would advantage Injury collude to take of the Second Fund— imagine and such worries seem hard to here —we indication to the presume, barring legislative should contrary, Legislature regulate that the did not seek to employment contract terms.
IV CONCLUSION view, In the more natural my reading statutory provisions at issue is one that holds that the decision to solely injury coordinate benefits rests with the em- not affect ployer does the reimbursement employer may request from the Second Fund in cases. This dual-employment understanding gives meaning statutory language limiting coordina- paid by single employer, tion to benefits avoids read- ing phrase employer’s obligation” out the “the SMITTER V THORNAPPLE TWP Dissenting Opinion McCormack, 418.354(1), rendering supposed avoids mandate of nugatory majority employment the verb “shall” situations, punish impede and would not an em- seeking employees to recruit with ployer desirable, employers terms that deem like especially dangerous important jobs fighting but fires.
Accordingly, I affirm would the decision of the Court of Appeals. J., took in the part no decision of this case.
Viviano,