Sobotka v. Chrysler Corp.

v (AFTER REMAND) SOBOTKA CHRYSLER CORPORATION (Cаlendar 15). Argued Docket No. 96170. November No. 30, 1994. August Decided sought compensation benefits, alleging Mark Sobotka worker’s physical psychiatric and disabilities that arose out of and in the employment Chrysler Corporation. plain- course of his initially paid weekly compensation tiff had been benefits. He work, briefly continue, complain- returned to but was unable to ing Thereafter, pain. Chrysler paying ceased benefits. Even- tually, fired, plaintiff grievance, was filed a obtained re- instatement, finally hearing and was laid off. A referee found plaintiff proved that the had not either that the work-related beyond period paid continued to him disable he was compensation any possibly disabling psychiatric or that condi- employment. tion arose out of inor course his Board, Compensation Appeal reversed, ordering Worker’s pay- partial disability ment of benefits for under 361 of the work- § act, er’s not to $153 exceed a week. The Court of Appeals, P.J., Hood, JJ., Wahls, and Maher and ordered the modify specify case remanded to the wcab its award to plaintiff’s earning capacity extent to which the had been impaired, (Docket weekly and to fix the amount of the benefits 95053). remand, again No. On the wcab awarded the maximum 361(1). remand, benefit allowable under After the Court of Wahls, P.J., Appeals, Hood, JJ., again and Maher and ordered propor- the case remanded to the wcab for calculation of the plaintiff’s earning capacity tional in the attribut- (Docket 103031). partial disability able to his remand, No. After second again pay per the wcab ordered the defendant $153 Wahls, P.J., Appeals, week. The Court of and Maher JJ., yet again remand, agreeing Hood, ordered plaintiff’s proportionate impairment earning capacity in con- partial disability, tributed to his corrected the mathematical calculation, depen- and determined the benefit level for two (Docket 115948). dents, not to exceed $125.91 No. In lieu of granting appeal, Supreme leave to Court vacated the Court" Appeals order and remanded the case to the Court of consideration, Appeals plenary for 437 Mich 953 On remand, Marilyn Weavеr, P.J., Appeals, the Court of J. 1Mich Kelly, J., concurring part (Michael Kelly, J. and dissent- ing part), unpublished opinion per affirmed curiam the per $153 award of week and noted that has a severely capacity limited and has not located 139553). (Docket injury since his No. On rehear- Weaver, P.J., ing, Appeals, the Court of Kelly, and Michael J. J., affirmed, dissenting), (Marilyn finding Kelly, J. opinions earlier wcab had awarded the maximum amount plaintiff’s postinjury allowable on the of the basis actual earn- ings postinjury earning capacity, rather than his found the proportionate employ- extent of his in his field of injury average at ment the time of to be two-thirds of his wage weekly injury, at the time of the and calculated the $283.30, per benefit rate to be two-thirds of or $126 week (Docket 139553). plaintiff appeals. No. The separate opinions, Supreme judg- In the Court reversed the Appeals, ment the of. Court of reinstated decision of the Compensation wcab, remanded case to the Worker’s Appellate depen- Commission for a determination of the factual dency plaintiff’s entry of the wife and of an award of benefits statutory interest. The Court held: wages injury Evidence of a lack of and of a work-related

permits may an award of maximum benefits. The finder of fact accept reject wages earned, avoided, refused, or evidence of or actual, affecting employee’s opposed or other factors as theoretical, employability. joined by Boyle, Justice Mallett, Justice stated that a showing by employee wage disabled loss is directly compensable injury attributable to a should authorize an award maximum benefits. Michigan, Thus, disability wage is loss. a worker whose wages is total is one who has lost because of the injury. payable Worker’s benefits are on the basis loss, wage physical impairment. not on the basis of In a wage-loss system compensation, Michigan’s, such as there is nothing inherently inconsistent with an award of maximum partial disability benefits where it is found that the claim- ant, injury, wage postinjfiry. because of the is unable to earn a wage-loss system specifically designed to consider the injury economic effect of the work-related on the individual сompensates partially by basing It claimant. disabled workers average wages weekly awards on the the worker is able to earn Thus, injury. employee wages after the if an is unable to earn postinjury injury, employee because of the work-related should be entitled to the maximum benefit. phrase may broadly interpreted "able to earn” be to take factors, many including availability jobs, into account performed, continuing availability the nature of the work kind, of work disability, of that the nature and extent of the Physical incapacity and the earned. for work alone accurately reflect the economic effect on a claimant and mathematically cannot be transformed into a benefit amount. A disabled worker should not bear the burden of unfavorable ability economic conditions that further diminish his to find only suitable work. The burden on the is to show a wage injury. link between loss and a work-related Once a work- subsequent shown, related loss is the factfinder permitted should employee’s wage to infer that the loss injury. due to persuaded, Where the factfinder is not other Testimony evidence should experts be considered. of vocational regarding hypothetical employment However, is not relevant. subject discretion, employer may to factfinder offer evidence specific employment offered, refused, actually accepted impeach testimony employee. employee A may disabled be awarded the maximum 361(1) employee wage benefit under if the § shows that the loss injury. is due to the work-related The determination that an employee is entitled to an award of benefits involves the degree disability threshold determination of and the second- ary employee determination of the amount the is able earn postinjury. employee unemployed, Where the the determina- employee tion postinjury of what the is able to earn does not require jobs per- theoretical assessment of the could Instead, unemployment form if directly available. if the injury, attributable to the the finder of fact award the 361(1). pursuant maximum benefit available to § joined by Levin, Cavanagh, writing Justice Chief Justice separately, phrase earn,” respect stated that the "able to employed workers, unemployed injured to both and means employment actual earned or refused. Absent actual or employment, refusal of an offer of reasonable a disabled worker paid statutorily prescribed should be benefits. appear The words "able to earn” in the amendment of 301 by Legisla- of the worker’s act 1981 PA 200. The meaning ture did not intend the words to have one for em- ployed injured meaning injured workers and another work- employment. Employers protected ers who do not obtain are malingerers by provision during from that denies benefits 447 Mich 1 worker, period injured good of refusal an without and cause, reasonable of a bona fide offer of reasonable previous employer, employer, through from the another MESC. analyses' partial As a result of the of the lead and the concurring/dissenting opinions, employers, motivated a de- compensation liability, sire to limit their worker’s would permitted encouraged and hire other even vocational and expert testify significant liability witnesses to in cases with postinjury unemployment presumptively is not due to the injury, economy. to the but The force of the remedial nature of Injured the statute would be reduced. workers would be re- quired, practice, disprove in that economic factors are re- placing unemployment,

lated to continued on them enor- legal change prac- mous factual and burden. The resultant contemplated by Legislature, tice was not nor is it neces- sary for resolution of this case. Riley joined by Bkickley, Justice Griffin, Justices concurring part dissenting part, stated that Disability Compensation requires Worker’s Act the finder of partial impaired fact to determine the extent a has wage-earning capacity, requiring remand to for a the wcac earning capacity impaired. statement of the extent has been Although wage found the loss at issue to be linked wcab partial disability, the record does not establish that it partial entirely disability found to have im- caused totad pairment earning capacity. It is not sufficient to find some wage partial disability. connectiоn between loss and To obtain benefits, maximum the actual loss must be found to have entirely injury. wage been caused If work-related loss is only partially injury, partial due to the work-related benefits are in order. partial disability While the determination of does not fore- impairment earning capacity close a determination total law, partial as a matter of neither does the determination of establish total as a matter of law. Should partial disability only a finder of fact determine that a has partially impaired earning capacity, compensation should be injury unemployment. limited to the extent has caused proper compensation depends measure of on the economic effect work-related on the individual claimant. factors, employer suggests including gen- Where an that other conditions, eral economic have caused or contributed to the loss wages, go partial finding the board must further than disability unemployment—it and some link to the must com- pute impairment earning capacity. 361(1) ability potential central focus of is on for postinjury earnings. and not actual Properly inter- preted, provides "able to earn thereafter” for consideration of economic they conditions and other factors insofar as reflect availability employees. for work disabled Where employee proves inability an any to obtain work because of partial disability, the maximum rate of should opportunity be awarded. Where the lack of to earn is unrelated partial disability, earnings the lack of should not be compensable. case, Appeals this the decision of the Court of should be reversed and the case remanded to the wcac for a partial determination of the extent has unemployment. caused the

Reversed and remanded. 455; (1993) App 499 NW2d 777 reversed. Crowley, (by Olsman, Berman, Nolan & P.C. Ganos), plaintiff. Sandra L. for the Marcinkoski) Lacey (by & Jones Gerald M. for the defendant.

Amici Curiae:

Sachs, Hodges Waldman, O’Hare, Helveston, & (by Barnes, P.C. Theodore Sachs and Granner S. Ries), Michigan for State AFL-CIO. Kortering, Libner, Leuven, Van Evans & Por- Braden).

tenga, (by P.C. John A. Spencer, (by Bott), Timothy Bott & P.C. for plaintiff. Ducey, Conklin, Benham, Listman Chuhran, & (by Critchell), Michigan P.C. Martin L. for Self- Insurers’ Association. Rawlings (by Glotta, Skutt, & P.C. Richard M.

Skutt), Michigan Lawyers Trial Association. 447 Boyle, J. (by Hays Evans, Pletkovic, Rhodes, & P.C. Evans), Hays John J. and William Nole Greater Chamber of Commerce. Detroit (by Reamon, P.C. William G. William G. Jr.). Reamon, AFTER REMAND Disability Compensa- J. In the Worker’s Boyle, Legislature public policy Act,1 tion applicable codifies political give to, of, and reflective ongoing struggle. and take of an infrequently, economic Not judicial forum then shifts Typically, arena. newly pieces courts are asked to construe legislation missing supply

enacted and to puzzle inevitably fu- of the effect the political process. ture direction of the case, however, The instant a involves variation on the usual gestation period seven-year theme whose reflects significance parties of the issue interested In other than the and defendant. this case precedent we are asked rediscover venerable neglected piece puzzle accordingly a of the compensation limit disabled workers. Michigan, disability Thus, In is loss.2 a disability is total is one lost worker whose who has acknowledge wages injury. of his his We because approach outset, at that our to the issue presented strong here is influenced a disinclina- process rolling up tion to embark on the a rock Legislature only recently hill decided to has aphorism situation the climb. this what Legislature supplied has not the Court not will only apt furnish is but compelling._ 17.237(101) seq.; seq. MCL 418.101 MSA et et Larson, 57.22(d), Compensation, pp 10-192 to See 1C Workmen’s 10-204. Opinion by Boyle,

The issue what amount is "incapacity due whose for work re- sulting personal partial,” from a MCL 17.237(361X1),3 418.361(1); MSA 4where statute provides "weekly . . . that the loss shall percentage average weekly consist of the earnings injured employee fairly of the ... as represents proportionate impair- the extent of the employee’s earning capacity ment of the in the employment employee ... in ] which the was working personal injury.” at the time of the MCL 17.237(371)(1).< 418.371(1); Specifically, MSA we correctly must determine whether the wcab plaintiff, awarded maximum benefits to the whose partial, has been found to be and who employment being has not secured since laid off injury. defendant several months after We would affirm the award. injury, employee

Where, is, on account of an unemployed, employee fact, in the is entitled 361(1) plaintiff’s injury, provided: At the time of § incapacity resulting injury While the for work from the partial, employer pay, paid the shall or cause to be to the injured employee weekly compensation equal to 2/3 of the average weekly wages difference and his between before the average weekly wages the which he is able to earn thereafter .... 371(1) plaintiff’s injury, provided: theAt time of § weekly wages in loss referred to in act this shall consist percentage average earnings weekly of such of the injured computed according employee provisions of this fairly represent proportionate as the section impairment shall extent of the earning capacity of his in in the working injury, which he was at the time the the same injury, fixed as of the time of the to be determined in view but injury. of their nature and extent of the payable, injury earning capacity when added to his after the employment, the same another shall exceed his average earnings weekly injury. at time of such 447 Boyle, 361(1),5 under benefit allowable the maximum not "able to earn” because Appeals postinjury. max- reduced the The Court of estimating employ- imum benefit amount directing earning capacity. remaining ee’s agency preted apportion benefits, the Court misinter- misapplied law, and invaded province reverse fact. We would of the finder of Appeals and reinstate the Court of the decision of the decision of wcab. i began working Plaintiff, Sobotka, for de- Mark Corporation, September, Chrysler fendant, Chrysler employee until Janu- as a and continued ary, employed plaintiff as an 1979. Defendant plant. assembly inspector perform To its Hamtramck required inspector’s job, was perform repeatedly, constantly, over- to bend stand body, pit from a underneath a vehicle head work inspect from a the underside of vehicle bodies kneeling position. May, 1978, was in- Sobotka specting body when another vehicle one vehicle pinned body him be- moved down the line and injuries result, two. As a he suffered tween the his legs. back and hearing alleged petition that he for

Plaintiff’s personal injury to his and lower sustained a back petition disability. in The extremities that resulted also alleged psychiatriс occupational disease as a a hearing personal injury. The referee result of the his had not sustained burden found injury proving either the work-related beyond period him he to disable "continued 5 partially employee’s only means that disabled burden This injury, he to earn because of his not that he to show is unable economy other factors are not the cause of must show that unemployment. 9 v Boyle, paid weekly compensation benefits,” was or that any possibly disabling psychiatric condition arose employment. out of or in the course of his Compensation Appeal review, the On Worker’s plaintiff’s found that Board work-related beyond continued to disable him date that stopped paying had defendant defendant pursuant It benefits. ordered pay partial disability for benefits §to 361 of the act "not to exceed $153.00 a week until further order of the Bureau.”6 ensuing history

The of the case includes three appeals by defendant of orders of the three wcab, Appeals, orders of remand from the Court of order of remand from this one opinions

Court, and two Appeals of the Court of this before Court’s order granting time, leave. Much of that as detailed protracted disagreement next, was a consumed interpretation Appeals between the Court of Disability Compensa- and the Bureau of Worker’s provenance tion,7 is, events, whose in all unclear. Although opinion reluctant to burden the with 6 $153 award was the maximum for amount allowable 1978 also partially employee dependents. disabled' with two It was totally depen maximum amount allowable one disabled two Legislative Pamphlet, Disability dents. pensation (March, Service Bureau Worker’s Com Rules, Tables, p Act 1969 and Administrative 1991). 7See, (On e.g., Corp Remand), Rutland v General Motors 1054; (On Remand), Ishpeming WCABO WCABO 1407 the wcab and the Court sections and case v Manninen Steel Co (both providing examples disagreement of the between Appeals interpretation statutory law). disagreement interpretation has continued with the advent Compensation Appellate of the Worker’s Commission. See Garofalo Shoes, (the Miller/Rayne I Debman 1990 WCACO commis- speculate regarding wage-earning capacity); sion will not an abstract (the Safety Corp, DeMarc v General WCACO commis- will ability sion disabled as to the amount of not "measure some abstract residual of a perform speculate some and then wages injured employee might have hypothetical employment compen- earned had that and been secured sated”); Int’l, 203, (§ v Sutter Rockwell 1990 WCACO anis 361[1] provision "require speculative analysis offset and not a does of wages injured might earn; amount an claimant be to it able 447 Boyle, requires significance detail, of the issue such inclusion of litigation. of this the tortuous course A among appeal challenged, other first Defendant’s pay things, clarity to of the wcab’s order compensation did exceed Plaintiff "not to $153.00.” right argued respond. Defendant that once compensation determined, "the had been obligation compute legal in dollars [was] to Board’s partial disability benefits the amount of and cents Citing Thayer employee] [the is to receive.” (1926), Britz, 645; 209 and Bar- NW App Co, 69 Mich v Bohn Aluminum & Brass rett (1976), Ap- 636, 641; peals agreed the Court of 245 NW2d remanded the case to the wcab and "modify specify the extent to which and its award impaired, plaintiff’s earning capacity has been weekly cents, amount, in fix the dollars and Unpublished accordingly.” order benefits due Appeals, 23, 1986 entered December the Court (Docket 95053). again awarded the No. wcab 361(1). § allowable under maximum benefit appeal contended that Defendant’s second 361(1) earn”, equated "able to under had wcab erroneously earned, with actual "pay- benefits awarded maximum provides wages actually postinjury”); Harris v credit for those earned Technologies, ("[I]f injured 1989 WCACO 1091-1092 United job, jobs, wiped employee’s ability to do one employer’s obligation to or even various out her pay compensation, her there would be no who can do point provisions—the employee having 361’s setoff [§] work, it, nothing. would entitled to Nor would there some and does be regarding work; any point provisions favored to the Act’s extensive work, qualifica- injured employees doing job within their on favored training, nothing ability if tions and would be entitled to to earn disability”); wages at tasks the standard of Olson v some various were (§ provision Corp, K mart 1989 WCACO "is an offset 361[1] purposes speculating computational purposes, not for what for plaintiff, might day working hearing, at the some who was not time wages”). be able to earn in Corp Chrysler 1994] 11 v Opinion by Boyle, J. despite totally disabled, as if he . . able was . only

fact that the Board finds that the Again, Appeals disabled.” the Court of agreed again defendant, Court of Appeals remanded the to ease wcab cents, purpose calculating, of in dollars and

the proportionate impairment plaintiff’s earn- ing capacity partial to his disability, attributable guidelines in accordance with the set forth in Co, Trask v Modern Pattern & 222 Mich Machin[e] 692, (1923). Britz, Thayer 697-699 NW [193 (1926). 645, 234 Mich Plaintiff’s post-injury earnings the merely considered; are one factor to be Appeal 31, opinion Board’s July and order of post-injury earnings treats those as the sole relevance, factor contrary of the analysis set Trask, supra. forth in [Unpublished of order (Docket Appeals, 25, Court of entered March 103031).] No. opinion of wcab at issue here opinion yet remand, on sécond which reached panel panel, another of the wcab. This as had the it, two also before ordered that defendant was to "pay compensation per at of rate $153.00 Although . . . until week further order.” not a clarity, opinion model of the board’s states: upon Based the fact that has not been 17, 1979, able any to earn after his January Larkin, layoff, testimony the medical of Dr. Dr. Goldberg, concerning and Dr. Weisman the nature plaintiff’s injuries, extent of we find that plaintiff does disability suffer from a which se verely ability engage limits his postemploym ent.[8] plaintiff’s also find proportionate We Appeals opinion rehearing, portion In the Court on this " opinion quoted ability 'severely engage board’s was as his limits ” 455, post[injury] employment.’ 458; App 499 NW2d [in] 777 447 Boyle, his earning capacity attributed $283.30 is two-thirds partial $153.00 dependents.

per week for two Therefore, compen- pay plaintiff defendant shall per for two week at the rate $153.00 sation plaintiff’s upon two-thirds of dependents based pursuant to MCL wage of average weekly $280.30 17.237(361X1) 15, February from 418.361[(1)];MSA 1981, Closing the date to March Thereafter, shall defendant Proofs in this matter. pay pursuant from due and the per week the rate of $153.00 at 17.237(361X1) 418.361[(1)]; MSA to MCL 28, 1981, Interest until further order. March paid at owing on these benefits shall 126, per annum. WCABO rate of [1989 10% 128-129.] in another resulted appeal

Defendant’s third Ap- the Court of This time remand to wcab. it what it characterized agreed stated peals " pro- 'plaintiff’s "finding” by as a the wcab earning capacity attrib- portionate of disability is two-thirds partial uted to his scin- requisite ... supported as $283.30’ 6, art required Const tilla of evidence § However, of the Court 861 of the Act.” and § It the wcab’s arithmetic. "corrected” Appeals $153, not but of stated $283.30 "[t]wo-thirds 361(1), plaintiff’s weekly Pursuant $188.87. of his not exceed two-thirds benefit re- wage, On average weekly loss $125.91. mand, plaintiff’s board shall determine appeal to exceed dependents, level for two benefit Ap- of order of the Court Unpublished $125.91.” 115948). (Docket 26, 1989 No. peals, July entered rehearing. denied Appeals The Court of appeal for leave to application Plaintiff filed an granting ap- In lieu of leave with this Court. order of Appeals vacated the Court peal, we 26, 1989, the case to the Court and remanded July Opinion by Boyle, Appeals plenary for consideration. 437 Mich 953

B Court, its initial decision on remand from this Appeals Court 10, 1989, affirmed the March plaintiff decision of which awarded wcab, $153 per It "[t]he week. noted that record below indi- severely capacity cates that had a limited employment and has not located injury.” Unpublished opinion per since his curiam Appeals, of the Court of issued June (Docket 139553), op slip No. at 2.9 rehearing The defendant moved for in the Court Appeals, arguing repeated Court had the wcab’s It mathematical error. stated that July 26, 1989, while the Court’s order had repeated error, corrected this mathematical it had granted 29, 1992, it in its June decision. The Court rehearing. defendant’s motion for rehearing, majority Ap- On a of the Court of peals10 opinions characterized the earlier wcab as having awarded the maximum amount allowable only plaintiff’s postinjury the on of basis actual earnings plaintiff’s postinjury earning rather than 9However, it remanded the to case "allow the wcab to address the plaintiff’s depen unresolved fаctual dent.” Id. issue of whether wife is in fact dependency plaintiff’s remains, The factual wife as of date, this unresolved. 10 Appeals agree in dissent the Court of did not that by Thayer, calculation was controlled Trask and because unlike Trask Thayer, work, in which the claimants had returned to job injured, had not been able to return to the at he which had been Moreover, employment. nor had he been able to find other the dissent given greater interpretation would have the deference to the wcab’s majority’s act. dissent noted that the effect of the decision require expert testimony compensation pro would in worker’s ceedings regarding jobs employee’s available within the limitations. published upon publica- The decision was defendant’s motion for tion. 1 447 Mich Boyle, opinion interpreted as

capacity. the 1989 wcab It proportionate having extent that determined employ- "impairment plaintiff’s in the field of engaged time of at was he which ment injury App 455, 463; 499 two-thirds.”11 is factual It the wcab’s affirmed NW2d finding requisite supported by evidence, and as proportionate finding extent "the as described of light earning capacity, plaintiff’s all rele- average weekly factors, of his is two-thirds vant wage injury.” 464.12It Id. at time of the at the plaintiff’s two- benefit rate as then calculated $283.30, $126, as rounded of two-thirds of thirds It that under dollar. reasoned to the nearest off supra, Thayer, Barrett, Trask, this was calculation, and it ordered that method of correct plaintiff "pay at the rate of benefits the defendant applicable any credit for week less a $126 actually 371(1), pursuant § until further earned App 465.13 the bureau.” order of emerges multiple appeals finally from the What plaintiff partially dis- is that and remands abled, panels separate of the wcab three him to to the maximum allowa- believe be entitled benefit of wcab. for one-third Moreover, time to one capacity, Whether the formula set out in that calculated two-thirds of that Appeals maximum $94.43 injury, $94.43 after his decision mean that repeated two-thirds. Because In other Defendant characterizes from the effect, $283.30, did not take into account remand orders from the Court of according $125.91, benefit allowable the wcab awarded the who the Court of words, resulting was plaintiff’s average weekly wage $126 jobs to the Court of would wcab the Court of plaintiff’s within the rounded available in common labor. Appeals under § section, this as a factual disabled with two $188.87 off earning capacity meaning full retained have made this found loss to award a 361(1). that the Court of Appeals Appeals understood the benefit weekly wcab had awarded the nearest dollar. one-third of his Appeals amount available at the he was "able plaintiff 361(1). Then, loss in dependents. finding Appeals at the time of the had been weekly wage-loss “finding” wages. could made The Court of problematic. subtracted following impaired compete earning It then absent earn” wcab Opinion by Boyle, majority benefit,14 ble Appeals judges and a that of the Court of Thayer believe that Trask and require postinjury calculation of the theoretical impairment partially extent of the of a disabled earning capacity compensation worker’s on application figure the basis of the of that to aver- age weekly wages. plaintiff’s application, granted On we leave to

appeal. 443 Mich 869 We would hold that unemployment where ployee of a disabled em- directly found

is to be attributable to the compensable injury, maximum benefits agency required awarded. The the is not to estimate hypothetical impairment. extent of Availabil- ‍‌‌‌​‌​​‌​​​‌​‌​​​​‌​​‌‌​​​‌​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌​​‍ity of maximum benefits is a factual issue for factual resolution. We would reverse the decision Appeals of the Court of and remand to the wcab proceedings. for further

ii Michigan Worker’s in benefits are payable on the basis loss and not on the physical impairment. basis of Antoine, St. Work- Compensation Michigan, ers’ and Costs, Benefits, Report

Fairness, A Blanchard, to Governor p impair- physical 12, 1984, December 25. Under a 14Thus, impairment three times the wcab has found total earning wage findings capacity by plaintiff’s disability. caused The wcab’s July ("[w]e initially find that there no evidence plaintiff in the record to indicate that has been able find suitable work”), ("Based February upon plaintiff fact any wages testimony] has not been . able to earn . . medical we [аnd disability severely find does suffer from a which limits ability engage post-employment. plaintiff’s his proportionate We also find earning capacity par attributed to his per tial $283.30 two-thirds of or $153.00 week for two dependents”), response upon were made in to orders remand Appeals specify plaintiff’s wage Court of earning capacity the extent to which the impaired. repeated findings had been These under pointlessness yet score a remand another wcab review. J., post, p 42. Brickley, Opinion Boyle, J. upon percentage system, are based benefits

ment of " 'whole,’ disability of a terms measured depending paid healthy person.” are Id. Benefits impairment, physical upon percentage of any been, actual loss or not there has whether wages. Larson, Com- Id.; Workmen’s see also 1C 57.14(a)-(j),pp pensation, 10-104; Gamula 10-69 Corp, 2178, 2184, 1987 WCABO v Motors General grounds. The on other remanded vacated and theory, physical however, not does economic widely varying accurately "reflect people.” injuries particular impact particular on of supra Antoine, at 25. St. wage of awarded on the basis

Where benefits are loss, however, will injured that each worker central idea is [t]he receive, in addi- individually, and will treated

be tion to percentage expenses, a necessary medical (or wage precisely, more actual loss of his or her long earning capacity), however short loss that loss advantage of this may key continue. course, adapts it much more approach, of is that widely varying circumstances readily to the lost the little given lawyer who has cases. little or noth- finger left hand will receive on his pianist with the same will ing; the concert until alternative entitled to benefits reasonable . . . is made available. employment all important point gleaned to be from The most wage-loss such as analysis system, is that in a this established, "disability” is Michigan’s, once disability makes little or no difference. extent of continues, slight long however As as the impairment, full physical in terms of it seem theoretically be compensation benefits will at least wages Inability to earn employer. from the due fact will presumptively be the measure of loss earning is wage capacity. Whether "totally "partially disabled” or dis- technically unimportant practical matter. as a abled” is Boyle, J. either case he will or she receive full benefits Michigan under if law substitute proffered.[Id. 25-26.] at wage-loss system compensation, Thus, in a nothing inherently there is inconsistent with an partial disability award of maximum benefits for where the board has claimant, found that injury, because "[un]able to earn” a postinjury. physical impairment sys- Unlike wage-loss system specifically designed tem, the is

to consider the economic effect of the work-related injury on the individual claimant. Legislature adopted wage-loss

In 1912 the (Ex system compensating injured workers. 1912 Sess) Legislature specifically Indeed, PA 10. provided upon injury’s for an award based specific by basing economic on effect the worker partially to awards those on the worker’s disabled "average wages weekly which he is able to earn” injury. employee Thus, after the if an is unable to wages postinjury earn injury, because the work-related is entitled to the maximum benefit.

A plaintiff partially The wcab found that is dis- finding challenged. abled. That has never been 361(1) compute § Therefore it turned to 361(1) benefit amount. Under the benefit amount to be awarded is of the "2/3 difference between his average weekly wages before the and the average weekly which he is able earn . . .” thereafter .

Defendant contends that under Trask it is error partially to award a disabled worker maximum compensation without consideration of more than Boyle, unemployment. postinjury plaintiff’s

simply the argument a worker who is that The essence impair- partially suffer a total is disabled capacity. wage-earning Thus, defendant ment of corollary necessary to a factual contends any finding is disabled claimant capacity possesses some residual the claimant that to work and earn follows, pacity wages. that it Defendant submits Trask, ca- that residual under §371 a mathematical formula- is translated into impairment proportionate of a extent tion earning capacity obtain maximum and that prove inability benefits, must employment15 any in- of the work because obtain jury.16_ would, argument, by judicial adopt a we Were we to defendant’s flat, adopting system eligibility wage-loss benefits akin to employed Security "extremely definition” Social disabil strict provided ity There it determinations. disability only . . . under a "an individual shall be determined impairments physical are of if his such or mental previous severity only is not unable to do his work that he education, cannot, experi- considering age,

but his and work ence, gainful engage any kind of substantial work other economy, regardless exists in the national of whether which lives, in in which he or such work exists the immediate area him, specific job vacancy he a exists for or whether whether would be hired 423(d)(2)(A).” applied if for work. 42 USC he [St. Antoine, supra at 27-28.] Sobotka, See, e.g., implications The of 3 Welch On Workers’ 1993). 80, (June, probable Compensation results of the Court expert The article notes that the Appeals of in will be a need for decision Sobotka experts, attorney testimony from vocational increased involve cases, Michigan’s compensation in erosion of current ment worker’s "physi "wage approach compensation to a substitution of a loss” impairment” approach. cal Cope, disability: impact So- See Partial The of Paschke and also 1993). author, botka, 31, (March, Comp LR The a 32 Workers’ compensation magistrate, majority notes that "the Sobotka worker’s questions precise litigation opinion and used many unanswered as to the leaves of to be of such one which was method cases[]” assessment wage earning capacity . . . .” to determine "the extent of partial disability, Appeals redefines 3 Welch On See also Court of 1993). (April, Compensation The article notes: Workers’ Boyle, 361(1) responds § Plaintiff should be inter- preted apply to to those situations which an injured employee wrong- has been offered and has fully postinjury employment refused inor which injured employee voluntarily postinjury has left employment. approach, wages Under this proffered claimant could ployment, have earned em- or in the that the claimant voluntarily left, would be determinative of the postinjury. was "able to earn” plaintiff argues essence, that "able to earn” 361(1) interpreted under should be as actual wages postinjury. earned, refused, Appeals apparently of Court erred in ac- cepting defendant’s contention that as matter of a partial disability law determination of forecloses earning capacity a determination of of greater degree than the of found. Appeals average weekly

Court of held that "the employee] [a disabled to able earn thereafter” can never be so low an award of benefits for toas allow

partial disability equals the maximum amount allowable for one totally presupposes Appeals erroneously disabled. The Court incapacity impair- for work17and earning capacity synonymous. ment are We potential greatly This case has to reduce the benefits by many injured received employers. workers thus reduce the costs approach pervasive, litigated If this becomes cases will cer- tainly complicated requiring proof, probably become more some experts, wage earning from vocational ity. capac- each worker’s large It is not clear how this would affect the number paid litigation. cases in which workers are with no 17"Incapacity phrase imported early for work” ais from the British compensation acts, worker’s "incapacity acts. As used in the British "inability get for work” injury, included an work because of the as inability perform well as the work . . .” because . Inability get injury, "incapacity Anno: work because as meaning act, work” within the LRA of the workmen’s 1916A " '[incapacity physical inability 380. for work’ mean Mich 1 Boyle, incapacity

reject for work because the conclusion logi- capacity earning are and cally synonymous, not discern a we do and because legally they legislative are direction clear synonymous. Legislature for- not set out a did Because wages employee through an which mula might postinjury calculated, and "able to earn” Legislature "able to did not define because Legislature earn,” must determine what we phrase.18 by the intended inability wages, to earn or it mean do work so as to earn employ- get employment, inability to the belief of due reason of owing perform work the workman to ers in the unfitness of (quoting they perceive Ball v injuries sustained.” Id. at he has Hunt, case; compensation: English anno: Workmen’s a 1912 see also like, including phrase "incapacity Statutory inability for work" or the as early following injury, 115. In one work 33 ALR to obtain court Irish case the noted: incapacity assumption partial the allowance “The incapacity is en- for total be less than the allowance should tirely this, where the uncon- without foundation. In a case like nothing, earning the workman was tradicted evidence is that county judge nothing present, the court has earn at and could discretion, jurisdiction, according his to allow him the full receive on a basis of same amount as he would be entitled to total incapacity.” (quoting Osborne v Tralee & at 119-120 [Id. Co, case).]

DR a 1913 Irish time, injured in in effect at the Kidd Plaintiff was 1978. Mich law (1982), 582; Corp, 414 327 NW2d 265 did v Motors General express legislative disability. We therefore not include a no situated these amendments. definition of opinion later amendments of the act on those about the effect of plaintiff, injuries similarly but whose occurred after recognized Disability consistently that the Worker’s Com We have "liberally pensation legislation, and as such is to be Act is remedial grant deny benefits.” Bower v Whitehall construed to rather than (1981), Co, 172, 191; citing Niekro v 412 Mich 312 NW2d 640 Leather (1975), Tavern, 53; App Brick 66 Mich 238 NW2d Co, (1977). 419; McAvoy See H B 401 Mich 258 NW2d Sherman 578; Fosterling, 99 NW2d 490 also Lahti v function, encourages compensatory the act rehabilita addition to its employer, employee is in the interest of the tion of the the because "[i]t gainful employee, public to have the return to 21 v Opinion Boyle, J. earn” phrase "able to be or may broadly Johnson, Inn interpreted. Regency narrowly 1982) banc). (Fla (en 870, So 2d "In App, the sense, broadest 'able to earn’ takes into account factors, many including of availability " jobs . .” sense, . . In its narrowest . . . 'able earn’ post-accident to the only employee’s physi- refer[s] Id. at capabilities.” cal n 2. The "broad inter- pretation law, is prior consistent with case with the principle requires a liberal construc- in Id. tion favor of the injured 875. employee.” at Larson, According phrase to Professor "able to earn therеafter” with the synonymous con- of cept "wage-earning capacity.”19 Even under those compare, statutes which for example, dent” with wages "average monthly before the acci- monthly wages "the he is able to earn thereafter,” the test capacity. remains one of If the legislature spoken had of wages "he has "he has thereafter,” earned wages or even the thereafter,” comparison been able to earn of wage might actual with actual be indicated. concept wages But the of he "is able” to earn alone, wages cannot mean definite espe- actual cially in the period absence of a fixed of time within which post-injury wages be are to taken as employment possible.” Co, DeTroyer as soon as v Ernst Kern 689, 694; 277 NW 199 phrase "wage earning capacity” may broadly itself or narrowly construed. sense, may, only employee’s It in its narrower refer earning capacity working in the in which he was accident, that, compensation purposes, at the time of the so earning capacity remaining employee the ings other call- hand, refer, is not at all. considered On the other it sense, ability broad its to the loss of to earn any, any employment. or suitable Workmen’s [Anno: compensation: Right as affected fact earns, injured employee offered, as, than, or as much more injury, before 149 ALR 415.] Boyle, 57.21(a), pp supra, 10-122 to controlling. [Larson, 10-128.][20]

Therefore, previous decisions an examination is instructive. discussing "wage-earning capacity” that, outset, again note consistent At the we concept compensation, wage-loss system of fact complex ... is a "wage-earning capacity with the nature of the which concerned issues are continuing availability performed work kind, and the nature and extent work of that v disability wages Pulley earned.” and Co, 378 Engineering & Machine Detroit (1966). short, 423; many 40 factors NW2d meaning to attempting give are considered when phrase. to the "wage-earning by What is meant the term ca-

pacity injury?” It not limited to after is holding actually injury, earned after for such a encourage malingering is would pension. capacity not a On the other hand mere to wages, "nondescript” injury, if by earn affords no measure unless reason of accompanied oppor- employment. Opportunity tunity to obtain suitable by capacity injured is openings of the circumscribed . . . to such a earner. person injured may point An recover can, favored, service, perform special he if if

where obtainable, but, if none be obtained such can capacity injury, because earn cannot be measured his his his work and against incapacity. If his then, injury isolates him from course, capacity he is not be held to have wages. work and earn If his his has reduced capacity relegated rating to work and him to the "nondescript” of "odd lot” or workers for whom limited, openings extremely oppor are then labor Co, Pulley Engineering v See also Detroit & Machine 378 Mich " (1966) 418, 423; (equating phrase to earn” NW2d 'able’ wage-earning capacity). Sobotka v Boyle, tunity, within capacity, his should be made to appear. Co, Wyandotte Fat Oil & [Hood 190, 192-193; 261 Emphasis NW added .][21] long ago acknowledged employ-

Thus, we that an physical "incapacity ee’s for work” alone accurately reflect the economic effect on a claim- mathematically ant and cannot be transformed into a benefit amount.22 interpretation phrase

A broad of the "able to supported opinion early earn thereafter” is precursor Board, Industrial Accident Compensation Appeal opin- Worker’s Board. The against reducing compensation ion cautioned on employee’s physi- the basis of a disabled ability perform cal work without more. The recognized: Industrial Board Accident recovering employe injury, An who is from an who has far that the and only partially looking reasonable, recovered so partial, required in his reasonably cannot go among strangers condition to disabled requirement for work. Such would not be probabilities obtaining and the of his required if very work to so seek it would be if employer remote. On the other hand his has perform for him to in his work suitable condition, disabled and which he can do without 21 Hood, decision in which affirmed an award of total Our benefits, Co, 522, part upon 230 was based in Jordan v Decorative NY 525; (1921), Appeals 130 NE 634 in which the York Court of New suffered, "[rjebuff, might reasonably noted that if be ascribed to the opportunities that await the sick and halt. In circum narrow such stances, failure, justify disability, by search for work and will followed earning capacity.” the inference of diminished Id. at 526. 22 See, e.g., Courts in other states have reached the same conclusion. (Ala Sons, 628, App, Wimbley, & Inc v 533 So 2d 631 Lewis G Reed 1988) ("the percentage physical impairment is not the same as the Lee, percentage disability”); Insulation v 464 So 2d West Coast 1985) (a (Fla twenty percent physical impairment App, ten to 1317 as for total entitled the claimant to the same benefits are awarded disability). 447 Mich Opinion by Boyle, J. causing suffering inconvenience, or and offers to

give work, him such it duty then is the of such employe reduce the accept the work thereby tendered and liability compensation. for That if the employer work, has no such suitable having such work fails to injured tender it to the employe, cannot upon be reduced theory that there are classes of work which he is able to do might and which he perhaps obtain if sought it, he diligently and which on the other might hand he not be able to obtain at all. [Bulle- 3, tin Michigan No Board, Industrial Accident Partial Disability; Duty to Seek Employment, p 10 1913). (December, Emphasis added.] This is not to say that unemployment alone will support an award of maximum partial benefits for disability. Wage loss of a partially disabled worker must be attributable claimant’s work- related injury. See Pulley, supra 428; at Kadykow- ski Briggs Co, Mfg 503, 506; Mich 8 NW2d (1943); MacDonald v Great Lakes Corp, Steel 701, (1936). 703; 265 NW 776 However, " the factfinder may infer 'that it was employ- [the own physical defects which ee’s] [would have] ” made the quest a vain Hood, one.’ supra at quoting Co, Jordan v Decorative 525; NY 130 NE 634 It is for this reason that Professor St. Antoine observed that there is little difference between total and partial disability as "a practical matter.”

The phrase "average weekly wages he is able to earn thereafter” does not mean that the unem- ployed injured worker, whose lack of employment is not due to the work-related injury can only denied benefits if the ‍‌‌‌​‌​​‌​​​‌​‌​​​​‌​​‌‌​​​‌​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌​​‍ employer has offered work to the employee or fоund work for the employee. real inquiry relates to the monetary "[T]he worth of the injured workman’s services the open labor market under normal condi- Boyle, Co, 487, 490; tions.” Jones v Cutler Oil 356 Mich (1959). However, 97 NW2d 74 a disabled worker not the does bear burden unfavorable economic ability conditions that further diminish his to find suitable work.

B rejection Given our of the claim that Trask proposition plaintiff stands prove must jobs any generally the absence of available economy, part m, we turn to some observa- regarding proving post- tions the burden of injury unemployment is due to the work-related prior injury. Consistent with our cases and the hold, provisions we would it is wdca,23 employee’s link the wage burden to show a between injury. MacDonald,

loss and work-related supra merely application at 702-703. "This is an proof right the rule that the burden of employee.” and its amount is on the Id. at 703. employee

However once the shows a work- subsequent wage loss, related the fact- finder infer that cannot find a job injury. supra Hood, 193.24 because at practical carry inference, effect,” "in will often persuaded, day. Where the factfinder is not other unemployment evidence of the link between ("A 17.237(851) 418.851; prove See also MCL MSA claimant shall compensation and under this act his or her entitlement benefits evidence”). preponderance of the 24 Hood, plaintiff’s only incapacitated work-related laborer, returning kept to work as a manual but also him him from barber, occupation being to find work as a for which he from able previously See also Coleman v Whitehead & Kales had been trained. (1934) (even Co, 412; though 256 NW 467 higher wages period injury doing for a of time after his received work, eligible being lighter off he remained for benefits after laid of his work-related when he was unable to find because injury).

26 447 1 Mich Opinion by Boyle, J. injury may example, be considered. For in the presented instant case the evidence that sought he and could not obtain evidence of rehire, defendant’s refusal which strong has been described as evidence of unem ployability. supra, 57.61(b), pp Larson, § 10-398 to Mfg 10-405; Co, Leonardo v Uncas 77 245; RI (1950).25 A2d 188 employer may course, Of the introduce evidence impeach to refute the inference or to the testi mony еmployee. employer might The intro duce medical evidence to refute the extent of the employee’s injury. employer might also intro duce evidence of other factors26 that affect the employee’s employability.27 Furthermore, the em ployer might jobs introduce evidence of offered and rejected, actually accepted, by employee.28 or the Lakey Foundry Co, But cf. Goudie v 138; & Machine (1950). firing NW2d 496 cal After passing the physi claimant for not its examination, the defendant claimed that the claimant had no physical defect so as to be agreed that the attorney found disabled. The claimant’s disability. claimant had no real medical Even without argument, the defendant’s it would have been error to award benefits light of the claimant’s counsel’s concession. 26According to Professor Larson: course, Of unemployment if the claimant’s continued is the result, employment-related not of his impairment, per- but of sonal employment, ailments possi- unrelated to his there is no ground continuing

ble temporary for [Larson, supra, benefits. 57.12(e),p 10-56.] example, Chrysler suggests For plaintiff’s preexisting psychi responsible atric condition is unemployment. for his continued How ever, there is no evidence in plaintiff’s the record to indicate that psychiatric ler. condition before ment to performance condition affected Chrys of his duties at Moreover, plaintiff’s wcab, psychiatric even with evidence of it, specifically plaintiff’s unemploy linked continued plaintiff’s Findings medical condition. of fact made fraud, board are any conclusive absent if there is evidence in the support Marquette record to Co, them. Mining Kostamo v Iron 105, 135-136; 418.861; 274 NW2d 411 MCL MSA 17.237(861); Const art 28.§ 28Placing coming the burden of forward with evidence to refute the Corp Chrysler Boyle, might proffer given employer even In a case the specific regarding availability em- evidence ployment plaintiff’s testimony. impeach accept reject discretion, factfinder, in its bearing testimony on the of its such on basis legisla- proposition which it is offered and injuries. purpose provide prompt redress for tive reject contention, however, that We jobs producing he evidence the burden bears perform theoretically if available could not plaintiff’s that defendant’s offer of evidence employ- perform ability some in the abstract that arises ment rebuts the inference causation showing unemployment injury.29 To of and from a employer injury plus unemployment on the from inference that arises simply should employers ordinarily recognizes vigilance a certain which engage. course, investigation Diligence, stop initial of cannot with the follow-up. If a continual of the accident. There should be claiming long disability, there should be an is a term worker (Some year. say every a would "activities check” at least once months.) suggest an investi- would of course six gation Common sense under certain circumstances. more often If, post example, office A his checks sent to a for Mr. wants box, might for If Ms. Y never answers it be a reason concern. phone to check p.m., and 5:00 it is time the up 8:00 a.m. between person things that a claims should on her. These are routine be sensitive to. talking usually An check” starts with someone If "activities "Oh, they say, poor there. If people neighborhood. old all in the with Joe, however, wrong all,” probably stop anything at it can he can’t do anything they say there was "Joe? We didn’t know him,” usually investigation is in order. This further gets and a video camera someone out a van and means that days. Joe around for a few follows emphasize or unusual. This is that this is not new I want to given people have stories to Some of the who routine. media act as if have ployer companies they just discovered fraud. Insurance investigation doing years. An kind of for em- this been part adjusting expect service. it as of the claims should Comp can be 77, Fraud: What is it? How bad is it? What [Workers’ done it?, Compensation about 3 Welch On Workers’ (June, 1993).] holding holding today regard, our is consistent with In this our Boyle, do so would undermine function fact- finder and impermissibly substitute a court-created definition under wage- the rubric earning capacity. from vocational Testimony ex- perts regarding hypothetical is not element impairment claim of of wage- earning capacity.30 a We decline to create presump- tion in the if employer’s favor that an injured work, capable of some performing appropriate work is regularly available. See Lar- son, supra, 57.51(c), 10-334 to 10-335. It is pp § "enough to show that claimant is physically capa- work, ble of performing light and then round out the case adding for non-compensability pre- that Id. at sumption light work available.” 57.61(c), 10-437. p §

m Because findings of fact are conclusive fraud, absence of necessarily defendant contends Legislature a finding intended partial disability is an inference or conclusion of work, 371(1), residual capacity Trask, Thayer require a mathematical caleula- tion of proportion of earning Murray Corp, 630; Tulk v 268 NW 761 We were unwilling employee’s postinjury wage-earning then to inflate an ca- pacity by multiplying six, employee’s wages single day by earned in a way employee’s preinjury average weekly wage in the determined, an same was employee’s wage-earning capac- in order to determine the ity similarly injury. unwilling today open after the We are the door speculation leading postinjury wage-earning capacity. to A to an inflated primary goal compensation fair, system prompt, of the worker’s is adequate compensation injuries. for work-related Extended fact-find- ing proceedings regarding opportunities theoretical nothing goal. would do to further this Brickley’s approach parade prospect Justice invites the of a of of experts plaintiff’s wage necessary hypothesize percentage that would be the disability. reject implicit loss due to his the We placed allegations burden the on to refute theoretical of what work he could do. by Boyle, transposed capacity onto the benefit then plus equals logic if A is that calculation. b by capacity preinjury measured for work as total by injury, wages, impaired average weekly b is the difference. amount awarded the benefit gen- to consider a the board Trask would allow resulting wages from increase31 decrease or eral economy changes the factors to be as one of in the proportionate of an extent used to determine impairment earning capacity. However, Legislature,32 by aspect as mooted of Trask was recognized Roxbury Co, v Weidman Lumber we (1934) ("the stat- 596, 599; 256 NW injury wage designating the time of ute, in at figure, permits constituting no such the basic and consideration decrease”).33 wage general of a new life to breathe the invitation We decline finding a ashes in its dormant into Trask per- requirement centage calculation of a mathematical earning capacity mea- ability residual to exercise theoretical sured capacity. Rather, that Trask has to the extent Indeed, approval Court in Trask the annotation cited with general wages considered in could be how an increase discussed order to approximate truly way injured compensate in a that would worker earning capacity. injury on the worker’s the effect of the increase, wage Therefore, following general could the board a time of higher wages being paid had for the work a claimant consider the higher wage, compensation doing rather than on that and base been injured. actually wages earned when the claimant had 11(e) (now 371[1]) act to include a 32 1927PA 376 amended § employee cap upon could receive as the amount an compensation payable, following proviso: wage "The It loss. added earning capacity in the same after the to his when added earnings average weekly employment, his shall not exceed or another at injury.” the time of such Brickley’s characterization, Roxbury dealt Contrary to Justice employee’s attempt employer’s his exclusively to reduce with an disability award, claiming employee’s partial earning capacity, the reduction in and that him no decrease in caused accident was earned before his from what the had employer’s rejected general wage asser- decrease. We due to tions, disability compensation on that basis. reduce and refused to Roxbury, supra at 599.

30 1 447 by Opinion Boyle, contemporary vitality,34the Court’s directive to the many Industrial Accident Board to consider fac- determining compensation tors in of amount to interpreta- be awarded is consistent with the broad tion оf "able to earn may may thereafter.” Absence partial to be attributable disabil- ity. requires All that Trask is "a factual link partial impairment between medical and the wages.” Leslie, reduction the definition of The tortured course of

disability Michigan in workers’ compensation past, present law, future, and 5 (1988).35 Cooley L 65,R 82

IV Findings binding of fact made the wcab are supported by any on this Court if in evidence Marquette Mining Co, record. Kostamo v Mich 418.861; Iron (1979); 105, 135-136; 274 NW2d 411 MCL 17.237(861); 6, MSA Const art 28. findings We ings also from infer those to other find necessary legal

that were reach conclu fact, Roxbury "appeared Leslie notes that the Court to Trask overrule and excise consideration economic factors in cases partial Leslie, disability.” of the definition of as well as total The tortured course of disability Michigan law, compensation workers’ past, future, present Cooley L R Thayer, supra, urged do We also not read in the manner Thayer require proportionate defendant. extent did not a calculation of impairment earning capacity. Citing explaining Trask as computation earning capacity, the method for remanded and cents of the of diminution in we compute board for it to the amount due in dollars proportionate on the basis extent of the employee’s earning capacity. say That is not to board plaintiff’s thirty percent seventy-five partial was to use sixty percent average weekly wages reduce of his loss in he was entitled to under the statute. Barrett, Finally, supra, proposition also stands there Thus, unemployment injury. must plaintiff order link be a between where the voluntarily had removed from himself the work force in education, already further his and where the had postinjury average wage, weekly established it was error award ability on the basis of an to earn less than what had been established. Boyle, J. sion. Co, Donahoe v Ford Motor 427; 295 NW 211 case, In the instant the board plaintiff’s testimony found as fact from the re garding finding his lack of in success work36 and testimony,37 plaintiff’s from the medical abil ity severely to earn was circumscribed. The wcab could infer38that his fruitless search for work was hearing plaintiff At the testified: leg problems, problems. A. I had get job. back I tried to a I get job, tried to anything. just some kind of get I couldn’t it. Q. you try get job? Where did and a Burger King. A. I get went to nothing. I couldn’t Q. you anyplace you Can think get else where tried to a

job? put applications. A. I in lots of I can’t recall.. do—get job. get A. I’m job. unable to a Can’t a Q. you attempted You job you indicated to find some since Chrysler. Burger King? left I think one was get job A. I tried there. I places, tried to and a few other know, you got Burger King. get I I did a formal—like a . . . Q. Interview? put A. applications. Interview. The I rest Q. places you applied? What are some of the light A. Whenever I paper find kind of work out of the which I couldn’t find. Q. you any Do remember of the names at all? got A. they No. That I remember because I a letter did not accept me. testimony The board credited physicians of three who had plaintiff examined physician on several occasions. One noted that "plaintiff should any not lift or bend or be in stressful situation where going he is to use his back.” 1989 physi WCABO that 128. Another shortly injury, "plaintiff cian noted after the given should not be work, required standing, squatting, which climbing constant for at diagnoses "sciatica, least three to four weeks.” Id. Their were: lumbo myositis, arthritis,” sacral "chronic lumbosacral back strain and possible herniated lumbar disc.” Id. principle: We remain committed to the question cannot review a decision of the [W]e wcab as a findings sufficiently

law unless its we can of fact are detailed so that separate applied, the facts it found from the law it Boyle, J. supra. injury. Hood, due to his upon

It then became incumbent defendant plaintiff’s come forward with evidence to refute presented contention. While defendant evidence regarding plaintiff’s physical and mental condi- plaintiff tion, the wcab found had satisfied his proof. finding burden The wcab’s of fact this regard binding on us on review. . interpret opinion

We decline the wcab in the interpreted by Appeals. manner the Court of wcab awarded the maximum benefit rate allowable under 361. The wcab considered plaintiff’s testimony physicians and that of the not, who examined him. It did Appeals as the Court of opinion, "juxta- characterized the wcab pose” testimony, lay testimony, the medical inability Instead, and the claimant’s to find work. plaintiff’s proofs a link established betweеn the injury unemployment. and the suggest power

We it lies within the participants in the compensation system workers’ wage itself to avoid might loss claims which be considered unwarranted excessive concen- trating their efforts on rehabilitation and re- workers, injured rather than aiming interpretations for technical by which it is hoped to defeat or diminish the recovery of bene- injured Inn, employee. [Regency supra, fits 422 So 2d 880.] findings conclusory inadequate are because we need to path through evidence, conflicting know the it has taken testimony adopted, it has the standards followed and the reasoning [Kostamo, supra used reach its conclusion. at 136.] urge

Accordingly, compensation.cases we the factfinder in contested findings regarding wage-earn- postinjury to make ing capacity sufficiently of fact a claimant’s appellate detailed to allow the courts to intelligently its review decision. Separate Opinion by Levin, J.

V employee sum, disabled §361(1) awarded the maximum benefit under if employee shows that loss is due to the injury. work-related The determination that an employee is entitled to a benefit award involves degree the threshold determination of secondary and the determination of the amount employee postinjury. is able to earn Where the employee unemployed, the determination what the is able to earn after the require jobs does not employee theoretical assessments of perform Instead,

could if available. if the unemployment directly attributable to the in- jury, the finder of fact should award the maximum pursuant §361(1). benefit available Thus, we Appeals, would reverse the decision of the Court of original reinstate the decision of the wcab, remand to the wcac to determine the factual dependency plaintiff’s wife and to enter an accordingly. per- award Plaintiff is entitled to ten statutory cent interest. J.,

Mallett, J. Boyle, concurred with (separate opinion). agree Levin, with the I signers opinion of the lead that the decision of the Appeals Court of reversed, should be original reinstated, decision of the wcab should be and that this case should be remanded to the Compensation Appellate Worker’s Commission to dependency determine the factual of Sobotka’s statutory wife and to enter an award with interest. separately agree I write I because do not analysis opin- all the and statements in the lead agree ion, and because I do not with statements in 447 1 Separate Opinion Levin, the, opinion part in concurs and dissents in part. concurring/

The focus of both the lead and the dissenting opinions meaning is on the of the words "able to earn.”1 opinion plaintiff essence,

The lead "In states: 361(1) argues that 'able to earn’ under should be interpreted wages earned, refused, as actual or opinion postinjury.”2 appears reject The, lead to plaintiff’s argument.3 agree

I with the that "able to earn” essentially wages means actual earned or refused. provides: The statute now incapacity resulting personal While the for work from a injury partial, employer pay, paid shall to cause injured employee weekly compensation equal 80% injured employee’s average difference between the after-tax weekly wage personal injury before the and the after-tax average weekly wage injured employee which the is able to personal injury, earn after the but not more than the maxi- weekly compensation, mum rate of as determined under section 17.237(361X1). 418.361(1); Emphasis 355. MSA [MCL added.] injured May, years ago. Mark Sobotka was sixteen At that time, clause, injured employee "which the is able to earn after the personal injury,” read "which he is able to earn thereafter.” This present clause took its form 1980 PA when 357 amended 1969 PA 317. J.). Ante, p (opinion Boyle, opinion The lead also states: phrase "average weekly he is able earn there- worker, unemployed injured after” does not mean that employment whose lack of is not due to the work-related only employer' can be denied benefits if the has offered work employee. [Ante, p or found work for the J.). (opinion Boyle, Emphasis original.] recognize opinion may absolutely I the lead be seen as not rejecting plaintiff’s argument qualifying language, because of the injury.” "whose lack of is not due to the work-relatеd (Emphasis original.) Separate Opinion by Levin, J.

I appear The words "able to earn” in 1981 PA amending § 301 of the worker’s Legislature act.4 disability The there if stated that weekly wage established, is "entitlement” to loss pursuant benefits "shall be determined” amendatory language. injured If an worker is employed, actually he earns or refuses after the date of the is the amount he is "able to earn.” Legislature did not intend that the words meaning injured

"able to earn” have one for work- employed meaning ers who are and another injured employment. workers who do not obtain employed unemployed injured For both work- wages actually ers, "able to earn” means earned or employer protected malinger- refused. The from amendatory language provides part as follows: pursuant (4), If is established to subsection entitle- weekly wage ment to pursuant loss benefits shall be determined to this section and as follows: (a) employee If an receives a bona fide offer of reasonable employment through previous employer, from employer, another Michigan employment security commission and employee good the sonable refuses that without and rea- cause, employee shall be considered to have volun- tarily removed himself or herself from the work force and is no longer any wage entitled during loss benefits under this act period of such refusal. (b) employee employed average If an weekly wage and the employee employee is less than that which the received injury, before the weekly date of shall receive equal benefits under this act of the difference between 80% injured employee’s weekly wage the injury ployee than the maximum under section 355. after-tax before the date of weekly wage injured and the after-tax which the em- injury, is able to earn after the date of but not more weekly compensation, rate of as determined 418.301(5); 17.237(301X5), MSA [MCL added Emphasis 1981 PA 200. added.] Levin, Separate Opinion during provision5 denies benefits ers period good refusal, the of a without and reason- by injured cause, worker of a bona fide able offer employer, previous employment from the of reasonable through employer, or the mеsc. another recognize injured 1978, in I that Sobotka was before the 1981 amendment. And the enactment of recognize meaning given I also that this was to the § 301, words "able to earn” an amendment of where, appear § and those words also defining compensation payable the context to a partially worker, disabled was not amended. Legislature did not intend that the words meanings under "able § earn” have different § 361 and 301. Legislature indicated in 1981 what "able means,6 and, thus,

earn” might, whatever constructions amendment,

but for the 1981 have been placed upon exegeses "able to earn” on the basis wages law, of earlier case those words mean actual injured earned or refused worker.7 concurring/dissenting the lead While and opinions modify Appeals somewhat the Court of opinion, they ignore Legislature both 5(a) See n 4 for text of of 301 of subsection the worker’s § compensation act. not, Surely, Legislature it will not be contended that could injury, after the date of amend the statute to indicate what those events, appears In all words mean. to be one of a handful of undecided, pending remaining precedes cases where the date date, 31, 1982, the effective therefore March of the 1981 It amendment. probably relatively importance little whether amend ment is retroactive. 301(5) legislation, adding 7 I the 1981 would also read act, legislative recognition acceptance worker’s that, as Co, under the case law after Trask v Modern Pattern & Machine (1923), Britz, 692; 645; Thayer 222 Mich 209 NW 50 193 NW 830 v (1926), worker, disabled, totally or is not wages deemed "able to earn” unless he has obtained alternative or, employment, in the case of a worker who has not obtained employment, employment provided by alternative the the worker refuses employer employer. or another Sobotka Separate Levin, J. indicated the 1981 legislation ‍‌‌‌​‌​​‌​​​‌​‌​​​​‌​​‌‌​​​‌​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌​​‍ what "able to .8 earn” means The likelihood is meaning ascribed "able to earn” today by the lead and opinions concurring/dissenting will be seen as the last word mean, concerning what those words rather than speaking as of 1978 and leaving as open question what words begin those mean ning March 1982.

That "able earn” means actual earned appears refused clearly from St. Dеan Antoine’s report, written 1984—three after the years amendment. Dean St. Antoine stated that the total disability/partial longer distinction is no important "as a practical "In matter.” either case,” the injured worker receives full "if benefits substitute proffered is not important point The most gleaned to be from all analysis this that in a wage-loss is system, such as established, Michigan’s, once "disability” is the of disability extent makes little or no difference. long continues, As as slight the however it may seem of physical impairment, in terms full theoretically benefits will at least due from employer. Inability to earn in fact presumptively will be the measure of the loss earning of wage capacity. Whether an technically "totally "partially disabled” or dis unimportant practical abled” is as a matter. either case he or she will full receive beneñts under if Michigan law substitute proffered.[9][Emphasis added.] reported

Dean St. Antoine governor so 8 opinion Legislature The lead states that “because the did not earn,’ Legislature define 'able we must determine what in Ante, J.). by phrase.” p Boyle, (opinion tended 20 of For stated, Legislature reasons I conclude that has defined "able to earn.” 9 Antoine, Costs, Benefits, Compensation Michigan, St. Workers’ Fairness, 1984, p 26. Blanchard, Report and A to Governor December 38 447 Mich Separate by Levin, J. Appeals years Court of de- nine before the (On Corporation Chrysler Rehear- v cided Sobotka

ing), App 455; 499 NW2d ii Appeals, Court of The cases relied on Co, Machine Trask v Modern Pattern & (1923), Thayer Britz, 692; 193 NW 830 and (1926), approxi- 645; 209 decided Mich mately seventy years NW compu- ago,10 concerned in cases where the worker ob- tation of benefits employment. In the instant alternative tained reemployment. case, partially has not obtained Thayer and disabled workers Trask exposed to the risk of denial of all were not opportunity compensation because of a theoretical general employment or of eco- to obtain because nomic conditions. Appeals Thayer as

The Court of read Trask and requiring that the trier of fact determine a resi concurring/ wage-earning capacity. The dual reading dissenting opinion affirm would §§ 361 371.12 signers opinion agree

I of the lead should not "breathe new life into Trask we finding requirement of a in its dormant ashes a percentage [the] mathematical calculation earning capacity impairment measured theo- capacity.”13 ability I to exercise residual retical predicate Thayer add that the Trask would superseded by subsequent of has been the worker’s amendments

compensation act, and that Trask and analysis by Appeals and relied on in these cases the Court of concurring/dissenting opinions has not the lead and adverted in subsequent in decisions of this Court. been relied on J.). Brickley, Post, p (opinion of 17.237(371). 418.371; MSA 12 MCL 13Ante, p 29. Chrysler Corp Separate Opinion by Levin, J. Thayer ago long any precedential ceased to have force.

hi acknowledged report St. Dean Antoine his arguments the Governor the advanced the em- ployers concurring/ in this case and dissenting opinion14 policy when he reviewed the considerations:

The notion a any degree will possibility life-long create the doubtedly more than benefits will un- injured

be viewed worker as no continuing his fair entitlement. In his incapacity, or incapacity, even recurrence of match his traced back his entitlement at level the time of injury can be injury,

to that initial why should not compensation parallel loss earnings earning capacity? or of On other hand, what employer an employee sees is a only physical moderate who is hardly off, worse in the sense of employability, many than other fellow unemployed workers a recessionary or underemploying economy. In es- sence, the employer sees the workers’ compensa- system being specialized tion into transformed high-beneñt unemployment compensation pro- gram. fact, it, The sad Ias see both the em-

ployee particular employer right, and the are from their perspectives. Michigan system entirely parties should seem fair to all in periods relatively employment. full Either the case law statutory be rather or the new may definition of "disability” generous sweeping injured workers within coverage system. But such workers their lose entitlement to beneñts if they unreasonаbly refuse ñde bona offers of alter- employment, compensátion native and the due J.). example, Brickley, p (opinion For n 19 post, 447 Separate Opinion by Levin, J. earnings proportionately by them is reduced their any employment. The rub comes when that available, employment other only intermittently.[15] is not or is available [Emphasis added.] clearly under Dean St. Antoine saw that employer statute as amended in would required although pay employ- benefits no ment was available because of economic condi- tions. Michigan

I read Dean St. Antoine’s review of attempt Michigan’s accurately law as an state worker’s reported it law as was when he reporting,

to Governor Blanchard. so speaking was, course, Court, he for this but reporting commonly he was on the basis of the held view of what the law was. Justice Oliver oft-quoted Holmes, Jr., dictum, Wendell in his prophecies observed: "The of what the courts will nothing pretentious, fact, do in more are what by I mean the law.”16 prophecy

Dean St. Antoine made his on the history statute, amendment, of the basis of its practice practi- law, case and the as understood representing employers tioners as well as workers. anticipated Dean St. Antoine could not have prophesied approach the revisionist reflected in Appeals opinion, the Court of as modified concurring/dissenting opinions. lead and Absent actual or refusal of an offer employment, of reasonable a disabled worker paid statutorily prescribed should be benefits regard without to factors made relevant concurring/dissenting opinions. lead and 15 Antoine, supra, pp St. n 9 26-27. 16Holmes, law, path 10 Harv L R Chrysler Corp Separate Opinion by Levin, J.

IV report Dean St. Antoine’s recommended funda- procedural changes cope mental the back- log Compensation Appeal of the Worker’s Board by roughly 7,000 that had five-year almost a reached change The sea in caseload. the determi- eligibility compensation of nation for worker’s ben- brought by that efits would be the of about Court Appeals opinion by Sobotka, as in modified the analysis concurring/dissenting opinion, in the assuredly undermining legis- in would result that backlog.17 lative effort to reduce concurring/dissenting opinion, Under em- ployers, by motivated a to desire limit their work- permitted liability, er’s and expert liability would be encouraged

even to hire vocational and other testify significant witnesses to in cases with postinjury unemployment pre- is not sumptively injury, due to the but to "the econ- omy.”18 analysis adopted concurring/dissent-

The in the ing opinion greatly would reduce the force of the push remedial nature of the statute. The is on to to totally move disabled workers from disabled partially deny disabled, and then to benefits be- cause, jobs conditions, as a result of economic no Injured required, are available. would workers practice, disprove in related that economic factors are unemployment, placing continued on 17 appears employer It an henceforth offer evidence con cerning "availability specific employment impeach plaintiff’s (ante, J.) Boyle, testimony” p opinion showing without an job plaintiff. actual offer to the poor affecting compen introduction of economic conditions as ignores hardships injured sation benefits faced worker in a arm, competitive damaged environment. man with a stiffened or "[A] back, badly eye presumably weakened will have harder time doing meeting competition young his work well and and healthy Larson, Compensation, 57.31(c), p men.” 1C Workmen’s 10- 219. 447 Mich 1 Beickley, J. legal burden.19 them an enormous factual contemplated change practice in was not resultant Legislature. necessary it to resolu- Nor is pending case, now for a sub- tion of the instant injury. part years since stantial sixteen Cavanagh, C.J., J. Levin, concurred with dissenting (concurring part Brickley, reasoning part). I While concur some opinion, namely, of the lead that an inference of earning capacity permitted total per where a disabled has any separately express my work, I formed write Compensation understanding Disability the Worker’s 1 requires t the finder of fact to deter Ac mine the extent partial impaired has capacity. Although wage-earning I concur with the opinion employed lead for reversal of the rationale by Appeals, the Court of I dissent from affirmance of the wcab. Because the board has never stated impairment earning capacity, that it found total I would remand for a statement of the extent earning capacity impaired.

has been Although wage found the loss to be wcab partial disability, linked to the record does partial disability it found the to establish entirely earning have caused total capacity. It is not sufficient to find some connec- wage partial disability. tion between claimant loss and For a benefits, to obtain maximum it must be wage entirely found that the actual loss is caused wage injury. only the work-related If loss is 19Magistrates daunting deciding would be faced with the task of disability whether would be an increase in loss is due to or economic factors. The result costs, litigation and an increase in the backlog of cases. 17.237(101) seq.; seq. MCL 418.101 et MSA et Brickley, injury, par- due to the work-related then tial benefits are order. opinion, any

Unlike the I lead would not find partial disability unemploy- link between and total ment to be to sufficient establish the maximum 17.237(361)(1).2 418.361(1); award under Only MSA MCL par- where the finder of fact determines the disability tial sole reason for total unem- ployment should full benefits be awarded.

i present case, claimant, In the an unskilled partial caused, laborer, has established a by a work-related incident. The claimant has had earnings. pre- employer no actual The defendant sented evidence of reasons other than the plaintiff’s unemployment. account for the plaintiff nonwork-related, suffered from a serious (manic psychological depression condition schizophrenia) following before and the work- injury. recovery back related After his initial from workplace plaintiff accident, tried to re- employment, complained turn his former but pain discharged. plaintiff and was contested discharge eventually and was reinstated. How- plaintiff ever, reinstated, the time the was his position layoffs. plant-wide had been eliminated because of questioned by

When ef- defendant about forts to find other after he was unable only specify reinstated, to be could application Burger King.3 one unsuccessful plaintiff’s injury, 2At the time of а disabled 361(1). compensation payable pursuant provisions received of § ante, 7,p n 3 See for the as it read at text statute that time. 3The defendant asserts that there was evidence from which little, plaintiff monetary any, finder of fact could infer that incentive to had if seriously reemployment earning seek his within residual plaintiff capacity. The testified that he receives or has received social Bkickley, position employer’s it is is that The defendant finding partial a full benefits on to award error disability proves no he has unless earning capacity. contends that Plaintiff residual partial disability, any maximum where there is automatically unless awarded should be benefits wrongfully has offered and the claimant has been my postinjury employment. It is conclusion refused proper positions are inaccurate. that both interpretation 361(1) in the §of lies somewhere arguments. of the two middle opinion agree that the Court

I with the lead partial Appeals presupposing disabil erred synonymous ity the ex with determination to be earning impaired. capacity I has been While tent partial disability agree the determination impair of total not foreclose a determination does earning capacity law, as a matter of ment partial disability does the determination neither of law. I total as a matter establish opinion disagree it is the lead to the extent suggesting partial disability is to be consid impairment. equivalent of total Neither ered interpretation the statute as it read is true to injured. was when Sobotka reading of the statute

Even the most casual compels factfinder in a the conclusion that this case case at time worker’s to assess the residual was tried was instructed hearing. earning capacity at the first Should partial disability that a finder of fact determine earning capacity, partially impaired only has postinjury total are other reasons for there benefits, benefits, security disability accident extended sickness and benefits, benefits, supple- unemployment compensation unemployment mental benefits. PA 1. 1980 PA 1 and 1985 § Since amended v Opinion Brickley, J. compensation unemployment, should be limited to injury unemployment.5 the the extent has caused agree wage-loss system I would under a proper ours, such as depends the measure of on economic effect work-related injury opin- on the individual claimant. The lead injury, "[w]here, ion states employee on account of an unemployed, employee is, fact, is entitled to the maximum benefit allowable under §361(1) pp opinion Ante, . . .” . 7-8. The lead long ago acknowledged further states "we that an employee’s physical 'incapacity for work’ alone accurately reflect economic effect on a mathematically claimant and cannot be trans- p Ante, formed into a benefit amount.” 23.1 do not dispute recognized early we in worker’s com- pensation person partially law that a disabled faces hurdles to future that extend beyond physical experienced by limitations Wyandotte v Co, worker. Hood Oil & Fat 272 Mich (1935) (quoting 190, 193; 261 NW 295 Jordan Co, 522, 525; Decorative 230 NY 130 NE 634 points Defendant out that are there cases which a residual earning capacity low, nonexistent, but not that will nonetheless support a maximum award: The Court should realize under certain circumstances partially employee

even a rate of dual disabled can recover the maximum compensation. employee’s This occurs where the resi- capacity very comparison to earn employ- low in example, injury. ee’s at the time For if an high average weekly (say, $1,000 week), wage per has a only but is thereafter, able to earn at the minimum level then employee’s average two-thirds of the difference between the weekly wage at the time of and the amount the em- ployee place is able to earn employ- thereafter would still therefore, rate; ee’s rate above the maximum person disabled would receive the maximum rate. MCL 17.237(361X1) 418.361(1); MSA it at read the time of [as plaintiff’s injury]. prescribed instant The maximum rate is statute, percentage average weekly wage, to a tied of the state 17.237(355). 418.355; adjusted yearly. MCL MSA Brickley, (" upon a differ- find work stands [1921]) 'Failure unmarketable because the labor is basis when ent ”). of the laborer’ of the condition however, follow, we that because It does not hur- additional persons face аcknowledge disabled any dles, in the abandonment acquiesce we earning capacity. residual attempt to determine liberally construed law is to be "[Compensation inciden- peculiarly for accidents indemnity provide to be it was not intended employment, tal but spread health, age old insurance accident and all and over risks common to general protection of employ- of and in the course arising not out 460, 463; v Lee & 294 Mich Simpson Cady, ment.” (1940). purpose The of worker’s com- 293 NW 718 amount pensation approximate v De- injury. Foley work attributable to the loss 507, 515; 157 troit United 190 Mich NW Railway, 45 the first time this Court has been

This is are interpret appropriate what factors asked to earning determining impairment consider when the "able to earn thereafter” or whether capacity6 361(1) wages to actual alone.7 language of refers § Co, 222 & Machine Trask v Modern Pattern 1912, originally injured compensa enacted in worker’s 6 When by impairment earning capacity: tion measured was wages weekly in referred to in this act shall consist loss average weekly earnings percentage of the of such injured section, employe, computed according provisions of this represent proportionate fairly extent of the as shall impairment earning capacity in the in of his accident, ‍‌‌‌​‌​​‌​​​‌​‌​​​​‌​​‌‌​​​‌​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌​​‍working the same to which he was be fixed as of the time of the at the time of accident, but to be determined (Ex Sess) injury. PA the nature and extent of the [1912 view of 10, II, Emphasis part 11.§ added.] Sess) (Ex II, 63, 10, part PA 10 was amended 1927 PA § (the ante, II, p part n 3 and in effect version found at was still injury). plaintiff’s the time of v Opinion by Brickley, (1923), 692, 696; 193 NW 830 established that an employer is not liable for lost that were economy caused a downturn in the rather than partial disability.8 Thayer Britz, (1926), pre- 645; 209 NW 50 we remanded to the impair- cursor of the board for a determination of earning capacity. "Having partial ment of found duty compute it was the of the board to proportionate in dollars and cents the extent of earning capacity of his in accor- presently [what dance with §§ Id., 371].” p principle may long 647. While this have been neglected by applied by it has been wcab,9 Appeals10 explicitly Cоurt of and has not been developed in Trask a serious infection and blood poisoning she worked as her the position receiving after a minor skin laceration in the office where manager. recovered, By auditor and office the time she employer experienced had decline business and had reduced employees, along reducing number of its wages. some Her Id., pp had been eliminated. 693-694. Although employee subsequent employment was able to find company bookkeeper, with position another paid thirty as a per dollars less week. Rather than affirm the award of the difference preinjury postinjury wages, between and this Court remanded for a part wage determination of what injury. loss was due to the We changes wages stated that in labor conditions and are elements to be proportionate considered in the ment of impair- determination of the extent of Id., earning capacity. p 698. 9 ante, 9,p See n 7. 10See, e.g., Industries, 636, Juneac ITT App v Hancock 181 Mich (1989)(“The 641; applicability 450 NW2d 22 of 361 . . . includes not only wages actually injury, any earned after the but also the em ployee Mich earn”); capacity Chrysler Corp, has the to Stallworth v 144 706; (1985) (remand App 375 NW2d 797 for determination of earning capacity); Corp, App Mitchell v General Motors 89 Mich (1979) ("the 555-556; 280 concluding NW2d 594 board erred in plaintiff job the reason an left his is immaterial” because "evidence that employee job left his for injury reasons unrelated to his tends to work, establish that he was still able to do the and had not suffered a wage earning capacity”); Co, loss in v Frammolino Richmond Products (1977) (the 18; App 79 Mich capacity 260 NW2d 908 of a claimant to employment opportunities work and along are factors to be considered wage-earning capacity); with actual to determine Dalton Candler-Rusche, Inc, (1975) (where 282; App v 65 Mich 237 NW2d 290 injured an to find other worker was laid off after his return to work and was able employment, postinjury wage-earning capacity his was 1 447 Mich

48 Brickley, 11 by this Court. overruled interpret opportunity this Court for

The first in Rox- the statute was 1927 amendment the bury Co, Mich 596; v Lumber 256 Weidman 268 than an of less (1934). ordered award We NW 560 employee who was to an maximum benefit the receiving she returned when a lower injury. position time of had held at the she same wage-earning capacity again after addressed We the Wyandotte & Fat v Oil Hood amendment. 1927 supra.12 employer Hood, Co, asserted disability precluded physical employee a whose the return to preinjury and who had no training earnings postinjury had actual residual capacity work as a barber. We to resume wage-earning capacity is not limited to stated holding wages actually such a earned because encourage malingering and transform com- would a heart attack that forced the before nonwork-related established Co, employment); 34 all Benefield v W R Grace cease (1971) (where 442; noninjured App experienced less in a earning capacity—if capacity, co-workers also NW2d 567 reduction in 191 employee wages, an earns the fact that a job injury not alone establish reduced after an does employee’s earning not reduce an does compensation). not entitled to he is judicially favored-work doctrine have While the created earning capac perhaps determination of confused the shadowed ity, Mich Co, See, e.g., displace Leather it did it. Bower Whitehall (1981) (the 172, 182; doctrine is a favored-work NW2d employer judicial primary purpose allow an creation whose is to liability providing for work the or eliminate reduce Corp, capable 355, performing); Nelmor 406 Mich Powell v Casco (1979) (favored 12; work does not establish n 279 NW2d employer earning liability only operates capacity—favored off work set capacity earning while favored work actually performed). 17.237(301) 418.301; recently have ad- Amendments of MSA MCL earning capacity interplay between favored work and dressed the employment.” concept General Mo- Wade v "reasonable 267, 270; Corp, App NW2d 248 tors 12 legislative Thayer, to Trask or the Rather than intended address redefining disability likely purpose more intended to in 1927 was holding employment subsequent fields of in new correct our earning capacity. v See Geis Packard did establish (1921). Co, 646; 183 Motor Car 214 Mich NW v Opinion by Beickley, " Id., pensation pension. p. into 192. There is 'no if for the failure ground find [to origin has its in general business conditions work] Id., Co, ....’” Jordan p (quoting v Decorative 525). benefits, supra, p To it award maximum must employee’s earning capac- be determined the ity other fields is circumscribed the by disabil- Id., ity. p 194.

We an ordered award of less than the maximum an benefit where received no actual earnings. Coleman v postinjury Whitehead & Co, 412; Kales 256 NW 467 represented award the diminution of an employ- earning power ee’s when his earning capacity at injury compared time of the was to his earning Id., capacity compensation. when seeking p 414. an award Reversing solely based on the difference earnings between preinjury postinjury without ascertaining earning capacity, we repeated requirement Co, in Barnot Ford Motor 37, 39; (1937), NW order to hold loss, liable employer for the difference between preinjury postinjury wage must be attributable to injury: partial

This found and his measured earnings by capacity decreased rather than to to required work and make made defendant insurer up the difference between what earned before and after the accident. Such is not get any inability test more than mere work. applied test to be whether his has and, capacity decreased his work as before therefore, has he earned less reason of his physical disability and defendant should be made respond injury. loss occasioned [Emphasis added.] While we excused the board’s failure make a Mich 1 447

50 Brickley, J. earning regarding impairment specific finding of capacity Co, 295 Mich v Ford Motor in Donahoe (1940), the did so because we 422; 295 NW not have amount could of maximum award the wage when added to residual former exceeded the earning capacity.13 Corp, repeated Pigue v Motors We General (1947), 316-317; 26

317 Mich NW2d actually earning capacity wages earned to limit malingering, again encourage we stated would earning capacity of must the determination employee’s opportu- an examination of the include nity Pulley employment. v to obtain suitable Engineering Co, 418; 378 Mich & Machine Detroit (1966), we stated that what the 145 NW2d 40 employee is able to earn there- disabled question proof is a matter of and a fact. after proof the em- the barе elements what "[I]f establishing ployee paid were construed as his was 'earning capacity’ purpose act the whole p Id., 423. would be vitiated.” Co,

If, as v Cutler Oil this Court held Jones (1959), 487, 490; "the real 97 NW2d monetary inquiry worth of in- relates jured open workman’s services labor market employment conditions,” then an under normal certainly employer able to refute the should be disability solely partial caused inference that earnings. employee’s total lack of Where including employer suggests factors, that other general conditions, economic have caused con- magistrate wages, or the to the loss of tributed finding partial go must further than disabil- board unemployment—the ity and some link earning compute impairment capac- board must ity^_

13See n 6. v Opinion by Brickley. interpretation Judicial is not warranted when language ever the of a statute is clear un ambiguous. Dep’t Livonia v Services, of Social (1985);Achtenberg 466, 487; Mich 378 NW2d 402 Lansing, East 770; 364 NW2d 277 (1985). Only meaning if unclear, of a statute is analysis should a court undertake an of the rea given any sonableness of construction. State Treas Wilson, 138, urer v 423 144; Mich 377 NW2d 703 (1985). apparent ordinary meaning It is from the Legislature of the words chosen the the 361(1) ability potential central § focus of is on or postinjury for ings. and not actual earn Legislature

Had the intended to limit earn ing capacity to actual earned or an offer of employment by employer, Legislature surely would have used words to that effect.

Properly interpreted, "able to earn thereafter” provides for consideration of economic conditions they and other factors insofar as reflect the availa- bility unavailability partially or of work for dis- employees. Any interpretation abled that holds disability long that the extent of is irrelevant as as there is some and actual loss would contrary plain meaning be of the statute purpose and would undermine the of worker’s compensation.14 support my

In further of belief that the fact- finder is instructed statute to determine resi- earning capacity hearing, point dual at the first I partial to the inherent difference between disability. separately total Section 351 and dis- 14 purpose compensation of consuming wоrker’s law is that public should bear injuries cost of the risk of work-related necessarily any given Ballou, industry. Crilly inherent v 308; 91 NW2d 493 Imposing onto the consumer the costs of for reasons purpose other than a work-related has never been the compensation law. Mich Brickley, totally provides

tinctly dis- for the treatment opinion an treats whether The lead abled workers. totally employee as irrele- disabled is opinion practical If the lead a matter. vant as partial possibility of in its dismissal correct why the case, to fathom it is hard this benefits Legislature when the distinction would have made 361(1).15 proves employee an it inability enacted Where partial any aof work because obtain disability, the maximum rate opportunity lack of awarded. Where the should be disability, partial then to earn unrelated compensable earnings should the lack under Worker’s Compensation Disability Act.16 opinion agree the conclusion of the lead I not bear the burden should only to the extent economic conditions unfavorable totally incapaci involving part-time who was In a case worker 502; work, Borman’s, Inc, 315 NW2d Irvan tated (1982), emphasis explicitly be on we should stated earning capacity, not hours worked: Compensa- Disability primary function the Worker’s of "earning capac- compensate employees for loss of

tion Act is to merely wages. At the act ity” not lost the same time seeks and still to A avoid windfalls those able work. to disabled worker ished earning working capacity may dimin- his or her have only slightly, work force and be able to remain in the still salary. preinjury equal [Citations close or to his or her omitted.] 16 case, argues unemployability In this the defendant that Sobotka’s preexisting psychological It has been conclu was to his condition. due magistrate sively psychological that the the was not related to the the board determined employment. was There condition aggravated finding injury significantly or no that the work or the Findings preexisting of fact in mental condition. contributed the disturbed; only misapprehen will not be worker’s cases 6, 28; by this Const art sions of law will be corrected Court. Nu-Ad, Green, 421.38; 17.540; Stephen’s Inc 168 Mich MSA v MCL 219, 222; (1988); Corp, App Mich plaintiff’s psychologiсal 414 v Motors 423 NW2d 625 Kidd General (1982). Therefore, 578, 592; NW2d the extent to which 265 employability cannot be condition limits his Corp, responsibility. v 361 Mich Carter General Motors defendant’s (1960). 577, 594; 106 NW2d Brickley, addressing that it the of effect unfavorable par- economic conditions combination with the tial that further diminishes the claim- ability ant’s to find suitable work. Powell v Casco Corp, 332, 351; Nelmor NW2d employer should bear the burden of unfavorable economic conditions that function independently preclude the claimant from find- ing employment Legislature provided where the partial disability for an assessment of the effect of earning capacity. appropriate case, on In the defendant support able to should be introduce evidence to conditions,

an inference that economic independent partial disability, other factors of the actually responsible unemployment. are for total compensa- To hold otherwise transforms worker’s unemployment tion insurance into insurance. opinion employer

The lead states that partial refute ability causal connection between dis- unemployment that evidence unemployment.17 other factors are the cause of the agree. opinion I would The result the lead would affirming any specific reach in board’s lack earning impairment beyond determination of find- ing partial disability suggests measuring partial link between the disability absence and the all-or-nothing proposition is an on reject any issue of I causation.18 would all-or-noth- interpretation ing relevancy the effect earning capacity suggested other factors on that is 17Ante, p 26. opinion wcab, ante, The lead would affirm the first decision p merely in which the board stated in essence it found

work-related continued disable and there fore full benefits were awarded. Hearing Compensation Appellate officers and the Worker’s Commis Board) (formerly Compensation required Appeal sion to the Worker’s are legal provide conclusions and their factual bases on in the record MESC, meaningful order to facilitate review. Leskinen v 398 See 501, 509-510; (1976); Frammolino, supra. Mich 247 n NW2d 808 447 Brickley, approach ignores opinion. that Such an lead the only partially wages may attrib-

the of absence require progeny disability. and its Trask utable measured, link be of the factual that the extent only percentage loss be of actual that and ultimately against employer the the assessed consumer. properly magistrate statute, a could the

Under precludes employment partial injury find that the degree, factors, includ- that other to a but certain ing conditions, to the unem- contribute economic compensation only ployment, and order precluded injury has work-related extent the employment. remand from the Court the second

After again Appeals the once di- in which board was earning capacity, the rected to state residual partial injury "severely lim- board wrote post-employ- ability engage employee’s] its [the Although 128. Court ment.” WCABO Appeals three times to asked the board has precise on has had effect determine earning capacity with Trask and accordance administering Thayer, on board insists interpretation provides full under statute impairment, any no mini- benefits for matter how precise mal. A determination extent in its view. is therefore irrelevant generally While a certain amount of deference is due interpretation appli- an administrative governing its of the administrative code cation action, that deference does not extend own plain ignoring the statute’s lan- administrators precedence guage and this Court’s and directives.19 heavily separate opinion relies on Dean St. Antoine’s assess application compensation law in his ment the actual of worker’s Antoine, report Com to then St. Workers’ Governor Blanchard. Costs, Fairness, Benefits, Report pensation Michigan, A Opinion Brickley, J. earning capacity required determination of The task, it no but is more is no doubt a difficult determining speculative whether than difficult or disability workplace given any a the result of Legislature is Further, in the has stated incident. language is to that a determination be clear such they employers to It no to tell are made. excuse regardless wage the loss of what liable for total be 361(1) easy Legislature not §in because it is said respon- figure employer be to out what the should for. sible

Accordingly, I decision the would reverse the of Appeals to of remand the case the wcac Court partial the the extent that for a determination of unemployment. disability While an has caused the percent sup- one hundred would be inference of ported ‍‌‌‌​‌​​‌​​​‌​‌​​​​‌​​‌‌​​​‌​‌​‌‌‌​‌​​‌​‌‌​​‌‌‌​​‍partial where demonstrates unemployment, the record does and total loss any fact that finder of made determi- show partial injury of the extent the contributed nation total to unemployability.20_ Blanchard, 12, ante, pp 39-41. As I 1984. See

Governor December attempt legally report, to a it was not an render correct read Michigan’s interpretation so it law much as of worker’s application attempt report of the law the field. was an to the actual report Antoine’s case reveals that St. The record of remand the this Michigan practice compensation law in to award full in worker’s who not returned to work benefits was disabled workers have argument report probably does not advance accurate. interpretation practice is a correct that such consistent with statute. 15, asserts, ante, 14, p opinion that has n lead wcab capacity. impairment earning The first three order found a total times finding only August is a there states dated any partial disability full benefits without and therefore an award of impairment. order a statement The second contains mention of in the there is no record in order because evidence full benefits are byis to find This no means has been able work. indicate that injury finding total caused a the wcab the work-related a impairment earning capacity. I conclude that Nor would " order, disability finding severely third 'a which as board’s stated ” ability engage post-employment,’ a state limits his totally injury. impairment Had due to work-related ment of total Brickley, partial Only if the finds that the board caused total should the maximum award ordered. If the determines be board part unemploy- work-related ment, caused requires compensation the statute part only. for that made

Riley JJ., Griffin, concurred Brickley, wage-

the wcab once stated that earning capacity it found a total by plaintiff’s disability, caused work-related this case would not be before this Court.

Case Details

Case Name: Sobotka v. Chrysler Corp.

Court Name: Michigan Supreme Court

Date Published: Aug 30, 1994

Citation: 523 N.W.2d 454

Docket Number: 96170, (Calendar No. 15)

Court Abbreviation: Mich.