Sobotka v. Chrysler Corp.

Sobotka v (ON REHEARING) SOBOTKA v CHRYSLER CORPORATION 13, 1991, Docket No. 139553.Submitted November at Detroit. Decided 1, 1993, appeal sought. March at 10:05 a.m. Leave to Sobotka, Chrysler Corporation, Mark an sus- Compensation tained a work-related that the Workers’ Appeal subsequently Board determined resulted in a $153, disability. weekly The board awarded Sobotka a benefit of erroneously preinjury which it determined was two-thirds of his average weekly wage Appeals peremp- $283.30. The Court of remanded, torily directing calculate, reversed and the board to cents, impairment earning in dollars and the extent of the so, capacity. again weekly The board did not do but awarded a Appeals peremptorily $153. benefit of The Court of reversed remanded, again directing board calculate the impairment earning capacity. The board calculated the impairment $283.30 to be "two-thirds of or $153.” The Court of order, Appeals, peremptory in a aifirmed the board’s determi- $283.30, nation that the was two-thirds of but order, noting vacated the remainder of the board’s two- $153, $188.87, pursuant $283.30 thirds of is not but and that 418.361(1); 17.237(361)(1), weekly MSA $126, average weekly wage not exceed two-thirds of the loss (% x$188.87). Court, Supreme granting in lieu of leave to appeal, Appeals vacated the Court of order and remanded to Appeals plenary the Court of for consideration. 437 Mich 953 Marilyn Weaver, P.J., Appeals, The Court of (Michael J., dissenting Kelly, part), Kelly, J. in an (Docket unpublished opinion per curiam decided June 139553), $153, No. affirmed the board’s benefit award of but remanded to the board for a determination whether Sobot- properly dependent purposes ka’s wife was of the award. Appeals subsequently granted rehearing. The Court of rehearing, Appeals On the Court of held: partial, 1. Where Trask v Modern Pattern & (1923), Britz, Machine 222 Mich 692 References 2d, 379, 381, 395, Compensation Am Jur Workers’ 418. §§ Compensation. See ALR Index under Workers’ App 455 op Opinion the Court require earning capacity also be deter- in the field of mined. 17.237(361)(1), pertinent time at the 2. MCL case, weekly at no for a set the benefit to this average weekly wage. in of the loss more than two-thirds Compensation Appeal Board Workers’ In this 3. average wage weekly in was two- loss Sobotka’s determined $283.30, i.e., weekly wage preinjury $189. of his thirds 361, weekly cannot exceed two-thirds his Pursuant to § benefits, i.e., pay weekly $189, Chrysler $126 must in $126. earned, wages actually applicable MCL credit for less 17.237(371)(1). 418.371(1); past All due benefits are to be MSA percent, paid interest at ten 17.237(801X6). dependency need not be of Sobotka’s wife weekly benefit falls within the $126 addressed because compensation. allowable rates of minimum and maximum Affirmed as modified.

Marilyn Kelly, J., dissenting, stated that the board’s award weekly affirmed in deference to in benefits should be expertise. the board’s op Disability Impairment — Compensation — Partial Workers’ Earning Capacity. Disability Compensa- by of Workers’ A determination the Bureau partial disability must include a calculation tion of a worker’s earning capacity the field of the extent of employment; not benefit for such expressed percentage as a of the exceed the maximum benefit 361(1) earning capacity, provided under loss of (MCL 418.361[1]; compensation act MSA 17.237[361] workers’ [!])(cid:127) Berman, Nolan, Woll, & P.C. Olsman Crowley, Ganos), Sandra L. plaintiff. for the (by Marcinkoski), Lacey M. & Jones Gerald for (by the defendant.

ON REHEARING Kelly Weaver, P.J., Michael Before: Marilyn Kelly, JJ. Chrysler Sobotka v Opinion op the Court rehearing The motion Weaver, P.J. unpublished opinions granted previously (Docket 139553), on June No. released replaced matter are withdrawn and are of the Court’s accompanying expression view. Plaintiff Mark Sobotka was the course inspector of his as an at a plant on 1978. An automobile Corporation May moving along production line collided with a on stationary perform- vehicle ing inspection, striking legs an his above and below the knees. 8, 1986, decision, original August

In its Compensation Appeal plain- Workers’ Board found disabled, tiff him partially but awarded full bene- the difference fits to the extent of two-thirds of wages his and the postinjury between actual earning he was at the time of injury. 23, 1986, this peremptorily

On December Court board, appeal reversed and remanded to the direct- ing the board to determine plaintiff’s earning capacity impaired, had been amount, with instructions to fix the in dollars and cents, of the due. This accordingly benefits unappealed finding order was based on the board’s support v partial disability, and cited Britz, and Bar- 209 NW 50 rett Bohn Aluminum v & Brass App 636, 641; 245 NW2d remand, the appeal again

On board awarded equal to two-thirds of the difference benefits be- wages plaintiff earning tween the before in- earnings and after his jury injury, postinjury being that time zero. The board found that "there indicate, plain- is no evidence in the record to that tiff has been able to find suitable work within his on January restrictions since he was laid off peremptorily reversed, Again Court 1979.” supra, citing Thayer Britz, Trask v Modern and 692, 697-699; 193 Co, Mich & Machine Pattern appeal directed That order again cents, the calculate, "in dollars and board earning plaintiffs impairment disability,” partial capacity to his attributable earnings post-injury "plaintiffs are noted merely Appeal considered; factor to be one July opinion 31, 1987 treats order of Board’s those relevance, earnings post-injury the sole factor contrary analysis forth set supra.” Trask, appeal remand, reviewed board second

On juxtaposing lay testimony, it with the medical and plaintiffs inability his to find within leading injury, the date of restrictions since following to the conclusion: board not been upon fact that has Based January wages after his to earn able Larkin, Dr. testimony of Dr. the medical layoff, concerning the nature Goldberg and extent of Dr. Weisman find that plaintiff’s injuries, we disability which se- from a plaintiff does suffer verely limits his engage post-[injury] ability to [in] plaintiff’s propor- find that employment. We also earning capacity attributed tionate to or disability is two-thirds of $283.30 his dependents. for two per week to the rate' rate is identical That benefit prior appeal two orders. board’s awarded quoted board decision It is last Initially, determination. us for our is before again peremptory order, af- Court entered this partial plaintiffs firming the determination However, is two-thirds $283.30. appeal order was vacated board’s remainder following observation: on basis Sobotka v $153, Two-thirds of is not $283.30 but $188.87. 361(1), plaintiffs Pursuant weekly disability benefit not exceed two-thirds of his loss in average weekly wage, remand, or On $125.91. Appeal Board shall plaintiff’s determine dependents, level for two not to exceed $125.91. Court, however,

The Supreme vacated that order and remanded to this Court for plenary considera- (1991). tion. 437 Mich 953 part We amend in affirm.

Fundamentally, proceeds this case on the basis is only partially disabled. Plaintiff has never sought appeal finding the initial and when disability, defendant attempted to allege remand, total disability after first this Court, in that respect, denied defendant’s second application leave to "for lack of merit grounds presented.” This Court’s first two orders have not been vacated by Supreme Court, which vacated this pe- Court’s third remptory case, order in the that of July 1989. Sobotka v Chrysler Corp, 437 Mich 953 circumstances, other the Supreme Court has va- cated prior Court, all orders of Murdock v e.g., this Michigan Health Maintenance Organization, (1990) Mich 851 ("[t]he decisions of the Court of Appeals are vacated and the case is remanded ”). . . . While at the Supreme Court level there is case, no Raven v Co law Wayne Bd of Comm’rs, 585, 588, n 250 NW2d 477 (1977) (final contrast, paragraph), in this Court decisions, prior our to the extent adjudicative facts same, remain substantially do represent law of which we are not free to modify, the time for rehearing of those having orders White, Johnson v expired. 47, 53; NW2d 87

Under case, therefore, doctrine of law of the 455- op Opinion the Court partially in disabled, and the decisions is supra, Thayer, exam-

Trask, Barrett, must be plaintiff’s rate shall how ined to determine be calculated. cases, board, in in similar this and

The recently joined by appellate commission, takes the position no that Trask and are either the longer good apply only most,

law, or, to situa- at employee, injury, can tions in the after which employee in which the resume the identical injury. engaged If in the time of the was at way employee any ability the to do limits the theory job, the same then on this irrelevant, limitation on and the becomes employee’s dependency employer liability is the by rate, age statute, the aver- maximum rate set wages wage, weekly actual the em- injury, ployee is to earn after which become able 371(1) Disability of the Workers’ setoff under Compensation

Act, MSA MCL 17.237(371X1). "job” employee

This in focus on which the injury, working was at the time of rather than on general employment, field erroneous. Sons, 360, 365; Miller v Fair & S (1919). Indeed, NW 380 the statute deals wherever employee wage compensating injured "employment,” loss, not the focus is on the particular being performed job, that was 371(1) injury. Thus, § time of of the Workers’ unchanged Disability Compensation Act of part predecessor, relevant from its 1927 PA provides: 17.161, 412.11; weekly wages loss referred to in this act percentage average shall consist of weekly earnings employeecomputed represents according fairly section as (On Sobotka of the employee’s earning capacity employments covered this act in which the working at the personal time of the injury. The loss shall be fixed as of the time personal injury, considering and determined the nature personal and extent of the injury. language, goes original

This back to the Compensation provides Workmen’s 1912, Act of holdings the basis for the later in Trask and Thayer regarding partial disability. Legislature

In 376, 1927 PA added the last 371(1) sentence of § what is now to what was then 11(e) creating act, of the a credit for actual by injury, irrespec- earned after the employment tive of the nature of the in which earnings generated. statutory those are This offset appears arguments, to have eliminated most at appellate partial disability.1 level, least at the over 1 urges expertise The dissent agency us to defer to the charged interpreting administering princi the statute. This ple jurisprudence applies only administrative longstanding law interpretations by agency engendering legislation. an of its There is interpretation no evidence that board’s of the effect of "partial disability” Thayer longstanding vis a vis Trask and or invariant; trine was determine, so Trask-Thayer far as we can until the doc by very resurrected defense counsel in this the board had not addressed the issue for six decades. The administrative interpretation great weight, Magreta is thus not entitled to v Ambas (On Rehearing), 513, 519; sador Steel Co 380 Mich 158 NW2d 473 (1968); Management Dep’t Stratton-Cheeseman Treasury, Co v 159 (1987). App 724; And, Mich 407 NW2d 398 even if the adminis longstanding invariant, trative construction is it cannot overcome logical reading a 488; of the statute. Lasher v Mueller Brass (1974); Majurin 221 Dep’t Services, NW2d 289 v of Social 164 701; App (1987);Stratton-Cheeseman, Mich 417 supra. NW2d 578 The judicial interpretation always precedence. Murphy Michigan, takes 341; (1984); Grindstaff, Mich 343 NW2d 177 Lakeshore Bd of Ed v App 441 NW2d 777 persuaded contention, by accurate, perhaps Nor are we that to "apply Thayer Trask require to the facts of this case is to significant change practice compensation of workers’ law.” If practice developed ignoring doctrine, the hardly Trask-Thayer that is continuing sanction for properly to do so once the issue is 198 eliminated this offset neither

But the creation of statutory concept nor determining language partial disability the standards for on which predicated. first Neither were Su Trask nor has been overruled any language preme Court, nor able find are we legislation, now,* or that undermines then the core of the Trask doctrine. important applying

However, Trask, it is employee employee employment focus on the engaged injury. time of If the was was employment, totally

engaged in and is skilled partially in skilled but disabled employments, respect full to other disabled with irrespective postinjury paid, be benefits must wage earning capacity in some other field of em- Corp, ployment. v Great Lakes Steel MacDonald 594-595; carpenter MacDonald', was a who carpentry totally from work on became disabled injury. thereaf- account of a work-related He was employment by provided the same ter unskilled Supreme employer Court held as a watchman. given inapplicable situation, that total Trask employee’s employment disability in the as skilled notwithstanding capac- carpenter, wage-earning a employment. ity new some field Foley carried the doctrine v This forward Railway, 507, 515; 190 157 Detroit United Mich (1916), Co, Motor NW 45 and Geis v Packard Car 646; 214 183 916 Mich NW both of which assertion, always way,” it raised. To the only "But we’ve done we can you doing incorrectly along.” respond, "Then been it all See have (1981). People 179; panel Casey, 411 305 v Mich NW2d 247 Another Industries, 636; App v 181 said as much in Juneac 450 NW2d 22 ITT Hancock (1989). 17.237(301) possible exception 418.301(5)(6); might A be 1982, (5)(6), 31, injuries occurring applicable March after however, choose, express of 1981 PA 200. We no effective date opinion this time. Sobotka v respective plaintiff suffered total as a injury employment result of an in the course of acquisition a skilled skill— trade. Later of a new earnings, irrespective before the offset for actual employment, by the field of virtue of 1927 PA 376 employ- in—was those cases held irrelevant to the right continuing ee’s to a award of benefits for loss wage-earning capacity original of skilled field of employment. present appeal In the board failed to plaintiff engaged determine whether in skilled employment. or unskilled However, that background appeal issue; the board has now deter- objection plaintiff, mined, without from that extent of his in the field employment engaged in which he was at the time of is two-thirds. The board appears plaintiff’s to have taken into consideration obtaining efforts, employment, success, and lack of substitute suggested is, in this Court’s peremptory July previ- vacated 26, 1989, order of ously controlling, discussed, relevant, but not Roxbury consideration. Co, v Weidman Lumber (1934); Langkill v Conveying Co, Robins Belt 81, 86; NW 560 The fact has not controlling, found new is not because: "The applicability of hinge does not on whether the employee actually has returned to 361(1) some form of work. Section refers to 'the average after tax weekly wage which the employee is able to earn after personal injury.’ It includes not only wages actually earned after the injury, but also the employee has the capacity to earn. Frammolino v Richmond Prod Co, 26-27; ucts 260 NW2d 908 Michigan Supreme Court has ruled to hold otherwise encourage would malinger ing. Compensation dotte Oil & Fat pension. is not a Hood Wyan 272 Mich 261 192:

464 455 Opinion op the Court (1935).” Industries, v ITT Hancock [Juneac (1989).][3] App 636, 641; 450 NW2d appeal factual therefore affirm the board’s We being supported by determination, requisite at least 6, evidence, art scintilla of Const 17.237(861), pro that the § 418.861; MSA plaintiffs earning capacity, portionate of light factors, his is of of all relevant two-thirds wage injury. average weekly As the at the time of wage injury average weekly of time average, weekly wage $283.30, loss the two-thirds to board translates as determined 361(1), plaintiffs weekly § dis Pursuant to $189.3 ability his not exceed two-thirds of average weekly wage, or loss in $126. Disability Compensa-

The Bureau of Workers’ auspices Legislative tion, under the of Service publishes Department Labor, of an Bureau of paperback book that includes current annual Compensation Disability version of the Workers’ adopted Act rules thereun- administrative tables, der, and a set of one of which shows compensation minima, rates, maxima and at vari- occurring dependency ous levels dates of opinion requires "majority opposing The dissent contends experts testify concerning jobs injured employ to available within the requires parties ee’s limitations. It for an abstract search capacity wage-earning will to remain at best residual elusive.” tend Irrespective equivalent proof problems fact damages personal injury litigation question attend most when the addressed, overlooking now is the fact that § similar calculus is 301(5)- wdca, particularly under codified (8), amendments 301 of § every unemployed partially alternative instead to treat disabled, totally unemploy worker as fact of disabled ment as the functional treat equivalent unemployability for workers’ compensation purposes. consequences, practical adverse terms of prefer complicating we do not hesitate to the factfinder’s overburdening ledger. compensation the debit side of the workers’ economic 371(7). Rounded off to the nearest dollar accordance with (On Sobotka by Marilyn Kelly, J. Dissent beginning year in in each 1973. As we understand plaintiff, table, this who was depen- minimum at benefit rate the zero dency $105; level is the maximum rate with five or per dependents more week. Because the plaintiff’s proper we have calculated ben- $126 efit level is appears numbers, these it between to question dependency plain- us that properly wife, which tiff’s was never determined in pursuant Day this case v A to W Foote Memorial Hosp, 412 plaintiff’s 316 NW2d 712 not -will level, affect and is not therefore relevant. Should future a events make this rele- parties may issue, vant to return the bureau 408.40(4),hearing. AC, for a R Rule 10, 1989, The June order of the Workers’ Com- pensation Appeal Board in cause this is modified foregoing provisions in accordance with the of this opinion. Compensation Appeal The Workers’ plaintiff’s proportion- Board’s determination —that earning capacity ate employment working in which he was affirmed; time of is two-thirds —is defendant pay shall at the rate a benefits of $126 any applicable wages actually week less credit for 371(1), pursuant earned to until further order past All due bureau. shall benefits bear inter- per year est at the rate of ten cent from the date pursuant payment paid, each due until 17.237(801X6). Affirmed as modified. J., J. Kelly,

Michael concurred. Marilyn (dissenting.) I respectfully J. Kelly, dissent. disagree majority

I with the by Marilyn Kelly, Dissent Whether case. control outcome Trask1 application workers’ cases still have these compensation they However, case I need not decide. clearly inapplicable facts are instant case. injured employee auditor Trask, was an manager. salary of $60 officer She received injury.

and per recovering, After she week her before job. However, due to a old asked to return change her conditions, was no in economic longer She later found available. doing employer substantially the same

a different per work for week. $30 Department Industry Labor Commis-

The of and her benefits sion calculated wages per week, the her difference between wages afterwards. Su- when and her preme Court determined the calculation was improper, had made no de- since Commission "proportionate extent of im- termination of pairment earning capacity in line of her of her employment, as of the time of the accident.” Trask Co, Mich v Machine 222 Modern Pattern & (1932). 193 830 The Commission also 696; changes gen- examined should have calculating economic conditions eral before disability Id., 698. amount benefits. Thayer, employee Commission found specify partially-disabled to but did not be Supreme award. The amount recognized was re- Court quired impairment Commission compute

to extent of the employee’s earning capacity Thayer, had Trask. In defined injured. job in returned to the same eight it been times since Trask has cited 1 Britz, 645; Thayer 50 v v 209 NW and Trask Co, 692; Pattern & Machine Mich NW 830 Modern (On Sobotka by Marilyn Kelly, Dissent Thayer was decided in 1923. has never been cited by any court. None of the cases citing Trask involves a factual situation similar to this case. Here, plaintiff was unable to return to his due to his disability, and he has not found other em- ployment.

To apply Trask to the facts require case is to a significant change practice compensation workers’ law. For de- cades, the Workers’ Compensation Appeal Board (currently Compensation Appellate Workers’ Commission) interpreted has the Workers’ Disabil- ity Compensation Act contrary holding to the the majority opinion. MCL 418.101 et seq.; 17.237(101) seq. et Courts are required grant great deference to an agency’s interpretation the statute it charged with enforcing, particu- is ambiguous. Consumers larly where the statute Comm, Power Co v Corporation & Securities 643, 648; Tagliavia v (1950); NW2d 756 Barton Malow

NW2d 116 The sections of the Compen- Workers’ Disability sation applicable Act ambiguous this case are due to the use of the "partial terms incapacity,”2 "able earn”3 "employment.”4 MCL 2 person partially incapacitated A can be or disabled if he is unable totally perform job doing Or, to person injured. the he was before he was partially types employ can be disabled if there are some of ment he can do but others he cannot. may interpreted earnings,” "Able to earn” be to mean "actual or wages employee capacity the the has the to earn. It also be wages employee limited to the the is able to earn the same injured, expanded general which he was or be to the "field” of employment. previously panel I applicability was on a which held that of hinge employees actually 361 does not on whether returned to Industries, some form of work. Juneac v ITT Hancock There, agreed NW2d I that "able to earn” includes only wages actually injury not earned after the but also employee capacity Id., difficulty has the earn. to 641. Due to the App 455 by Marilyn Kelly, Dissent 418.371(1); 17.237(361X1);

418.361(1); MSA 17.237(371)(1). multiple The terms have MSA persuaded majority meanings. by the I am not interpreted they they differently than should be Appeal Board. have been requires holding opinion majority The concerning opposing experts testify jobs to avail- injured employee’s It within the limitations. able requires parties for an abstract search wage-earning capacity residual which will tend remain at best elusive. decided, the

Since Trask were Work- Disability Compensation Act has ers’ been many has amended times. It added a set-off for actually employee has earned. MCL 17.237(371)(1). language The act’s against provided employers com- has set-off regardless type employ- pensation owed, of the injured employee MacDon- ment an later obtains. Corp, 594- ald Great Lakes Steel 595; 256 NW 558 majority of the asserts the creation concept partial

offset neither eliminated statutory language disability nor the on which the determining partial disability standards were predicated. concept previously However, indicated, as questionable incapacity it is statutory language relates to this ambiguous. sixty-seven apply seventy- I am reluctant interpreting year-old case law Workers’ Dis- ability Compensation act Act when the has work, proofs employee disagree when an does not return to I now expertise with the Juneac definition and would defer to Appeal defining Board in "able to earn.” "job” Employment may mean the which the working general employ or the at the time of "field” ment. Sobotka by Marilyn Kelly, Dissent changed so radically since the case law was writ- I ten. would defer to the expertise of the Appeal

Board and affirm plaintiffs award of per week.

Case Details

Case Name: Sobotka v. Chrysler Corp.

Court Name: Michigan Court of Appeals

Date Published: Mar 1, 1993

Citation: 499 N.W.2d 777

Docket Number: Docket 139553

Court Abbreviation: Mich. Ct. App.