*1
v
BUILDERS,
WHITE v
INC
WEINBERGER
BOYKO CHRYSLER CORPORATION
COMPANY,
MOORHOUSEv J D CANDLER ROOFING
INC
PITTS v DAVISON-LINWOODSTANDARDSTATION
55304, 55305, 55339,
Argued
4,
Docket Nos.
55346.
November
1974.
(Calendar
16-19).
21,
April
Resubmitted
Nos.
—Decided
June
1976.
White,
Moorhouse,
Boyko,
John B.
John
Hansel O.
and Roosevelt
sought
Pitts
differential benefits from
Injury
Second
Fund after
with their
respective employers
Weinberger Builders, Inc.,
and insurers:
Company; Chrysler
Corpora-
Midland National Insurance
tion;
Roofing Company, Inc.;
J. D. Candler
and Davison-Linwood
Station,-
Company,
Standard
Citron Oil
and Travelers Insur-
Company.
ance
The claims of White and Moorhouse were
Injury
dismissed on
the basis that the Second
Fund’s
contingent upon payment
following
or its insurance carrier
an admission or determina-
employer liability.
tion
Compensation
Ap-
The Workmen’s
peal
Board affirmed in both cases.
and Pitts were
permanent disability
awarded total and
benefits. The board
liability рrior
reversed and held that
to a hear-
ing on
acknowledge-
the merits of a claim constituted neither
legal
ment nor
liability.
establishment of Second
Appeals,
Brennan,
J.,
The Court of
Bashara, JJ.,
V. J.
P.
and Danhof and
(Docket
affirmed in all four cases
Nos.
15118).
14932, 15060,
appeal.
Plaintiffs
Held:
1. The
subjected
Fund should not be
to a
separate, independent hearing to determine whether the fund
is liable for differential
when the claimant and
potential employer liability by
redeem all
entering
negotiated
into a
settlement where
has been
adjudicated.
neither admitted nor
statutory language providing
2. The
differential benefits to
Reference
for Points
in Headnotes
2d,
82 Am Jur Workmen’s
[1-9]
344.
§
397 requires
that the claim-
those
of workmen’s
ant be entitled to receive
*2
prior
employer
In
determination of
3.
the absence of a
liability,
redemption agreement between a
workmen’s com-
pensation
employer or insurance
claimant and an
carrier does
not entitle a claimant to benefits and constitutes neither an
adjudication
employer liability.
admission nor an
Affirmed.
Kavanagh
Justice
with whom Chief Justice
and Jus-
concurred,
apparent
legislative
tice Williams
dissented: The
purpose
payment by
Injury
requiring
in
the Second
Fund of
permanently
to
differential benefits is to extend
persons
compensation
disabled
entitled to workmen’s
the ben-
improvements
compensation
spread
efit of
and to
the cost
among
employers.
legislative
all
It is inconsistent with the
purpose
requiring
of differential benefits to
per-
extend those benefits to
employer liability
redemption
sons who establish
before
but
deny
employer liability
them to those who establish
redemption.
discouraged
Settlement of claims should not be
years
litigation
pay-
favor of
with concomitant deferral of
beyond,
cases,
ment of benefits to a time
in some
the em-
ployee’s
possibility
large arrearages
lifetime. The
that
in differ-
may
September 1,
ential benefits
have accumulated since
Supreme
should not deter the
Court from the correct construc-
tion of the statute.
(1973)
App 430;
Opinion of the Court Compensation Injury 1. Workmen’s —Second Fund —Differential Redemption—Liability. Benefits — Injury subjected separate, The Second Fund should not be to a independent hearing to determine whether the Fund is liable payments for differential when the claimant and potential employer liability by entering redeem all into a negotiated employer liability settlement where has been nei- adjudicated. ther admitted nor Compensation Injury 2. Workmen’s —Second Fund —Differential Redemption. Benefits — providing former statute for differential and additional bene- payable Injury clearly required fits from the Second Fund that payments a claimant must be entitled to receive of workmen’s Compensation under the Workmen’s Act in order White v benefits, provision no was made receive such for those might they who been entitled receive had have not (MCLA412.9[a]). claims redeemed their Compensation Injury 3. Workmen’s —Second Fund —-Differential Liability. Redemption-—Employеr Benefits — liability, either establishment admission or adjudication prerequisite prior redemption, is an absolute liability Injury Fund for differential and additional Redemption— 4. Workmen’s —Second Fund — Statutes —Construction. argument Legislature specifically provided with the or carrier eliminates all of the Silicosis and Dust Disease Fund and that provision failure to make the for the Second same Legislature shows the intent of the to make the latter fund’s separate independent supported by legisla- not history, tive that the reference to which shows legislative Fund statute reflects a Silicosis and Dust Disease *3 change prior provision desirability of mind from a about the having liability apart employer the fund a from that of the (MCLA 418.545). 417.5, redemption where there has been a Comрensation Injury 5. Workmen’s —Second Fund —Differential Liability. Benefits — Although payment Injury dependent from the Second Fund is upon employee being the first instance a totally person, Compensa- disabled as defined in the Workmen’s Act, tion who on or after June 1955 is entitled to receive compensation, workmen’s once these facts are affirmatively, Injury required determined the Second Fund is pay the increased benefits as stated in the act. Compensation Third-Party 6. Workmen’s — Tortfeasors —Second Injury Redemption. Fund — statutory provisions participation recovery against tortfeasor, third-party in a insurance carrier Injury participate, which do not allow the Second Fund to have no relevance to either the establishment of or Second Injury responsibilities resulting or the financial (MCLA413.15). redemption agreement from a Compensation- Injury 7. Workmen’s —Second Fund —Differential Liability—Redemption. Benefits — statutory language providing differential benefits to those 397 Mich requires permanently disabled that the claimant be payment entitled to receive bene- prior fits and in the absence of a determination of liability, redemption agreement between a claimant and an employer or insurance carrier does not entitle a claimant to adjudica- benefits and neither an admission nor an constitutes (MCLA employer liability 418.521[2]). tion of Dissenting Opinion J., Kavanagh, C. JJ. and Williams Compensation Injury 8. Workmen’s —Second Fund —Differential Redemption—Employer Liability. Benefits — employer liability, adju- Establishment of either admission or dication, prior prerequisite is not an absolute of the Second Fund for differential workmen’s compensation beneñts. 9. Workmen’s —Second Fund —-Differential -Redemption—Employer Liability. Benefits — legislative purpose It is requiring inconsistent with the payment of differential beneñts to extend those beneñts to persons who establish em- ployer liability deny before but to them to those employer liability redemption; who establish settlement of discouraged years litigation claims should not be in favor of with concomitant deferral of of beneñts. Lopatin, Miller, Bindes & Freedman (by Michael Gantz), A. for plaintiff John B. White. Marston, Sachs, O’Connell, Nunn & Freíd (by Nunn),
Jeanne M. plaintiff John Boyko.
Sharpies, Gale), Klein & Gale (by Charles G. plaintiff Hansel O. Moorhouse. *4 Downing, Simpson Kelman, Loria, Schneider & Loria),
(by Donald W plaintiff for Roosevelt Pitts. Kelley, Frank J. A. Robert General, Attorney Derengoski, and A. C. Stoddard General, Solicitor Weinbergеr Opinion op the Court Watts, David Attorney General, Assistants Fund. for (Buell Whinham, R. E. Jr. Amicus Curiae: Doelle, counsel), of Michigan Self Insurers’ Association. J. I affirm the of would decisions
Fitzgerald, Appeal Board Compensation Workmen’s Appeals. the Court The Second Injury of separate, independent should hot to a subjected be hearing to whether the fund is determine liable for differential payments when claimant potential alleged redeem all negotiated into a by entering settlement where has been neither admit- nor adjudicated. ted limited
This Court’s specific legal review issue which is of major significance to the Work men’s Law Michigan. The factual four circumstances these consolidated cases were succinctly stated in the of Appeаls opinion.1 Court 14, injured B. "John White was a race driver who was on June driving Weinberger’s 1964 while one of defendant vehicles at Terre Haute, severing injuries partial spinal Indiana. His included cord, leaving testimony tetraplegic. him described medical as a strong disagreement employment There was the time liability. agreement over his actual status at his and defendant and its insurer never admitted voluntary compensation paid No was until $75,000. paid was reached in the amount of This was 'jurisdictional payment’ the form of a six-month in the amount of $1,539 redemption hearing, paid at the time of the with the balance subsequent approval by to the referee director the bureau. plaintiff completely options The record reveals aware his before thе was consummated. Plaintiff and his counsel proceed against made clear their intent fund additional benefits, plaintiff acknowledged willing but that he would be regardless pending sum redeem claim against the stated of the outcome of his hearing fund. No on the merits of claim held, defendant was ever nor was decision regard. ever entered injured “John when struck in the a hi-lo truck back 1957 and has not October worked since November 1957. *5 Opinion of the Court agreement2 redemption was en case, a
In each voluntarily paid disability Chrysler Corporation total Defendant period. statutory weekly 500-week Plaintiff the benefits to the end of disability, claiming petitioned total and then for by Chrysler. legs. The was denied of of claim loss industrial use both Chrysler redemption plaintiff thе into between A was entered $5,400 by approved referee. the amount of Fund was and was plaintiff’s prejudice to 'without as a defendant dismissed right in the future’. to said refile defendant employment in the a ladder while "Hansel Moorhouse fell from O. 70, 11, age September Company, on 1956. His at of defendant Candler injury injury’, voluntarily weekly reported spinal as was 'severe period, plaintiff paid the of this At end benefits were 500 weeks. on petitioned total based the loss of redemption prospec- legs. of defendant firm’s industrial tive proofs reveals that of his A use $5,000. by approved the amount of No the referee in loss of industrial use. The record on the claim of were taken proceed against plaintiff the intended and counsel redemption, subsequent the but were also Second aware that plaintiff’s possible right redemption of waiver the involved proceed against the fund. working fingers of hands while for a Pitts froze the both "Roosevelt 1, gas January weather. resulted in station sub-zero This phalanges fingers amputations through the of the four middle through phalanges the middle hand middle of index and left fingers the paid right weekly of a hand. benefits were because the No being by gas proprietor, the station lack insurance carried brief) question (quoting 'substantial as because there was whether the Citron statutory Company the Oil within 10(a) meaning Act’, of Part I of the Workmen’s of Section 418.171; 411.10; 17.150, currently formerly MCLA MSA MCLA 17.237(171). gas station MSA of defendant and defendant $9,000 approved by company the in an action oil referee. Plaintiff’s was redeemed counsel stated on the record at collecting hearing good perhaps believed is a chance of that he 'there though Redemption fund even this benefits from the second fund, petitioned approved’. claiming for benefits from the Plaintiff thereafter App both 432- of industrial use of hands.” loss 434; 212 309-310. NW2d 17.172, 412.22; 418.835; currently MCLA MSA MCLA 17.237(835),provided: any weekly payment less has been continued for not "Whenever months, pay- may by therefor be redeemed than by lump agreement parties, subject to the sum ment approval commission stances be commission, and said case, special may any if at time direct circum- same, judgment require the that the found which in its present payments due this act on the deferred under be commuted per lump payments, to 1 оr sum worth thereof at annum more 5% be made and that such insurance shall risk, company carrying such or commissioner of insurance. Opinion of the Court injured tered into claimant between and the orders approving agreements hearing were issued referee. then sought Each total and *6 from Injury benefits the Second Fund. White, Moorhouse,
The claims of and Pitts were separate dismissed in proceedings by the hearing referee on the basis that the Second Injury liability contingent upon Fund’s is payment of the disability employer or its insur- ance following carrier an admission or determina- tion of employer liability. Workmen’s Com- pensation Appeal Board affirmed in each case. Plaintiff Boyko’s claim differed it was dismissed "without prejudice plaintiff’s to right re-file said defendant Injury [Second Fund] application liability, application may, When an is made to redeem department being within the discretion of the be treated also as an application lump payment. payment filing petition for an advance sum sum of a redemption lump for or advance shall not be considered any department an admission of and in case where the treats application any sum application lump an for advance as section, under this shall be a entitled to hearing question liability.” on the of 17.159(a) 412.9(a); provided: MCLA " * * * Any permanently person and as defined in who, pay- this or act on after June is entitled to receive per ments of workmen’s under this act in amounts presently provided of compensа- week tion schedule of benefits for less than is in the workmen’s permanent disability and total and for permanent number of than lesser total weeks the duration of such and disability any act, amendatory by by shall effective date of disability permanent which his which the is defined as and total weekly permanent benefit and total in- is creased, fund, weekly, application, injury without receive from the second equal an amount to the difference between what he is now or shall hereafter be entitled to receive from his under provisions of this act as the same in effect at the time of his injury amount now his disability by any amendatory appropriate this or act other with (d) (e) provisions (b), (c), application paragraphs of the of this injury. Payments section since the date of fund shall from this second period continue after the for which such otherwise entitled to under act this for the duration disability according pro- full such vided total rate in the schedule of benefits.” 397 Opinion Court of the refiled., prevailed, in the future”. disability total and awarded referee’s decision However, reversed the board liability prior to a held that claim constituted of the the merits hearing legal establishment nor acknowledgement "neither liability”. of Second Appeals the Court granted by Leave was argu- for oral consolidated the four cases were decision board’s affirmed ment. That Court the Second "liability holding that employer, so from that Fund is derivative a separate, subjected be the fund cannot for differential hearing as independent alleged prospective employer’s payments once negotiated settle- via has redeemed been the correct- to consider granted leave ment”.4 We *7 ruling. of this ness analysis the of and the entirely adopt
I would opinion. Appeals the Court of by result reached by theories advanced those comments address My by the Court of not discussed either plaintiffs or elaboration. emphasis or which bear Appeals Derouin v Director contend that Plaintiffs Department, 19 Compensation Workmen’s (1969), specifically 463 is not 309; 172 NW2d App previous a award involving to cases limited benefits. Rather restricting appli- the ground” by than "break new I Derouin, argue, can con- as cability of by given other than that interpretation of no ceive to the statement: the board dependent in from the fund is "Although employee being perma- upon the the first instance act, person, defined in the totally as nently (1973). 430, 432; App NW2d v Opinion of the Court 25, 1955, is who on after June entitled to receive compensation, payments of once these facts affirmatively, Second Injury are determined the Fund is required pay to increased benefits as stated in added.) (Emphasis Derouin, supra, p 313. act.” There no that inconsistency maintaining is fund’s derivative from of the em- is it ployer, yet requiring to continue obligation the employer terminated its to the plaintiff. obligation pay The fund’s sepa- became once apart rate from pay ordered not I before.5 would affirm the given Derouin interpretation the board and Appeals.6 Court of argue
Plaintiffs if the Second Fund’s derivative, liability were fund should truly be entitled to share in the of a proceeds third-party recovery. participation The fund was denied such Co, Peterson-King in Mead v 24 Mich App (1970). provisions NW2d 304 There were no within 413.15; MCLA 17.1897 which authorize proceeds fund to from a share received third party. an compen- permitted statute or its sation carrier subrogated rights be Law, 59.31, pp 2 Larson’s Workmen’s § 10-292to 10- 293. Holland, City Plaintiffs also cite Dokter 1971 WCABO support apart separate of their contention that the fund’s However, case, employer. plaintiff from the in that claimed dependent benefits from the deceased’s as widow her right own also from the Second Fund as administratrix of Redemptiоn the deceased’s estate. close the former defendants, not claim did fore Further, as indicated latter. *8 payment greatly employers’ the fund for differential differs from liability death benefits. 7 injured employee dependents personal representa "If or his or the year the tive does not commence such action within rence of the occur personal injury, employer then the or its may, period insurance carrier ment of actions other within the of time for commence the statute, prescribed by enforce the of such person.” the name of that Opinion of the Court third-party tortfeasor. These a employee against mitigation of employer the relating to provisions either to establish- no relevance liability have Injury or Second employer ment of resulting from a responsibilities the financial redemption agreement. proper that under cir-
Plaintiffs next contend Fund is liable for all Injury cumstances disability benefits additional total and $10,500. their belief that the fund in excess of It is benefits even obligated pay be differential may obligation has no whatsoever. though employer gains support plaintiffs’ position I fail to see how In Felcoskie v Lakey from the case cited. authority 438; 170 Foundry Corp, 382 Mich NW2d (1969), required to offer employee proofs was the claimant the dust disease suffered that represented widespread so common speci- to those industry comparable threat to the fied which limited diseases $10,500. case dealt with classification аpplicability of a dust disease to determine liability after statutory upon employer limitation responsible held for total and If this classification "proper is the circumstance” which refer, application I remain unconvinced its here. fund plaintiffs’ point
As to can be differential benefits even where obligated pay zero, I concede employer’s obligation would again question of the statement but accuracy v Second King its to this case. applicability (1969), Fund, involved NW2d a 1927 limited the construction statute which aver- liability to two-thirds claimant’s which age weekly wage and the 1955 amendment from the Second *9 Weinberger Builders White v Opinion Court an schedule of upon based amended work- men’s At compensation issue was the payments plaintiff amount of differential due from simply the Second Fund. The case restricted application the of statutory the limitation of weekly employer. benefits to the The Second In- required pay equal was to an amount jury Fund to the amount difference between the to which claim- ant was in 1955 provided entitled and amount for total disability upon based amended compensation schedule of workmen’s obligation benefits. The employer’s claimant zero, indicate, was only as but due to the fact period that the employer which Moreover, King, liable had terminated. unlike case, the instant a there was determination plaintiff entitled to total and permanent dis- ability benefits. of
Finally, statutory language MCLA 17.237(521)(2)8 418.521(2); providing differen- tial benefits to those рermanently dis- entitled abled requires the claimant be receive compensation bene- (previously 412.9[a]; [a]) This MCLA subsection MSA 17.159[9] provides: "Any permanently as defined in this act, permanent disability if such total and arose out and in the who, 25, 1955, employment, course of his after June is entitled per to receive of workmen’s in amounts week presently provided less than is the workmen’s disability, schedule of benefits lesser number of and total and for a weeks than duration of such disability, any amendatory by by total which his which the date of effective act permanent permanent disability, is defined as and total or weekly benefits for and total are increased, weekly shall receive from carrier on behalf of the equal second tween what he his fund differential benefits to the difference be- now or shall hereafter be entitled receive from provisions of this act as was in under the same effect injury, at the time of his permanent and the amounts now for his act, disability by amendatory this other appropriate application provisions with of sections to 359.” Opinion Dissenting prior determination of In
fits. the absence redemption agreement liability, be- employer or insurance an a claimant tween claimant benefits and entitle a does not carrier *10 adjudica- an nor neither an admission constitutes employer liability. of tion Affirmed. JJ., concurred and Ryan, Lindemer,
Coleman, J. Fitzgerald, with (dissenting). A statute enacted in 19551 J.
Levin, totally provided any permanently and dis- person receiving compensаtion workmen’s abled payments per less than the amounts week present number of weeks for a lesser schedule and paid disability shall be than the duration of such compensation for the dura- the rate of at current compensation disability. Formerly, tion of such totally persons permanently payable to and was weeks;2 the rate 750-800 an increase in disabled for compensation not benefit those did
previously injured.3
The of this enhancement benefits was burden imposed employer. spread cost was not among employers; Injury
all
1 1955PA 250.
permanent
changed
for
and
2 1953
198
the duration of benefits
PA
disability
week
was
from 750 to 800 weeks. The 750
duration
total
17.159).
(1943
412.9;
MSA
established in 1943
PA
CL
(1955
250)
(see
provision
MCLA
act
PA
substituted
current
418.351;
17.237[351]):
presumption
and
"the conclusive
of total
MSA
disability
beyond
permanent
not extend
from
shall
weeks
question
permanent
injury,
and total
date of
and thereafter
fact,
disability
may
in accordance with the
the fact
be determined
as
shall
time”.
be at that
adjusted
concept
that an
should
individual’s benefits
be
injured
generally by
subsequent years
workers
was extended
317).
(1969
obligation
imposed on
act
PA
The burden
this
17.237(355).
418.355;
employer.
MSA
MCLA
White Dissenting Opinion (financed by
on insurance carriers
assessments
self-insurers)
pay
required differential
bene-
permanently
difference
what
fits—the
between
employee
receiving
was then
compensation
presently
from his
and the
disability4
provided
duration of
such
—for
412.9(a);
See 1948
17.159.
CL
enacted,
originally
provision
As
read:
"Any person
disabled and who
who is
receiving payments
payable
which are
of workmen’s
person
per
under
act in amounts
week of
such
presently
fits
this
less than is
provided
in the
schedule of bene-
disability
and for a
and total
lesser number of
weeks than the duration of such
shall
weekly,
application,
injury
hereafter receive
fund,
receiving per
permanent
without
from the second
equal
an amount
to the difference between what he is now
per
provided
week and the amount
week now
appropriate
application
with
total
(d)
(e)
(b), (c),
provisions
date of
after the
compensation
paragraphs
of this section since the
injury.
Payments
from
fund shall
this second
continue
period
fos which
such
is otherwise entitled to
under this act for the duration of such
disability according
total
to the full rate
in the schеdule of
benefits.”
In these consolidated dis- puted employees whether were entitled to benefits as persons. claims for such compensation against employers adjusted were adjudication department ap- without when the proved settling redemption agreements the claims. redemption agreements employers with the not did cover of the Second Fund for At differential benefits.
hearing in White the fund declared that if the approved deny liability it would ground on the that of the redemption adjudicated. had not been approved understanding question on the subject whether the fund was would be subsequent proceedings. determined in demption agreements The re Moorhouse, s5 approved understanding Pitt were also on the question subject that the whether the fund was liability for differential benefits was unresolved.
Hearings were held on the claims for differential The referee in White concluded that White’s "dependent” upon showing claim was initially "had made a required disability benefits and had admitted lia- bility they or that had been found liable to make (d) (e) (b), (c), paragraphs Payments injury. of this section since the date of period from this second fund shall continue after the for which such is otherwise entitled to under this act for the duration of such *12 according to the full rate in the schedule of benefits.” 1965 44, 412.9; PA 1948 CL MSA 17.159. present statutory provision 17.237(521). 418.521; The is MCLA redemption approved September 19, 1966; The in White in and in 13, 1966; Boyko September 10, 1968; Moorhouse October 4, Pitts December 1969. Weinberger Dissenting Opinion by disability payments”. By such reason of the re- demption agreement, showing no such had been made. The factual issue whether White was a permanently entitled to workmen’s benefits was not de- cided.
The referee in Moorhouse concluded that employer’s liability of the "also re- rights might deemed he have Injury Fund”. Boyko Pitts, however, referees in found employees that the were Injury disabled and ordered the Second Fund to pay differential benefits.6 Compensation Appeal
The Workmen’s Board concluded that the fund had no in these White, cases. In ity the board found "the fund’s liabil- employee’s derivative, to be cause of action single”7 and said that "an establishment of liabil- ity prior prerеquisite is an absolute Injury liability”. (Emphasis sup- to Second Fund plied.) disposed Boyko Moorhouse, board authority and Pitts on the of White and did not employees reach the factual issues decided for the Boyko and Pitts. Appeals holding The Court of affirmed "the Compensation Appeal the Workmen’s Board that employer liability, the establishment of either adjudication prior redemption, admission or an absolute prerequisite to Second
liability”.8 22, May 1967; The referee’s order in White was dated in Moor 8, 1967; May 2, January
house 1971. and in Pitts March appeal question: board framed the "Is the independent, injured employee’s Second cause of action Fund derivative or single or divisible?” Builders, Inc, App 438-439; White v (1973). NW2d *13 23 Levin, by Dissenting Opinion J. inconsistent with the
We conclude requiring legislative purpose in those benefits to to extend differential benefits persons permanently totally who disabled es- and but before tablish totally permanently deny those benefits persons to establish em- are able disabled who redemption. ployer liability after Appeals Court of We would reverse appeal board reso- remand these causes plaintiff whether each of the factual issues lution permanently totally disabled and entitled was to workmen’s in amounts subsequent in schedules for a less than lesser the duration of such of weeks than number disability.9
I apparent legislative purpose requiring payment by Fund of differ- permanently ential benefits is to extend persons totally compensation entitled to workmen’s disabled legislativе improve- the benefit such com-
ments in the amount and duration of among pensation spread the cost all em- and to
ployers.10
It is not contended
lump
persons who receive
sum settle-
disabled
supplementation
ments are less
need of the
perma-
provided by
than are
differential benefits
persons
nently who receive
accepts
weekly payments. The Second
nothing
paid
of its
The fund has
to these
settlement
preclude
potential
liability.
of remand does not
the fund
Our order
OAG, 1955,
agreement
entering
to redeem. See 1
No
from
into an
1955).
2244, p
(Sept
(1969).
Chrysler Corp,
See Rasar v
382 Mich
tered the referee *14 disability) and total benefits). (for Ap- The Court of fund differential rejected peals contention that its liabil- the fund’s ity that a is so "derivative” employer’s liability to relieve the fund of serves liability.11 adjudicated person and.totally permanently
A disabled has recovery: potential two sources of (a) compensation employer: bene- his workmen’s the schedule effect at the fits in accordance with injury; time of
(b) benefits on account of the fund: differential subsequent in the level or duration of increases benefits. simply injured that the worker has one
To state single
that his claim is or divisi- or two claims or
begs question whether he can settle with ble adjudication as well as after his before recovery and still seek from the or admission12 fund. injured еmployee’s claim or cause of action
adjudica- in the sense that a final
is "indivisible” * * * pay statutory language "who is entitled to receive * * * under this act ments of eligibility disability” the criteria of for differen establishes employee permanently must be disabled tial benefits: the compensable receipt under the act. Current must be and his eligibility. weekly a criterion of Derouin v Director benefits is not Compensation Department, App 19 Mich of Workmen’s (1969). NW2d 463 where the The fund states that is liable differential benefits employer’s has been for total and adjudication employer. through or admission established Dissenting Opinion tion that not entitled employee is to work- men’s as a preclude would recovery from the fund of differential in the fund’s is "derivative” sense it has unless the employer no follow, however, It ques- liable. does not tion whether was liable is not sus- ceptible of proof adjudication redemp- tion.
In most cases the unresolved issue settled by the redemption will be whether the disability per- manent meaning and total within the of the act. The factual issues in such cases are primarily medical and susceptible appraisal of current based on the employee’s physical preceding condition Pitts, hearing. In investigators fund were able to obtain medical testimony support of the fund’s denial of permanent and total disabil- White In Pitts ity. fund, aware of the *15 proposed redemptions, position was in a to have requested, precondition as a to approval of the redemption, the referee’s assistance in obtaining proofs assembled by employer in support of its denial of liability. perceive
We no problems intractable for defending fund in claims after It redemption. ap- pears that the fund has both the investigative legal resources to defend its interests adequately.
Whether the Second Injury Fund should receive notice of and total disability claims and an opportunity to defend is not an issue these appeals.13 We see no why reason it should not be Attorney says employee’s General that even if the claim against employer permanent disability for total and benefits does Fund, not name the Second the Workmen’s Bureau notifies the fund of the claim. 1976] Dissenting Opinion by protect why not intervene to it could to or enabled its interests. practice its that it has been
The fund asserts adjudication employer regard an admission establishing against entitlement an as benefits which appears binding practice to have it. devel- This by employers processing oped in of claims who of a second the fund reason asserted responsible perma- for —not —was nent and total benefits.14 sought 1965 that the fund It was not until late practice to to extend the asserted totally generally. Differential disabled claimants payable period for were not in fact September August 11, 1956 and 1965.15 between redemption hearing in White was held soon payable. differential benefits first became history practice point cannot to a of settled fund policy support that the followed its contention employers adjusting the claims of reimburse- injury benefits establishes that ment for second injured claim is "indivisible” and he worker’s and then seek an cannot settle with adjudication the fund of his entitlement
differential benefits. employees
Employers alike are constrained redemptions. variety to enter into of reasons impending death. The amount of- White feared family fered, $75,000, him and his finan- security. At the time of their cial hearings, was 71 and Moorhouse enlarged practice from 750 was extended when benefits were This persons fn [see to 800 weeks *16 responsible payment 50 was made for the additional and the fund weeks. Septem commencing Differential benefits were ordered 2, 1, commencing 1968. 1965 and in Pitts March ber Dissenting Opinion by Moorhouse, paid Pitts was amounts Boyko, 63. The small, Pitts, relatively represented while total portion employer’s substantial of if had payable employees prevailed weekly perhaps litigation. of The years purpose of compensate Workmen’s Act —to injured by a workers —is not served construction discourage which would settlement of favor years litigation with concomitant deferral beyond, to a time in some cases, the lifetime. employee’s
II
large arrearages
contention that
in differen-
tial benefits
have
may
Septem-
accumulated
since
1,
ber
untold
to an
number
claimants
ais
The delay
adjudication
cause
concern.
of this
question
cause;16
is
part of
the failure of some
claimants
to assert
their
claims
another. We
appreciate
there is no statute of limitation.
Whether
some accommodation
on that
account
may be in
is a question
order
need
we
not now
arrearages
decide. If the
large
are as
as the fund
claim,
and the amicus
the Legislature might con-
clude that some limitations
should be
if
imposed;
Legislature
act,
does not
this Court may be
persuaded
provide
relief.17 The relevant
facts on
19,
approved September
in White was
1966. The
against
22,
May
appeal
referee decided
differential benefits
1967. The
July 7,
Appeals
September
board affirmed
1972.
Court of
affirmed
23,
4,
1973. The case was submitted to this Court November
1974. See
5 and 6.
fns
Chrysler Corp,
App
In Baldwin v
We would reverse and remand to the appeal board.
Kavanagh, J., Williams, J., C. concurred with Appeals one-year-back declared that while the rule was not a limitation, appeal
statute of
ity
it was a limitation on the
board’s author-
to order the
of benefits.
Compare Anaya
Fe,
54;
(1969),
v Sante