Achtenberg on Behalf of Achtenberg v. City of East Lansing, Docket Nos. 73656

CourtSupreme Court of Michigan
Citation364 N.W.2d 277,421 Mich. 765
Docket Number26,Nos. 25,Docket Nos. 73656,74036,s. 25
PartiesCharlene ACHTENBERG, widow of Richard Achtenberg, for herself and on Behalf of Judy ACHTENBERG, Richard Achtenberg, Jr., and Robert Achtenberg, her minor children, Plaintiffs-Appellants, v. CITY OF EAST LANSING, and Michigan Mutual Insurance Company, Defendants-Appellees. Charlotte SPEARS, as personal representative of Henry Spears, deceased, Plaintiff-Appellee, v. CITY OF HAZEL PARK and Michigan Mutual Liability Insurance Company, Defendants-Appellants. Calendar421 Mich. 765, 364 N.W.2d 277
Decision Date19 March 1985

Sam W. Thomas, Detroit, for plaintiff-appellee in No. 73656; E.R. Whinham, Southfield, of counsel.

Charfoos & Krut, P.C. by Myron B. Charfoos, Birmingham, for defendants-appellants in No. 73656.

Sablich, Ryan, Bobay & Kaechele, P.C. by Theodore P. Ryan, East Lansing, Mich., for plaintiffs-appellants in No. 74036.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, Mich., for defendants-appellees in No. 74036.

CAVANAGH, Justice.

We consolidated these cases 1 to resolve a conflict within the Court of Appeals regarding the applicability of the statutory presumption of work-related personal injury found in M.C.L. Sec. 418.405; M.S.A. Sec. 17.237(405). Compare Spears v. Hazel Park, 131 Mich.App. 457, 346 N.W.2d 340 (1984), remand from 417 Mich. 940, 344 N.W.2d 736, with Achtenberg v. East Lansing, 134 Mich.App. 108, 351 N.W.2d 268 (1984). We hold that the statute requires application of the presumption only when a claimant is not awarded any form of pension benefit. For the reasons set forth below, we reverse the judgment of the Court of Appeals in Spears and affirm the judgment in Achtenberg.


Henry Spears was a firefighter for the City of Hazel Park for nearly 19 years. On October 12, 1973, he felt dizzy while climbing a fire truck ladder. Two days later, he suffered a heart attack while on a fishing trip.

Richard Achtenberg was an East Lansing firefighter for 23 years. Approximately 20 hours after completing his last shift, he suffered a fatal heart attack at home on February 29, 1976. 2

Both cities provide their firefighters with pension plans which afford employees duty-related or non-duty-related benefits. Both plaintiffs applied for both types of benefits. The pension boards ultimately awarded the plaintiffs non-duty-related benefits. Plaintiffs argue that they are also entitled to workers' compensation benefits due to the statutory presumption that the heart attacks were work-related.

M.C.L. Sec. 418.405; M.S.A. Sec. 17.237(405) (hereafter Sec. 405) provides:

"(1) In the case of a member of a full paid fire department of an airport run by a county road commission in counties of 1,000,000 population or more or by a state university or college or of a full paid fire or police department of a city, township, or incorporated village employed and compensated upon a full-time basis, a county sheriff and the deputies of the county sheriff, members of the state police, conservation officers, and motor carrier inspectors of the Michigan public service commission, 'personal injury' shall be construed to include respiratory and heart diseases or illnesses resulting therefrom which develop or manifest themselves during a period while the member of the department is in the active service of the department and result from the performance of duties for the department.

"(2) Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.

"(3) As a condition precedent to filing an application for benefits, the claimant, if he or she is one of those enumerated in subsection (1), shall first make application for, and do all things necessary to qualify for any pension benefits which he or she, or his or her decedent, may be entitled to. If a final determination is made that pension benefits shall not be awarded, then the presumption of 'personal injury' as provided in this section shall apply. The employer or employee may request 2 copies of the determination denying pension benefits, 1 copy of which may be filed with the bureau." (Emphasis added.)

In both cases, the hearing referee and the Workers' Compensation Appeal Board concluded that the injuries were not duty-related. They also declined to apply the Sec. 405 presumption. However, the Court of Appeals reached conflicting conclusions regarding application of the presumption.


The Spears panel embraced the plaintiff's argument that Sec. 405 should be read in conjunction with M.C.L. Sec. 418.161; M.S.A. Sec. 17.237(161) (hereafter Sec. 161). That section states:

"Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept like benefits that are prescribed in the charter but shall not be entitled to like benefits from both their local charter and this act." (Emphasis supplied.)

The Spears panel concluded that the term "like benefits" found in Sec. 161 was equivalent to the term "any pension benefits" found in Sec. 405(3). Spears, supra, 131 Mich.App., p. 464, 346 N.W.2d 340. Furthermore, the court found that the benefits received by Spears were not "like benefits." Accordingly, the Court of Appeals reversed the WCAB decision and remanded with an order to apply the presumption of work-relatedness. Id.

The Achtenberg panel read Sec. 405 differently. The majority held that the term "any pension benefits" precluded application of the Sec. 405 presumption because the plaintiff received some form of pension benefit, i.e., non-duty-related benefits. 3 The Achtenberg majority also called for legislative action to clarify whether Secs. 405 and 161 should be read together. 4


When the language of a statute is clear, courts must apply it as written. See Bannan v. Saginaw, 420 Mich. 376, 362 N.W.2d 668 (1984); Dussia v. Monroe County Employees Retirement System, 386 Mich. 244, 248-249, 191 N.W.2d 307 (1971). We believe that the meaning of the phrase "any pension benefits," as found in Sec. 405(3), is clear. The presumption of work-related personal injury is found in Sec. 405(2). However, Sec. 405(3) limits operation of the presumption. Before filing an application for workers' compensation benefits, the claimant shall do all things necessary to qualify for any pension benefits to which the claimant may be entitled. 5 If pension benefits are not awarded, then the Sec. 405(2) presumption shall apply. Therefore, the presumption of work-related personal injury only applies if the claimant is not awarded any form of pension benefits.

In enacting Sec. 405, the Legislature chose not to distinguish between various types of pension benefits. Instead, by using the phrase "any pension benefits," the Legislature indicated that the presumption would not apply if a claimant received any one of various forms of pension benefits.

Although interpretation of legislative intent is not required under this analysis, we think it is instructive in light of prior decisions in this case. The Legislature was aware of the difficulties involved in establishing a causal relationship between respiratory and heart diseases, and the rigors of firefighting. 6 The Legislature wanted to guarantee that firefighters, police officers, and other workers enumerated in Sec. 405(1) would receive some disability compensation in the event they were injured but were not covered by a pension. For example, in Achtenberg, the WCAB noted that the statutory presumption would be applied when an injured employee's pension rights were not vested. Likewise, in the case where a city pension plan did not cover respiratory and heart diseases, the presumption arose. In these situations, for example, firefighters and other workers were assured of at least workers' compensation benefits.

Plaintiffs argue that Spears properly departed from a literal construction of Sec. 405 by elevating the spirit of the section over its letter. See Spears, supra, 131 Mich.App., pp. 462-463, 346 N.W.2d 340. Such a departure may be justified when a literal construction would produce absurd and unjust results and would be inconsistent with the purposes and policies of the act. However, our literal interpretation produces none of these results. The plaintiffs are not placed in a disadvantaged position vis-a-vis other employees. Plaintiffs received non-duty pension benefits. They were allowed to present evidence that they were entitled to duty-related benefits. In both cases, the WCAB concluded as a matter of fact, that the plaintiffs failed to establish work-relatedness. Neither plaintiff now argues that the evidence supports a contrary conclusion. This is why operation of the presumption is so important to their case.

We reject the analysis employed in Spears since we do not agree that the term "any pension benefits" is equivalent to the term "like benefits." 7 While Sec. 405 and Sec. 161 are generally similar in purpose, the intended scope of each is clearly different and does not warrant the implication that two different phrases have an identical meaning.


Finally, in Achtenberg, we decline to address the argument that the decedent's children are separately entitled to benefit of the presumption. We have declined to review issues which were not presented before the WCAB or the Court of Appeals. See Turner v. Consumers Power Co., 376 Mich. 188, 191-192, 136 N.W.2d 1 (1965); Louagie v. Merritt, Chapman & Scott, 382 Mich. 274, 282, 170 N.W.2d 13 (1969). The record indicates that the question now sought to be...

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