Achtenberg v. City of East Lansing, Docket No. 70475
| Decision Date | 12 July 1984 |
| Docket Number | Docket No. 70475 |
| Citation | 134 Mich.App. 108,351 N.W.2d 268 |
| Parties | Richard J. ACHTENBERG, deceased, Charlene Achtenberg, widow, Plaintiff-Appellant, v. CITY OF EAST LANSING and Michigan Mutual Insurance Company, Defendants-Appellees. 134 Mich.App. 108, 351 N.W.2d 268 |
| Court | Court of Appeal of Michigan — District of US |
[134 MICHAPP 110] Sablich, Ryan, Bobay & Pollok, P.C. by Theodore P. Ryan, Lansing, for plaintiff-appellant.
Baxter & Hammond by James R. Piggush, Grand Rapids, for defendants-appellees.
Before KELLY, P.J., and CYNAR and KINGSLEY *, JJ.
Plaintiff appeals from an order of the Workers' Compensation Appeal Board (WCAB) affirming a hearing referee's denial of plaintiff's claim for benefits. While this Court initially denied leave to appeal, the Supreme Court, in lieu of granting leave, issued an order remanding the case to this Court for consideration as on leave granted. 417 Mich. 936 (1983).
Plaintiff's husband, Richard Achtenberg, was employed as a firefighter with the City of East Lansing for 23 years. During his last seven years of service he held the rank of lieutenant. Achtenberg worked a full 24-hour shift on February 27 and 28, 1976, and returned home at 7:30 a.m. on February 28. On the following morning he suffered a fatal heart attack while home in bed.
On May 18, 1976, plaintiff filed a workers' compensation claim on behalf of herself and her three minor children, alleging that the death of her husband was due to his employment as a firefighter. Plaintiff had earlier been notified of her [134 MICHAPP 111] eligibility to receive pension benefits from the Municipal Employees Retirement System (MERS). This system provides for nonduty death benefits and duty death benefits; the latter are preferable. Plaintiff applied for and began receiving nonduty benefits. She was informed that, because duty death benefits would be offset by any workers' compensation benefits for which she might qualify, her application for duty death benefits could not be processed until her workers' compensation claim was completed. Her claim for duty death benefits is still pending.
Denial of workers' compensation benefits below was predicated upon plaintiff's failure to prove that her decedent's death was causally related to his employment. On appeal, plaintiff claims that the WCAB erred in failing to apply the work-related disability presumption contained in M.C.L. Sec. 418.405; M.S.A. Sec. 17.237(405). That section provides in part:
The WCAB refused to apply the Sec. 405(2) presumption because plaintiff had applied for and received pension benefits from her husband's employer. At issue in this appeal is whether the phrase "any pension benefits" as used in Sec. 405(3) was intended to include dissimilar benefits for the same injury, such as the nonduty pension benefits received by plaintiff in this case.
This precise question has recently been decided by another panel of this Court in Spears v. City of Hazel Park, 131 Mich.App. 457, 346 N.W.2d 340 (1984), which was also remanded to this Court from the Supreme Court for consideration as on leave granted. See 417 Mich. 940, 344 N.W.2d 736 (1983). The Spears panel held that the term "any pension benefits" in Sec. 405 of the Workers' Disability Compensation Act is to be construed together with Sec. 161, which requires city firefighters to elect between workers' compensation benefits and "like benefits" provided under their local charter. M.C.L. Sec. 418.161; M.S.A. Sec. 17.237(161). The Court in Spears then concluded that the Legislature intended "any pension benefits" to include only "like benefits" provided for the same injury. Since plaintiff in Spears received nonduty benefits, this Court remanded the case for a new hearing at which the M.C.L. Sec. 418.405; M.S.A. Sec. 17.237(405) presumption will be applied.
We do not agree with the result reached in Spears and believe that the panel in Spears read an implication into the Supreme Court's remand orders that we do not. By the Court of Appeals' denials of leave in both cases we showed our agreement with the Workers' Compensation Appeal Board's decisions that a claimant who was the [134 MICHAPP 113] recipient of any pension benefits is not entitled to the presumption of work relationship provided in M.C.L. Sec. 418.405(2); M.S.A. Sec. 17.237(405)(2). In other words, the Legislature meant what it said when it applied the presumption only to those who had been rejected by their employing unit for pension benefits.
Nothing has been presented in this appeal which casts any light upon a legislative intent to make a distinction between duty pension benefits and nonduty pension benefits. We surmise that this distinction was not involved in the lobbying effort or the subcommittee activity which preceded the passage of the legislation under scrutiny.
What is involved here is money. Mrs. Achtenberg was advised by MERS, which administered her husband's pension benefits, to apply for both nonduty and duty death benefits. Her nonduty death benefits were estimated at approximately $4,000 a year and when added to Social Security benefits her total would rise to about $8,000. If she qualified for duty death benefits the mix from the three sources, pension, Social Security, and workers' compensation would add another $4,500 for a total of around $12,500. Obviously she did what any reasonable person would do, she applied for both and then became caught in the conundrum.
The workers' compensation carrier took the position that she had not been denied pension benefits and therefore was not entitled to...
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Achtenberg on Behalf of Achtenberg v. City of East Lansing
...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 pen......