DiBenedetto v. Second Injury Fund

• Decision Date: 10 April 1998
• Docket Number: Docket No. 200754
• Parties: Margaret DiBENEDETTO, Plaintiff-Appellant, v. Westshore Hospital and SECOND INJURY FUND, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 766

581 N.W.2d 766

229 Mich.App. 223

Margaret DiBENEDETTO, Plaintiff-Appellant, v. Westshore Hospital and SECOND INJURY FUND, Defendants-Appellees.

Docket No. 200754.

Court of Appeals of Michigan.

Submitted March 11, 1998, at Lansing.

Decided April 10, 1998, at 9:10 a.m.

Released for Publication July 29, 1998.

Libner, Van Leuven, Evans & Portenga, P.C. by John A. Braden, Muskegon, for plaintiff-Appellant.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Rose A. Houk, Assistant Attorney General, for Defendants-Appellees.

Before FITZGERALD, P.J., and HOOD and SAWYER, JJ.

PER CURIAM.

Plaintiff appeals by leave granted a January 3, 1997, order of the Worker's Compensation Appellate Commission (WCAC), which reversed the decision of the magistrate and granted the petition to stop payment of benefits by defendant Second Injury Fund (SIF). We reverse and remand.

I

The facts are undisputed. Plaintiff worked part-time for defendant hospital as a licensed practical nurse (LPN). She injured her back on August 26, 1986, while lifting a patient. Her average weekly wage at the time was $141.61. After being off work for some time, she filed an application for hearing in May 1989 claiming continuing disability. She also claimed that her benefit rate should be determined pursuant to § 356 of the Worker's Disability Compensation Act, M.C.L. § 418.356; M.S.A. § 17.237(356), which provides in part:

(1) An injured employee who, at the time of the personal injury, is entitled to a rate of compensation less than 50% of the then-applicable state average weekly wage as determined for the year in which the injury occurred pursuant to section 355, may be entitled to an increase in benefits after 2 years of continuous disability. After 2 years of continuous disability, the employee may petition for a hearing at which the employee may present evidence, that by virtue of the employee's age, education, training, experience, or other documented evidence which would fairly reflect the employee's earning capacity, the employee's earnings would have been expected to increase. Upon presentation of this evidence, a hearing referee or worker's compensation magistrate, may order an adjustment of the compensation rate up to 50% of the state average weekly wage for the year in which the employee's injury occurred. The adjustment of compensation, if ordered, shall be effective as of the date of the employee's petition for the hearing. The adjustments provided in this subsection shall be paid by the carrier on a weekly basis. However, the carrier and the self-insurers' security fund shall be entitled to reimbursement for these payments from the second injury fund created in section 501. There shall be only 1 adjustment made for an employee under this subsection.

In a decision mailed June 13, 1990, a magistrate found that plaintiff was totally disabled as a result of work-related injuries and thus entitled to benefits. The magistrate also found that, but for her injury, her average weekly wage at the time that she filed her petition would have been $365.38. Applying § 356(1), the magistrate awarded benefits at the rate of fifty percent of the state average wage for 1986, $207.35. If benefits had been awarded based on plaintiff's average weekly wage, the rate would have been $101.99 a week. Pursuant to the statute, the SIF is liable for the additional weekly benefits. The SIF appealed, and in an opinion and order dated February 10, 1993, the WCAC affirmed. The SIF did not apply to this Court for leave to appeal.

Meanwhile, in June 1990 plaintiff returned to work at the hospital. Although she is not able to do the work of an LPN, she can work as a phlebotomist. She worked part-time until the end of 1990 or the beginning of 1991, when she began to work full-time. Plaintiff's weekly wage fluctuates between $250 and $370.

In March 1993, the SIF filed a petition to stop payment of benefits. The SIF argued that plaintiff is no longer disabled. In the alternative, the SIF argued that she is no longer entitled to benefits pursuant to § 301(5)(c) of the act, which provides:

If an employee is employed and the average weekly wage of the employee is equal to or more than the average weekly wage the employee received before the date of injury, the employee is not entitled to any wage-loss benefits under this act for the duration of such employment.

The SIF argued that, because plaintiff earns at least $250 a week, which is more than the average weekly wage of $141.61 that she earned before her injury, she is not entitled to benefits while so employed.

In an opinion and order mailed July 11, 1994, the magistrate denied the petition to stop benefits. The magistrate found that plaintiff remained totally disabled from her former occupation as an LPN and that the previous magistrate's decision is res judicata on this point. The magistrate also found that plaintiff is entitled to supplemental benefits from the SIF for each week in which her weekly wage exceeds the revised or stepped-up average weekly wage as found by the previous magistrate, $365.38. The magistrate did not address the SIF's argument based on § 301(5)(c).

The SIF appealed, and in an opinion and order dated January 3, 1997, the WCAC reversed in part. Although the WCAC agreed with the SIF that the magistrate erred in relying on res judicata, the WCAC found that plaintiff remains totally disabled within the meaning of the act as it existed at the time she was injured, because she can no longer perform the duties of her skilled employment, even though she can earn substantial wages in other employment. However, the WCAC agreed with the SIF that § 301(5)(c) is clear and unambiguous on its face. Because plaintiff's present average weekly wage exceeds the average weekly wage she received before the date of her injury, she is not entitled to any wage-loss benefits.

This Court granted plaintiff's application for leave to appeal.

II

The interpretation of a statute is a question of law, and pursuant to § 861a(3) of the worker's compensation act, M.C.L. § 418.861a(3); M.S.A. § 17.237(861a)(3), this Court reviews de novo questions of law...