Eastway v. Eisenga

• Decision Date: 28 December 1984
• Docket Number: 71533,No. 9,Docket Nos. 71532,9
• Citation: 420 Mich. 410,362 N.W.2d 684
• Parties: Steven M. EASTWAY, Plaintiff-Appellee, v. Jake EISENGA, Hastings Mutual Insurance Company, and Second Injury Fund, Defendants-Appellants. Calendar
• Court: Michigan Supreme Court

Page 684

362 N.W.2d 684

420 Mich. 410

Steven M. EASTWAY, Plaintiff-Appellee, v. Jake EISENGA, Hastings Mutual Insurance Company, and Second Injury Fund, Defendants-Appellants.

Docket Nos. 71532, 71533.

Calendar No. 9.

Supreme Court of Michigan.

Argued May 9, 1984.

Decided Dec. 28, 1984.

Williams, Klukowski, Drew & Fotieo, P.C. by Paul A. Williams, Grand Rapids, for plaintiff-appellee.

Baxter & Hammond, James R. Piggush, Grand Rapids, for defendants-appellants Jake Eisenga and Hastings Mut. Ins. Co.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Richard F. Zapala, Asst. Atty. Gen., Lansing, for defendant-appellant Second Injury Fund.

BRICKLEY, Justice.

In this case we must decide whether M.C.L. Sec. 418.115; M.S.A. Sec. 17.237(115) violates the Equal Protection Clauses of the state or federal constitutions ¹ by partially excluding plaintiff's employer from coverage under the Worker's Disability Compensation Act and thereby denying plaintiff the ability to make a claim for disability benefits.

Plaintiff first worked for defendant in 1967. During the next few years plaintiff intermittently worked for defendant, mainly during haying and potato seasons. ² In the spring of 1969, plaintiff worked a couple of Saturday afternoons cultivating fields for defendant. In June of the same year plaintiff worked 2 to 3 days per week, 5 to 7 hours per day for defendant while working part time for another employer. Throughout that summer plaintiff worked 4 to 5 hours per week for defendant while also holding other jobs. In late August or early September, plaintiff began working full time for a Mr. Johnson. While still working for Johnson, plaintiff worked one day for defendant during potato season. On that day, September 30, 1969, plaintiff, then age 18, was injured.

The injury occurred when the plaintiff was caught in a self-loading wagon. As a result of the accident, plaintiff is a quadrapeligic confined to a wheelchair. Plaintiff was eligible for lifetime medical benefits which have been supplied and are not at issue in this appeal. M.C.L. Sec. 418.115(e); M.S.A. Sec. 17.237(115)(e).

Defendant's two sons also worked for him. The elder, Bruce, owned his own farm in 1969, but still worked 10 to 20 hours per week for defendant and was paid a salary. The other son, Nelson, lived on defendant's farm and worked there full time for a salary. When Nelson was away for five months in the National Guard, a neighbor worked 3 to 4 hours per day for defendant.

Two haying seasons occurred each year on defendant's farm. During the first, defendant hired 4 to 5 full time employees for a 2 to 3 week period. Later in the year defendant would hire the same number of full time employees for approximately one week. During potato season defendant hired 8 to 10 people who worked approximately 20 hours per week for 2 to 2 1/2 weeks.

In 1977, the hearing referee awarded disability benefits on the basis of his understanding that Gallegos v. Glaser Crandell Co., 388 Mich. 654, 202 N.W.2d 786 (1972), held that the agricultural exclusion in Sec. 115 was unconstitutional. The WCAB affirmed the referee in 1981, but substituted the board's own narrative findings. Each member interpreted Gallegos differently, but all concurred in affirming the award of benefits.

The Court of Appeals denied defendant's application for leave to appeal. Judge Cynar voted to grant the application. This Court subsequently remanded the case to the Court of Appeals for consideration as on leave granted. GCR 1963, 853.2(4); 413 Mich. 872 (1982).

The Court of Appeals, in an unpublished opinion per curiam, decided April 1, 1983 (Docket Nos. 63830, 63831), affirmed the decision of the WCAB. The Court interpreted Gallegos to mean that "all distinctions between private and agricultural employers violate the equal protection clause of the Fourteenth Amendment". The Court struck the words, "other than agricultural employers" from M.C.L. Sec. 418.115(a), (b); M.S.A. Sec. 17.237(115)(a), (b). It found that plaintiff was injured during a period in which the defendant regularly employed three or more employees at one time. ³ Thus, it determined that at the time of the injury defendant was an employer subject to the act under Sec. 115(a) as modified. The defendant and the Attorney General, appearing on behalf of the Second Injury Fund, applied for leave to appeal to this Court. We granted leave to appeal, 418 Mich. 881 (1983), and now reverse.

The statute at issue in this case, M.C.L. Sec. 418.115; M.S.A. Sec. 17.237(115), provides:

"Sec. 115. This act shall apply to:

"(a) All private employers, other than agricultural employers, who regularly employ 3 or more employees at 1 time.

"(b) All private employers, other than agricultural employers, who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.

"(c) All public employers, irrespective of the number of persons employed.

"(d) All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately preceding the injury, and no other definition pertaining to average weekly wage shall be applicable.

"(e) All agricultural employers of 1 or more employees who are employed 35 or more hours per week by that same employer for 5 or more consecutive weeks shall provide for such employees in accordance with rules established by the director, medical and hospital coverage as set forth in section 315 for all personal injuries arising out of and in the course of employment suffered by such employees not otherwise covered by this act. The provision of such medical and hospital coverage shall not affect any rights of recovery that an employee would otherwise have against an agricultural employer and such right of recovery shall be subject to any defense the agricultural employer might otherwise have. Section 141 shall not apply to cases, other than medical and hospital coverages provided herein, arising under this subdivision nor shall it apply to actions brought against an agricultural employer who is not voluntarily or otherwise subject to this act. No person shall be considered an employee of an agricultural employer if the persons is a spouse, child or other member of the employer's family, as defined in subdivision (b) of section 353 residing in the home or on the premises of the agricultural employer.

"All other agricultural employers not included in subdivisions (d) and (e) shall be exempt from the provisions of this act".

In Gallegos, the plaintiffs also challenged the constitutionality of Sec. 115(d). There the plaintiffs were migrant workers employed to harvest cucumbers. They were compensated on a piecework basis and were injured during their employment. The WCAB denied each plaintiff's claim for benefits on the authority of the piecework exclusion and correctly ruled that it did not have the authority to decide the constitutional question.

The Court of Appeals granted plaintiffs application for leave to appeal and subsequently affirmed the decision of the WCAB. Gallegos v. Glaser Crandell Co., 34 Mich.App. 489, 192 N.W.2d 52 (1971). The Court stated the issue before it as follows:

"The precise question then is whether the creation of classes within the act, thereby allowing for coverage to permanent salaried or wage-earning [farm] laborers while denying coverage to temporary piecework laborers (such as migrant workers) is such unreasonable and arbitrary discrimination as to deny the latter equal protection of the laws guaranteed by the [state and federal constitutions]." 34 Mich.App. 491-492, 192 N.W.2d 52.

After deciding that the plaintiffs' rights to travel were not violated, the court further held that "it cannot be said that the legislative decision to amend the act so as to include certain farm laborers while continuing to exclude others was arbitrary or totally without reason." Id., p. 497, 192 N.W.2d 52. Finally, the Gallegos Court of Appeals stated: "In upholding the constitutionality of [Sec. 115(d)(3) ] i.e., the exclusion of piecework farm laborers, we in no way imply approval of the [legislative treatment of migrant workers]." Id., p. 498, 192 N.W.2d 52.

This Court granted leave to appeal in Gallegos and "the arguments of appellants and appellee [each] posit[ed] the issue as piecework." (Williams, J., concurring in part and dissenting in part, 388 Mich. 676, 202 N.W.2d 786.) Specifically, in Gallegos the "[p]laintiffs argue[d] that the exclusion from workmen's compensation benefits of those agricultural workers who are paid on a piecework basis * * * denies those workers the equal protection of the laws." (T.G. Kavanagh, J., concurring in result, id., p. 670, 202 N.W.2d 786.)

The majority in Gallegos held that "the provisions of Sec. 115(d) * * * violate[d] the plaintiffs' rights to equal protection" under the state and federal constitutions. Id., p. 659, 202 N.W.2d 786. Notwithstanding the narrow issue before the Court, the bulk of the majority opinion discussed the different treatment given agricultural employers and nonagricultural employers under Sec. 115 generally. The majority stated that its' "difficulty [was] with the classification of agricultural employers" because "[a]gricultural employers * * * are accorded a special treatment and classification of their employees not accorded any other private or public employer." It thus held: "[s]uch treatment is...