Frasier v. Model Coverall Service, Inc.

• Decision Date: 10 April 1990
• Docket Number: Docket No. 110458
• Citation: 453 N.W.2d 301,182 Mich.App. 741
• Parties: Eugene L. FRASIER, Plaintiff-Appellee, v. MODEL COVERALL SERVICE, INC., Defendant-Appellant, and Total Compensation Service, Defendant. 182 Mich.App. 741, 453 N.W.2d 301
• Court: Court of Appeal of Michigan — District of US

Page 301

453 N.W.2d 301

Eugene L. FRASIER, Plaintiff-Appellee, v. MODEL COVERALL SERVICE, INC., Defendant-Appellant and Total Compensation Service, Defendant.

Docket No. 110458.

182 Mich.App. 741, 453 N.W.2d 301

Court of Appeals of Michigan.

Submitted Dec. 12, 1989.

Decided March 20, 1990.

Released for Publication April 10, 1990.

[182 MICHAPP 742] Pinsky, Smith, Fayette & Hulswit by Edward M. Smith, Grand Rapids, for plaintiff-appellee.

Smith, Haughey, Rice & Roegge by Jon D. Vander Ploeg, Grand Rapids, for defendant-appellant.

Before DANHOF, C.J., and MAHER and HOOD, JJ.

PER CURIAM.

Defendant Model Coverall Service appeals by leave granted from a June 27, 1988, opinion and order of the Workers' Compensation Appellate Commission affirming a magistrate's award of disability compensation to plaintiff. We affirm.

Plaintiff worked for defendant for approximately 39 1/2 years. In July, 1985, a physician diagnosed a torn rotator cuff in plaintiff's right shoulder. Plaintiff's last day of work with defendant was July 25, [182 MICHAPP 743] 1985. Defendant voluntarily paid workers' compensation benefits to plaintiff. On January 31, 1986, plaintiff retired under an early, reduced nondisability retirement plan available through defendant. The pension administrator coordinated plaintiff's workers' compensation benefits with his retirement benefits as required by Sec. 354 of the Worker's Disability Compensation Act, M.C.L. Sec. 418.354; M.S.A. Sec. 17.237(354).

On May 23, 1986, defendant stopped plaintiff's compensation benefits, claiming plaintiff's disability did not meet the criteria to overcome the presumption in M.C.L. Sec. 418.373; M.S.A. Sec. 17.237(373) that there is no loss of wage-earning capacity upon a claimant's receipt of nondisability retirement benefits. On June 4, 1986, plaintiff filed a claim for disability compensation benefits. A magistrate heard the case on stipulated facts. The issue principally in dispute was whether Sec. 373 applied.

The magistrate held that Sec. 373 did not apply because plaintiff retired while he was disabled and receiving workers' compensation benefits and did not retire from active employment.

On appeal, the WCAC affirmed, also concluding that Sec. 373 did not apply to plaintiff because he did not retire from active employment.

The issue on appeal to this Court is whether the magistrate and WCAC properly interpreted Sec. 373, which states:

An employee who terminates active employment and is receiving nondisability pension or retirement benefits under either a private or governmental pension or retirement program, including old-age benefits under the social security act, 42 USC 301 to 1397f, that was paid by or on behalf of an employer from whom weekly benefits under this act are sought shall be presumed not to have a loss of earnings or earning capacity as the result [182 MICHAPP 744] of a compensable injury or disease under either this chapter or chapter 4. This presumption may be rebutted only by a preponderance of the evidence that the employee is unable, because of a work related disability, to perform work suitable to the employee's qualifications, including training or experience. This standard of disability supersedes other applicable standards used to determine disability under either this chapter or chapter 4. [M.C.L. Sec. 418.373(1); M.S.A. Sec. 17.237(373)(1) (emphasis added).]

When statutory language is clear and unambiguous, judicial interpretation to vary the plain meaning of the statute is precluded. The Legislature must have intended the meaning it plainly expressed, and the statute must be enforced as written. Hiltz v. Phil's Quality Market, 417 Mich. 335, 343, 337 N.W.2d 237 (1983). The legislative intent behind Sec. 373 was to reform the statute and limit the number of retired workers who were eligible to collect compensation along with a nondisability retirement. Franks v. White Pine Copper Div., 422 Mich. 636, 657, 375 N.W.2d 715 (1985). Therefore, in determining what the Legislature meant by "active employment" we must define "active" in its ordinary sense and meaning. Placing the "active" before employment must have been for the purpose of adding some further meaning--distinguishing between employees who were actually engaged in performing work for an employer at the time of retirement and those who were not. It follows, therefore, that "active employment" means one who is actively on the job and performing the customary work of his job, as opposed to one who terminates inactive employment. See Philippi Motor Co. v. Investors Ins. Corp., 41 Or.App. 211, 597 P.2d 1267 (1979), in which the Oregon appellate court construed the term "actively employed" within a credit life policy.

[182 MICHAPP 745] The magistrate in this case pointed out:

It must be remembered that the coordination and retiree amendments that went into effect in 1982 were not conceived in a vacuum. There was much concern over perceived abuses of the compensation system by retirees who did not leave the labor force due to inability to work. Although there is little or no recorded Legislative history surrounding the passage of these amendments, the public arguments of the period focused on the "30 and out" retiree who applied for workmens' compensation benefits to augment his retirement pension rather than on the basis of an inability to work. The statutory presumption reflects a...