Maier v. GENERAL TELEPHONE CO.

• Citation: 637 N.W.2d 263,247 Mich. App. 655
• Decision Date: 12 December 2001
• Docket Number: Docket No. 227825.
• Parties: William A. MAIER, Plaintiff-Appellant, v. GENERAL TELEPHONE CO. OF MICHIGAN, American Motorist Insurance Co., GTE North, Inc., and Insurance Co. of the State of Pennsylvania, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

637 N.W.2d 263

247 Mich. App. 655

William A. MAIER, Plaintiff-Appellant, v. GENERAL TELEPHONE CO. OF MICHIGAN, American Motorist Insurance Co., GTE North, Inc., and Insurance Co. of the State of Pennsylvania, Defendants-Appellees.

Docket No. 227825.

Court of Appeals of Michigan.

Submitted September 12, 2001, at Lansing.

Decided September 28, 2001, at 9:05 a.m.

Released for Publication December 12, 2001.

Carey, Kirk & Kihm (by Thomas D. Carey and Gary C. Newton), Kalamazoo, for the plaintiff.

Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg), Grand Rapids, for General Telephone Company of Michigan and American Motorist Insurance Company.

Lacey & Jones (by Gerald M. Marcinkoski), Birmingham, for GTE North, Inc., and Insurance Company of the State of Pennsylvania.

Before: O'CONNELL, P.J., and WHITE and SMOLENSKI, JJ.

PER CURIAM.

Plaintiff, William A. Maier, appeals by leave granted from the May 19, 2000, opinion and order of the Worker's Compensation Appellate Commission (WCAC) reversing the magistrate's open award of worker's compensation benefits. We granted leave to consider whether the presumption of wage-earning capacity found in M.C.L. § 418.301(5)(d)(i) is conclusive. For the reasons set forth below, we reverse and remand.

The facts of this case are not in dispute. Plaintiff began his employment with defendant General Telephone Company of Michigan as a facility technician in February 1988. On March 1, 1991, plaintiff fractured his left foot and ankle after jumping from a falling telephone pole. After undergoing surgery, plaintiff returned to his regular work duties in February 1992. However, plaintiff was restricted from climbing ladders. Plaintiff continued to perform his regular work duties limited by the climbing restriction until May 29, 1998,¹ when his employment was terminated. According to the record, plaintiff was retained as an employee following his injury with the understanding that his climbing limitation was temporary. After being informed by plaintiff's treating physician that the limitation was permanent, GTE North, Inc., the successor employer of plaintiff, terminated plaintiff's employment.

As relevant to this appeal, plaintiff filed a claim seeking worker's compensation benefits on June 1, 1998. Following trial, the magistrate granted plaintiff an open award of benefits. In doing so, the magistrate rejected General Telephone's argument that M.C.L. § 418.301(5)(d)(i) precluded an award of benefits. Specifically, the magistrate found that plaintiff had presented sufficient proof to rebut the presumption of a wage-earning capacity pursuant to subsection 301(5)(d)(i).²

Defendants General Telephone and its insurer, American Motorist Insurance Company, appealed to the WCAC. In an opinion and order entered May 19, 2000, a split two-to-one panel reversed the magistrate's open award of benefits. The majority of the WCAC found that because plaintiff engaged in reasonable employment, M.C.L. § 418.301(9), for a period exceeding 250 weeks, he was conclusively presumed to have established a new wage-earning capacity and was not entitled to worker's compensation benefits. The following comments of the majority highlight the rationale supporting its decision.

[I]f an employee is entitled to benefits without any inquiry into wage earning capacity for the period of less than 100 weeks [of reasonable employment, see M.C.L. § 418.301(5)(e) ] then for work of 250 weeks or more, no inquiry into wage earning capacity is appropriate either.

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The result compelled by the statute is indeed harsh, as [dissenting] Commissioner [James J.] Kent points out. But it is an equal harshness in light of the free reign given to employees in the period of under 100 weeks of reasonable employment. During this time period, an employee may perform perfectly regular work as reasonable employment, which would represent a wage earning capacity after injury, but even in circumstances where the employee is terminated for just cause unrelated to injury, this work cannot create a wage earning capacity as a matter of law. For less than 100 weeks the loss of work for reasons totally unrelated to the injury requires reinstatement of benefits without regard to the employee's actual wage earning capacity after injury. For 250 weeks or more, the performance of reasonable employment creates a presumption of wage earning capacity whether or not the employee loses the job for reasons unrelated to the injury. Both scenarios work injustices to particular parties in the more dramatic circumstances.

In a lengthy dissent, Commissioner Kent disagreed with the majority's analysis, concluding that the presumption of wage-earning capacity found in M.C.L. § 418.301(5)(d)(i) was rebuttable.

Whether the presumption of wage-earning capacity following 250 weeks or more of reasonable employment in subsection 301(5)(d)(i) is conclusive presents a question of statutory construction. We review de novo such questions of law. Perez v. Keeler Brass Co., 461 Mich. 602, 608, 608 N.W.2d 45 (2000). This Court "shall have power to review questions of law involved in any final order of [the WCAC]...." M.C.L. § 418.861.

When reviewing questions of statutory construction, our purpose is to discern and give effect to the Legislature's intent. Murphy v. Michigan Bell Telephone Co., 447 Mich. 93, 98, 523 N.W.2d 310 (1994). We begin by examining the plain language of the statute. Where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature's intent. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995). [DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000).]

Although this Court will ordinarily defer to the WCAC's interpretation of a provision of the Worker's Disability Compensation Act, (WDCA), M.C.L. § 418.101 et seq., we will not afford such deference where the WCAC's interpretation of the pertinent statute is clearly incorrect. Tyler v. Livonia Public Schools, 459 Mich. 382, 388, 590 N.W.2d 560 (1999); Jones-Jennings v. Hutzel Hosp. (On Remand), 223 Mich.App. 94, 105, 565 N.W.2d 680 (1997). Likewise, "`a decision of the WCAC is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework.'" Sington v. Chrysler Corp., 245 Mich.App. 535, 540, 630 N.W.2d 337 (2001), quoting DiBenedetto, supra at 401-402, 605 N.W.2d 300.

MCL 418.301(5) provides in pertinent part:

If disability is established pursuant to [MCL 418.301(4) ], entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows:

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(d) If the employee, after having been employed pursuant to this subsection for 100 weeks or more loses his or her job through no fault of the employee, the employee shall receive compensation under this act pursuant to the following:

(i) If after exhaustion of unemployment benefit eligibility of an employee, a worker's compensation magistrate or hearing referee, as applicable, determines for any employee covered under this subdivision, that the employments since the time of injury have not established a new wage earning capacity, the employee shall receive compensation based upon his or her wage at the original date of injury. There is a presumption of wage earning capacity established for employments totaling 250 weeks or more.

(ii) The employee must still be disabled as determined pursuant to [MCL 418.301(4) ]. If the employee is still disabled, he or she shall be entitled to wage loss benefits based on the difference between the normal and customary wages paid to those persons performing the same or similar employment, as determined at the time of termination of the employment of the employee, and the wages paid at the time of the injury.

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(e) If the employee, after having been employed pursuant to this subsection for less than 100 weeks loses his or her job for whatever reason, the employee shall receive compensation based upon his or her wage at the original date of injury. [Emphasis supplied.]

The Legislature amended the WDCA to enact subsection 301(5) in 1981, codifying the judicially created favored-work doctrine. McJunkin v. Cellasto Plastic Corp., 461 Mich. 590, 595, 608 N.W.2d 57 (2000). The provisions of subsection 301(5) apply to disabled individuals who seek other employment. Arnold v. General Motors Corp., 456 Mich. 682, 690, 575 N.W.2d 540 (1998). "Subsections 301(5)(d) and 301(5)(e) establish specific guidelines for awarding wage-loss benefits to injured employees." Sington, supra at 544, 630 N.W.2d 337; see also Russell v. Whirlpool Financial Corp., 461 Mich. 579, 586, 608 N.W.2d 52 (2000).

The word "presumption" is not defined in the statute. Thus, it is appropriate for this Court to turn to its dictionary definition to ascertain its meaning. Popma v. Auto Club Ins. Ass'n, 446 Mich. 460, 470, 521 N.W.2d 831 (1994). Black's Law Dictionary (6th ed), p. 1185, defines presumption in the following terms.

An inference in favor of a particular fact. A presumption is a rule of law, statutory or judicial, by which [the] finding of a basic fact gives rise to [the] existence of [a] presumed fact, until [the] presumption is rebutted.³

Unlike the WCAC majority, we find no basis in the plain language of subsection 301(5)(d)(i) to conclude that the presumption of a wage-earning capacity following 250 weeks or more of reasonable employment is conclusive. The Legislature has expressly manifested its intention that a presumption be considered conclusive in other provisions of the WDCA. See, e.g., M.C.L. § 418.331 (providing for conclusive...