Nicholas v. Michigan State Employees Retirement Bd., Docket No. 82213

• Decision Date: 09 September 1985
• Docket Number: Docket No. 82213
• Citation: 372 N.W.2d 685,144 Mich.App. 70
• Parties: William NICHOLAS, Petitioner-Appellee, v. MICHIGAN STATE EMPLOYEES RETIREMENT BOARD, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 685

372 N.W.2d 685

144 Mich.App. 70

William NICHOLAS, Petitioner-Appellee, v. MICHIGAN STATE EMPLOYEES RETIREMENT BOARD, Respondent-Appellant.

Docket No. 82213.

Court of Appeals of Michigan.

Submitted May 22, 1985.

Decided July 1, 1985.

Released for Publication Sept. 9, 1985.

Osstyn, Bays, Ferns & Fisher by Douglas K. Fisher, Marquette, for petitioner-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen. and Michael A. Lockman and Susan A. Harris, Asst. Attys. Gen., for respondent-appellant.

Before CYNAR, P.J., and HOOD and OLZARK, ^* JJ.

CYNAR, Presiding Judge.

Petitioner's disability retirement allowance was terminated by the State Employee's Retirement Board (Board) on September 16, 1984. Petitioner appealed the Board's order to the Marquette County Circuit Court. The court issued an opinion and order reversing the Board on December 5, 1984. The Board appeals to this Court as of right.

Petitioner was employed by the State of Michigan from 1974 to September 1981 as a corrections officer at the Marquette Prison. In 1981 he was injured while trying to break up a fight between inmates at the prison. Petitioner suffered from numbness in his right leg. He was referred to the Mayo Clinic for treatment. He was on a program of bed rest and medication for about one year.

In 1982, he started receiving disability retirement benefits from the Board. In 1983, the Board requested that petitioner submit medical documentation of his current condition. Based on the reports it received, the Board determined that petitioner was no longer entitled to benefits.

Petitioner requested a hearing, which was conducted on March 16, 1984. Petitioner testified that he could do some activities but he could not do any particular activity for a sustained period of time and that he suffered pain if he remained sitting or standing for any extended period of time.

Petitioner had attempted to become reemployed with the Department of Corrections. However, he could not be reinstated because he could not meet the physical requirements of the job.

The medical advisor to the Board indicated petitioner could do work which did not involve "physical abuse". The hearing examiner concluded that petitioner was capable of doing sedentary work and, therefore, he did not meet the requirements set out by the disability provisions of the statute. The hearing examiner recommended the petitioner's request for continuation of benefits be denied, and the Board accepted the recommendation.

The issue is whether M.C.L. 38.33; M.S.A. 3.981(33) requires that benefits be denied to a disability retirant if it is found that the retirant is capable of any service with the state.

M.C.L. 38.21; M.S.A. 3.981(21) provides that, subject to the provisions of M.C.L. 38.33; M.S.A. 3.981(33) and M.C.L. 38.34; M.S.A. 3.981(34), a state employee who is incapacitated as a result of service to the state may be retired. M.C.L. 38.33; M.S.A. 3.981(33) provides for examination of the retirant in order to determine continued disability retirement eligibility:

"Sec. 33. (a) Once each year during the first 5 years following the retirement of a member on a disability retirement allowance, and at least once in every 3 year period thereafter the retirement board may, and upon the retirant's application shall, require any disability retirant, who has not attained age 60 years, to undergo a medical examination; such examination to be made by or under the direction of the medical advisor at the place of residence of said retirant, or other place mutually agreed upon. Should any disability retirant, who has not attained age 60 years, refuse to submit to such medical examination in any such period, his disability retirement allowance may be discontinued until his withdrawal of such refusal, and should such refusal continue for 1 year, all his rights in and to his disability retirement allowance may be revoked by the retirement board. If upon such medical examination of a disability retirant, the medical advisor reports and his report is concurred in by the retirement board, that the disability retirant is physically able and capable of resuming employment, he shall be restored to active service with the state and his disability retirement allowance shall cease.

"(b) Should the secretary report and certify to the retirement board that such disability beneficiary is engaged in a gainful occupation paying more than the difference between his disability retirement allowance and his final compensation, and should the retirement board concur in such report, then the amount of his retirement allowance shall be reduced to an amount which together with the amount earned by him shall equal his final compensation. Should the earnings of such disability retirant be later changed, the amount of his retirement allowance shall be further modified in like manner."

There is no question that petitioner was originally entitled to benefits under M.C.L. 38.21; M.S.A. 3.981(21). The issue is his continued eligibility under M.C.L. 38.33; M.S.A. 3.981(33). In this case the statute must be construed in order to determine the petitioner's continued eligibility. The rules of statutory construction are concisely stated in Pittsfield Twp. v. Saline, 103 Mich.App. 99, 104-105, 302 N.W.2d 608 (1981). Briefly stated the rules are: (1) when a statute is unambiguous, further construction is to be avoided; (2) if an ambiguity exists, the intent of...