Rowell v. Security Steel Processing Co.

• Decision Date: 14 June 1994
• Docket Number: Nos. 1,95000,2,Docket Nos. 94644,O,s. 1
• Parties: Ted ROWELL, Plaintiff-Appellant, v. SECURITY STEEL PROCESSING COMPANY and West American Insurance Company, Defendants-Appellees. Edward R. RIGGS, Plaintiff-Appellant, v. MOSSER CONSTRUCTION, INCORPORATED and Citizens Insurance Company of America, Defendants-Appellees. Calendarct. Term 1993.
• Court: Michigan Supreme Court

Page 409

518 N.W.2d 409

445 Mich. 347

Ted ROWELL, Plaintiff-Appellant, v. SECURITY STEEL PROCESSING COMPANY and West American

Insurance Company, Defendants-Appellees.

Edward R. RIGGS, Plaintiff-Appellant, v. MOSSER CONSTRUCTION, INCORPORATED and Citizens Insurance

Company of America, Defendants-Appellees.

Docket Nos. 94644, 95000.

Calendar Nos. 1, 2, Oct. Term 1993.

Supreme Court of Michigan.

Argued Oct. 5, 1993.

Decided June 14, 1994.

[445 Mich. 349] Zamler, Mellen & Shiffman, P.C. by Joel Jonas, Southfield, and Daryl Royal, Dearborn, for Rowell.

Richard L. Warsh, Bingham Farms (Daryl Royal, of counsel), Dearborn, for Riggs.

Conklin, Benham, Ducey, Listman & Chuhran, P.C. by David J. Berge and Martin Critchell, Detroit, for defendants in Rowell.

Schellhase, Auld & Johnston by Robert F. Auld and Michael J. Mason, Livonia, for defendants in Riggs.

OPINION

BRICKLEY, Justice.

The issue presented in this worker's compensation case is a consideration of the proper treatment under M.C.L. § 418.371(3); M.S.A. § 17.237(371)(3) of partially worked weeks, specifically the week of hiring and the week of injury, in the computation of an employee's average weekly wage where the employee has worked less than thirty-nine weeks.

We hold that in calculating the average weekly wage, the percentage or fraction of work performed in a partially worked week is to be included in the denominator where a week was partially worked because the day of hiring or the day of injury fell during the week. Such an interpretation is in accordance with the overriding purpose of the section, that is to provide for a computation of an average weekly wage that "fairly represents" the employee's earning capacity as fixed at the time of injury.

I

Ted Rowell was hired as a steel worker. He began his employment with defendant Security Steel Processing Company on Tuesday, April 5, 1983. After finishing out the first week, he then worked six full weeks. His last day of work was Tuesday, May 24, 1983, because of a work-related heart attack. The plaintiff earned $292.50 in his first week of employment, $360 regular pay during each of the intervening six weeks, overtime of $54 in each of two weeks, $67.50 in a third week, and $144 in the week in which he was injured. Rowell's gross wages totaled $2,772.

The hearing referee in Rowell followed the approach suggested by the Court of Appeals in Tagliavia v. Barton Malow Co., 185 Mich.App. 556, 463 N.W.2d 116 (1990). The partially worked weeks were treated as whole weeks and used to divide the total wage earned in the course of employment. The average weekly wage was determined to be $346.50. The Worker's Compensation Appeal Board ruled that the "weeks 'actually worked' " were 7.4 weeks rather than 8 weeks and that the average weekly wage was $375.

Riggs was hired as a construction worker. He began his employment with defendant Mosser Construction, Incorporated on Tuesday, December 8, 1987. After finishing out his first week, he then worked one full week. His last day of work was Monday, December 21, 1987, because of a fall from a ladder and resultant back injury. Plaintiff worked twenty-four hours in his first week of employment and twenty-four hours in the following week, earning $399.36 each week. He was injured in the third week of employment, and was paid $149.76 for that week. Riggs' gross wages totalled $948.48.

In Riggs, the hearing referee applied the special circumstances exception provided by M.C.L. § 418.371(6); M.S.A. § 17.237(371)(6). On the basis of a forty hour week, the average weekly wage was $603.60. The Worker's Compensation Appellate Commission, following Tagliavia, found that the average weekly wage was $316.16.

The Court of Appeals in Rowell v. Security Steel Processing Co., 195 Mich.App. 578, 491 N.W.2d 265 (1992), adopted as a first-out opinion its earlier decision in Tagliavia. We granted leave to appeal, 442 Mich. 861, 500 N.W.2d 469 (1993), limited to the issue of the proper interpretation of subsection 371(3) of the Worker's Disability Compensation Act.

In Riggs v. Mosser Construction, unpublished opinion per curiam, decided September 30, 1992 (Docket No. 151717), the Court of Appeals denied leave to appeal, citing Tagliavia. We consolidated and granted leave to appeal with Rowell, 442 Mich 903 (1993).

II

Resolution of the correct treatment of the week of hiring and the week of injury, in the context of an employee who has worked less than thirty-nine weeks requires application of M.C.L. § 418.371(3); M.S.A. § 17.237(371)(3). ¹

When applying any legislation, it must first be determined whether the language of the statute is clear and unambiguous. Victorson v. Dep't of Treasury, 439 Mich. 131, 138, 482 N.W.2d 685 (1992). Where the language of the statute is clear and unambiguous, no judicial interpretation is warranted. Livonia v. Dep't of Social Services, 423 Mich. 466, 487, 378 N.W.2d 402 (1985).

Contrary to the position taken by the dissent, the language of M.C.L. § 418.371(3); M.S.A. § 17.237(371)(3) is ambiguous in that the phrase, "the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked" is susceptible to several possible meanings. One possibility is that the gross wage is to be divided by a whole number that is rounded up whenever an employee performs any work in a week. Another possibility is that the number of weeks in the denominator only reflects weeks in which an employee has actually worked every day. Under this interpretation, partially worked weeks are to be disregarded in the calculation. Total wages are divided by fully worked weeks.

A third possible interpretation would not consider partially worked weeks in either the total wage figure or the number of weeks worked figure. Finally, the interpretation advanced by the plaintiffs suggests that when the Legislature employed the phrase "weeks actually worked," it intended total wages earned to be divided by the whole number of full weeks worked plus a fractional number representing the partially worked weeks.

Where the language employed by the Legislature is susceptible to more than one interpretation, judicial construction is justified. State Treasurer v. Wilson, 423 Mich. 138, 144, 377 N.W.2d 703 (1985). The goal of statutory construction is to "ascertain and give effect to the intent of the Legislature in enacting the statute." In re Forfeiture of $5,264, 432 Mich. 242, 248, 439 N.W.2d 246 (1989). In determining legislative intent, individual provisions should be considered in conjunction with the entire act. Arrowhead Development Co. v. Livingston Co. Rd. Comm., 413 Mich. 505, 516, 322 N.W.2d 702 (1982). If the meaning of a statute is unclear, a court must consider the object of the statute and apply a reasonable construction that best accomplishes the Legislature's purpose. Wilson, supra. Furthermore, literal constructions that produce unreasonable and unjust results that are inconsistent with the purpose of the act should be avoided. Salas v. Clements, 399 Mich. 103, 109, 247 N.W.2d 889 (1976).

Under the interpretation advanced by the dissent and the Court of Appeals in Tagliavia, supra, the gross wage would be divided by a whole number that rounds up whenever an employee performs any work in a week. In Tagliavia, the Court ruled that if wages are earned in any part of a week, that week shall be included as a whole week in determining the average weekly wage. In so concluding, the Court of Appeals reasoned that that result was required by the second sentence of subsection 371(3), which provides:

For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked.

We disagree with and disapprove of Tagliavia. In directing that only those weeks in which work is performed shall be considered, the Legislature did not direct that every week in which work is performed shall be counted as a whole week without regard to whether the week was fully or partially worked.

Application of the construction suggested by Tagliavia would create a downward distortion of the average weekly wage. For example, the employee who began work on a Friday at the end of a work week, worked one full week and was injured on the following Monday, would effectively have little more than a week's wage divided by three as the basis for compensation. ² Under the dissent's proposed formula, wages for one week and two days would be treated as if they fairly represented three weeks wages. In contrast, the employee who begins a job on a Monday and is injured three weeks later on a Friday, would see the basis for his compensation almost triple. It seems an absurd notion that the Legislature intended to distinguish between the employee injured on a Monday and the employee injured on a Friday. Because the resultant disparity would be irrational, we conclude that such a result was not the intention of the Legislature.

Similarly, we reject any interpretation of the statute that would disregard the partially worked weeks in question when dividing the gross wage. This would cause an upward distortion of the average weekly wage. For example, the employee discussed previously who began employment on a Friday, worked a full week and is injured the following Monday would have his total wages earned divided by one. This skews the average because the total wage figure would be inflated by the inclusion of two days wages. The result would be unfair to employers and would be inconsistent with the general provisions of subsection 1 regarding fair assessment of average weekly earnings.

While an interpretation of subsection 3 that would totally disregard partially worked weeks in either the numerator or the denominator might lead to an equitable solution the Legislature did not choose the precise words that would lead to that interpretation. The...