Spencer v. Clark Tp.

• Decision Date: 19 June 1985
• Docket Number: Docket No. 71924
• Parties: Melvin C. SPENCER, Plaintiff-Appellant, Cross-Appellee, v. CLARK TOWNSHIP and Employers Insurance of Wausau, Defendants-Appellees, Cross-Appellants. 142 Mich.App. 63, 368 N.W.2d 897
• Court: Court of Appeal of Michigan — District of US

Page 897

368 N.W.2d 897

Melvin C. SPENCER, Plaintiff-Appellant, Cross-Appellee, v. CLARK TOWNSHIP and Employers Insurance of Wausau,

Defendants-Appellees, Cross-Appellants.

Docket No. 71924.

142 Mich.App. 63, 368 N.W.2d 897

Court of Appeals of Michigan.

Submitted April 30, 1984.

Decided April 16, 1985.

Released for Publication June 19, 1985.

[142 MICHAPP 65] Moher, Andary & Cannello by Thomas G. Moher, Sault Ste. Marie, for plaintiff-appellant, cross-appellee.

Corcoran & Lewinski, P.C. by Guy W. Lewinski, Sault Ste. Marie, for defendants-appellees, cross-appellants.

Before MacKENZIE, P.J., and J.H. GILLIS and SULLIVAN ^*, JJ.

PER CURIAM.

On September 24, 1973, plaintiff injured his back while working part time for defendant Clark Township as a volunteer ambulance attendant. During the time in question plaintiff was also employed full time as a carpenter for a local construction company. Plaintiff received $2 per hour as an ambulance attendant and $4.50 an hour as a carpenter.

As a result of his injury, which necessitated repeated hospitalizations and eventual surgery, plaintiff has been unable to return to either of his former jobs. Defendant Employers Insurance of Wausau, which provided defendant Clark Township with workers' disability insurance, commenced voluntary payments of $93 per week to plaintiff from the date of his injury through December of 1976. When his benefits ceased, plaintiff [142 MICHAPP 66] requested a hearing with the Bureau of Workers' Disability Compensation. In a decision dated December 23, 1977, a hearing referee awarded plaintiff $99 per week pursuant to M.C.L. Sec. 418.161; M.S.A. Sec. 17.237(161), which provides that volunteer ambulance attendants who are injured in the performance of their duties shall receive compensation based on the state average weekly wage. Defendants timely filed an appeal with the Workers' Compensation Appeal Board.

The board, in a decision dated May 13, 1983, affirmed the hearing referee's finding that plaintiff was entitled to receive compensation benefits. It further held, however, that M.C.L. Sec. 418.161(1)(a); M.S.A. Sec. 17.237(161)(1)(a), which was amended in 1976 to include volunteer ambulance attendants, did not apply retroactively to plaintiff's 1973 injury. Therefore, plaintiff's award of $99 was reduced to $53.33 per week pursuant to M.C.L. Sec. 418.351; M.S.A. Sec. 17.237(351) and M.C.L. Sec. 418.357; M.S.A. Sec. 17.237(357). Plaintiff was granted leave to appeal the board's determination. Defendants have filed a cross-appeal alleging that plaintiff's completion of a rehabilitation program has negated his right to receive any benefits.

Findings of fact made by the Workers' Compensation Appeal Board are conclusive and may not be set aside if supported by record evidence absent a showing of fraud. Morris v. Metals Engineering Mfg. Co., 122 Mich.App. 404, 407; 332 N.W.2d 495 (1983). However, an appellate court may examine the board's application of legal standards. Morris, supra; M.C.L. Sec. 418.861; M.S.A. Sec. 17.237(861).

The first issue presented on appeal is whether M.C.L. Sec. 418.161(1)(a); M.S.A. Sec. 17.237(161)(1)(a) is to be applied retroactively to plaintiff's 1973 injury. The statute, amended in 1976 to include for the first [142 MICHAPP 67] time voluntary ambulance drivers and attendants, presently reads as follows:

"A volunteer ambulance driver or attendant shall be considered to be an employee of the county, city, village, or township and entitled to the benefits of this act when personally injured in the performance of duties as a volunteer ambulance driver or attendant and shall be considered to be receiving the state average weekly wage at the time of injury, as last determined under section 355, from the county, city, village, or township for purposes of calculating the weekly rate of compensation provided under this act."

In effect, volunteer ambulance drivers and attendants, along with volunteer fire fighters, safety patrol officers, and civil defense workers, are entitled to receive the maximum rate of compensation allowed by law if injured during the course of their public employment. See M.C.L. Sec. 418.351(1); M.S.A. Sec. 17.237(351)(1) and M.C.L. Sec. 418.355(2); M.S.A. Sec. 17.237(355)(2).

As a matter of statutory construction, a statute is presumed to operate prospectively unless the Legislature either expressly or impliedly indicates its intention to give retroactive effect. Selk v. Detroit Plastic Products, 419 Mich. 1, 9; 345 N.W.2d 184 (1984); Hughes v. Judges' Retirement Board, 407 Mich. 75, 85; 282 N.W.2d 160 (1979). This general rule does not apply, however, to statutes which are remedial or procedural in nature. Selk, supra, 419 Mich., p. 10, 345 N.W.2d 184; Freij v. St. Peters Evangelical Lutheran Church, 72 Mich.App. 456; 250 N.W.2d 78 (1976), lv. den. 399 Mich. 862 (1977). Statutes which operate in furtherance of a remedy already existing and which neither create new rights nor destroy existing rights are held to operate retrospectively unless a contrary legislative intent is manifested. Selk, supra, 419 Mich., p. 10, 345 N.W.2d 184; Hansen-Snyder Co. v. General [142 MICHAPP 68] Motors Corp., 371 Mich. 480, 485; 124 N.W.2d 286 (1963). The question therefore becomes whether M.C.L. Sec. 418.161(1)(a); M.S.A. Sec. 17.237(161)(1)(a) as amended is remedial in nature.

It has been held that a statute or amendment is remedial if it is " 'designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good' ". Rookledge v. Garwood, 340 Mich. 444, 453; 65 N.W.2d 785 (1954), quoting In re School Dist. No. 6, Paris & Wyoming Twps., Kent County, 284 Mich. 132, 144; 278 N.W. 792 (1938). See also Freij, supra, 72 Mich.App., p. 459, 250 N.W.2d 78. Similarly, statutes are remedial which

" 'abridge superfluities of former laws, remedying defects therein, or mischiefs thereof implying an intention to reform or extend existing rights, and having for their purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society, or of the public generally' ". Rookledge, supra, 340 Mich., p. 453, 65 N.W.2d 785, citing 50 Am.Jur., Statutes, Sec. 15, pp. 33-34.

We conclude from the foregoing that the statute with which we are here concerned is remedial in nature. The 1976 amendment to Sec. 161 did not create a substantive right in workers such as plaintiff to collect compensation benefits but instead expanded an already existing remedy. See Lahti v. Fosterling, 357 Mich. 578, 587; 99 N.W.2d 490 (1959). The question we face is not whether plaintiff is entitled to receive benefits but rather in what amount. That amount has been determined by the Legislature.

Like their counterparts in Sec. 161(1)(a) who fight fires, patrol thoroughfares, and provide for the civil defense, volunteer ambulance attendants provide valuable services to counties and municipalities[142 MICHAPP 69] at a reduced rate. Many such volunteers, like plaintiff, derive the main source of their income from other occupations. Yet without the benefit of Sec. 161(1), a volunteer injured during the course of his public employment who is thereby...