Sullens v. Ford Motor Co.

• Decision Date: 18 May 2001
• Docket Number: Docket No. 227185.
• Citation: 627 N.W.2d 608,245 Mich. App. 162
• Parties: Arthur H. SULLENS, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Self Insured, and Second Injury Fund, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

627 N.W.2d 608

245 Mich. App. 162

Arthur H. SULLENS, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Self Insured, and Second Injury Fund, Defendants-Appellees.

Docket No. 227185.

Court of Appeals of Michigan.

Submitted February 7, 2001, at Detroit.

Decided March 23, 2001, at 9:00 a.m.

Released for Publication May 18, 2001.

James R. Cmejrek, Ann Arbor, for Arthur H. Sullens.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Morrison Zack, Assistant Attorney General, for the Second Injury Fund.

Before WHITBECK, P.J., and MURPHY and COOPER, JJ.

MURPHY, J.

Plaintiff appeals by leave granted from an order of the Worker's Compensation Appellate Commission (WCAC) affirming the magistrate's decision to deny plaintiff benefits. We reverse and remand.

I

Plaintiff worked as a truckdriver for Ford Motor Company until May 1979. He quit working because of a work-related injury to his back. On September 9, 1996, plaintiff filed a claim for total and permanent disability benefits based on the alleged loss of the industrial use of his legs. However, the magistrate denied plaintiff benefits, relying on the WCAC's holding in Damon Gray v. Babcock Industries, 1998 WCACO 205, that subsection 361(3)(g) of the Worker's Disability Compensation Act (WDCA), M.C.L. § 418.361(3)(g); MSA 17.237(361)(3)(g), requires a plaintiff to file a claim before the expiration of 500 weeks less 30 days from the date of injury.

Plaintiff appealed to the WCAC, arguing that case law permits a filing at some time later than 500 weeks less 30 days as long as the claimant demonstrates that the total and permanent disability manifested itself during the 500-weeks-less-30-days period. The Second Injury Fund filed a brief in which it agreed with plaintiff's position.

Nonetheless, the WCAC agreed with the magistrate's decision. The WCAC stated that in Gray it had affirmed the denial of benefits to the plaintiff because subsection 361(3)(g) places a limitation on the plaintiff's ability to file such a claim. The WCAC observed that plaintiff in this case waited approximately 919 weeks from the date of injury to file his claim and that to allow his claim to proceed now would be contrary to the law expressed in Gray. Because it found Gray to be factually and legally on point with this case, the WCAC affirmed the magistrate's decision to deny plaintiff benefits on the basis that the claim was time-barred. Plaintiff applied for leave to appeal to this Court, which we granted.

II

The single issue we are asked to decide is the proper construction of the phrase "permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury" in subsection 361(3)(g) of the WDCA. Plaintiff argues that the WCAC has improperly construed the phrase as providing a time limit during which such a claim must be filed. We agree.

The statute provides in pertinent part the following:

(3) Total and permanent disability, compensation for which is provided in section 351 means:

* * *

(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury. [MCL 418.361; MSA 17.237(361).]

We review questions of law involved in any final order of the WCAC under a de novo standard of review. Mudel v. Great Atlantic & Pacific Tea Co., 462 Mich. 691, 697, n. 3, 614 N.W.2d 607 (2000). The principal goal of statutory construction is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). The first criterion in determining intent is the specific language of the statute. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). If the plain and ordinary meaning of the language is clear, then judicial construction is normally neither necessary nor permitted. Id.

Nothing on the face of subsection 361(3)(g) prohibits the filing of a petition after the expiration of the stated period. Rather, the plain and ordinary meaning of the language is that the concept of "permanency" shall be "determined" within the stated period.¹ Furthermore, several cases decided by both our Supreme Court and this Court indicate the general practice of accepting the filing of a petition under subsection 361(3)(g) after the expiration of the stated period. See, e.g., Modreski v. General Motors Corp., 417 Mich. 323, 325-326, 337 N.W.2d 231 (1983); Johnson v. Harnischfeger Corp., 414 Mich. 102, 108-109, 323 N.W.2d 912 (1982); Burke v. Ontonagon Co. Rd. Comm., 391 Mich. 103, 105, 214 N.W.2d 797 (1974); Paulson v. Muskegon Heights Tile Co., 371 Mich. 312, 313-314, 123 N.W.2d 715 (1963); Thompson v. Ford Motor Co., 139 Mich.App. 177, 179, 362 N.W.2d 240 (1984); Lockwood v. Continental Motors Corp., 27 Mich.App. 597, 599, 183 N.W.2d 807 (1970).

Nonetheless, the WCAC in Gray held that "in addition to the proof of total and permanent disability prior to the end of the period, the statute requires timely filing of such a claim based upon a loss of industrial use of arms or legs" (emphasis added). According to the WCAC, subsection 361(3)(g) has a "self-contained" statute of limitations requiring that a claim for total and permanent disability...