WELCH
v.
WESTRAN CORPORATION
HUEY
v.
CAMPBELL, WYANT & CANNON FOUNDRY COMPANY
Docket Nos. 54713, 56272, (Calendar Nos. 17, 18).
Supreme Court of Michigan.
Argued June 6, 1975. Decided November 25, 1975.McCroskey, Libner, VanLeuven, Kortering, Cochrane & Brock for plaintiffs.
Ryan, Boerema, Jarosz, Kail & Gaskin for defendants.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and A.C. Stoddard and Thomas R. Fredericks, Assistants Attorney General, for the Silicosis and Dust Disease Fund.
LINDEMER, J.
Prior legal precedents and the *173 legislative history of the workmen's compensation law mandate an affirmance of the referee's opinion, the WCAB, and the Court of Appeals in each of these cases.
The facts and the pertinent sections of the act are set forth in Justice WILLIAMS' opinion.
Part VII, § 2 was included in the original occupational disease amendment, 1937 PA 61, to provide the benefits of workmen's compensation legislation to those workers injured by other than an "accident". It was necessitated by a decision of this Court that:
"it was not the intention of the legislature to provide compensation for industrial or occupational diseases, but for injuries arising from accidents alone." Adams v Acme White Lead & Color Works, 182 Mich. 157, 171; 148 N.W. 485 (1914).
That legislation, presumably, was meant to statutorily overrule the Adams decision. The Legislature did not attempt a subtle definition of "date of injury" by this section. The argument plaintiffs advance fails in light of the subsequent amendment, 1943 PA 245, in which the term "date of injury" was specifically defined for dust diseases. MCLA 412.1; MSA 17.151. As this is the latter pronouncement on the subject of "date of injury", it should control.
Immediately prior to the enactment of 1965 PA 44, it was the policy of this state to limit recovery for dust diseases to an aggregate total of $10,500. In 1965 subsection (a) was added to Part VII, § 4 as follows:
"This section shall not apply in cases of all claims in which the date of personal injury occurs later than May *174 1, 1966, and all such claims shall be governed by other provisions of this act." MCLA 417.4(a); MSA 17.223(a).
The enactment of that section followed by several years the ruling of this Court in Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich. 420; 102 NW2d 584 (1960). That case emphasized the distinctions between the terms "date of disablement" and "date of injury". In 1965 the Legislature chose to use the specific terms "date of personal injury" in removing the limitation.
To agree with the plaintiff would require one to disregard Joslin and assume that the Legislature did not mean what it said.
The reasoning in Joslin led the Court to point out the "anomalous disparity in benefits" where the date of disablement and last day worked (date of injury) fail to coincide. However, the Court concluded:
"It requires little imagination to recognize the need for elimination of such disparity, but if it is to be done, it must be done by this State's legislature. As Mr. Justice CARR said, in Jones v Grand Ledge Public Schools, 349 Mich. 1, 11 [84 NW2d 327 (1957)]: `It is not within the province of this Court to read therein a mandate that the legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.'" Joslin, supra, 429.
Since the date of the Joslin decision, the Legislature has made several extensive modifications of the workmen's compensation statutes without elimination of the disparity. The provisions of MCLA 412.1; MSA 17.151, have been retained as MCLA 418.301; MSA 17.237(301) and the hearing referee is still free to pick the date of disablement as it appears from the facts. MCLA 418.425; MSA 17.237(425).
*175 Plaintiffs may dislike the law. They may regard the Legislature as lacking compassion for persons in their position. However, it is the Legislature, not this Court, which is constitutionally empowered to change the law. We would affirm.
COLEMAN and FITZGERALD, JJ., concurred with LINDEMER, J.
WILLIAMS, J.
The principal issue in this case is whether Part VII, § 4(a) of the Workmen's Compensation Act, which removes the $10,500 limit on compensation payable for dust diseases for "claims in which the date of personal injury occurs later than May 1, 1966", is effective for claims where the date of disablement is subsequent to May 1, 1966, but where the last day of work precedes that date. This, in turn, depends on whether "the date of personal injury" in Part VII, § 4(a) should, as asserted by plaintiffs, be construed by reference to Part VII, § 2, which provides that a "disablement * * * shall be treated as the happening of a personal injury", or, as asserted by defendants, by reference to Part II, § 1, which provides that "[t]he term `time of injury' or `date of injury' * * * shall in the case of a disease * * * be the last day of work". We hold that the $10,500 limit on compensation for dust diseases is not applicable where the date of disablement falls after May 1, 1966, and reverse the Workmen's Compensation Appeal Board (WCAB) and the Court of Appeals on this issue.
We affirm the WCAB on the subsidiary issue of whether defendant Campbell, Wyant & Cannon Foundry may credit against its total liability for disablement due to silicosis benefits paid as a result of a back injury during a period of time *176 preceding the date of disability from silicosis found by the referee and affirmed by the board.
I FACTS
In Welch: On January 31, 1966, plaintiff retired from Westran. In 1968, plaintiff was informed by doctors that he had silicosis, and filed for a hearing with the Workmen's Compensation Department. The hearing referee held that Welch was entitled to benefits, but that such benefits should be limited to $10,500 under the statute in effect at the time of the last day of work. The date of disablement was said to be May 9, 1968. The Workmen's Compensation Appeal Board affirmed the referee's findings.
The Court of Appeals granted leave to appeal with respect to an issue no longer disputed, but denied leave with respect to the limitation issue.
Leave was granted to plaintiff by this Court on the limitation issue. On cross-appeal, leave was granted on whether the limitation issue is properly before the Court, given that it was not formally raised before the Workmen's Compensation Appeal Board.
In Huey: Huey suffered a back injury while working in defendant's foundry in 1958 and was unable to continue working after May 7, 1959. He was subsequently paid the statutory 500 weeks of compensation.
When the 500-week period expired in 1968, Huey filed a petition alleging disablement from silicosis. Before the hearing was held, Huey died and the action for benefits was taken over by decedent's wife.
At the hearing, the referee determined that the *177 silicosis arose out of the course of employment and was the prime cause of death, that the last day of work was May 7, 1959 and that the date of disablement was October 15, 1966. The referee held that the benefits were limited to $10,500 by the statute in effect at the last day of work and that the defendant could credit the back injury benefits only to the extent that they were paid concurrently with the disablement from silicosis, i.e., after October 15, 1966.
The Workmen's Compensation Appeal Board was unable to reach a majority decision and thus affirmed the referee. The Court of Appeals affirmed the $10,500 limit but would not hear the concurrent benefits issue, because no cross-appeal had been filed.
We granted leave to plaintiff on the limitation issue and to defendant on the concurrent benefits issue and on the question of whether the limitation question was properly before the Court, given that it was not formally raised before the board.
II & INTERPRETATION OF PART VII, & 4(a)
In 1965, a $10,500 limit in Part VII, § 4 of the Workmen's Compensation Act[1] on compensation for dust diseases was repealed through enactment of subsection (a) thereof for "all claims in which the date of personal injury occurs later than May 1, 1966". The primary question in this case is whether "the date of personal injury" in Part VII, § 4(a) should, as asserted by plaintiffs, be construed by reference to Part VII, § 2,[2] which provides that a "disablement * * * shall be treated as the happening of a personal injury", or, as asserted by *178 defendants, by reference to Part II, § 1,[3] which provides that "[t]he term `time of injury' or `date of injury' * * * shall in the case of a disease * * * be the last day of work".
This issue is crucial because in both Welch and Huey, the last day of work fell before May 1, 1966, while the date of disablement fell after that date.
Ab initio, since all agree that Part VII, § 4(a) cannot be construed in isolation but must be interpreted in light of other provisions and the general purposes of the WCA, it is essential to recognize what Part VII, § 4(a) purports to do, and what it does not purport to do. Part VII, § 4(a) is in effect an internal amendment of Part VII, § 4, repealing the compensation limitations which had been established in § 4. Specifically, Part VII, § 4(a) establishes the right to prescribed compensation without the prior $10,500 ceiling as of May 1, 1966.
Part VII, § 4(a) and Part VII, § 4 do not provide how compensation shall be computed. Part VII, § 3, in fact, specifically provides that compensation shall be computed as provided in Part II.
The significance of this analysis is that Part VII generally provides for compensation for diseases and when the right to it exists. On the other hand, Part II provides for how compensation is computed. This poses the general question, therefore, whether there is an overriding reason why the granting, in Part VII, § 4(a), of the right to be free of the ceiling on aggregate compensation in Part VII, § 4, should be determined by reference to a provision relating to the computation of compensation in Part II.
A determination of this question requires a closer examination of the statutory framework relevant to the construction problem at hand. As *179 mentioned above, Part VII generally adds the right to compensation for diseases and disablements to the scope of the WCA. Section 1[4] defines "disability," "disablement" and "personal injury" so as to accomplish this result. Section 2 is especially central to the interpretation of § 4(a). Section 2 reads:
"The disablement of an employe resulting from such disease or disability shall be treated as the happening of a personal injury within the meaning of this act and the procedure and practice provided in this act shall apply to all proceedings under this part, except where specifically otherwise provided herein."
Section 3[5] provides that death or disability from industrial disease entitles the employe or his representatives to compensation and medical services as provided in Part II.
Section 4 is hereafter set out in full because it shows that § 4(a) is part and parcel of a program of rights developed in Part VII which is self-contained with respect to the determination of when rights accrue and the compensation ceilings imposed in claims for death or disability due to dust disease. As mentioned above, the computation of the benefits to be paid is made by specific reference to Part II. See Part VII, § 3; also Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich. 420, 428; 102 NW2d 584 (1960). Section 4 reads as follows:
"Compensation shall not be payable for partial disability due to silicosis or other dust disease. In the event of temporary or permanent total disability or death from silicosis or other dust disease, notwithstanding *180 any other provisions of this act, compensation shall be payable under this part to employees or to their dependents in the following manner and amounts: If disablement or death occurred during the first calendar month in which Act No. 61 of the Public Acts of 1937 became effective not exceeding the sum of $600.00; if disablement or death occurred during the second calendar month after such act became effective not exceeding the sum of $700.00; thereafter the total compensation and benefits payable for disability and death shall increase at the rate of $100.00 each calendar month. The aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs. In no event shall such compensation exceed an aggregate total of $10,500.00: Provided, That rights accruing prior to the effective date of this amendatory act shall be preserved and governed by the provisions of this section prior to the effective date of this amendatory act: Provided, That where silicosis or other dust diseases were first made compensable by Act No. 245 of the Public Acts of 1943, then in such instances the graduated benefit provision of this section shall begin to apply to disability or death resulting from such diseases as of the effective date of such act.
"(a) This section shall not apply in cases of all claims in which the date of personal injury occurs later than May 1, 1966, and all such claims shall be governed by other provisions of this act."
The remaining sections of Part VII establish a special fund and provide for the administration of disease cases.
The issue in this case arises because defendants argue that the "claims in which the date of personal injury occurs later than May 1, 1966" in Part VII, § 4(a) are established by reference to Part II, § 1, which in pertinent part states:
"The term `time of injury' or `date of injury' as used in this act shall in the case of a disease * * * be the last day of work in the employment in which the *181 employee was last subjected to the conditions resulting in disability or death."
Plaintiffs, of course, argue that reference must be made to Part VII, § 2.
As already indicated, the general purpose and tenor of Part VII, and specifically, of Part VII, § 4(a) require that "the date of personal injury" in Part VII, § 4(a) be construed in relation to the concept of the accrual of the right to compensation for disease and the establishment of aggregate benefits available. Defendants here seek to go outside the Part VII scheme of things to tie the accrual of new rights in § 4(a) to a provision for the computation of compensation in Part II. Is this what the Legislature contemplated? We think not.
There are three arguments arising out of the language of Part VII itself that deny the logic of defendants' assertion.
First, as suggested above, Part VII, § 4(a) relates to the accrual of rights, not to the computation of compensation. As explained in Joslin, supra, Part VII, § 2 establishes when rights accrue, while Part II, § 1 functions to help compute compensation. Thus, in construing § 4(a), reference to Part VII, § 2, seems the most reasonable course.
Second, Part VII, § 2, stating that "[t]he disablement of an employee * * * shall be treated as the happening of a personal injury", is almost immediately adjacent to Part VII, § 4(a). Interpolating this language into § 4(a), the repeal of the $10,500 limitation would be effective for all claims in which the date of disablement occurs after May 1, 1966. The very close proximity of §§ 2 and 4(a) strongly suggests that they should be read in relation to one another.
Third, reference to the date of disability in *182 determining the availability of aggregate compensation is consistent with the past practice established in Part VII, § 4:
"* * * In the event of temporary or permanent total disability or death from silicosis or other dust disease, * * * compensation shall be payable under this part to employees or to their dependents in the following manner and amounts: If disablement or death occurred during the first calendar month in which Act No. 61 of the Public Acts of 1937 became effective not exceeding the sum of $600.00; if disablement or death occurred during the second calendar month after such act became effective not exceeding the sum of $700.00; thereafter the total compensation and benefits payable for disability and death shall increase at the rate of $100.00 each calendar month. The aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs. * * *" (Emphasis added.)
In the absence of a clear indication from the Legislature that it intended to deviate from past practice, and take a more restrictive approach toward the granting of increased aggregate benefits available, we should be hesitant to infer that a more restrictive approach was intended. And in fact, in the instant case, we have strong indications that the date of disablement should continue to be the central date in determining eligibility for the increased aggregate benefits.
III JOSLIN
Defendants rely heavily on Joslin v Campbell, Wyant & Cannon Foundry Co, supra, where a similar argument was presented as to whether Part VII, § 2 or Part II, § 1 should be referred to in resolving a significantly different construction *183 problem. In the instant case the question relates to the time of accrual of a right, the right to be free of the $10,500 limitation. In Joslin, the question relates to the time of injury as it relates to the computation of compensation of periodic compensation. Specifically, the Court in Joslin held that the term "time of injury" in the provision for determination of an employee's dependency status, Part II, § 9; MCLA 412.9; MSA 17.159 was to be construed by reference to Part II, § 1.
In reaching this conclusion, the Court emphasized the distinct purposes of the two parts of the act:
"The foregoing interpretations of parts 2 and 7 of the act give meaning to all sections thereof. Thus, "date of disablement" determines when rights accrue, when notice must be given, and when claim must be filed, while "time of injury" determines the amount of weekly compensation benefits to be paid to the extent such benefits depend upon an employee's dependency status and his average weekly wage." 359 Mich. 420, 428; 102 NW2d 584, 588.
The previous paragraph is even more explicit in stating that Part VII, § 2 properly establishes when rights accrue, which is exactly what Part VII, § 4(a) is all about:
"By enactment of section 2, part 7, the legislature provided that rights to compensation in occupational disease cases under part 7 shall accrue upon disablement in the same manner as such rights in personal injury cases under part 2 accrue at the time of injury. This Court frequently has held that such rights do accrue upon disablement, and that the statutory time limitations for giving notice and filing claim therefor commence as of the date of disablement." (Citations omitted) 359 Mich. 420, 428; 102 NW2d 584, 588. *184 Thus, the Joslin case and its progeny[6] are perfectly consistent with, and even supportive of our statutory analysis today.
Joslin is not persuasive authority for defendants' position for another reason. The Court in Joslin relied heavily on the need to give all provisions of the Workmen's Compensation Act meaning and effect, specifically, the need to give Part II, § 1 meaning and effect:
"Considered alone, sections 2 and 7 of part 7 might be construed to authorize the result reached by the appeal board in this case and urged upon us by plaintiff. But this Court must construe a legislative enactment in its entirety. As this Court has previously stated, one provision may not be construed in such manner as to render another of no effect if such result can be avoided. Brady v City of Detroit, 353 Mich. 243, 248 [1958]. Earlier, this Court said:
"`The entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.' City of Grand Rapids v Crocker, 219 Mich. 178, 182, 183 [1922].
"Applying the foregoing standards of statutory construction, some meaning must be given to section 1, * * *." 359 Mich 426-427.
* * *
"The foregoing interpretations of parts 2 and 7 of the act give meaning to all sections thereof. Thus, `date of disablement' determines when rights accrue, when notice must be given, and when claim must be filed, while `time of injury' determines the amount of weekly compensation benefits to be paid to the extent such benefits depend upon an employee's dependency status and his *185 average weekly wage." 359 Mich. 420, 428. (Emphasis added.)
We have seen that the Joslin Court did establish a meaning and purpose for Part II, § 1. This section is to be used in the computation of weekly benefits as described above. Consequently, not only is the purpose of Part II, § 1 inconsistent with that of Part VII, § 4(a), but also, the rule of construction relied on so heavily in Joslin requiring that Part II, § 1 be given a meaning is not applicable to the instant case. Unlike the Court in Joslin, we need not concern ourselves with the necessity of giving § 1 meaning, for under the authority of prior cases, it has meaning, though not one related to the section that we construe today.
IV WHETHER THE QUESTION OF THE PROPER CONSTRUCTION OF PART VII, § 4(a) IS PROPERLY BEFORE THIS COURT
Defendants argue that plaintiffs may not raise the issue of the applicability of the $10,500 limit on compensation on appellate review because this issue was not formally raised before the Workmen's Compensation Appeal Board.
The general rule established by this Court would preclude the consideration on appellate review of a question not raised below. But as plaintiffs point out, exceptions to this rule may be made where consideration of a claim is necessary to the proper determination of a case. Dation v Ford Motor Co, 314 Mich. 152, 160-161; 22 NW2d 252, 255 (1946). Furthermore, the limitations issue was thoroughly considered by the appeal board. Thus, this Court has the benefit of the board's expert opinion and the defendants cannot claim surprise at this time. Finally, the appeal board opinions indicate considerable *186 controversy and confusion on this issue so that resolution of the question is of major importance to the jurisprudence of the state. For all these reasons, we consider the question raised by plaintiffs on appeal.
V & THE CONCURRENT BENEFITS ISSUE
Under Tidey v Riverside Foundry & Galvanizing Co, 7 Mich. App. 40; 151 NW2d 198 (1967), affirmed by this Court in 381 Mich. 551; 164 NW2d 3 (1969), "where two injuries arising out of and in the same line of work are separate but concurrent, if the employee is fully compensated for total and permanent disability during his lifetime for an amount in excess of the statutory death benefit, regardless of which injury the award was based upon and irrespective of which injury resulted in death, dependents of such employee may recover only funeral and medical expenses of last illness". 381 Mich at 554, quoting from the Court of Appeals decision.
Defendant Campbell, Wyant & Cannon Foundry argues that it should receive credit for compensation payments made to Huey for a back injury which took place in 1958. Huey was paid weekly benefits for the back injury for the statutory 500-week period, such period extending until February of 1968.
However, under the rule of Tidey, credit may be obtained only for benefits which were concurrent. An examination of defendant Campbell, Wyant & Cannon Foundry's argument on this issue indicates that this point of law is granted, for the thrust of defendant's complaint relates to the date of disability from silicosis found by the hearing referee and affirmed by the appeal board.
However, we are bound by the finding of facts *187 from below. Const 1963, art 6, § 28; Turner v Consumers Power Co, 376 Mich. 188; 136 NW2d 1 (1965). The hearing referee found the date of disablement to be October 15, 1966. Only benefits paid after that date were concurrent, and defendant may get credit only for benefits paid after that date.
VI & CONCLUSION
In sum, we hold today that the term "date of personal injury" as used in Part VII, § 4(a) of the Workmen's Compensation Act should be construed to mean date of disablement by reference to Part VII, § 2. Thus, the $10,500 limitation on aggregate compensation available established in Part VII, § 4 is not applicable for all claims in which the date of disablement occurs after May 1, 1966. We reverse the WCAB and the Court of Appeals on this issue.
We further hold that defendant Campbell, Wyant & Cannon Foundry may credit against its total liability for disability due to silicosis only those benefits paid as a result of a back injury after the date of disability from silicosis found by the referee and affirmed by the board. We affirm the WCAB and the Court of Appeals on this issue.
T.G. KAVANAGH, C.J., and LEVIN, J., concurred with WILLIAMS, J.
NOTES
[1] MCLA 417.4; MSA 17.223, now repealed.
[2] MCLA 417.2; MSA 17.221, now MCLA 418.411; MSA 17.237(411).
[3] MCLA 412.1; MSA 17.151, now MCLA 418.301; MSA 17.237(301).
[4] MCLA 417.1; MSA 17.220, now MCLA 418.401; MSA 17.237(401) and MCLA 418.405; MSA 17.237(405).
[5] MCLA 417.3; MSA 17.222, now MCLA 418.415; MSA 17.237(415).
[6] See Jordon v Michigan Malleable Iron Co, 363 Mich. 256; 109 NW2d 832 (1961); Sosnowski v Dandy Hamburger, 384 Mich. 221; 180 NW2d 761 (1970); Tomasini v Youngstown Mines Corp, 366 Mich. 503; 115 NW2d 387 (1962).