Corbett v. Plymouth Township

Riley, J.

(dissenting). I cannot agree with the majority’s interpretation of MCL 418.354; MSA 17.237(354) that (1) an employee’s lump-sum pension payment is coordinated with his weekly worker’s compensation payments by amortizing the lump sum over his life expectancy, and (2) an employer cannot coordinate an employee’s lump-sum payment from a *556pension that he places into an Individual Retirement Account (ira) until the time he would have been obliged to accept payment under his pension or retirement program if he had not cashed out his pension. Although I appreciate the difficulty in applying the language of § 354 to these cases, I do not believe that the majority is adequately faithful to the language and the intent of the statute.1 Moreover, I do not agree with the majority’s conclusion that Willis White’s inability to work because of his affective disorder was “contributed to or aggravated or accelerated by the employment in a significant manner” under MCL 418.301(2); MSA 17.237(301) (2). (Emphasis added.)

i

The statute provides that an “employer’s obligation to pay or cause to be paid weekly [worker’s compensation] benefits . . . [is] reduced” by the after-tax amount of “the pension or retirement payments received,” and this section is applicable for worker’s compensation payments made during the “same time period” as when pension or retirement payments are received. See subsection 354(1) (d). There is only one method of coordination that fully comports with the language of the statute: coordinating the worker’s compensation benefits for only that week in which the employee received the lump-sum pension payment. According to this interpretation, the employer would only reduce one week of worker’s compensation payments. Although this interpretation fits the

*557plain meaning of the section, this Court should reject it because it would produce an absurd result by frustrating the undisputed purpose of the statute, i.e., to eliminate duplicate wage-loss payments while maintaining adequate wage-loss benefits for disabled workers. Drouillard v Stroh Brewery Co, 449 Mich 293, 299-300; 536 NW2d 530 (1995).2 The Legislature could not have intended to coordinate a lump-sum pension payment with weekly payments of worker’s compensation benefits, see id. at 298, 305, but simultaneously only intended to coordinate the double wage-loss income to that week in which the lump-sum pension payment was received. This would effectively nullify the purpose of the statute. Like the majority, I believe that we must avoid this understanding, despite the apparently clear language of the statute.3 See Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976).4

*558After concluding that this approach was unworkable,5 the majority adopts a life-expectancy approach because the “Legislature contemplated offsetting periodic payments from a pension or retirement program payable during ‘normal’ retirement of the employee” with respect to payments during the same period. Ante at 543. Although I agree that this was the expectation of the Legislature, I disagree that this allows the Court to adopt a life-expectancy approach where the statute does not establish, or refer to, a table to calculate an employee’s life expectancy.6

Under the life-expectancy approach, the Court pretends that the employee is only receiving a small amount of his pension payment periodically, despite the fact that he has received the entire amount and may be spending it or may have placed it into another retirement account as a financial investment. Moreover, the employee who elects to receive his lump-sum pension payment while still relatively young will have only a tiny percentage of his pension payment coordinated with his worker’s compensation payments. The facts of these cases illustrate this point.

*559Shawn Corbett was twenty-nine years old when he elected to cash out his pension fund to which his employer had contributed $10,975.93. According to defendant Plymouth Township’s calculations of the life-expectancy approach that the majority has adopted, Plymouth Township only would be able to coordinate $4.63 a week of its $283.02 weekly payment of worker’s compensation to Corbett. Thus, it would take forty-two years for Plymouth Township to fully coordinate the after-tax value of its pension payments.7 Similarly, Dennis Dane was only thirty-five years old when he received his lump-sum pension payment of $29,505. According to Dane’s own calculations of the life-expectancy approach, his weekly payment of $328.54 would be reduced by only $14 a week. Dane would have to remain disabled and continue to receive worker’s compensation benefits for almost thirty-seven years before Stroh Brewery would recover the full amount of the after-tax value of $29,505. Id. As evidenced by these cases, the majority’s approach would fail to substantially eliminate duplicate payments, by allowing the injured employee to receive almost his entire weekly worker’s compensation payment, and, therefore, might discourage some disabled employees from returning to work, thereby frustrating one of the purposes of the statute. See Drouillard, 449 Mich 300, n 1.

*560In constructively distributing the lump-sum pension payments as periodic payments over the life expectancy of the employee, the majority’s approach does allow for full coordination, but only on the basis of the erroneous assumption that a disabled worker will never return to work after his injury. The majority asserts that “[t]he statutory scheme includes an implicit assumption that the disability may continue over the employee’s lifetime.” Ante at 538. Yet, this assertion ignores the fact that the statute was designed to encourage some disabled workers to return to work, not to encourage them to remain idle while receiving double payments of wage-replacement benefits. See Drouillard, 449 Mich 300, n 1. The Court’s adoption of the life-expectancy approach, assuming that an employee may not be able to return to work, might be self-fulfilling by discouraging workers who might otherwise return to work.

Once this Court refuses to apply the statute’s plain language, it must attempt to further the legislative intent in the context of the statute’s language and purposes. In examining the statute’s language, § 354 has only provided a method for coordinating two different periodic payments, but is silent regarding the method for coordinating a lump sum with a periodic payment, despite the fact that the statute explicitly contemplates coordinating a lump-sum payment of worker’s compensation with pension or retirement payments. See MCL 418.354(1); MSA 17.237(354)(1).8 Nevertheless, a lump-sum pension payment, under the statute, *561is still a wage-replacement benefit and is coordinated with weekly payments of worker’s compensation. See Drouillard, 449 Mich 293. Under § 354, as Edward Welch explains, “[a]n employer’s worker’s compensation liability is reduced for virtually any other benefits the worker receives [e.g., pension] to the extent that the employer paid for the benefits.” Welch, Worker’s Compensation in Michigan: Law & Practice (3d ed), Coordination of Benefits, § 18.14, p 18-18. Thus, for pension or retirement benefits under subsection 354(l)(d), there is a “reduction in worker’s compensation benefits for any payment made from a pension retirement plan . . . .” Id., § 18.16, p 18-19. This is the point of the statute.

With this principle in mind, this Court would further the Legislature’s intent by adopting the future-credit approach, by allowing the employer to coordinate its worker’s compensation payments to its employee until the after-tax value of the employee’s pension benefits has been exhausted, i.e., the employer may cease weekly worker’s compensation payments until the pension payment has been fully coordinated. In this way, the statute fulfills the goal of eliminating double payments while still guaranteeing a wage-replacement benefit. Moreover, this approach may be applied to every case as a uniform rule and does not require this Court to rely on a mortality table not provided by the statute.

In these cases, the employers, Plymouth ToYvnship, Stroh Brewery, and McLouth Steel Products, paid their respective employees the cash value of the *562employee’s pension benefits in a single lump sum: Corbett, $10,975.93; Dane, $29,505; and White, $13,039.94. At the same time, the employers were making a weekly payment for each employee’s worker’s compensation benefits: Corbett was receiving $283.02 a week; Dane, $328.54; and White, $409. In applying the future-credit method, one must first calculate the after-tax value of the lump-sum pension, payment and then divide that sum by the amount that the employer is paying weekly in worker’s compensation benefits.9 This computation will yield the number of weeks that the employer may coordinate the full amount of the weekly worker’s compensation benefits. On this basis, I would reverse the wcac’s decision in Corbett to coordinate pension benefits over fifty-two weeks, and instead allow the employer to fully coordinate weekly payment of worker’s compensation payments with the lump-sum pension payment. In Dane, I would reverse the wcac’s decision to calculate the coordination on the basis of an annuity and instead allow Stroh Brewery to coordinate the entire weekly payment. Lastly, in White, I would remand to the WCAC, directing it to enter an order consistent with the future-credit approach.

II

Moreover, I cannot agree with the majority’s resolution of the rollover issue. The opinion dismisses the statute’s language by labeling as “literalism” defendant McLouth Steel Products’ argument that under the *563statute White has received his pension payment. Ante at 544. I think the better phrase would be plain meaning. Subsection 354(l)(d) provides that weekly worker’s compensation benefits may be reduced by the “after-tax amount of the pension or retirement payments received” by the employee and does not condition the coordination of pension benefits on whether the employee actually begins to use these funds or invests them in a plan in which he will only later receive payments. The majority does not claim that the application of the ordinary meaning of the statute’s terms would create an absurd result. Hence, it is bound to apply the statute’s plain meaning. See Salas, supra.

The majority attempts to justify its interpretation in the final paragraph of part v by noting the statute’s use of the “after-tax amount,” but fails to note that subsection 354(13) defines “after-tax amount” as the amount remaining after subtracting the estimated tax the employee would pay on the benefit, not the actual tax the employee incurred:

As used in this section, “after-tax amount” means the gross amount of any benefit under subsection . . . (l)(d) . . . reduced by the prorated weekly amount which would have been paid, if any, under the federal insurance contributions act, 26 USC 3101 to 3126, state income tax and federal income tax, calculated on an annual basis using as the number of exemptions the disabled employee’s dependents plus the employee, and without excess itemized deductions. In determining the “after-tax amount” the tables provided for in section 313(2) shall be used. The gross amount of any benefit under subsection . . . (l)(d) . . . shall be presumed to be the same as the average weekly wage for purposes of the table. The applicable 80% of after-tax amount as provided in the table will be multiplied by 1.25 which will be conclusive for determining the “after-tax amount” of *564benefits under subsection . . . (l)(d) . . . . [Emphasis added.]

The majority, in order to give effect to its interpretation, also engrafts onto the statute a requirement that, upon the request of an employer, the employee furnish the employer with information regarding any withdrawal from the IRA, even though there is nothing in the statute regarding such a requirement. See ante at 546.10 Rather than straining to find a justification for its interpretation, the majority should instead accept that the Legislature intended its words to have their ordinaiy meaning where that meaning does not produce perverse results.

The majority’s interpretation also creates other practical questions, unanswered by the statute, regarding the determination of when an employee receives the money his employer contributed to his pension. After withdrawing money from an IRA, an employee may claim that he has not yet received the employer’s contribution to the pension because (1) he may claim he is first drawing on funds from the interest the pension has accrued, or (2) because he may have separately paid money into his IRA and claim that he is only drawing on that money. The majority also does not explain what would happen if the IRA lost money because it was invested in an unwise ven*565ture. Hence, because of this unwarranted interpretation, this Court may later have to address these questions and create solutions unguided by the statute. In other words, it will have to engage in further judicial legislation. Furthermore, the majority’s interpretation ignores the fact that the employee may immediately enjoy the benefit of the employer’s pension contribution that he places in the IRA investment by borrowing against the value of it as an asset.

Instead of embarking on this unauthorized excursion into unchartered waters, I would merely apply the plain meaning of the statute and affirm the Court of Appeals decision that McLouth Steel Products should coordinate the lump sum that White received and, subsequently, rolled over into an IRA.

III

With respect to the majority’s conclusion that there was evidence to support the Worker’s Compensation Appellate Commission’s decision to affirm the hearing referee’s grant of benefits to White, I also dissent. I do not believe that White’s affective disorder was “contributed to or aggravated or accelerated by the employment in a significant manner” under MCL 418.301(2); MSA 17.237(301)(2), and I fear that the majority’s application of the standard from Gardner v Van Burén Public Schools, 445 Mich 23; 517 NW2d 1 (1994), has virtually eliminated the importance of the word “significant” from the statute.

In Gardner, supra at 45, this Court required that under MCL 418.301(2); MSA 17.237(301)(2),11 the *566employee demonstrate that his mental disability arose out of “actual events” and that there was a significant causal connection between those events and the employee’s mental disability. As the majority notes, ante at 550, n 38, this Court in Gardner, supra at 47, articulated a totality-of-the-circumstances test for determining whether there was a significant factual causal connection:

Under the statutory standard, causation is determined by the factfinder. It is not determined by the honest, even if unfounded, perceptions of the claimant. In determining whether specific events of employment contribute to, aggravate, or accelerate a mental disability in a significant manner, the factfinder must consider the totality of the occupational circumstances along with the totality of a claimant’s mental health in general.
The analysis must focus on whether actual events of employment affected the mental health of the claimant in a significant manner. This analysis will, by necessity, require a comparison of nonemployment and employment factors. Once actual employment events have been shown to have occurred, the significance of those events to the particular claimant must be judged against all the circumstances to determine whether the resulting mental disability is compensable.

In applying the totality-of-the-circumstances test, I do not believe that the ordinary stress that plaintiff encountered at work significantly contributed to, aggravated, or accelerated his mental disability.

Under MCL 418.861a(14); MSA 17.237(861a)(14),12 when this Court reviews a decision by the wcac, the *567wcac’s findings of fact are conclusive in the absence of fraud “if there is any competent evidence to support them.” Holden v Ford Motor Co, 439 Mich 257, 263; 484 NW2d 227 (1992). In its opinion dated November 18, 1994, the wcac found that plaintiff White suffered from anxiety when he was forced to accept the position of masonry foreman or be laid off, and that the stress of this new position caused him nervousness, sleeplessness, and diarrhea. 1994 Mich ACO 2680. The WCAC noted that “nothing unusual happened at work [on August 4, 1988,]” but that White was unable to continue working because of the stress. Id. at 2681. White later returned to work, but, on January 16, 1989, the stress left him unable to work, despite the fact that “there were no unusual occurrences at work” on that day either. Id. The WCAC noted that plaintiff had a preexisting condition, an “organic brain syndrome,” that apparently rendered him susceptible to mental disability from this kind of stress. Id.

The majority relies on the analysis from Gardner in which this Court stated that even “ordinary” events may be injurious to a predisposed employee and that an employer must take an employee as it finds him, with his preexisting mental frailties. Ante at 550-551. However, this analysis was focused on the prong of the Gardner test in which the employee must prove that the injury must arise out of “actual events of *568employment, not unfounded perceptions thereof,” and not the separate prong that the employee must establish that the actual events were significant in contributing to, aggravating, or accelerating the mental disability.13 Admittedly, the Court appeared to expect this analysis to apply to either prong.

Nevertheless, this Court cannot expressly apply this analysis to the significant-manner requirement without effectively nullifying the importance of it as a separate prong and defeating the effort of the Legislature to introduce an objective element to the test when it rejected this Court’s interpretation of the worker’s compensation act in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978). See Gardner, supra at 39-42 (“The Legislative Reaction to Deziel’). The standard in Gardner, supra at 27-28, requires that an employee establish (1) a mental disability, (2) arising out of actual events of employment, and (3) contributing to, aggravating, or accelerating the mental disability in a significant manner. Whenever an employee establishes a mental disability that arose out of actual employment events, he will easily be able to meet the third prong of proving that the events contributed to, aggravated, or accelerated the disability in a significant manner where ordinary events are the cause of the injury for the predisposed person. According to the combined analysis of the majority here and in Gardner, the employment event *569need only be the precipitating event for the mental disability. The precipitating event is almost always subjectively significant to the mental disability if it caused the employee’s injury to manifest. Thus, under my understanding of the majority’s standard, the third prong has been effectively nullified.

Moreover, the test contains no important objective element. The only objective element prevents recovery for injuries that arise from hallucinations or delusions that occur during work when there has been no work-related event. In all other respects, the test is now virtually indistinguishable in practice from the subjective standard the Legislature wished to “substantive [ly]” change. Gardner, supra at 42. Compare the current test as understood by this Court with the rejected Deziel test (as digested by this Court in Peters v Michigan Bell Telephone Co, 423 Mich 594, 599; 377 NW2d 774 [1985]). The employee must establish the following:

(1) the claimant was disabled;
(2) an injury in the form of a precipitating work-related event had occurred;
(3) using a subjective causal nexus standard, the employment had combined with some internal weakness or disease to produce the disability. [Citing Deziel, supra at 37.]

I fail to see the important substantive difference between this test and the current test.

Instead of inviting a second legislative effort to correct our work, I would interpret the word “significant” in the statute as requiring that the actual events at work be objectively traumatic, even if they would not be injurious to an ordinary person, requiring the employee to allege specific events rather than general *570assertions of anxiety. I cannot say that a person’s employment contributed to, aggravated, or accelerated a mental disability in a significant way if the work-related event was only innocuous and benign, or, in other words, was an ordinaiy work event. This Court should interpret the statute to ensure that the injury was substantially contributed to, aggravated, or accelerated by actual work-related events and that the employment environment was not merely the occasion for which the mental disability could become manifest. See Gardner, supra at 65-66 (Riley, J., dissenting).14 In applying this test to White’s case, I would reverse and order the wcac either to allow him an opportunity to allege specific work-related events that affected his mental disability in a significant way or enter an order denying him benefits under this claim. He has yet to bring specific allegations of any traumatic work-related events. I note, however, that particularly stressful circumstances of a specific incident at work could be objectively traumatic and sig*571nificantly contribute to, aggravate, or accelerate an employee’s mental disability. I would reverse and remand this case for further proceedings.

Brickley, C.J., and Weaver, J., concurred with Riley, J.

I do agree with part VI of the opinion that McLouth Steel Corporation, the predecessor corporation, is not the “same employer” under subsection 354(l)(d) as defendant McLouth Steel Products.

As this Court noted, the Legislature wished to correct a system that “ ‘discourag[ed] some disabled employees from returning to work’ ” by providing “ ‘wage-loss benefits from two, three, or four different programs providing a total wage “replacement” greater than the wages the employee earned while on the job . . . ” Drouillard, supra at 300, n 1, quoting Senate Legislative Analysis, SB 595 (January 7, 1982).

The Court of Appeals drew the same conclusion in Drouillard v Stroh Brewery Co, 199 Mich App 67, 70-71; 501 NW2d 229 (1993):

Drouillard contends that, in coordinating these benefits, the credit for the lump-sum pension payment may not be allocated to Stroh’s workers’ compensation liability for weeks other than the week in which the payout was actually received, i.e., in effect, that it should be coordinated only for the week it was received. We disagree. Rather, coordination of the entire amount is required by § 354(l)(d); to accomplish the reduction in an employer’s obligation as required by that section, coordination must be allowed to continue in order to cover the full after-tax amount of the pension being received.

“[W]e must keep in mind the fundamental rule of statutory construction that departure from the literal construction of a statute is justified *558when such construction would produce an absurd and uryust result and would be clearly inconsistent with the purposes and policies of the act in question.”

The majority states that in seeking to uncover “the most appropriate construction of the statute,” this Court need not “find" the Legislature’s intent, but instead attempts “ ‘to do, responsibly, fittingly, intelligently, with and within the given frame.’ ” Ante at 538, n 16. In other words, the majority is attempting to rewrite the statute. I would prefer the majority adopt the statute’s plain meaning (even if it creates an absurd result), rather than define this Court’s role as one in which we endeavor to create good policy out of a poorly drafted statute.

The employee in Corbett v Plymouth Twp has asked this Court to use the Michigan mortality statute, MCL 500.834; MSA 24.1834, of the Insurance Code. The majority does not explain how the life expectancy of an employee is to be calculated.

As the parties noted at oral argument, Corbett was able to return to work after three and one-half years of disability. If Plymouth Township only was able to reduce its worker’s compensation payments by $4.83 a week, it only would have recouped approximately $850 of the $8,386.03 (after-tax value of $10,975.93) it could coordinate under the statute.

“This section is applicable when either weekly or lump sum, payments are made to an employee as a result of liability [under various worker’s compensation provisions] with respect to the same time period *561for which . . . pension or retirement payments ... are also received . . . .” (Emphasis added.)

The Bureau of Worker’s Disability Compensation provides a table that would enable a factfinder to calculate the after-tax value of a lump sum by referring to the table governing the after-tax amount of an annual income.

This judicial creation also imposes a practical burden on the employer because the employee is only obliged to provide the information “upon request of the employer.” An employee may withdraw money from an IRA at any time if he is willing to pay a tax penalty. Thus, in a situation like Corbett, where the employee was only twenty-nine years old when he received his lump sum, the employer may have to request information from the employee periodically for more than thirty years to ensure that the employee has not made an early withdrawal.

“Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a sig*566nificant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.”

MCL 418.861a(14); MSA 17.237(861a)(14) provides in full:

*567The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission, if application is made by the aggrieved party within 30 days after the order by any method permissible under the Michigan court rules.

The Court in Gardner, supra at 27, framed the basic issue it was addressing as follows:

[W]e must decide whether the statute requires an objective or subjective analysis when examining the significance of “actual events of employment” in determining the compensability of mental disabilities.

I believe that a claimant for a work-related mental disability must establish by a preponderance of the evidence, as a matter of objective reality, an actual and traumatic event. Otherwise, the danger that the alleged harm is a mere manifestation of an underlying problem and not a cause is too great. A successful claim should require proof of specific incidents and not merely general conclusions of stress, anxiety, or exertion over a period of time.

I recognize that I offered these arguments in the context of analyzing the actual-events prong in Gardner. However, in light of the Gardner Court’s interpretation of this prong, I believe it appropriate to interpret the significant-manner-requirement prong as containing a significant objective element.