(dissenting). This controversy was submitted to the Bureau on briefs and exhibits. No testimony was taken. There is no transcript to review. Apparently the parties want an appellate court opinion which silences the sniping at Keyzer v Christian Rest Home, 32 Mich App 286; 188 NW2d 672 (1971), lv den 385 Mich 758 (1971), caused or contributed to by Lahay v Hastings Lodge No 1965 BPOE, 398 Mich 467; 247 NW2d 817 (1976).
Judge DeWitt’s able opinion correctly notes that the Keyzer Court based its holding on the "plain language of the statute”. The Worker’s Disability Compensation Act is about as plain as the Internal Revenue Code. It has been rewritten, codified, consolidated, amended, supplemented, revised, interpreted and abused times without number. We who struggle with its ramifications are left to ponder the legislative intent of an act at once in derogation of the common law and hence to be *248"strictly construed”1 and at the same time declarative of an humanitarian policy to be remedial2 legislation and hence construed with great liberality.
The majority has noted that Keyzer dicta to the effect that a part-time worker could be entitled to weekly benefits in excess of his weekly wage would emasculate the last sentence of § 371(1):
"The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.”
But the majority’s conclusion that "Keyzer has not been followed or cited” is misleading. The probability is that Keyzer has been and is being followed. The referee (administrative law judge) in this case followed it. The Appeal Board followed it and specifically cited it. I would conclude that Keyzer has been followed by the worker’s compensation bench and bar. No CQmpetent claimant’s counsel would overlook its advantages. The majority’s conclusion that it has not been cited only means Shepard’s Michigan Citations records no citations. WCAB reports are not carried by Shepards. No citation means exactly the converse of the majority’s implication.
I respect the observation that the Lahay holding casts some doubt on Keyzer. But I would reconcile the two. Lahay’s disability was for his part-time work only. His capacity to work at his full-time position as an insurance adjuster was not im*249paired. Had he suffered total disability I think the result would have been different. At least it should have been different. The key is capacity. On this record we have to decide the weekly benefits due the plaintiff-appellee for total disability. His incapacity for any work entitled him to minimum compensation benefits computed under §§ 351 and 355 as interpreted by Keyzer and Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), lv den 391 Mich 780 (1974).
If there is a latent defect in our approach to the question it is the failure to address the issue of applicability of § 371(3). But the referee was not called upon to find "that the employee was employed specifically and not temporarily on a part-time basis”. He obviously computed the average weekly wage by multiplying the hourly rate times 40 in accordance with the first sentence of § 371(2). In Lahay the referee held that the claimant’s jobs totaled more than 25 hours. I am not able to predict how the Supreme Court will treat this issue. I have no hesitancy in suggesting the correct approach. The emphasis should be on earning capacity, not on hours worked or wages earned. Part-time employment may be undertaken for any number of reasons unrelated to capacity.
I would hold that where an injured worker’s disability is total, as here, where we have an uncontested temporary total disability from unskilled labor, he or she is entitled to the statutory minimum. The loss of earning capacity is total. What would be the logic in limiting one who is out of the job market, suffering an employment-related injury, to a penurious fraction of minimum disability benefits merely because at the moment of injury his working time was inconsistent with his capacity? Such a result is incorrect and inhumane.
*250If this appears to be in conflict with the Lahay decision, I suggest it is not. I do not criticize Lahay, and am not trying to avoid it. I distinguish Lahay where full-time working capacity was not impaired from this case where the incapacity is total from any employment.
I would affirm.
Andrejwski v Wolverine Coal Co, 182 Mich 298; 148 NW 684 (1914).
"The statute is a remedial one, enacted primarily for the benefit of the man who works in the pursuits subject to its provisions.” Grand Rapids v Crocker, 219 Mich 178, 189; 189 NW 221 (1922).