Tyler v. Livonia Public Schools

Smolensk, P.J.

(dissenting). I respectfully dissent. I disagree that the plaintiffs disability pension under the Public School Employees Retirement Act (psera), MCL 38.1301 et seq.-, MSA 15.893(111) et seq., is received under a “program” but not a “plan” and, *706therefore, subject to coordination by virtue of § 354(1) (d) of the Worker’s Disability Compensation Act (WDCA), MCL 418.354(l)(d); MSA 17.237(354)(l)(d). Rather, for the reasons that follow, I would hold that plaintiff’s disability pension is excepted from coordination by virtue of § 354(14) of the wdca. I would reverse.

As stated in the majority opinion, the Worker’s Compensation Appellate Commission concluded that § 354(14) was simply inapplicable to the legislatively mandated disability pension at issue in this case because that subsection was intended to apply to private-sector pension plans negotiated through the collective bargaining process. I acknowledge that a legislative analysis of § 354 somewhat supports this construction, particularly with respect to the second sentence of § 354(14). See Senate Analysis Section, SB 573 et al, January 7, 1982, noting that under Senate Bill 595, which was subsequently enacted as 1981 PA 203, § 354 of the WDCA, worker’s compensation benefits would be coordinated with “pension and retirement benefits,” although “[disability pensions [sic] plans could be exempted from coordination under a collective bargaining agreement under certain conditions.” However, this same analysis also provides in relevant part as follows:

[Senate bills 595 and 591] would apply to any of the specified benefits paid or payable after the effective date of the bills except for benefits received or to be received under a disability pension plan provided by the same employer liable for payments under the act and existing on the effective date of the bill. Any disability pension plan entered into or renewed after that date could provide that benefits paid under that disability pension plan would not be coordinated with benefits paid under the act. (NOTE: The bill would *707also allow a disability pension plan to be exempted from coordination of benefits. The apparent intent of the bill is to draw a distinction between a “disability insurance policy” or “wage continuation plan” and a “disability pension plan.” The current language of the bill would require coordination of the first two while allowing the third to be exempted from coordination. However, the bill does not define these three terms and some additional language or technical amendments may be necessary to clarify the legislative intent.) [Senate Analysis Section, SB 573 et al, January 7, 1982 (discussing Senate Bill 595, which was subsequently enacted as 1981 PA 203, § 354 of the wdca).]

Thus, I conclude that the above legislative analysis is not dispositive with regard to the issue whether § 354(14) was intended by the Legislature to apply only to private-sector pension plans negotiated through the collective bargaining process.

Moreover, this Court’s inquiry into the Legislature’s intent when it passes a statute does not begin with legislative analysis. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). Rather, the starting point in every case involving statutory construction is the language of the statute itself. Id. I agree with the majority that in construing a statute, effect must be given to every word, sentence, and section if possible, and a construction that would render any part of the statute surplusage or nugatory must be avoided. In re Brzezinski, 214 Mich App 652, 663; 542 NW2d 871 (1995). However, another rule of statutory construction provides that a particular format may be chosen by the drafters for clarity of form rather than to create a substantive meaning. In re Marin, 198 Mich App 560, 563; 499 NW2d 400 (1993). Moreover, in construing a statute, every word or phrase of the statute should be accorded its plain and *708ordinary meaning, taking into account the context in which the words are used. MCL 8.3a; MSA 2.212(1); In re PSC’s Determination Regarding Coin-Operated Telephones, No 2, 204 Mich App 350, 353; 514 NW2d 775 (1994). Where, as here, terms are not defined, resort to a dictionary definition is appropriate. People v Lee, 447 Mich 552, 558; 526 NW2d 882 (1994). “Plan” is defined, in relevant part, as “a program for specified benefits, needs, etc.: a pension plan.” Random House Webster’s College Dictionary (1992) (emphasis supplied, in part). “Program” is defined, in relevant part, as “1. a plan of action to accomplish a specified end. 2. a schedule of activities, procedures, etc., to be followed. ... 6. a planned, coordinated group of activities, procedures, etc., often for a specific purpose: a drug rehabilitation program.” Random House Webster’s College Dictionary (1992) (emphasis supplied, in part). Thus, if plaintiff’s disability pension is a program and, more specifically, a program of benefits, then it is also a plan.

Statutory language should be construed reasonably, keeping in mind the purpose of the act. Barr v Mount Brighton Inc, 215 Mich App 512, 516; 546 NW2d 273 (1996). The wdca is remedial and should be interpreted in a liberal and humanitarian manner in favor of the employee. Matney v Southfield Bowl, 218 Mich App 475, 486; 554 NW2d 356 (1996). Thus, I find that it is not possible to conclude that, as used in § 354(1) (d), the term “program” refers only to a govemmentally created system of reimbursement, and that, as used in § 354(1) and (14), the term “plan” is limited only to private-sector, collectively bargained disability pensions. Rather, I would construe the term *709“plan,” as used in § 354(14), as encompassing the disability pension received by plaintiff under the psera.

I would further hold that plaintiffs disability pension comes within the remaining terms of § 354(14). The first sentence of § 354(14) provides as follows:

This section does not apply to any payments received or to be received under a disability pension plan provided by the same employer which plan is in existence on March 31, 1982.

As discussed above, the monthly payments received by plaintiff were received under a disability pension “plan.” Nor is there any question, as acknowledged by the WCAC, that plaintiffs disability pension plan was in existence on March 31, 1982. See 1980 PA 300.

The question remains whether the payments were “received . . . under a disability pension plan provided by the same employer . . . .” “Provided” is defined as “to make available; furnish: to provide employees with benefits.” Random House Webster’s College Dictionary (1992). The Legislature enacted the psera. However, defendant was required to contribute to the plan and was considered the employer for purposes of the plan. See, generally, the psera, MCL 38.1301 et seq.) MSA 15.893(111) et seq. Accordingly, defendant made available or furnished and, therefore, “provided” the plan at issue in this case.

The second sentence of § 354(14) provides:

Any disability pension plan entered into or renewed after March 31, 1982 may provide that the payments under that disability pension plan provided by the employer shall not be coordinated pursuant to this section.

*710Plaintiff argues that the wcac erred in determining that his disability pension plan was not excepted from coordination because it had been “renewed” after March 31, 1982. Specifically, plaintiff contends that the process of signing a new collective bargaining agreement did not constitute a renewal of the plan. Plaintiff also contends that amendments of the psera did not constitute a renewal of the plan. I agree. “Renewed” is defined as follows:

1. to begin or take up again; resume .... 2. to make effective for an additional period. 3. to restore or replenish.
4. to make, say or do again. 5. to revive; reestablish. ... 7. to restore to a former state. 8. to begin again; recommence. [Random House Webster’s College Dictionary (1992).]

In this case, the plan was entirely statutory. Thus, the parties could not, through collective bargaining, alter the plan in any manner. A review of the July 1988 collective bargaining agreement involved in this case, which does not refer to the retirement system established by the psera in any substantive fashion, reflects this fact.1 conclude that the July 1988 collective bargaining agreement did not “reestablish” or “make [the statutory disability pension plan] effective for an additional period” and, therefore, renew, the disability pension plan at issue.

As noted by both the wcac and defendant, various sections of the psera have been amended since March 31, 1982. However, neither the “disability allowance” *711provision contained in § 86 of the psera, MCL 38.1386; MSA 15.893(196), which both parties contend is the dispositive provision in this case, nor the “duty disability retirement allowance” provision of § 87 of the PSERA, MCL 38.1387; MSA 15.893(197), has been amended since 1980. Rather, these sections of the psera have continued in full force and effect without change since 1980. I fail to see how amendments of other sections of the PSERA would “reestablish” or “make [the disability provisions] effective for an additional period.” See also MCL 8.3u; MSA 2.212(21) (“The provisions of any law or statute which is reenacted, amended or revised, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new amendments.”). Accordingly, I agree with plaintiff that any amendments of the psera after March 31, 1982, did not “renew” §§86 and 87 of the psera.

In summary, then, payments from plaintiffs disability pension are potentially subject to coordination where the disability pension is maintained by defendant under § 354(1). However, I would hold that plaintiffs disability pension is excepted from coordination by § 354(14) because it is a disability pension plan provided by the same employer that was in existence on March 31, 1982, and not thereafter renewed. I would reverse in this case.

In light of this holding, I would decline to consider plaintiffs argument that a coordination of benefits in this case would violate Const 1963, art 1, § 10 (prohibiting the impairment of contracts) or Const 1963, art 9, § 24 (prohibiting the impairment of the accrued financial benefits of state-provided pension plans and retirement systems).

The only reference to the psera in the July 1, 1988, collective bargaining agreement is in Article XIX, section 3 of the agreement, which provides that an employee must be eligible for “immediate cash payments under the Michigan Public School Employees Retirement System by reason of death, disability, or meeting age requirements” in order for the employee to be eligible for $100 a year retirement pay from defendant.