Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 13, 2003
RONALD G. SWEATT,
Plaintiff-Appellee,
v No. 120220
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
___________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to consider
whether defendant must pay plaintiff differential worker’s
compensation benefits, i.e., partial-disability benefits,
under subsection 361(1) of the Worker’s Disability
Compensation Act (WDCA), MCL 418.101 et seq., where defendant,
by law, cannot rehire plaintiff because of plaintiff’s
“commission of a crime.” The worker’s compensation magistrate
concluded that the fact that plaintiff is no longer able to
work for defendant as a result of plaintiff’s “commission of
a crime” does not relieve defendant of its responsibility to
pay plaintiff differential benefits. The Worker’s
Compensation Appellate Commission (WCAC) and the Court of
Appeals affirmed. In our judgment, although defendant must
pay a percentage of the difference between what plaintiff was
earning while working for defendant and what plaintiff was
earning at the time of the hearing (plaintiff’s loss of wage
earning capacity) to the extent that this difference is
attributable to plaintiff’s work-related injury, defendant is
not required to pay a percentage of the difference that is
attributable to plaintiff’s “commission of a crime.”
We conclude that the language of MCL 418.361(1) makes
clear that the Legislature intended that employees no longer
be able to receive worker’s compensation benefits for a loss
of wage-earning capacity that is attributable to an employee’s
“imprisonment or commission of a crime.”1 The dissent fails,
in our judgement, to give effect to this intent, and would
allow benefits to be paid to employees because of a loss of
wage-earning capacity attributable to “imprisonment or
commission of a crime.” We reverse the judgment of the Court
1
Before the amendment of this statute in 1985, an
employer was obligated to pay an imprisoned employee benefits.
Sims v R D Brooks, Inc, 389 Mich 91, 93; 204 NW2d 139 (1973).
Manifestly, in our judgment, it was the intent of the
Legislature in 1985 to alter this situation. Yet, the dissent
appears unwilling to permit this legislative judgment to
prevail.
2
of Appeals and remand this case to the magistrate to determine
to what extent, if any, plaintiff’s loss of wage-earning
capacity is attributable to his work-related injury and to
what extent, if any, plaintiff’s loss of wage-earning capacity
is attributable to his “commission of a crime.”
I. FACTS AND PROCEDURAL HISTORY
In 1986, plaintiff began working for defendant as a
corrections officer. In 1989, plaintiff injured his knee when
he intervened in a fight between prisoners. Defendant
voluntarily paid worker’s compensation benefits to plaintiff
because it had a policy of not rehiring anybody who was not
one hundred percent fit for duty.2 In 1995, plaintiff was
convicted of delivery of heroin, a felony, and, as a result,
was imprisoned. Once plaintiff was convicted and imprisoned,
defendant stopped paying benefits to plaintiff. Also in 1995,
defendant discontinued its policy of not rehiring anybody who
was not one hundred percent fit for duty and began offering
favored work to which plaintiff would have been eligible if he
were not imprisoned. Defendant took part in a work-release
program while he was imprisoned.
In 1996, MCL 791.205a became effective, which forbids
defendant from hiring and subsequently employing persons who
2
In other words, defendant had a policy of not offering
favored work.
3
have been convicted of a felony. Also in 1996, plaintiff was
paroled. It is undisputed that plaintiff continues to have a
work-related injury. In 1998, plaintiff began working for
Pressure Vessel, Inc., earning less than he had while working
for defendant.
Plaintiff petitioned for differential worker’s
compensation benefits. Defendant denied plaintiff’s request
on the basis that it was not required to pay plaintiff
differential benefits because plaintiff was convicted of a
felony and MCL 791.205a(1) precludes the department from
hiring someone convicted of a felony and MCL 418.361(1)
relieves it of its responsibility to pay differential benefits
to an employee who is unable to work for defendant because of
the “commission of a crime.”
The magistrate concluded that defendant is required to
pay plaintiff differential benefits and the fact that
defendant is precluded from rehiring plaintiff does not at all
relieve defendant of this requirement. In a four-to-three
decision, the WCAC affirmed. The majority concluded that, in
order for it to be relieved of its responsibility to pay
plaintiff differential benefits, the department must prove,
and it had not, that, were it not for the statutory
prohibition on hiring an ex-felon, it would have made an offer
4
of reasonable employment to plaintiff.3 The dissenting
commissioners disagreed, stating that the majority erred in
placing “an artificially-created burden on defendant to prove
it would have done the very thing the ex-felon statute
prohibits defendant from doing, namely, offering employment to
an ex-felon . . . .”
In a divided opinion, the Court of Appeals affirmed.
While the concurring opinion author concluded that the WCAC
reached the right result for the right reasons, the lead
opinion writer concluded that the WCAC reached the right
result for the wrong reasons. Specifically, the lead opinion
writer concluded that defendant was not relieved of its
responsibility for paying plaintiff differential benefits
because plaintiff was not “unable to perform or obtain work”
as the result of the “commission of a crime,” MCL 418.361(1),
as evidenced by the fact that plaintiff was working at the
time of the hearing. The dissenting judge, on the other hand,
3
The WCAC first remanded to the magistrate for the
magistrate to determine whether “defendant Department of
Corrections would have made an offer of reasonable employment
to plaintiff were it not for the statutory prohibition against
employment of any individual who had been convicted of a
felony.” On remand, the magistrate found that “there would
not have been an offer of reasonable employment to plaintiff
were it not for the statutory prohibition. To find otherwise
would be pure speculation, something not permitted under
Michigan law.” The WCAC concluded that this finding was
“supported by competent, material, and substantial evidence on
the whole record.”
5
concluded that because plaintiff was unable to work for
defendant because of the “commission of a crime,” defendant
was relieved of its responsibility to pay plaintiff any
differential benefits.
II. STANDARD OF REVIEW
Whether defendant must pay differential benefits to
plaintiff under MCL 418.361(1) is a question of statutory
interpretation. Questions of statutory interpretation are
questions of law that are reviewed de novo by this Court.
Robertson v DaimlerChrysler Corp, 465 Mich 732, 739; 641 NW2d
567 (2002).
III. ANALYSIS
That defendant cannot employ plaintiff because of his
“commission of a crime” is undisputed. MCL 791.205a(1)
provides:
Beginning on the effective date of this
section, an individual who has been convicted of a
felony, or who is subject to any pending felony
charges, shall not be employed or appointed to a
position in the department [of corrections].
Plaintiff has been convicted of a felony; thus, defendant
cannot reemploy plaintiff. A part of the Worker’s Disability
Compensation Act (WDCA), MCL 418.361(1), provides:
While the incapacity for work resulting from a
personal injury is partial, the employer shall pay,
or cause to be paid to the injured employee weekly
compensation equal to 80% of the difference between
the injured employee’s after-tax average weekly
wage before the personal injury and the after-tax
6
average weekly wage which the injured employee is
able to earn after the personal injury, but not
more than the maximum weekly rate of compensation,
as determined under section 355. Compensation
shall be paid for the duration of the disability.
However, an employer shall not be liable for
compensation under section 351, 371(1), or this
subsection for such periods of time that the
employee is unable to obtain or perform work
because of imprisonment or commission of a crime.
[Emphasis added.]
This provision is known as the differential worker’s
compensation or partial-disability provision. Under this
provision, an employer must pay an employee a percentage of
the difference between what the employee was earning while
working for the employer before the employee was injured and
what the employee is able to earn after the work-related
injury. However, the employer is not liable to the employee
to the extent that “the employee is unable to obtain or
perform work because of imprisonment or commission of a
crime.”
Defendant argues that it does not have to pay plaintiff
anything because plaintiff is “unable to obtain or perform
work” with defendant because of plaintiff’s “commission of a
crime.” Plaintiff, on the other hand, argues that defendant
must pay plaintiff the total difference between what plaintiff
was earning while working for defendant and what plaintiff was
earning at the time of the hearing because plaintiff was not
“unable to obtain or perform work” as evidenced by the fact
7
that plaintiff was, in fact, working at the time of the
hearing.
The language “unable to obtain or perform work” does not
stand alone, and thus it cannot be read in a vacuum. Instead,
“[i]t exists and must be read in context with the entire act,
and the words and phrases used there must be assigned such
meanings as are in harmony with the whole of the statute,
construed in the light of history and common sense.”
Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516;
322 NW2d 702 (1982).4 When interpreting a statute, we must
“consider both the plain meaning of the critical word or
phrase as well as ‘its placement and purpose in the statutory
scheme.’” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596
NW2d 119 (1999) (citation omitted). “Contextual understanding
of statutes is generally grounded in the doctrine of noscitur
a sociis: ‘it is known from its associates,’ see Black’s Law
Dictionary (6th ed), p 1060. This doctrine stands for the
principle [of interpretation] that a word or phrase is given
meaning by its context or setting.” Tyler v Livonia Pub
Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999). Although
4
“[W]ords in a statute should not be construed in the
void, but should be read together to harmonize the meaning,
giving effect to the act as a whole.” Gen Motors Corp v Erves
(On Rehearing), 399 Mich 241, 255; 249 NW2d 41 (1976)(opinion
by COLEMAN , J.).
8
a phrase or a statement may mean one thing when read in
isolation, it may mean something substantially different when
read in context. McCarthy v Bronson, 500 US 136; 111 S Ct
1737; 114 L Ed 2d 194 (1991); Mastro Plastics Corp v Nat’l
Labor Relations Bd, 350 US 270; 76 S Ct 349; 100 L Ed 309
(1956); Hagen v Dep’t of Ed, 431 Mich 118, 130-131; 427 NW2d
879 (1988); Fowler v Bd of Registration in Chiropody, 374 Mich
254, 257-258; 132 NW2d 82 (1965).5 Therefore, “[a] statute
must be read in its entirety . . . .” State Bd of Ed v
Houghton Lake Community Schools, 430 Mich 658, 671; 425 NW2d
5
In McCarthy, supra at 139, the United States Supreme
Court stated:
We do not quarrel with petitioner’s claim that
the most natural reading of the phrase “challenging
conditions of confinement,” when viewed in
isolation, would not include suits seeking relief
from isolated episodes of unconstitutional conduct.
However, statutory language must always be read in
its proper context. “In ascertaining the plain
meaning of [a] statute, the court must look to the
particular statutory language at issue, as well as
the language and design of the statute as a whole.”
[Citation omitted.]
Similarly, in Mastro Plastics, supra at 285, the United States
Supreme Court stated:
[I]f the above words are read in complete
isolation from their context in the Act, such an
interpretation is possible. However, “In
expounding a statute, we must not be guided by a
single sentence or member of a sentence, but look
to the provisions of the whole law, and to its
object and policy.” [Citation omitted.]
9
80 (1988).
When the statutory provision that is at issue here is
read in its entirety, and, in particular, when the language
“unable to obtain or perform work” is read in context, it
becomes clear that neither defendant nor plaintiff (nor the
dissent, which is in agreement with plaintiff) is entirely
correct in its construction of MCL 418.361(1). The first
sentence of this provision states that “[w]hile the incapacity
for work resulting from a personal injury is partial, the
employer shall pay . . . .” Thus, it is clear that this
provision applies only to employees who suffer from a partial
incapacity for work. If an employee has a partial incapacity
for work, that employee must necessarily have a partial
capacity for work. Accordingly, this provision only applies
to employees who are able to work in some capacity.
MCL 418.361(1) further provides that employers must pay
such employees “80% of the difference between the injured
employee’s after-tax average weekly wage before the personal
injury and the after-tax average weekly wage which the injured
employee is able to earn after the personal injury . . . .”
(Emphasis added.) From this language it becomes even more
clear that this provision applies only to employees who are
able to work in some capacity. The phrase means that
10
employers must pay employees a percentage of the difference
between what they earned before the injury and what they are
able to earn after the injury. Accordingly, this provision
only applies to employees who are injured, but who,
nevertheless, are able to work in some capacity.
MCL 418.361(1) first states that an employer must pay an
employee a percentage of the difference between what the
employee earned before the injury and what the employee is
able to earn after the injury. It then states, “However, an
employer shall not be liable for compensation under . . . this
subsection for such periods of time that the employee is
unable to obtain or perform work because of imprisonment or
commission of a crime.” Accordingly, this provision first
creates a liability, and then creates an exception to this
liability. The dissent contends that this exception applies
only to unemployed employees, and that it does not apply to
employed employees. However, if that were the case, this
exception would never apply to any partially disabled
employees, and thus it would be rendered nugatory with regard
to these employees.6 That is, if this exception were
6
This exception applies to both partial disabilities and
total disabilities. “[A]n employer shall not be liable for
compensation under section 351 . . . or this subsection . . .
.” MCL 418.361(1). “[S]ection 351” is the section pertaining
to total disabilities and “this subsection” is the subsection
pertaining to partial disabilities. However, under the
11
approach of the dissent, this exception would only apply to
total disabilities; it would never apply to partial
disabilities. That this exception is to be applied to partial
disabilities is obvious. First, the exception is found in the
partial-disabilities provision. Second, this provision
specifically states, “an employer shall not be liable for
compensation under . . . this subsection [i.e., the partial
disabilities subsection] . . . .” MCL 418.361(1). In sum,
contrary to the dissent’s assertion, we recognize that the
dissent’s approach would not render this exception nugatory
with respect to total disabilities; however, the dissent’s
approach would render this exception nugatory with respect to
partial disabilities, although it is manifestly obvious that
the Legislature intended this exception to apply to the latter
as well.
The dissent attempts to accord this exception some
meaning with respect to partial disabilities by observing that
it would apply where an employee who is partially disabled
because of a work-related injury becomes totally disabled
because of his own “commission of a crime.” The dissent
concludes that “the employer would not be liable for benefits
to this employee under the exception.” Post at 11. The
dissent posits a hypothetical example in which a partially
disabled robber becomes fully disabled as a result of slipping
and falling during the course of the robbery. However, the
dissent itself concludes that the exception would only apply
to the totally disabled, not the partially disabled, employee.
As explained above, we recognize that the dissent’s approach
would give meaning to this exception with regard to totally
disabled employees. However, our quarrel with the dissent’s
approach is that it fails to accord any meaning to the
exception with regard to partially disabled employees. The
dissent somehow draws from its hypothetical example, in which
it concludes that the exception is applicable to a totally
disabled employee, that meaning has also been given to the
exception in the context of a partially disabled employee.
Further, we do not agree with the dissent that the employer in
its hypothetical example would necessarily escape all
liability. Rather, the employer of the dissent’s “partially
disabled robber” would remain liable for the employee’s loss
of wage-earning capacity that is attributable to the
employee’s work-related injury, but the employer would not be
liable for the employee’s loss of wage-earning capacity that
is attributable to the employee’s “commission of a crime.”
12
construed, as the dissent construes it, to only exclude
unemployed employees, this exception will be rendered
meaningless regarding partially disabled employees because
employers are not liable to unemployed, partially disabled
employees under this provision in the first place. Why would
the Legislature create a liability that only extends to
employed employees and then create an exception to this
liability that only extends to unemployed employees? It
simply would not make any sense to exempt unemployed employees
from liability where employers are not liable to unemployed
employees under this provision to begin with.
It is well established that this Court should avoid
construing a statute in such a way that renders any part of it
nugatory. Omelenchuk v City of Warren, 466 Mich 524, 528; 647
NW2d 493 (2002). “It is our duty to read the statute as a
whole and to avoid a construction which renders meaningless
provisions that clearly were to have effect.” Apportionment
of Wayne Co Bd of Comm’rs–1982, 413 Mich 224, 259-260; 321
NW2d 615 (1982).
A reading of this statute in its entirety evidences an
According to the dissent, on the other hand, an unemployed,
totally disabled employee is not entitled to any benefits
regardless of whether the employee still suffers from a loss
of wage-earning capacity that is attributable to the work
related injury because that employee is unable to work because
of the “commission of a crime.”
13
intent to obligate employers to provide employees with
partial-disability benefits when an employee is still able to
work, but is unable to earn as much money as before the work
related injury. Accordingly, as explained above, this
provision only addresses those situations in which the
employee still has a wage-earning capacity, but a reduced
wage-earning capacity. That is, it only addresses those
situations in which the employee is employed, but earning less
money than before the work-related injury.
In this context, it becomes quite clear that the language
“unable to obtain or perform work” is referring to a loss of
wage-earning capacity, rather than the inability to work at
all. Therefore, employers must compensate employees for a
loss of wage-earning capacity that resulted from a work
related injury. However, the statute provides an exception to
this obligation when the reason that the employee is unable to
earn as much money is attributable, not to the work-related
injury, but to the employee’s “imprisonment or commission of
a crime.”7 Accordingly, if the difference in pay is because
7
Defendant suggests, and the dissenting Court of Appeals
judge agreed, that this exception to an employer’s obligation
to pay partial-disability benefits applies whenever the
employee is “unable to obtain or perform work” for that
particular employer. In other words, defendant contends that
this exception is employer-specific. However, there is no
indication in the statute itself to suggest that this
exception is employer-specific. Therefore, we conclude that
this provision is not employer-specific, and thus that
14
of “imprisonment or commission of a crime,” the employee is
not entitled to differential benefits. If the difference in
pay is a result, not of “imprisonment or commission of a
crime,” but of a work-related injury, the employee is entitled
to benefits.8
defendant’s interpretation of this provision is mistaken.
Further, we agree with the dissenting worker’s
compensation commissioners that the WCAC majority placed “an
artificially-created burden on defendant to prove it would
have done the very thing the ex-felon statute prohibits
defendant from doing, namely, offering employment to an ex
felon . . . .” To require defendant to prove that it would
have hired plaintiff if it were not for his “commission of a
crime” is an impossible burden. In this case, plaintiff’s
“commission of a crime” bars defendant from offering plaintiff
a position, and thus whether defendant would have offered
plaintiff such a position if defendant was not so barred is
simply not possible to know because once defendant determined
that it could not rehire plaintiff because of his commission
of a felony, the employment inquiry stopped. The WCAC’s
approach, however, would require the inquiry to continue.
That is, it would require defendant to make a needless
determination, i.e., whether it would have hired plaintiff if
plaintiff had not committed this felony. The statute does not
require that futile inquiry, and thus the WCAC erred in
requiring it. The dissent criticizes us for “merely
recharacteriz[ing] the question posed to the magistrate by the
WCAC on remand.” Post at 9. We do not agree with this
portrayal of our position. We are not remanding this case to
the magistrate to determine whether defendant proved that it
would have hired plaintiff had it not been for his “commission
of a crime.” Instead, we are remanding to determine what
portion of plaintiff’s loss of wage-earning capacity is fairly
attributable to his work-related injury or to his “commission
of a crime.”
8
Note that it could be possible for the reduction in pay
to be partly because of an “imprisonment or commission of a
crime” and partly because of a work-related injury. In such
a situation, as may well be the case here, the employer would
15
This interpretation is not only in accord with the
language of MCL 418.361(1), but it better comports with other
provisions of the WDCA and decisions of this Court. Under the
WDCA, MCL 418.101 et seq., injured employees are not entitled
to benefits if the injury is “by reason of his intentional and
wilful misconduct,” MCL 418.305; the “injury [is] incurred in
the pursuit of an activity the major purpose of which is
social or recreational,” MCL 418.301(3); the employee
unjustifiably refuses to rehabilitate himself, MCL 418.319(1);
the employee refuses without good and reasonable cause a bona
fide offer of reasonable employment, MCL 418.301(5)(a); the
employee unreasonably refuses surgery, Kricinovich v American
Car & Foundry Co, 192 Mich 687, 690; 159 NW 362 (1916); or the
employee refuses to undertake exercises designed to hasten
recovery, Bower v Whitehall Leather Co, 412 Mich 172, 184; 312
NW2d 640 (1981), citing Brown v Premier Mfg Co, 77 Mich App
573, 578-579; 259 NW2d 143 (1977). These propositions adhere
because there must be a linkage between the disabling work
related injury and the reduction in pay. Sington v Chrysler
Corp, 467 Mich 144, 155; 648 NW2d 624 (2002).9
be liable for the reduction in pay attributable to the work
related injury. The employer would not be liable for the
reduction in pay attributable to the “imprisonment or
commission of a crime.”
9
“[T]he WCAC should consider whether the injury has
actually resulted in a loss of wage earning capacity in work
suitable to the employee’s training and qualifications in the
16
In this case, there would be no such linkage if
plaintiff’s pay were reduced, not because of his work-related
injury, but because of his commission of a felony. After
plaintiff committed this felony, defendant, as a matter of
law, could not reemploy plaintiff, and thus plaintiff began
working somewhere else where he was unable to earn as much
money as he had earned while working for defendant.
Therefore, it is at least arguably because of his “commission
of a crime” that plaintiff is earning less money, not because
of the work-related injury. Worker’s compensation was not
designed to compensate employees whose unemployment is not
attributable to a work-related injury, but rather to some
nonemployment-related reason such as the “commission of a
crime.” As the writer of the lead Court of Appeals opinion
recognized, “The purpose of the worker’s compensation act is
to compensate a claimant for lost earning capacity caused by
a work-related injury . . . .” 247 Mich App 555, 566; 637
NW2d 811 (2001).10 In this case, the lost earning capacity was
ordinary job market.” Id. at 158 (emphasis added).
10
In our judgment, the construction of MCL 791.205a(1)
set forth in this opinion is more in accord with this purpose
than the dissent’s construction. Under our construction,
while employers will not be able to escape liability for an
employee’s loss of wage-earning capacity that is attributable
to the employee’s work-related injury, the employer will not
be held liable for an employee’s loss of wage-earning capacity
that is attributable to the employee’s “imprisonment or
commission of a crime.” Under the dissent’s approach,
although the employer will not be able to escape liability for
17
arguably caused, not by a work-related injury, but by the
commission of a felony.11
an employee’s work-related injury, the employer will also be
held liable for an employee’s loss of wage-earning capacity
that is attributable to the employee’s “imprisonment or
commission of a crime.” That is, what divides these opinions
is the eligibility of employees for worker’s compensation
benefits related to their own “imprisonment or commission of
a crime.” This opinion interprets the statute in accordance
with the manifest intent of the Legislature to deny such
benefits to employees, while the dissent would allow such
benefits. Notwithstanding that employees were entitled to
such benefits before the 1985 worker’s compensation amendments
and that the Legislature clearly intended that the situation
be altered, the dissent refuses to give effect to the
Legislature’s intent that employers will not be liable for an
employee’s loss of wage-earning capacity that is attributable
to “imprisonment or commission of a crime.” Apparently, there
is little that the people of Michigan can do through their
Legislature to disallow such benefits in light of the
dissent’s determination that they be maintained.
11
The dissent states: “Although [plaintiff was] earning
less than he had earned while he worked for defendant because
of the physical limitations caused by his work-related injury,
plaintiff was working.” Post at 3 (emphasis added). If it is
true that plaintiff is earning less because of his work
related injury, we would agree with the dissent that defendant
must pay plaintiff a percentage of this difference. However,
if plaintiff is earning less because of his “commission of a
crime,” defendant is not obligated to pay plaintiff a
percentage of this difference. That is, we agree with the
dissent that “[d]efendant must still pay benefits to plaintiff
as compensation for his loss of wage-earning capacity
attributable to plaintiff’s work-related injury,” assuming
that some or all of plaintiff’s loss of wage-earning capacity
is attributable to plaintiff’s work-related injury. Post at
5. Accordingly, this case must be remanded to the magistrate
to determine to what extent, if any, plaintiff’s loss of wage
earning capacity is attributable to his work-related injury
and to what extent, if any, plaintiff’s loss of wage-earning
capacity is attributable to his “commission of a crime.”
The dissent criticizes us for “provid[ing] the magistrate
18
Reading this provision as the dissent does would
anomalously require employers to pay employees partial
disability benefits because the employees are imprisoned or
with absolutely no guidance for making this determination.”
Post at 9. However, we are not asking the magistrate to do
anything other than what magistrates have been required to do
since the enactment of the WDCA, that is, to determine
whether, and to what extent, there is a linkage between
plaintiff’s work-related injury and his loss of wage-earning
capacity. See Sington, supra at 155. To the extent that
there is such a linkage, plaintiff is entitled to benefits.
However, to the extent that plaintiff’s loss of wage-earning
capacity is attributable, not to his work-related injury, but
to his “commission of a crime,” plaintiff is not entitled to
benefits.
The dissent repeatedly states that “the magistrate has
already determined that plaintiff’s work-related injury . . .
is the only thing preventing plaintiff from returning to other
types of work.” Post at 7. However, that is not the test to
be applied to determine eligibility for worker’s compensation
benefits. As this Court recently explained in Sington, supra
at 158, the test is not whether plaintiff suffers from a work
related injury that prevents him from returning to other types
of work; rather, the test is whether plaintiff suffers from a
work-related injury that results in a loss of wage-earning
capacity. Accordingly, the magistrate must now determine why
plaintiff is suffering a loss of wage-earning capacity. Is it
because of his work-related injury? That is, would plaintiff
not be suffering a loss of wage-earning capacity if he were
not injured? Or, is it because of his “commission of a
crime?” That is, would plaintiff not be suffering a loss of
wage-earning capacity if he had not been convicted of a felony
and subsequently incarcerated? The dissent states that
because “[f]indings of disability and wage-earning capacity
have been established and are not disputed” there is no need
to remand this case to the magistrate. Post at 10. However,
although the plaintiff has indeed suffered a work-related
injury, as well as a loss of wage-earning capacity, what has
not yet been established, in our judgment, is whether
plaintiff’s work-related injury caused his loss of wage
earning capacity. See 22 n 13.
19
have committed a crime, where such employers would not have to
pay partial-disability benefits if the employees were not
imprisoned or had not committed a crime. In other words,
employers would be required to pay benefits to employees
solely because they are imprisoned or because they committed
a crime. For example, if an employee is injured, but this
injury does not affect his ability to earn the same amount of
money as he did before he was injured, that employee would not
be entitled to partial-disability benefits. However, under
the dissent’s reading of MCL 791.205a(1), if the employee were
then imprisoned, yet able to “obtain and perform work,” but
not earn as much money, he would be entitled to partial
disability benefits.12 As we have already observed, the
12
In the present case, plaintiff was able to “obtain and
perform work” while he was imprisoned through a work-release
program. Although plaintiff does not seek partial-disability
benefits for the time that he was imprisoned, under the
dissent’s analysis, plaintiff would certainly be entitled to
such benefits. As Judge Griffin in dissent stated in response
to the lead opinion, which, like the dissent here, concluded
that the exception only applies to unemployed employees:
The parties, magistrate, WCAC majority, WCAC
dissenters, my colleagues, and I all agree that
subsection 361(1) operates to exclude defendant
from liability for worker’s compensation benefits
for the period that plaintiff was imprisoned.
However, if the “test” proposed by the lead opinion
for subsection 361(1) were applied to the present
circumstances, plaintiff would also be entitled to
worker’s compensation benefits during his period of
imprisonment. This is because plaintiff was able
to obtain and perform work during his imprisonment
and thus “plaintiff is not unable to obtain or
20
purpose of the WDCA is to compensate employees for work
related injuries. It is not intended to compensate employees
for committing crimes and becoming imprisoned.
The dissent accuses us of “ignor[ing] the plain language
of the statute” and of not respecting the Legislature’s choice
of words in MCL 418.361(1). Post at 8. Yet, it is the
dissent’s interpretation that gives absolutely no meaning to
the entire last sentence of this provision in which these
words are contained. That is, while the dissent purports to
define this sentence, it does so by defining it into
meaninglessness. It gives meaning to discrete words within
this sentence at the cost of giving coherent meaning to the
sentence itself. The dissent would award worker’s
compensation benefits under MCL 418.361(1) as if the last
sentence of this provision were absent. We would address the
following questions to the dissent: What meaning does the
dissent give to this sentence? And if, as we suggest, the
dissent gives it no meaning, how can this conceivably comport
with the intention of the Legislature? Under the dissent’s
interpretation, it is as if, when the Legislature enacted this
provision, it decided that the last sentence should have no
perform work for that reason.” (Opinion by Neff,
J., ante at [565].) Judge Neff’s construction of §
361 and its test for application fails because its
results, as applied to plaintiff, are simply
illogical. [247 Mich App 577 (citation omitted).]
21
meaning or that the Legislature should appear to be saying
something while saying nothing. We do not believe that we can
presume such folly and, instead, that we must give the most
reasonable meaning possible to the words of the Legislature.
IV. CONCLUSION
The WDCA, MCL 418.361(1), provides that an employer is
liable to an employee for a percentage of the employee’s loss
of wage-earning capacity, except when this loss of wage
earning capacity is because of the “commission of a crime.”
Accordingly, we reverse the judgment of the Court of Appeals
and remand this case to the magistrate to determine to what
extent, if any, plaintiff’s loss of wage-earning capacity is
because of a work-related injury, and, to what extent, if any,
plaintiff’s loss of wage-earning capacity is because of the
“commission of a crime.”13
13
The dissent repeatedly states that the magistrate has
already determined that plaintiff is disabled. However, the
magistrate originally found plaintiff to be disabled as
defined in Haske v Transport Leasing, Inc, 455 Mich 628, 634;
566 NW2d 896 (1997). This Court has since overruled Haske.
See Sington, supra at 161. Accordingly, on remand, the
magistrate is to determine whether plaintiff is disabled as
defined in Sington, supra at 158. That is, if the magistrate
determines that plaintiff’s loss of wage-earning capacity is
wholly attributable to his “commission of a crime,” the
magistrate must conclude that plaintiff is not disabled
because, under Sington, supra at 158, there must be a link
between the work-related injury and the loss of wage-earning
capacity. If the magistrate, however, determines that
plaintiff’s loss of wage-earning capacity is wholly
attributable to his work-related injury, the magistrate must
conclude that plaintiff is disabled and entitled to benefits.
22
Stephen J. Markman
Maura D. Corrigan
Clifford W. Taylor
YOUNG, J.
I concur in the result only.
Robert P. Young, Jr.
Finally, if the magistrate determines that plaintiff’s loss of
wage-earning capacity is partly attributable to his work
related injury and partly attributable to his “commission of
a crime,” the magistrate must conclude that plaintiff is
disabled and entitled to benefits for the portion of his loss
of wage-earning capacity that is attributable to his work
related injury, but is not entitled to benefits for the
portion of his loss of wage-earning capacity that is
attributable to his “commission of a crime.”
The dissent states that it is inappropriate to remand
this case for a redetermination of disability under Sington
because defendant has never contested plaintiff’s disability.
Post at 4 n 2. Although defendant has not specifically
contested plaintiff’s disability, defendant has specifically
contested its duty to pay plaintiff differential benefits in
light of plaintiff’s “commission of a crime.” As explained
above, if plaintiff’s loss of wage-earning capacity is wholly
attributable to his “commission of a crime,” plaintiff is not
disabled under Sington. In other words, whether defendant
must pay plaintiff differential benefits in light of
plaintiff’s “commission of a crime,” and whether plaintiff is
disabled, are two interrelated questions that must be
addressed on remand.
23
S T A T E O F M I C H I G A N
SUPREME COURT
RONALD G. SWEATT,
Plaintiff-Appellee,
v No. 120220
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
______________________________
CAVANAGH, J. (dissenting).
I respectfully disagree with the majority’s construction
of MCL 418.361(1). While plaintiff is unable to work for
defendant because of his commission of a crime, plaintiff is
not unable to work. Because I would affirm the decisions of
the Court of Appeals and Worker’s Compensation Appellate
Commission (WCAC) reinstating plaintiff’s benefits, I must
dissent.
I. Plaintiff is not “unable to perform or obtain work.”
In this case, we are called upon to determine whether MCL
418.361(1) and MCL 791.205a operate in conjunction to relieve
defendant of liability for any payment to plaintiff because of
his commission of a crime.
MCL 418.361(1) provides:
While the incapacity for work resulting from a
personal injury is partial, the employer shall pay,
or cause to be paid to the injured employee weekly
compensation equal to 80% of the difference between
the injured employee’s after-tax average weekly
wage before the personal injury and the after-tax
average weekly wage which the injured employee is
able to earn after the personal injury, but not
more than the maximum weekly rate of compensation,
as determined under section 355. Compensation
shall be paid for the duration of the disability.
However, an employer shall not be liable for
compensation under section 351, 371(1), or this
subsection for such periods of time that the
employee is unable to obtain or perform work
because of imprisonment or commission of a crime.
MCL 791.205a forbids defendant from hiring and
subsequently employing persons who, inter alia, have been
convicted of a felony or who were subject to pending felony
charges. Defendant would have this Court conclude that
because defendant is forbidden from reemploying plaintiff,
plaintiff is unable to work because of his commission of a
crime. I would conclude that the statutes, when read
together, do not relieve defendant of liability.
When plaintiff was released from prison and sought
reinstatement of his benefits, he was able to work and had
been working within his limitations while he was incarcerated
and on parole. In fact, plaintiff was employed at the time
of trial. Defendant would have us believe that because
plaintiff was unable to work for defendant because of his
2
commission of a crime, defendant is relieved from paying
benefits. However, this requires us to read into subsection
361(1) that the employee must be unable to work for this
particular employer. I cannot do so. Subsection 361(1) is
not employer-specific. The statute provides that if the
employee is unable to work for stated reasons, the employer is
relieved from paying benefits. In this case, it cannot be
stressed enough that plaintiff was able to work. Although
earning less than he had earned while he worked for defendant
because of the physical limitations caused by his work-related
injury, plaintiff was working.
The magistrate correctly decided this case when it was
first before her. She recognized that there is no case law
authorizing defendant to terminate plaintiff’s benefits just
because plaintiff is no longer able to work for defendant.
Further, the only thing preventing plaintiff from engaging in
other types of work is his disability, which was incurred as
a result of his employment with defendant.1 The statute
simply cannot be read as authorizing defendant to terminate
benefits.
1
See the magistrate’s November 18, 1998, opinion, page 6,
where the magistrate stated: “Furthermore, there is nothing to
prevent plaintiff from returning to other types of work except
his disability which was incurred as a result of his
employment with defendant.”
3
The magistrate found as a fact, and plaintiff and
defendant both agreed, that plaintiff continues to suffer a
disability that inhibits his ability to earn wages as a result
of the knee injury he sustained in the course of his
employment with defendant.2
The magistrate’s initial decision is in line with the
purpose of the Worker’s Disability Compensation Act, MCL
418.101 et seq. This Court has consistently construed the
WDCA liberally to grant rather than deny benefits. Simkins v
Gen Motors (After Remand), 453 Mich 703, 710-711; 556 NW2d 839
(1996) (citing Bower v Whitehall Leather Co, 412 Mich 172,
191; 312 NW2d 640 [1981]); see also DiBenedetto v West Shore
Hosp, 461 Mich 394, 402-403; 605 NW2d 300 (2000).
“The primary purpose of the worker’s compensation act is
to provide benefits to the victims of work-related injuries
. . . .” Simkins at 711. The worker’s compensation scheme is
a compromise of sorts. An employee who suffers an injury
2
The majority’s suggestion that this case should be
remanded for a redetermination of disability under Sington v
Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002), is
inappropriate. While Sington provides the current standard
for disability determinations, defendant never contested
plaintiff’s disability. In fact, defendant willingly paid
benefits from the date of plaintiff’s injury until plaintiff’s
incarceration. Defendant’s obligation to pay benefits has
only been contested under MCL 418.361(1) in light of MCL
791.205a. Therefore, redetermination of disability under the
Sington standard is unnecessary and inappropriate. The only
issue in this case is whether defendant is relieved of its
obligation to pay benefits because of plaintiff’s commission
of a crime.
4
arising out of and in the course of his employment is eligible
for worker’s compensation benefits regardless of whether the
employer was at fault. In return, the employer is immunized
from tort liability because worker’s compensation is the
“exclusive remedy” for a qualifying work-related injury. Id.
See MCL 418.131.
In this case, it is undisputed that plaintiff suffered a
partially disabling knee injury in the course of his
employment with defendant. While it is clear that plaintiff
is unable to work for defendant pursuant to MCL 791.205a,
because of plaintiff’s commission of a crime, plaintiff is not
unable to work for another employer. Defendant must still pay
benefits to plaintiff as compensation for his loss of wage
earning capacity attributable to plaintiff’s work-related
injury.
The reasonable-employment statute is helpful to this
analysis. Reasonable employment is defined in MCL 418.301(9)
as
work that is within the employee’s capacity to
perform that poses no clear and proximate threat to
that employee’s health and safety, and that is
within a reasonable distance from that employee’s
residence. The employee’s capacity to perform
shall not be limited to jobs in work suitable to
his or her qualifications and training.
5
MCL 418.301(5) provides that when disability is established,3
weekly wage-loss benefits are determined in part as follows:
(a) If an employee receives a bona fide offer
of reasonable employment from the previous
employer, another employer, or through the Michigan
employment security commission and the employee
refuses that employment without good and reasonable
cause, the employee shall be considered to have
voluntarily removed himself or herself from the
work force and is no longer entitled to any wage
loss benefits under this act during the period of
such refusal. [Emphasis added.]
While subsection 301(5)(a) focuses on an employee’s
refusal of reasonable employment, it provides three methods by
which an employee can receive an offer of reasonable
employment——his previous employer, another employer, or the
Michigan Employment Security Commission. In this case, the
previous employer, defendant, could not offer plaintiff
reasonable employment because of MCL 791.205a. However, two
avenues remain by which the employee can receive an offer of
reasonable employment——another employer or the Michigan
Employment Security Commission. Defendant’s argument ignores
these remaining two avenues. Plaintiff was offered reasonable
employment by Elco, which involved making air conditioners for
automobiles. Plaintiff obviously accepted this reasonable
employment, because he was employed there on the date of
trial. That the employment was “reasonable,” i.e., within
3
Disability was established by the magistrate, and
defendant does not challenge this.
6
plaintiff’s physical limitations, is established by
plaintiff’s testimony that the parts he worked with were
“quite light” and he could “handle it pretty good.”
Again, it must follow that because plaintiff was engaged
in reasonable employment, he was not unable to work.
Therefore, defendant is not relieved from paying worker’s
compensation benefits to plaintiff.
The majority criticizes my approach as suggesting that an
employer will also be held liable for an employee’s inability
to work that is attributable to the employee’s “imprisonment
or commission of a crime.” Ante at 17 n 10. This is not
true. In this case, plaintiff is working, thus he is not
“unable to work” because of his commission of a crime.
Additionally, the magistrate has already determined that
plaintiff’s work-related injury, not plaintiff’s commission of
a crime, is the only thing preventing plaintiff from returning
to other types of work. This will not be true in every case,
but it has been established in this case. Because it has
already been established that the exception to an employer’s
liability contained in MCL 418.361(1) does not apply in this
case, the decisions of the Court of Appeals and WCAC
reinstating plaintiff’s benefits must be affirmed.
II. The majority’s “loss of wage-earning capacity” analysis
and remand direction is flawed.
The majority holds that defendant must pay only the
7
difference in wages between what plaintiff earned while
working for defendant and what plaintiff was earning at the
time of trial to the extent that the difference is caused by
plaintiff’s injury, not by plaintiff’s commission of a crime.
The majority remands this case to the magistrate to make this
determination. I respectfully disagree. As I have previously
pointed out, the magistrate already found that there is
nothing to prevent plaintiff from returning to other types of
work except his disability, which was incurred as a result of
his employment with defendant. Additionally, such a holding
ignores the plain language of the statute.
MCL 418.361(1) specifically states that “an employer
shall not be liable for compensation . . . for such periods of
time that the employee is unable to obtain or perform work
because of imprisonment or commission of a crime.” (Emphasis
added.) The majority believes that the language “unable to
obtain or perform work” refers to “a loss of wage-earning
capacity, rather than the inability to work at all.” Ante at
13-14.
I do not believe that the language of the statute can be
construed in that manner. The Legislature’s choice of the
words “unable to obtain or perform work” must be respected.
We can assume that the Legislature intended the phrase to mean
exactly what it says—“unable to obtain or perform work,” not
8
“loss of wage-earning capacity.” The plain language of the
statute simply does not support the majority’s reading, or
rewording, of the statute.
There is also a flaw in the majority’s remand directing
the magistrate to determine to what extent plaintiff’s loss of
wage-earning capacity is attributable to his work-related
injury and to what extent plaintiff’s loss of wage-earning
capacity is attributable to plaintiff’s “commission of a
crime.” The majority provides the magistrate with absolutely
no guidance for making this determination. In essence, the
majority merely recharacterizes the question posed to the
magistrate by the WCAC on remand.
After the magistrate issued her first opinion, the WCAC
remanded the case to the magistrate for a determination
whether defendant would have offered reasonable employment to
plaintiff were it not for the statutory prohibition. On
remand, the magistrate concluded that there would not have
been an offer of reasonable employment because to find
otherwise would be pure speculation. The WCAC then held that
the “mere fact” that this defendant cannot hire plaintiff
because of the statutory prohibition does not automatically
entitle defendant to relief from payment pursuant to MCL
418.361(1). The linkage of the two statutory provisions
requires a critical additional “finding of fact,” which was
9
the purpose of the WCAC’s remand to the magistrate. The
critical additional finding was whether defendant would have
offered reasonable employment to plaintiff. Because this is
a question of fact and because the magistrate found that
defendant could not prove that it would have offered
reasonable employment to plaintiff, the WCAC affirmed the
magistrate’s award of benefits to plaintiff.
The majority criticizes the WCAC majority for placing
“‘an artificially-created burden on defendant to prove it
would have done the very thing the ex-felon statute prohibits
defendant from doing, namely, offering employment to an ex
felon . . . .’” Ante at 14 n 7 (quoting the dissenting
worker’s compensation commissioners).
However, I would ask the majority: What is the magistrate
to consider on remand? Findings of disability and wage
earning capacity have been established and are not disputed.
The majority correctly holds that the exception in MCL
418.361(1) is not employer-specific, i.e., it cannot be read
as excluding an employee who is unable to work for this
employer. Because the magistrate has already determined that
there is nothing to prevent plaintiff from returning to other
types of work except his work-related disability, I am at a
loss to discover what the magistrate is to consider on remand
to determine what loss of wage-earning capacity is
10
attributable to the injury and what loss of wage-earning
capacity is attributable to plaintiff’s commission of a crime.
Obviously, plaintiff is unable to work for defendant, this
employer, because of his commission of a crime. Because we
cannot read the statute as employer-specific and because
plaintiff is able to work only in a limited capacity because
of his work-related injury, I cannot fathom any way for the
magistrate to determine that any portion of plaintiff’s loss
of wage-earning capacity is attributable to anything other
than plaintiff’s work-related injury, which she has already
determined.
III. My construction would not render the crime exception
“nugatory.”
The majority mistakenly asserts that my construction of
the statute would render the exception nugatory. There are
circumstances where an employee truly would be unable to work
because of his commission of a crime or imprisonment. For
example, if an employee has a work-related knee injury that
renders him partially disabled, he is entitled to worker’s
compensation benefits. If this employee robs a gas station
and trips on his way out, aggravating his work-related injury
to the point where he can no longer perform work, this
employee is unable to perform work because of his commission
of a crime. Thus, the employer would not be liable for
benefits to this employee under the exception. In this case,
11
plaintiff was unable to work for defendant because of MCL
791.205a; plaintiff was not unable to obtain or perform work
because of his commission of a crime per MCL 418.361(1).
Therefore, plaintiff is entitled to reinstatement of his
benefits.
The majority also supports its assertion that my
construction of the statute would render the exception
nugatory by stating that “to only exclude unemployed
employees, this exception will be rendered meaningless
regarding partially disabled employees because employers are
not liable to unemployed, partially disabled employees under
this provision in the first place.” Ante at 12. This
assertion is clearly mistaken because, while the exception may
be found in MCL 418.361, which is the partial-disability
statute, the statute expressly states that it applies to MCL
418.351 as well, which is the total-disability statute. Any
claimant who is “totally” or “totally and permanently”
disabled is not likely to be employed. Thus, the statute
expressly applies to claimants who are unemployed.
IV. Conclusion
I would hold that when a plaintiff is not unable to work
because he committed a crime, or stated differently, able to
work even though he committed a crime, pursuant to MCL
418.361(1), a defendant is not relieved of its responsibility
12
to pay benefits. MCL 418.361(1) is not employer-specific; it
cannot be read to provide that an employee must be unable to
work for a particular employer. While plaintiff in this case
is barred from working for defendant by MCL 791.205a,
plaintiff is able to work. Thus, I would affirm the decisions
of the Court of Appeals and the WCAC reinstating plaintiff’s
benefits.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
13