Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 31, 2002
CHARLES SINGTON,
Plaintiff-Appellee,
v No. 119291
CHRYSLER CORPORATION, also known as
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
This case concerns eligibility for worker’s compensation
benefits pursuant to the Worker’s Disability Compensation Act
(WDCA) definition of disability at MCL 418.301(4) and the
reasonable employment provisions, MCL 418.301(5), of that act.
The Court of Appeals effectively concluded that under
§ 301(4)’s definition of disability as interpreted in Haske v
Transport Leasing, Inc, 455 Mich 628; 566 NW2d 896 (1997),
plaintiff was disabled and entitled to wage loss benefits. We
conclude that the Haske definition of disability is erroneous
and should be overruled. Accordingly, we vacate the decision
of the Court of Appeals and remand the case to the WCAC for
further proceedings consistent with this opinion.
I
A
A review of the relationship in the worker’s compensation
statute between “disability” and “favored work” (or as it is
now formally called in the WDCA, “reasonable employment”) is
helpful in understanding what is at issue in this case.
There are circumstances in which a work-related injury
might prevent an employee from continuing to perform one or
even more of the complex of tasks in the job he was performing
at the time of the injury, but in which, even with such a
limitation, that employee may still be able to perform the
job sufficiently so that his wage earning capacity is not
affected in that job. For example, such an injury might
render an employee unable to perform a job that requires
continuous standing, but nevertheless leaves the employee able
to perform a job suitable to his qualifications and training
in which the employee can sit while performing most or all
his job duties to the degree that his ability to earn
equivalent wages is not different than before the injury.
Historically, such a situation posed a dilemma for the
2
worker’s compensation system. As the courts dealt with
difficult cases in which an employee could suffer a work
related injury and be limited, to one degree or another, in
his ability to perform work, but not rendered altogether
unable to work, judges developed the common-law mitigation
doctrine of “favored work.” Under the favored-work doctrine,
an employer could generally require an injured employee,
eligible for worker’s compensation benefits, to do other work
that the employee was reasonably capable of performing. The
wages earned in the “easier” job could be used by the employer
as a setoff, or mitigation, against the employer’s worker’s
compensation liability. If the employee unreasonably refused
to participate in the favored work, i.e., the “easier job,”
the penalty was loss of worker’s compensation benefits.1
1
This Court described the former favored-work doctrine
as follows:
The favored-work doctrine is a purely judicial
creation. Favored, or light, work can be loosely
defined as less strenuous post-injury work. Wages
from favored work may be used as a setoff against
an employer’s compensation liability, but favored
work wages do not establish an earning capacity,
and when such wages cease, they neither suspend nor
bar compensation.
The primary purpose of the doctrine is that of
mitigation. It allows an employer to reduce or
completely eliminate compensation payments by
providing work within the injured employee’s
physical capacity. At the same time, it encourages
the employee to return to productive employment
(continued...)
3
There were also common-law protections that the courts
developed to protect the employee from being exploited during
the period he was engaged in favored work.2 This approach to
favored work, with its emphasis on mitigation, was felt to
advance the interests of the employee by encouraging his
reentry into the workplace, as well as the interests of the
employer in limiting its ongoing worker’s compensation
liability.
In 1982, the Legislature effectively displaced the
common-law doctrine with the enactment of a statutory approach
that drew heavily upon the favored-work doctrine3 (now called
“reasonable employment”4). Importantly, the legislation
1
(...continued)
rather than to remain idle, thus also serving a
rehabilitative function. [Bower v Whitehall
Leather Co, 412 Mich 172, 182; 312 NW2d 640 (1981)
(citations omitted).]
2
For example, reasonable employment in a “make work”
position not reflective of earning capacity in the ordinary
job market could not be abused by an employer to “establish”
a wage earning capacity to allow the employer to discharge the
employee while escaping further liability for benefits. See
Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145
NW2d 40 (1966).
3
In particular, the Legislature made provisions, as set
forth in n 5, providing generally for resumption of worker’s
compensation benefits if an employee lost reasonable
employment.
4
The current version of the WDCA provides the following
definition of “reasonable employment”:
(continued...)
4
stated that, as a prerequisite to being considered a
participant in reasonable employment (MCL 418.301[5])5 an
4
(...continued)
“Reasonable employment”, as used in this
section, means 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. [MCL 418.301(9).]
5
MCL 418.301(5), the reasonable employment section,
provides:
If disability is established pursuant to
subsection (4), entitlement to weekly wage loss
benefits shall be determined pursuant to this
section and as follows:
* * *
(d) If the employee, after having been
employed pursuant to this subsection for 100 weeks
or more loses his or her job through no fault of
the employee, the employee shall receive
compensation under this act pursuant to the
following:
(i) If after exhaustion of unemployment
benefit eligibility of an employee, a worker’s
compensation magistrate or hearing referee, as
applicable, determines for any employee covered
under this subdivision, that the employments since
the time of injury have not established a new wage
earning capacity, the employee shall receive
compensation based upon his or her wage at the
original date of injury. There is a presumption of
wage earning capacity established for employments
totalling 250 weeks or more.
(ii) The employee must still be disabled as
determined pursuant to subsection (4). I
f the
(continued...)
5
employee must first suffer a “disability,” as defined in MCL
418.301(4).6 Because an employee engaged in reasonable
employment is afforded significant statutory protections7 once
the reasonable employment commences, it is critical to
employers and employees alike that it be clear which workers
5
(...continued)
employee is still disabled, he or she shall be
entitled to wage loss benefits based on the
difference between the normal and customary wages
paid to those persons performing the same or
similar employment, as determined at the time of
termination of the employment of the employee, and
the wages paid at the time of the injury.
(iii) If the employee becomes reemployed and
the employee is still disabled, he or she shall
then receive wage loss benefits as provided in
subdivision (b).
(e) If the employee, after having been
employed pursuant to this subsection for less than
100 weeks loses his or her job for whatever reason,
the employee shall receive compensation based upon
his or her wage at the original date of injury.
6
MCL 418.301(4) in full provides the following
definition of “disability”:
As used in this chapter, “disability” means a
limitation of an employee’s wage earning capacity
in work suitable to his or her qualifications and
training resulting from a personal injury or work
related disease. The establishment of disability
does not create a presumption of wage loss.
7
Section 301(5)(e) provides that, if reasonable
employment is lost “for whatever reason” within one hundred
weeks, the employee shall receive compensation on the basis of
the employee’s wage when injured. Similarly, § 301(5)(d)
generally provides for resumption of worker’s compensation
benefits if reasonable employment is lost after one hundred
weeks “through no fault of the employee.”
6
are considered disabled under § 301(4). It is this condition
precedent to “reasonable employment”—disability—that is the
central issue in this case.
B
Plaintiff, Charles Sington, was employed by defendant,
Chrysler Corporation, from July 1971 until March 1997. During
his last fifteen years, he performed various production
related jobs as a “floater.” Until he was injured,
plaintiff’s physical activities in the course of his
employment included reaching and stretching out above head
level, and bending and picking up parts weighing up to thirty
pounds.
In June 1994, plaintiff slipped and fell at work,
injuring his left shoulder. It is undisputed that the 1994
injury arose in the course of his employment and that
defendant voluntarily paid wage loss benefits following that
injury. Plaintiff underwent surgery on his left shoulder.
Upon returning to work in January 1995, he was restricted from
performing work requiring him to reach above the left
shoulder. He continued working as a floater with this work
restriction until his right shoulder was injured outside his
employment. Plaintiff underwent surgery on his right shoulder
in August 1996 for a non-work-related injury and was off work
until November 1996 when he returned to work as a floater.
7
Defendant then honored plaintiff’s expanded work restrictions
that precluded him from lifting, pushing, or pulling over
twenty pounds. It is uncontested that plaintiff’s average
weekly wage was the same before and after both the shoulder
injuries.
Plaintiff continued as a floater until March 1997 when he
suffered a non-work-related stroke. After the stroke,
plaintiff received sickness and accident benefits and was then
granted a permanent and total disability pension by defendant.
Thereafter, plaintiff sought worker’s compensation
benefits related to his inability to work. Plaintiff asserted
that he was working in “reasonable employment” under the WDCA
when he performed his job with a work restriction after the
left shoulder injury, and that he became entitled to worker’s
compensation benefits when he lost this reasonable employment
because of the stroke. This claim is grounded in the
interaction between § 301(4) and § 301(5). As mentioned
earlier, note 5, if an employee is disabled under § 301(4) and
then is afforded reasonable employment under § 301(5), should
that employment be terminated before one hundred weeks pass,
the employee receives worker’s compensation benefits on the
basis of the wage at the date of injury under § 301(5)(e).
If, on the other hand, one hundred or more weeks have passed
and the worker loses the employment through no fault of his
8
own, eligibility for benefits is determined under § 301(5)(d).
While, in this case, no one disagrees with the rules of
reasonable employment, there is dispute over whether
plaintiff was “disabled” under § 301(4). Plaintiff asserts he
was disabled because his left shoulder injury precluded him
from performing all the tasks he performed as a “floater”
before that injury. Defendant’s position is that, before the
stroke, plaintiff was not disabled because the left shoulder
injury had not reduced his “wage earning capacity” as that is
understood in § 301(4), and, thus, once returned to work,
plaintiff was not engaged in reasonable employment, with all
its attendant benefits, at the time of the stroke.
Accordingly, defendant asserts that, as with any other
employee who became unable to work because of a non-job
related injury, plaintiff has no remedy in the worker’s
compensation system.
Faced with the question whether plaintiff was disabled
under § 301(4), the worker’s compensation magistrate ruled
that plaintiff was not engaged in reasonable employment under
§ 301(5). The magistrate opined that plaintiff had been
“performing a regular plant job” after his left shoulder
injury and that he was convinced that plaintiff “did not
experience any wage loss, whatsoever” because of that injury.
The magistrate further concluded that plaintiff was disabled
9
because of his non-work-related stroke and that, but for the
stroke, plaintiff “would have continued at his regular job, a
job which was conveniently within his recommended
restrictions.” Because plaintiff’s wage loss was attributable
to his stroke rather than his shoulder injury, “his partial
disability, based on his . . . workplace injury, [was] not
compensable . . . .”
The WCAC affirmed the magistrate’s decision. It
concluded that the factual record supported the magistrate’s
determination that plaintiff was performing his “regular job”
when he returned to work after the left shoulder injury.
Thus, the WCAC stated, the job “did not constitute an
accommodation of [plaintiff’s] injury, so as to be ‘reasonable
employment’ under Section 301(5).” Accordingly, the WCAC
further stated that plaintiff did not have a compensable
disability when he continued to “perform his regular job” for
defendant after his left shoulder injury because “it was the
stroke which clearly and directly was the reason for his
subsequent wage loss.”
The Court of Appeals reversed the WCAC. 245 Mich App 535;
630 NW2d 337 (2001). The panel held “as a matter of law that
defendant offered plaintiff ‘reasonable employment’ within the
meaning of” MCL 418.301(9). Id. at 552. It further concluded
that, once an injured employee is engaged in reasonable
10
employment, the specific provisions pertaining to reasonable
employment found in § 301(5)(e) take precedence over the
general requirement of Haske that, to be compensable, wage
loss must be causally linked to work-related injury. Thus, the
Court concluded that plaintiff was engaged in reasonable
employment at the time of the stroke. Thereafter, we granted
defendant’s application for leave to appeal.
Critical to the proper resolution of this appeal is how
“disability” is defined in the WDCA, MCL 418.301(4). In
Haske, this Court adopted an interpretation of “disability”
that encompassed any work-related injury that renders an
employee unable to do one or more particular jobs within the
employee’s qualifications and training. Because plaintiff in
this case had to be accommodated to some degree in his
“floater” position, it can be argued that, under the Haske
definition, plaintiff was working at—and “disabled” from—a
different job before his left shoulder injury than the
reconfigured “floater” job to which he returned after his
injury. Thus, when he suffered the stroke, as an employee
entitled to reasonable employment status, plaintiff could
claim the benefits that flow to an employee performing
reasonable employment who, through no fault of his own, loses
11
his ability to continue to perform reasonable employment.8
An alternative view of disability advanced by defendant
requires a reduction in an employee’s actual wage earning
capacity in all work suitable to his qualifications and
training. Under this approach, an employee would not be
disabled if a work-related injury rendered him unable to
perform a particular job, but where that limitation did not
affect the wages that he could earn. In particular, with
regard to plaintiff, defendant argues that, if one examines
overall wage earning capacity, plaintiff was not disabled
because his postinjury work as a floater caused him no
reduction in wage earning capacity. Thus, he was not entitled
to be considered a participant in reasonable employment at the
time of the stroke and, because the stroke was not work
related, he is not entitled to benefits under § 301(5).
II
We review questions of law in final orders from the WCAC
de novo. DiBenedetto v West Shore Hosp, 461 Mich 394, 401;
8
It is not clear how many weeks plaintiff worked at what
he alleged to be “reasonable employment” job. As indicated
previously, if an employee loses reasonable employment “for
whatever reason” within one hundred weeks, he is entitled to
worker’s compensation benefits on the basis of his wage at the
time of injury under § 301(5)(e). If one hundred or more
weeks have passed, determination of eligibility for worker’s
compensation benefits if an employee loses reasonable
employment “through no fault of the employee” is based on the
more complex factors set forth in § 301(5)(d).
12
605 NW2d 300 (2000).
III
A
We begin our analysis with the definition of “disability”
in the WDCA:
As used in this chapter, “disability” means a
limitation of an employee’s wage earning capacity
in work suitable to his or her qualifications and
training resulting from a personal injury or work
related disease. The establishment of disability
does not create a presumption of wage loss. [MCL
418.301(4).]
As this language plainly expresses, a “disability” is, in
relevant part, a limitation in “wage earning capacity” in work
suitable to an employee’s qualifications and training. The
pertinent definition of “capacity” in a common dictionary is
“maximum output or producing ability.” Webster’s New World
Dictionary (3d College ed). Accordingly, the plain language
of MCL 418.301(4) indicates that a person suffers a disability
if an injury covered under the WDCA results in a reduction of
that person’s maximum reasonable wage earning ability in work
suitable to that person’s qualifications and training.
So understood, a condition that rendered an employee
unable to perform a job paying the maximum salary, given the
employee’s qualifications and training, but leaving the
employee free to perform an equally well-paying position
suitable to his qualifications and training would not
13
constitute a disability.9
Our analysis in this regard is consistent with the
following conclusion of this Court in Rea v Regency
9
We recognize that pre-1987 Michigan case law once drew
a distinction with regard to wage earning capacity between
“skilled” and “unskilled” workers. A skilled worker was
considered to have an impairment of earning capacity, and thus
would be entitled to compensation, if a work-related injury
rendered the employee unable to continue earning the same
level of wages in his particular skilled employment, even if
the same wages could be earned at another type of employment.
See, e.g., Kaarto v Calumet & Hecla, Inc, 367 Mich 128, 131;
116 NW2d 225 (1962); Geis v Packard Motor Car Co, 214 Mich
646, 648-649; 183 NW 916 (1921). Similarly, an unskilled or
“common” laborer had to show a limitation in wage earning
capacity in the entire field of “unskilled” labor. See Leitz
v Labadie Ice Co, 229 Mich 381; 201 NW 485 (1924); Kling v
National Candy Co, 212 Mich 159; 180 NW 431 (1920). This
dichotomy between skilled and unskilled labor led to some
anomalous results. In Geis, the plaintiff was held to have a
compensable disability because of an injury that precluded him
from performing the skilled employment he was performing at
the time of his injury even though he worked for higher wages
in somewhat related employment. See Kaarto, supra at 131
(discussing Geis). Conversely, in Leitz, the plaintiff was
held entitled to continuation of a disability award on the
basis of being disabled from common labor even though he was
earning higher wages as a bookkeeper and accountant.
However, when the present definition of disability was
adopted in 1987, the Legislature replaced its prior reference
to a limitation in wage earning capacity in “the employee’s
general field of employment” with “work suitable to his or her
qualifications and training.” This means that the inquiry is
now focused on an employee’s qualifications and training, not
merely the general field of employment in which the employee
happened to work at the time of a work-related injury. Thus,
the prior common-law skilled/unskilled dichotomy has no
significance under the current statutory language . Because
there is no textual basis in the statute for the selection and
application of either historical definition of “wage earning
capacity,” we examine the plain meaning of the words found in
the statute.
14
Olds/Mazda/Volvo, 450 Mich 1201; 536 NW2d 542 (1995):
A majority of the Court is of the opinion that
the 1987 definition of disability in the Worker’s
Disability Compensation Act[10] requires a claimant
to demonstrate how a physical limitation affects
wage-earning capacity in work suitable to the
claimant’s qualifications and training. It is not
enough for the claimant claiming partial disability
to show an inability to return to the same or
similar work. If the claimant’s physical
limitation does not affect the ability to earn
wages in work in which the claimant is qualified
and trained, the claimant is not disabled.
The Rea formulation implicitly drew upon an earlier
articulation on this topic in Pulley v Detroit Engineering &
Machine Co, 378 Mich 418, 423; 145 NW2d 40 (1966), in which
this Court stated:
[T]he method of determining the employee’s
earning capacity, as that term is used in the act,
is a complex of fact issues which are concerned
with the nature of the work performed and the
continuing availability of work of that kind, and
the nature and extent of the disability and the
wages earned.
While we recognize that Pulley was decided before the adoption
of the current definition of “disability” in § 301(4) and,
thus, some particulars of that opinion may not be controlling
with regard to the current statutory scheme, we believe that
this language is instructive in indicating that worker’s
compensation magistrates and the WCAC may have to consider
various factual matters in determining whether an employee is
10
That is the current definition of disability in the
WDCA, MCL 418.301(4).
15
disabled. Such matters could include the particular work that
an employee is both trained and qualified to perform, whether
there continues to be a substantial job market for such work,
and the wages typically earned for such employment in
comparison to the employee’s wage at the time of the work
related injury. If the employee is no longer able to perform
any of the jobs that pay the maximum wages, given the
employee’s training and qualifications, a disability has been
established under § 301(4).
Under the Pulley and Rea approach, rather than concluding
that any employee who is unable to perform a single job
because of a work-related injury has a “disability” under §
301(4), a worker’s compensation magistrate or the 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 ordinary job market.
In sum, we conclude, as did the Rea Court before us, that
“disability” as defined in MCL 418.301(4) cannot plausibly be
read as describing an employee who is unable to perform one
particular job because of a work-related injury, but who
suffers no reduction in wage earning capacity.
B
This conclusion stands in contrast to the one the Haske
majority reached. In Haske, supra at 634, this Court
16
concluded that § 301(4) defined disability as “a personal
injury or work-related disease that prevents an employee from
performing any work, even a single job, within his
qualifications and training . . . .” Because of the words the
Legislature used in § 301(4), the Haske definition of
disability is untenable. The plain meaning of the definition
of “disability” in § 301(4) as “a limitation of an employee’s
wage earning capacity in work suitable to his qualifications
and training” precludes regarding a person as disabled when an
inability to perform one particular job does not, in fact,
reduce that person’s wage earning capacity in other, equally
well-paying work suitable to his qualifications and training.
Section 301(4) specifically directs the reader to a
consideration of whether there is a limitation in wage earning
capacity, not of whether a person is merely limited in
performing one (or more) particular jobs.
In this regard, Justice Weaver astutely observed in her
partial dissent in Haske:
I believe that the most basic interpretation
of “wage earning capacity” is that it describes an
employee’s ability to earn wages. Perhaps because
an employee is theoretically able to earn wages in
a great variety of ways, the Legislature restricted
consideration to “work suitable to [an employee’s]
qualifications and training.” Where an employee is
qualified and trained in more than one job, then
his wage-earning capacity includes consideration of
all those jobs under the plain meaning of
subsection 301(4). Whether “a limitation” exists
in an individual’s “wage earning capacity” where
17
that individual is qualified and trained in more
than one job therefore requires consideration of
the effect of the work-related disease or injury on
earning capacity in all those jobs in which the
individual is qualified and trained. The statute
does not state or imply that inability to perform
one job within the individual’s qualifications and
training necessarily results in “a limitation [in]
wage earning capacity.” Thus, I cannot agree with
the majority’s conclusion that “an employee is
disabled if there is at least a single job within
his qualifications and training that he can no
longer perform.” I believe the majority’s
conclusion fails to consider whether the overall
wage-earning capacity of the individual was
actually limited and, therefore, is not true to the
plain language of subsection 301(4). [Haske, supra
at 668 (Weaver, J., concurring in part and
dissenting in part) (first emphasis in original,
second emphasis added; citation omitted).]
We agree with Justice Weaver that the language of § 301(4)
requires a determination of overall, or in other words,
maximum, wage earning capacity in all jobs suitable to an
injured employee’s qualifications and training.
We recognize that the Haske majority placed substantial
reliance on the second sentence of § 301(4), which states that
“[t]he establishment of disability does not create a
presumption of wage loss.” The Haske majority stated that
this sentence “eliminates the possibility that disability and
wage loss are defined the same way . . . .” Haske, supra at
654-655. Apparently, the concern of the Haske majority was
that there would be no distinction between “wage loss” and
“disability” if a showing of disability required an overall
18
limitation in “wage earning capacity” in all work suitable to
an employee’s qualifications and training. That is, the Haske
majority was concerned that reading the first sentence in
accordance with its plain meaning would render the second
sentence nugatory.
However, we do not believe that this concern was
justified. As an initial matter, the focus of the inquiry is
not on every single job suitable to an employee’s
qualifications and training—only those that produce the
maximum income. Further, the second sentence reflects an
understanding that there may be circumstances in which an
employee, despite suffering a work-related injury that reduces
wage earning capacity, does not suffer wage loss.11 For
example, an employee might suffer a serious work-related
injury on the last day before the employee was scheduled to
retire with a firm intention to never work again. In such a
circumstance, the employee would have suffered a disability,
i.e., a reduction in wage earning capacity, but no wage loss
because, even if the injury had not occurred, the employee
would not have earned any further wages.
11
We note that, once it is found that an employee is
disabled under § 301(4), the employee must then establish wage
loss in order to compute wage loss benefits under MCL 418.361.
The clear language of the second sentence of § 301(4)
militates against any holding that the terms “wage earning
capacity” and “wage loss” are synonymous.
19
In light of the inconsistency of Haske with the plain
language of § 301(4), we overrule it and return to the rule
established in Rea, which was harmonious with the language of
the statute.
C
In overruling the Haske interpretation of disability, we
return to the proper understanding of disability in case law
that preceded Haske and that, in our judgment, was more
faithful to the WDCA’s statutory language.
We recognize that following prior decisions of this Court
under the doctrine of stare decisis is generally the preferred
course of action “‘because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process.’”
Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000),
quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969;
141 L Ed 2d 242 (1998). Nevertheless, stare decisis is “not
to be applied mechanically to forever prevent the Court from
overruling earlier erroneous decisions determining the meaning
of statutes.” Robinson, supra at 463. Rather, it is “‘our
duty to re-examine a precedent where its reasoning . . . is
fairly called into question.’” Id. at 464, quoting Mitchell
v W T Grant Co, 416 US 600, 627-628; 94 S Ct 1895; 40 L Ed 2d
20
406 (1974) (Powell, J., concurring). In the present case, the
treatment of the term “disability” as used in § 301(4) of the
WDCA has been fairly called into question.
In considering whether to overrule a prior decision of
this Court, the first inquiry, of course, is whether that
prior decision was wrongly decided. Robertson v
DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d 567 (2002);
Robinson, supra at 464. For the reasons we have previously
discussed, Haske was wrongly decided because it is clearly
inconsistent with the plain language of the definition of
“disability” in § 301(4).
Nevertheless, as we recognized in Robinson, that a prior
case was wrongly decided “does not mean overruling it is
invariably appropriate.” Robinson, supra at 465. We must
consider whether overruling a prior erroneous decision would
work an undue hardship because of reliance interests or
expectations and, conversely, whether the prior decision
defies “practical workability.” Robertson, supra at 757;
Robinson, supra at 466. In particular,
the Court must ask whether the previous decision
has become so embedded, so accepted, so
fundamental, to everyone’s expectations that to
change it would produce not just readjustments, but
practical real-world dislocations. It is in
practice a prudential judgment for a court. [Id.]
In the present case, we see no significant reliance interest
21
or expectation that will be disrupted by overruling Haske.
Obviously, a work-related injury potentially compensable under
the worker’s compensation system is an unexpected event, so it
is difficult to imagine actions that an employee would take in
reliance on Haske. Moreover, it is doubtful that there could
be a legitimate expectation interest in receiving worker’s
compensation wage loss benefits on the basis of an earlier
work-related injury that did not, in fact, result in any
overall reduction in wage earning capacity in work suitable
to one’s qualifications and training. Also, while a less
significant factor, we see reason for concern about the
“practical workability” of Haske, particularly in terms of
deciding what constitutes a single job for the purpose of
applying that decision.
Further, it is particularly appropriate to overrule a
prior erroneous decision of this Court that has failed to
apply the plain language of a statute. As we observed in
Robinson, supra at 467, “it is to the words of the statute
itself that a citizen first looks for guidance in directing
his actions.” Indeed, when a court confounds the legitimate
expectations of a citizen by misreading a statute, “it is that
court itself that has disrupted the reliance interest.” Id.
As we observed in Robertson, supra at 756, the values
underlying general respect for stare decisis are also enhanced
22
“by a legal regime in which the public may read the plain
words of its law and have confidence that such words mean what
they say and are not the exclusive province of lawyers.”
Because Haske failed to apply the plain language of the
definition of “disability” in § 301(4), and in light of the
lack of a significant reliance interest in the Haske decision,
we are impelled to overrule it.
IV
In our order granting leave to appeal in this case, we
further directed the parties to address “whether Haske . . .
and Powell v Casco Nelmor Corp, 406 Mich 332[; 279 NW2d 769]
(1979), are reconcilable.” 465 Mich 940 (2002). However, in
light of our determination that the Haske definition of
disability is erroneous and should be overruled, it is no
longer necessary to consider whether Haske and Powell may be
reconciled.
Moreover, Powell was decided under the old common-law
“favored work” doctrine, before that doctrine was effectively
codified by the Legislature in the WDCA in its “reasonable
employment” provisions. Codification of common-law rules
makes those rules of no consequence if they are inconsistent
with the codification. In Perez v Keeler Brass Co, 461 Mich
602, 606; 608 NW2d 45 (2000), we discussed the effect of
codification on common-law rules regarding favored work:
23
Subsection (5) [of the WDCA, related to
reasonable employment] was added to the statute in
1982. Before that time, the statute did not
address “reasonable employment,” and this issue was
governed by an area of the common law known as the
“favored-work doctrine.” Now, however, the quoted
statutory provisions establish the law in this
area. The Legislature chose the words of the
statute, and we are bound by them. Any cases
decided under the common law before subsection (5)
was enacted are essentially irrelevant; to the
extent that the common-law favored work doctrine is
inconsistent with the plain language of the
statute, the Legislature has changed the common
law. [Citations omitted.]
Accordingly, in considering whether a person who has ceased
working in a “reasonable employment” position is entitled to
worker’s compensation wage loss benefits, worker’s
compensation magistrates and the WCAC should examine the
provisions of MCL 418.301(5)(d) and (e), rather than decisions
under the old common-law favored work doctrine such as Powell.
In short, as Perez indicates, Powell is now “essentially
irrelevant.”
V
We now turn to the circumstances of this case. Plaintiff
was qualified and trained as a “floater,” although there is no
indication in the record regarding whether plaintiff was
qualified and trained in any other jobs. To illustrate the
application of our analysis, we will assume for the moment
that plaintiff’s job as a floater produced the maximum wages
in work suitable to plaintiff’s qualifications and training,
24
although the WCAC on remand may find otherwise. Plaintiff was
evidently able to perform a variety of production-related
tasks as a “floater.” His physical restriction after his left
shoulder injury that precluded him from lifting above shoulder
level is the only relevant restriction because the right
shoulder injury was not work-related. In order to establish
that he had a “disability” because of the left shoulder
injury, plaintiff had to show that that injury resulted in a
limitation in his wage earning capacity in work suitable to
his qualifications and training.
The magistrate and WCAC did not apply this test. Rather,
they focused, pursuant to Haske, on the fact that plaintiff
was working in a “regular job” after his left shoulder injury.
While that may be a strong indication that the left shoulder
injury did not amount to a disability, it is not, standing
alone, dispositive. An inquiry must be made regarding whether
the “regular job” was suitable to plaintiff’s qualifications
and training at the time of the injury. Also, if plaintiff’s
injuries only enabled him to perform that “regular job”
because of accommodations provided by defendant, his wage
earning capacity might be less than his actual wages.12
12
However, a work-related injury that has a de minimus
effect on an employee’s job-related duties might not amount to
a disability. This is because many employers might disregard
such minor limitations in hiring applicants generally, meaning
(continued...)
25
Accordingly, we conclude that this case should be remanded to
the WCAC for reconsideration in accordance with this opinion.
VI
Justice Kelly’s dissent merits a response. As Justice
Kelly has pointed out, in the last three and a half years,
there have been cases reversing past precedent of this Court.
She cites sixteen.13 These should be seen in the context of
the overall number of dispositions by this Court during the
same period. From January 1, 1999 to June 30, 2002, there
were 8,198 dispositions by this Court.14 Thus, it is rare (in
fact, a frequency of under one-fifth of one percent) when
12
(...continued)
that such minor conditions would not effect an employee’s
ability to perform his top paying job and would therefore not
limit his wage earning capacity. A useful perspective for
the WCAC in considering this case on remand might be
considering whether plaintiff’s injuries would prevent him
from competing in the marketplace with other workers for the
“regular job.” The WCAC might also consider whether defendant
would have continued plaintiff in the “regular job” at the
same rate of pay if he was injured in a non-work-related
incident. If plaintiff would have been hired or retained
despite his injury, this would indicate that plaintiff did not
suffer a disability because the pertinent injury did not
impair his wage earning capacity. Conversely, if defendant
would not have hired plaintiff or would not have accommodated
plaintiff’s injury except for it being work related, that
would be indicative of a limitation in wage earning capacity.
13
See slip op at n 2.
14
The Supreme Court Clerk’s data reflects that there were
2,571 dispositions
in 1999, 2,302 in 2000, 2,359 in 2001, and 966 from January 1
to June 30, 2002. Dispositions include opinions of this
Court, peremptory orders, dismissals, and denials of leave.
26
precedent is overturned, but it does sometimes happen. During
this period, the issue of treatment of precedent has arisen
primarily in review of earlier Supreme Court cases
interpreting statutes. In fact, of the cases that Justice
Kelly has cited where precedent has been overruled, eleven are
within this category.15 As the dissents to these actions have
been forceful, so as to inform as to the doctrine of stare
decisis and its limits, this Court in Robinson chose to
discuss the doctrine in depth as well as its proper
application.
Repeatedly, since Robinson was decided, the rules
established in that case, which it should be noted are
themselves entitled to respect as precedents of this Court,
have been disregarded in dissents authored by Justice Kelly
without any indication of what part of the rules set forth in
Robinson she would alter.16 Even more consequentially, she has
15
People v Cornell, 466 Mich 335; 646 NW2d 127 (2002);
Koontz v Ameritech Services, Inc, 466 Mich 335; 645 NW2d 34;
Robertson, supra; Pohutski v City of Allen Park, 4465 Mich
675; 641 NW2d 219 (2002); Hanson v Mecosta Co Rd Comm, 465
Mich 492; 638 NW2d 396 (2002); Brown v Genesee Co Bd of
Commr’s, 464 Mich 430; 628 NW2d 471 (2001), People v Glass,
464 Mich 266; 627 NW2d 261 (2001); Nawrocki v Macomb Co Rd
Comm, 463 Mich 143, 615 NW2d 702 (2002); Mudel v Great
Atlantic & Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2002);
Robinson, supra; People v Lukity, 460 Mich 484; 596 NW2d 607
(1999).
16
See People v Hardiman, 466 Mich 417; 646 NW2d 158
(2002) (Kelly, J., dissenting); Cornell, supra (Kelly, J.,
(continued...)
27
failed to make clear what rules, if any, she would follow in
determining when to affirm or reject precedents. What is it,
for example, that distinguishes Lesner v Liquid Disposal, 466
Mich 95; 643 NW2d 553 (2002), in which Justice Kelly would
overrule an interpretation of a statute, from those cases in
which she would not? Today, however, she has apparently set
down her rules, and that is to be welcomed. She appears to
approve the Robinson standard that stare decisis should not be
applied mechanically to forever prevent the Court from
overruling earlier erroneous decisions determining the meaning
of statutes. As to implementing this approach, the Robinson
test asserts that it is a supreme court’s duty to reexamine
a precedent where its reasoning is fairly called into question
or, to put it more simply, when it is wrong. Justice Kelly
differs in this regard, however, because, as we understand
her position, she would not reexamine a precedent unless the
prior decision was “utterly nonsensical,” slip op at 10, n 7,
or reflected a “drastic error,” slip op at 10. Otherwise, she
would allow that which even she would concede to be erroneous
interpretations of the law to prevail.
Further, under Robinson, if the prior Court decided
16
(...continued)
dissenting); Pohutski, supra (Kelly, J., dissenting);
Nawrocki, supra (Kelly, J., dissenting); Mudel, supra (Kelly,
J., dissenting).
28
wrongly , that was not the end of the stare decisis inquiry,
because the Court must also consider whether there are
reliance interests such that, to overrule the prior case,
would produce real world dislocations. Id. at 466. If that
were so, then even though a case had been decided
incorrectly, stare decisis should be respected and the case
should not be overruled. As to this point, Justice Kelly
would seem to agree, more or less, as she states in her
dissent that she would determine if customs had changed or
there were unforeseen practices. Slip op at 9-10.
These, then, are the differences between the Robinson
approach and Justice Kelly’s approach. Robinson would allow
the overruling of a prior case interpreting a statute if it
was wrong unless there were reliance interests so great that
overruling the prior decision would produce real world
dislocations. Justice Kelly, on the other hand, would not
overrule such a decision unless the earlier Court was not
merely in error, but “drastically” in error, or had rendered
a decision that was nonsensical. If so, then Justice Kelly
would examine customs and unforeseen practices to determine
if overruling was appropriate.
She claims, correctly we acknowledge, that her approach,
as contrasted with the Robinson approach, would likely produce
fewer cases overruling precedent. Yet, is that the proper
29
measure of the merits of these two approaches? We think not.
We think not because the proper measure of tests of
stare decisis is not whether one approach reverses more than
another, but rather which approach is more consistent with
American constitutionalism. We believe the constitutional
arrangement in our state and nation reposes in the legislative
body the role of making public policy. That arrangement is
distorted when the judiciary misconstrues statutes. The
majority’s view is that its approach to stare decisis, in
overruling our prior erroneous interpretations of statutes,
respects the democratic process by yielding to the
constitutional authority of the Legislature its right to
establish the state’s policy.
Justice Kelly’s approach is flawed because it gives the
earlier Court and its judges far too much power—power beyond
that which the constitution gave them. Nothing is clearer
under our constitution than that the Legislature, when it has
enacted a statute within its constitutional authority and,
thus, has established public policy, must be obeyed even by
the courts. Said more plainly, the difference in these
approaches is that Justice Kelly feels less obligation to
adhere to the direction of the people’s representatives in the
Legislature, and more obligation to defend past judges’
errors. We respectfully believe that this approach of Justice
30
Kelly misunderstands who governs in a republic. It is not
judges; rather, it is the people. In this case, we have
restored the law to what was enacted by the people’s
representatives. It is our duty to do so.
As to Justice Cavanagh’s criticism of our response to
Justice Kelly, it is important that the reader understand
that, in the ordinary course of things on an appellate court,
majority opinions are written and then dissents follow. The
majority then responds to the dissent. In the instant case,
this was the pattern of things. To fully argue the approaches
of Robinson and Justice Kelly is not unseemly nor does it
indicate a “manic sensitivity to criticism.” Rather, to
respond fully to a dissent indicates that the majority is
sufficiently respectful of the dissent, and those who could be
persuaded by it, to want to ensure that the issue is fully
understood. Justice Cavanagh, on the occasions when he writes
for the majority in the face of dissent, does no less—nor
should he.17 We claim the same prerogative when he is not in
17
The examples are many, but, to just take one from this
term on the topic of departure from precedent, Justice
Cavanagh authored the majority opinion in Allstate Ins Co v
McCarn, 466 Mich 277, 284-291; 645 NW2d 20 (2002), in which I
joined, and chose to respond, strongly, to the dissent.
Lest there be confusion that only Justice Cavanagh and I
respond to dissents, see Justice Kelly’s defense of her
majority in People v Randolph, 466 Mich ___; ___ NW2d ___
(2002). The truth is it is quite unusual for justices not to
(continued...)
31
the majority.
On the merits of this case, that is whether Haske was
wrong, we consider Justice Kelly’s critique of the majority
opinion to be highly unconvincing. Contrary to the dissent’s
position, there obviously is a distinction between “wages
earned” and “wage earning capacity.” See slip op at 5-6. It
is simply inaccurate to state that “capacity to earn wages and
wages earned will rarely differ.” Slip op at 5. On the
contrary, it can clearly be the case that an individual might
earn wages below his wage earning capacity. With regard to
the second sentence of § 301(4), which establishes that
disability does not create a presumption of wage loss, one
likely explanation for this sentence is the provision of
reasonable employment with full wages to an injured employee
despite a reduction in wage earning capacity. That is, a
person might suffer a disability under § 301(4), i.e., a
reduction in wage earning capacity in work suitable to his
qualifications and training, because of an inability to
actually earn wages in the ordinary job market, but be paid
full wages by an employer for the performance of reasonable
employment. In such a situation, the employee would be
“disabled,” but not suffer wage loss.
17
(...continued)
respond to dissents.
32
We are frankly at a loss to understand the distinction
that Justice Kelly would draw between “wage earning capacity”
and “earning capacity.” Slip op at 7. An employee earns
wages for his work. We cannot see any sensible distinction
between “wage earning” and “earning” in the present context,
let alone what difference such a distinction makes to the
practical application of the definition of “disability” in
§ 301(4). Similarly, we do not see the point of somehow
attempting to equate the phrase “wage earner,” which refers to
a person, with the phrase “wage earning,” which is used in §
301(4) as an adjectival phrase to modify the term “capacity”
for the purpose of effectively concluding that disability
requires a showing of only an inability to perform one
particular job suitable to a person’s qualifications and
training. Id.
We emphatically disagree with Justice Kelly’s statement
that “the proper definition of disability focuses on a
limitation in the capacity to perform the work, not on a
limitation in the capacity to earn wages . . . .” Slip op at
8 (emphases removed). While that might be a definition she
would prefer, the plain language of § 301(4) defines
“disability” as, in pertinent part, “a limitation of an
employee’s wage earning capacity in work suitable to his or
her qualifications and training” (emphasis added). Thus, a
33
judicial “definition” of disability, such as the one in Haske,
that does not focus on the employee’s capacity to earn wages,
i.e., the employee’s wage earning capacity, is simply
inconsistent with the plain language of the controlling
statute.
VII
For these reasons, we overrule the Haske definition of
“disability” as that term is used in MCL 418.301(4).
Accordingly, we vacate the judgment of the Court of Appeals
and remand this case to the WCAC for reconsideration
consistent with this opinion.
34
S T A T E O F M I C H I G A N
SUPREME COURT
CHARLES SINGTON,
Plaintiff-Appellee,
v No. 119291
CHRYSLER CORPORATION, also known
as DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
___________________________________
WEAVER, J. (concurring).
The dissents and the majority have chosen to engage in
responses to each other that contain some inappropriate and
unnecessary assertions. For this reason, and to emphasize
this Court’s treatment of the worker’s compensation act’s
definition of disability since the Legislature amended the
definition to its current form in 1987, I write separately.
I concur with the result and the reasoning of parts one
through five of the majority opinion. The majority decision
is consistent with my partial concurrence and partial dissent
in Haske v Transport Leasing, Inc, 455 Mich 628; 566 NW2d 896
(1997),1 and follows consistently from this Court’s
interpretations of the definition of disability under the WDCA
that preceded Haske. See, e.g., Rea v Regency Olds, 450 Mich
1201; 536 NW2d 542 (1995), and Michales v Morton Salt Co, 450
Mich 479; 538 NW2d 11 (1995).2
MCL 418.301(4) as amended in 1987 states:
As used in this chapter, “disability” means a
limitation of an employee’s wage earning capacity
in work suitable to his or her qualifications and
training resulting from a personal injury or work
related disease. The establishment of disability
does not create a presumption of wage loss.
Addressing this language for the first time at this level, the
Rea Court stated as follows:
A majority of the Court is of the opinion that
the 1987 definition of disability in the Worker’s
Disability Compensation Act requires a claimant to
demonstrate how a physical limitation affects wage
earning capacity in work suitable to the claimant’s
qualifications and training. It is not enough for
the claimant claiming partial disability to show an
inability to return to the same or similar work.
If the claimant’s physical limitation does not
affect the ability to earn wages in work in which
the claimant is qualified and trained, the claimant
is not disabled. [Id. at 1201.]
1
The Haske decision was decided by a four to two to one
split.
2
I joined the dissent in Rea because I agreed with
Justice Riley that the Rea majority unnecessarily remanded in
that case for further factfinding. I joined the majority in
Michales.
2
Addressing the same language as it appears at MCL 418.401(1),3
the Michales decision noted the language’s focus is on wage
earning capacity:
The relevant inquiry is not whether there is a
theoretical job in the employee’s general field of
employment that the employee is no longer able to
perform. Instead, the question is whether the
employee’s wage-earning capacity, i.e., ability to
earn wages, has been limited, considering the
employee’s qualifications and training. [Id. at
493, n 19.][4]
The majority decision in Haske abruptly broke from these
prior interpretations of the WDCA definitions of disability.
It held that “an employee is disabled if there is at least a
single job within his qualifications and training that he can
no longer perform.” Haske, p 662.
The problem with the Haske majority’s holding is that, as
I noted in my opinion, it returned disability analysis to its
pre-1981 and 1987 state rendering the Legislature’s amendments
in those years meaningless. See, e.g., Powell v Casco Nelmor
Corp, 406 Mich 332, 350; 279 NW2d 769 (1979)(holding that
3
Subsection 401(1) is part of Chapter 4 of the worker’s
compensation act addressing occupational diseases.
4
In his Michales concurrence, Justice Cavanagh summarized
the statute’s focus on wage-earning capacity:
[B]oth an injury and a limitation in wage
earning capacity must be shown. A complete failure
to introduce any evidence of a limitation in wage
earning capacity resulting from the injury simply
precludes an award of benefits as a matter of law.
[Id. at 496.]
3
disability is the inability to perform work the claimant was
doing when injured), and Pique v General Motors Corp, 317 Mich
311, 315; 26 NW2d 900 (1947)(finding total disability where an
employee was unable to do the same work after the injury).
4
S T A T E O F M I C H I G A N
SUPREME COURT
CHARLES SINGTON,
Plaintiff-Appellee,
v No. 119291
CHRYSLER CORPORATION, also known as
DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
___________________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority regarding the continuing
viability of Powell v Casco Nelmor Corp, 406 Mich 332; 279
NW2d 769 (1979). I further agree with the majority that the
Court of Appeals erroneously substituted MCL 418.301(9)’s
reasonable employment definition for MCL 418.301(4)’s
disability requirement. However, I write separately because
I disagree with the majority’s decision to overrule Haske v
Transport Leasing, Inc, 455 Mich 628; 566 NW2d 896 (1997).
The Haske Court found that the first sentence of MCL
418.301(4) was ambiguous, and examined the law and the
Legislature’s changes to resolve this ambiguity. Haske at
643-653. After such examination, the Court determined that
the Legislature must have intended to adopt the definition of
disability that “an employee is disabled whenever he can no
longer perform a job suitable to his qualifications and
training as a result of his injury.” Id. at 655. The Court
reasoned:
Subsection 301(4) . . . requires the employee
to prove a disability, i.e., that he is eligible
for compensation, and then prove wage loss, i.e.,
that he is entitled to an award. This language
codifies the prior approach in Michigan that injury
is not compensable without wage loss. If the
employee establishes a disability, he must further
prove a wage loss because wage loss will not be
presumed. See subsection 301(4). However, in
order to prove a wage loss, under the language of
the statute and on the basis of our longstanding
interpretation of related precedent, most recently
confirmed in Sobotka [v Chrysler Corp (After
Remand), 447 Mich 1, 17; 523 NW2d 454 (1994)
(Boyle, J., lead opinion)], the employee must
establish a reduction in earning capacity.
With this conclusion, the definition of
disability in subsection 301(4) cannot then be
logically interpreted as a reduction of wage
earning capacity as long as wage loss is also
measured by a reduction in wage-earning capacity.
See Lawrence v Toys R Us, 453 Mich 112, 121; 551
NW2d 155 (1996) (Levin, J., plurality opinion).
Subsection 301(4)’s second sentence eliminates the
possibility that disability and wage loss are
defined the same way when it provides that proof of
a “disability does not create [a] presumption of
wage loss.” [Haske at 654-655 (emphasis in
original).]
Because I remain committed to the Court’s decision in
Haske, I respectfully dissent from the majority’s decision to
2
overrule Haske.
I also must express my disappointment with the majority’s
lengthy response to Justice Kelly’s dissenting opinion.
I
appreciate that my colleagues feel the need to defend and
substantiate their respective positions, after all, that is
our duty as justices. However, I am uncomfortable with the
majority’s overzealous attack of Justice Kelly’s discussion of
stare decisis. It is completely unnecessary to add numerous
pages defending the majority’s decision to overrule precedent
and attacking Justice Kelly’s positions in previous cases.
These lengthy sections have nothing to do with the merits of
this case and do not add anything to the resolution of the
question at hand. They do, however, speak volumes about the
majority’s manic sensitivity to criticism.
3
S T A T E O F M I C H I G A N
SUPREME COURT
CHARLES SINGTON,
Plaintiff-Appellee,
v No. 119291
CHRYSLER CORPORATION, also known
as DAIMLERCHRYSLER CORPORATION,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I join Justice Cavanagh dissenting in the overruling of
Haske v Transport Leasing, Inc.1 I write separately to point
out that the majority's pronouncement on the respect to be
accorded the precedent of this Court is at best misleading.
I. The Majority Again Disdains Precedent
Today the majority once again discards a prior decision
1
455 Mich 628; 566 NW2d 896 (1997). The Michigan Reports
erroneously failed to show me as "not participating" in the
companion case to Haske. To correct that, I should be listed
as not participating in Bailey v Leoni Twp (After Remand)
decided sub nom Haske v Transport Leasing, Inc.
and replaces it with its preferred interpretation of the law.2
In announcing its new vision of disability law, it refers to
its recent pronouncements about the value of precedent in
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), and
Robertson v DaimlerChrysler, 465 Mich 732; 641 NW2d 567
(2002). However, the sheer volume of this majority's
decisions overturning precedent in the past four years raises
serious questions about the degree to which the majority
values the principle of stare decisis. Time after time,
established law has been discarded on the basis that it was
"wrongly decided."3 It is an amazement to me how frequently
the members of this majority have found that esteemed justices
2
See, e.g., People v Hardiman, 466 Mich 417; ___ NW2d ___
(2002); People v Cornell, 466 Mich 335; ___ NW2d ___ (2002);
Koontz v Ameritech Services, Inc, 466 Mich 304; 645 NW2d 34
(2002); Robertson v DaimlerChrysler Corp, 465 Mich 732; 641
NW2d 567 (2002); Pohutski v City of Allen Park, 465 Mich 675;
641 NW2d 219 (2002); Hanson v Mecosta Co Rd Comm'rs, 465 Mich
492; 638 NW2d 396 (2002); Brown v Genesee Co Bd of Comm’rs,
464 Mich 430; 628 NW2d 471 (2001); People v Glass, 464 Mich
266; 627 NW2d 261 (2001); Nawrocki v Macomb Co Rd Comm, 463
Mich 143; 615 NW2d 702 (2000); Mudel v Great Atlantic &
Pacific Tea Co, 462 Mich 691; 614 NW2d 607 (2000); Stitt v
Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88
(2000); Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000);
People v Kazmierczak, 461 Mich 411; 605 NW2d 667 (2000);
McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999); People
v Lukity, 460 Mich 484; 596 NW2d 607 (1999); Ritchie-Gamester
v Berkley, 461 Mich 73; 597 NW2d 517 (1999). This listing is
intended to be representative, not exhaustive.
3
See, e.g., Robertson, supra at 758; Pohutski at 694;
Nawrocki, at 180; Mudel, supra at 713; Robinson, supra at 464
465; Kazmierczak, supra at 425.
2
who came before them simply misunderstood the law.4
In the five-year period from 1993 through 1997, there
were approximately twelve cases in which precedent was
overturned by this Court.5 In the five-year period from 1998
through 2002, at least twenty-two cases were overturned.6
4
In most of the cases in footnote 2, the majority
overruled precedent because of its disagreement with earlier
Courts' interpretations of statutory or constitutional
principles. See, e.g., Cornell, supra; Koontz, supra;
Robertson, supra; Pohutski, supra; Glass, supra; Nawrocki,
supra; Brown, supra; Mudel, supra; Lukity, supra; Kazmierczak,
supra; McDougall, supra. In only two of them does the
majority believe that precedent was rendered obsolete by the
evolution of the law. Hardiman, supra; Robinson, supra. In
others, it does not even acknowledge that precedent is being
overturned, although the dissent points it out. Hanson,
supra; Ritchie-Gamester, supra.
5
Bradley v Saranac Comm Schs Bd of Ed, 455 Mich 285; 565
NW2d 650 (1997); People v Bailey, 451 Mich 657; 549 NW2d 325
(1996); W T Andrew Co Inc v Mid-State Surety Corp, 450 Mich
655; 545 NW2d 351 (1996); Corl v Huron Castings, Inc, 450 Mich
620; 544 NW2d 278 (1996); People v Wood, 450 Mich 399; 538
NW2d 351 (1995); Sokolek v General Motors Corp, 450 Mich 133;
538 NW2d 369 (1995); People v Kevorkian, 447 Mich 436; 527
NW2d 714 (1994); Jennings v Southwood, 446 Mich 125; 521 NW2d
230 (1994); People v Vandervliet, 444 Mich 52; 508 NW2d 114
(1993); Auto Club Ins Ass'n v Frederick & Herrud, Inc, 443
Mich 358; 505 NW2d 820 (1993); In re Hatcher, 443 Mich 426;
505 NW2d 834 (1993); People v Fisher, 442 Mich 560; 503 NW2d
50 (1993).
6
Sington, Hardiman, supra; Cornell, supra; Koontz, supra;
Robertson, supra; Pohutski, supra; Hanson, supra; Brown,
supra; Glass, supra; Nawrocki , supra; Mudel , supra; Stitt ,
supra; Robinson , supra; Kazmierczak, supra; McDougall, supra;
Lukity, supra; Ritchie-Gamester, supra; People v Graves, 458
Mich 476; 581 NW2d 229 (1998); McKenzie v Auto Club Ins Ass'n,
458 Mich 214; 580 NW2d 424 (1998); People v Kaufman, 457 Mich
266; 577 NW2d 466 (1998); AFSCME v Highland Park Bd of Ed, 457
Mich 74, 577 NW2d 79 (1998); People v Lemmon, 456 Mich 625;
(continued...)
3
However, the number of dispositions went down.7
The test for overturning precedent articulated in
Robinson, and again in Robertson includes two prongs: The
first is whether the earlier decision was wrongly decided.
The majority has ruled Haske was wrongly decided.8
(...continued)
576 NW2d 129 (1998).
7
According to the clerk's office, the Court disposed of
13,682 cases between 1993 and 1997. Between 1998 and June 30,
2002, it disposed of 11,190 cases.
8
The simplicity of this prong as stated in Robinson and
applied to legislative interpretation gives rise to a large
part of the differences between the majority and myself. It
appears that the majority believes itself gifted with
prodigious and unprecedented insight into the mind of the
Legislature. The recent sharp increase in reversals of
precedent is alarming because it suggests that this majority
believes that only it, not present dissenters nor many past
majorities of this Court, can discern the true intent of the
Legislature.
It is not, as the majority alleges here, a matter of my
not understanding "who governs in a republic." Nor is it a
matter of defending "past judges' errors" or feeling less
obligation than they to "adhere to the direction of the
people's representatives . . . ." Slip op at 32. Rather, it
is a matter of exercising judicial restraint and of avoiding
concluding too easily that other experienced justices wrongly
interpreted legislation. It is a matter of not falling prey
to a zealot's conviction that what has been done in the past
by others has been simply wrong.
Stare decisis is not an argument intended to resuscitate
the dead hand of the judiciary. Adherence to it contributes
to, not detracts from, the integrity of our constitutional
system. As Justice Marshall once pointed out:
That doctrine permits society to presume that
bedrock principles are founded in the law rather
than in the proclivities of individuals, and
thereby contributes to the integrity of our
(continued...)
4
The second Robinson prong is whether overruling the
precedent of this Court would work an undue hardship on the
basis of reliance interests. In considering that question,
the majority labels a worker's reliance on a disability
determination under Haske an illegitimate and insignificant
expectation. Slip op at 23. It has apparently decided that
the Haske decision strayed so far into error that no one
should ever have relied on it. It seems to assume that even
those having no legal education can and do distinguish between
which court precedent should be followed and which should not.
Contrary to the majority's assertions, I do not consider
stare decisis a conclusive barrier to change. The majority's
effort challenging me to explain some disagreement with
Robinson would be better spent explaining the facility with
which it excuses itself from exercising the judicial restraint
Robinson embraces.
Stare decisis has long been venerated in the law and with
good reason. Adherence to this doctrine promotes the
evenhanded, predictable, and consistent development of legal
principles and contributes to the integrity of the judicial
process, both actual and perceived. Robinson, supra at 463,
8
(...continued)
constitutional system of government, both in
appearance and in fact. [Vasquez v Hillery, 474 US
254, 265-266; 106 S Ct 617; 88 L Ed 2d 598 (1986).]
5
n 21, citing Hohn v United States, 524 US 236, 251; 118 S Ct
1969; 141 L Ed 2d 242 (1998). It is a bedrock principle.
When a Court pays no more than lip service to it, the basic
integrity of the legal system itself is shaken.
II. Haske was not wrongly decided.
Haske was correctly decided. The definition of
disability that it adopted is supported by the fact that the
statute treats "disability" and "wage loss" as separate
concepts. Examining the language of MCL 418.301(4), one finds
that the first sentence defines disability. The second makes
clear that it cannot be presumed that one has suffered a wage
loss merely because one has become disabled. Of course, that
is because one may be disabled but not suffer a wage loss,
hence, not be qualified for benefits.
The majority's new definition of disability is: an
incapacity after work-related injury or illness to earn
maximum wages in work for which the claimant is qualified and
trained. As a practical matter, this definition means
disability is an incapacity after work-related injury or
illness to earn the same or greater wages in work for which
the claimant is qualified and trained.
The starting point in analyzing this is the statutory
expression "wage earning capacity." The majority attempts to
convince that a distinction exists between "wages earned" and
6
"wage earning capacity." In truth, capacity to earn wages and
wages earned will rarely differ. This is illustrated by the
fact that, when applying its definition to Charles Sington,
the majority assumes they are the same. Slip op at 24. Also,
it cites with approval Justice Weaver's words: "the most
basic interpretation of 'wage earning capacity' is that it
describes an employee's ability to earn wages." Slip op at
18.
The majority provides no persuasive examples how it could
be that an employee would be earning at under capacity if not
disabled. By definition, normally, what the employee earns is
what the job will pay at any given time. Hence, "wage earning
capacity" and "wages earned" are, practically speaking,
synonymous. It follows, then, that as the majority reads it,
the first sentence in § 301(4) contradicts the second. It
reads: "The establishment of disability does not create a
presumption of wage loss."
If one must prove a wage loss to make out a disability,
the second sentence of § 301(4) is rendered nugatory. If one
cannot be disabled absent a wage loss, the establishment of a
disability relies on a wage loss. The majority confirms this
by quoting with approval from Pulley to the effect that "the
wages earned" are one of the "complex of fact issues" used to
determine wage earning capacity. Slip op at 16. Pulley v
7
Detroit Engineering & Machine Co, 378 Mich 418, 423; 145 NW2d
40 (1966). Of course, Haske disagreed with Pulley.
The Haske decision is based on the proposition that §
301(4), properly defined, treats "disability" and "wage loss"
as distinct concepts. Defining a disability as the majority
does, as a loss of capacity to earn maximum wages in one's
field, when there can be no presumption of a wage loss in the
definition, is nonsense.
The majority has defined "earning capacity" using a rigid
textualist approach to statutory interpretation (and, as I
have pointed out, it makes no meaningful distinction from
"wages earned"). However, the statutory expression is not
"earning capacity." Rather, it is "wage earning capacity."
A plain meaning interpretation of that expression is that
"wage earning" is an expression akin to "wage earner," which
is defined as "a person who works for wages." Random House
Webster's College Dictionary (1995). Hence "wage earning
capacity" means "the capacity of a person who works for
wages." Using that, the proper interpretation of the first
sentence of § 301(4) becomes "disability is a limitation after
work-related injury or illness in the capacity of a person who
works for wages in work for which the person is qualified and
trained." Then, the second sentence of §301(4), "[t]he
establishment of disability does not create a presumption of
8
wage loss," is not rendered nugatory or contradictory. Also,
the holding in Haske is shown to be correct. See Haske at
653-654 and slip op at 2 (Cavanagh, J.).
Even if "wage earning capacity" were defined as if it
read "earning capacity," the majority's definition is off the
mark. Black's Law Dictionary (6th ed) defines "earning
capacity," inter alia, as the "Fitness, readiness and
willingness to work, considered in connection with opportunity
to work." The emphasis is on capacity to perform the work.
Using that, the proper interpretation of the first sentence of
§ 301(4) becomes "disability is a limitation after work
related injury or illness in the fitness of an employee to
work for wages in work for which the person is qualified and
trained." As with my earlier analysis, the proper definition
of disability focuses on a limitation in the capacity to
perform the work, not on a limitation in the capacity to earn
wages, as the majority insists.
The majority's opinion is a study in confusion in other
respects, in addition to its reading of § 301(4). For
example, it correctly recognizes that a prerequisite to being
considered a participant in reasonable employment under MCL
418.301(5) is a determination that the employee has suffered
a disability under § 301(4). Slip op at 5-6. However, later
it states that, in order to determine whether plaintiff was
9
disabled after his left shoulder injury and before his stroke,
the WCAC must inquire whether the work he was doing then was
reasonable employment. Slip op at 24.
It concludes, "if defendant . . . would not have
accommodated plaintiff's injury, except for it being work
related, that would be indicative of a limitation in wage
earning capacity." Slip op at 25, n 14. Hence, the fact that
the employee obtained reasonable employment under § 301(5) is
a factor to be used to determine if the employee was disabled.
III. Conclusion
The majority's reading of MCL 418.301(4) is incorrect.
It creates contradictions between the definition of disability
and other parts of the statute. Also, the majority opinion is
internally contradictory.
Haske accurately interpreted the statute. The majority's
rationale for overturning it gives no deference to precedent.
It simply replaces its interpretation of the first sentence of
§ 301(4) with the interpretation of a different group of
justices.
Appellate courts, in the normal course of their work, are
called upon continuously to reevaluate the lasting vigor of
prior courts' binding opinions. Of necessity, some must be
found to be no longer valid because of subsequent legislative
alterations of the law or changing customs and practices
10
unforeseen by an earlier court. Very occasionally, a prior
decision is found to work unexpected hardship. And rarely, a
drastic error may be shown to have been made by a prior court
in its reasoning or reading of a statute.9
So it is that, in the history of this and of the vast
majority of supreme courts across the land, overrulings of
precedent are infrequent. Yet, quite the opposite is true of
the present Michigan Supreme Court. It is for that reason
that, the majority's pronouncements to the contrary
notwithstanding, one may wonder whether reasoned adherence to
stare decisis may properly be considered a policy of this
Court.
The decision of the Court of Appeals should be affirmed.
9
For instance, in Lesner v Liquid Disposal, Inc, 466 Mich
95; 643 NW2d 553 (2002), I found, as did the majority, that it
was necessary to overrule Weems v Chrysler, 448 Mich 679; 533
NW2d 287 (1995). This is because Weems provided a formula for
the calculation of death benefits that was utterly nonsensical
when multiple partial dependents were considered.
11