Sobotka v. Chrysler Corp.

Brickley, J.

(concurring in part and dissenting in part). While I concur in some of the reasoning of the lead opinion, namely, that an inference of total impairment of earning capacity is permitted where a partially disabled employee has not performed any work, I write separately to express my understanding that the Worker’s Disability Compensation Act 1 requires the finder of fact to determine the extent the partial injury has impaired wage-earning capacity. Although I concur with the lead opinion for reversal of the rationale employed by the Court of Appeals, I dissent from affirmance of the wcab. Because the board has never stated that it found total impairment of earning capacity, I would remand for a statement of the extent earning capacity has been impaired.

Although the wcab found the wage loss to be linked to the partial disability, the record does not establish that it found the partial disability to have entirely caused total impairment of earning capacity. It is not sufficient to find some connection between wage loss and partial disability. For a claimant to obtain maximum benefits, it must be found that the actual wage loss is entirely caused by the work-related injury. If wage loss is only *43partially due to the work-related injury, then partial benefits are in order.

Unlike the lead opinion, I would not find any link between partial disability and total unemployment to be sufficient to establish the maximum award under MCL 418.361(1); MSA 17.237(361)(1).2 Only where the finder of fact determines the partial disability to be the sole reason for total unemployment should full benefits be awarded.

i

In the present case, the claimant, an unskilled laborer, has established a partial disability caused, by a work-related incident. The claimant has had no actual earnings. The defendant employer presented evidence of reasons other than the injury to account for the plaintiff’s unemployment. The plaintiff suffered from a nonwork-related, serious psychological condition (manic depression or schizophrenia) before and following the work-related back injury. After his initial recovery from the workplace accident, the plaintiff tried to return to his former employment, but complained of pain and was discharged. The plaintiff contested the discharge and was eventually reinstated. However, by the time the plaintiff was reinstated, his position had been eliminated because of plant-wide layoffs. When questioned by defendant about efforts to find other employment after he was unable to be reinstated, the plaintiff could only specify one unsuccessful application to Burger King.3

*44The defendant employer’s position is that it is error to award full benefits on a finding of partial disability unless the plaintiff proves he has no residual earning capacity. Plaintiff contends that where there is any partial disability, maximum benefits should be automatically awarded unless the claimant has been offered and has wrongfully refused postinjury employment. It is my conclusion that both positions are inaccurate. The proper interpretation of § 361(1) lies somewhere in the middle of the two arguments.

I agree with the lead opinion that the Court of Appeals erred in presupposing the partial disability determination to be synonymous with the extent earning capacity has been impaired. While I agree that the determination of partial disability does not foreclose a determination of total impairment of earning capacity as a matter of law, neither does the determination of partial disability establish total impairment as a matter of law. I disagree with the lead opinion to the extent it is suggesting that partial disability is to be considered the equivalent of total impairment. Neither interpretation is true to the statute as it read when Sobotka was injured.4

Even the most casual reading of the statute compels the conclusion that the factfinder in a worker’s compensation case at the time this case was tried was instructed to assess the residual earning capacity at the first hearing. Should a finder of fact determine that a partial disability has only partially impaired earning capacity, in that there are other reasons for total postinjury *45unemployment, compensation should be limited to the extent the injury has caused unemployment.5

I would agree that under a wage-loss system such as ours, the proper measure of compensation depends on the economic effect of the work-related injury on the individual claimant. The lead opinion states "[w]here, on account of an injury, an employee is, in fact, unemployed, the employee is entitled to the maximum benefit allowable under §361(1) . . . .” Ante, pp 7-8. The lead opinion further states "we long ago acknowledged that an employee’s physical 'incapacity for work’ alone may not accurately reflect the economic effect on a claimant and cannot be mathematically transformed into a benefit amount.” Ante, p 23.1 do not dispute that we recognized early in worker’s compensation law that a partially disabled person faces hurdles to future employment that extend beyond the physical limitations experienced by the worker. Hood v Wyandotte Oil & Fat Co, 272 Mich 190, 193; 261 NW 295 (1935) (quoting Jordan v Decorative Co, 230 NY 522, 525; 130 NE 634 *46[1921]) (" 'Failure to find work stands upon a different basis when the labor is unmarketable because of the condition of the laborer’ ”).

It does not follow, however, that because we acknowledge disabled persons face additional hurdles, we acquiesce in the abandonment of any attempt to determine residual earning capacity. "[Compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health, accident and old age insurance and spread general protection over risks common to all and not arising out of and in the course of employment.” Simpson v Lee & Cady, 294 Mich 460, 463; 293 NW 718 (1940). The purpose of worker’s compensation is to approximate the amount of wage loss attributable to the work injury. Foley v Detroit United Railway, 190 Mich 507, 515; 157 NW 45 (1916).

This is not the first time this Court has been asked to interpret what factors are appropriate to consider when determining impairment of earning capacity6 or whether the "able to earn thereafter” language of § 361(1) refers to actual wages alone.7 Trask v Modern Pattern & Machine Co, 222 Mich *47692, 696; 193 NW 830 (1923), established that an employer is not liable for lost wages that were caused by a downturn in the economy rather than the partial disability.8 In Thayer v Britz, 234 Mich 645; 209 NW 50 (1926), we remanded to the precursor of the board for a determination of impairment of earning capacity. "Having found partial disability it was the duty of the board to compute in dollars and cents the proportionate extent of the impairment of his earning capacity in accordance with [what is presently §§ 361 and 371].” Id., p 647. While this principle may have been long neglected by the wcab,9 it has been applied by the Court of Appeals10 and has not been explicitly *48overruled by this Court. 11

The first opportunity for this Court to interpret the 1927 amendment of the statute was in Roxbury v Weidman Lumber Co, 268 Mich 596; 256 NW 560 (1934). We ordered an award of less than the maximum benefit to an employee who was receiving a lower wage when she returned to the same position she had held at the time of injury. We again addressed wage-earning capacity after the 1927 amendment. Hood v Wyandotte Oil & Fat Co, supra.12 In Hood, the employer asserted that the employee whose physical disability precluded a return to preinjury employment and who had no actual postinjury earnings had the training and residual capacity to resume work as a barber. We stated that wage-earning capacity is not limited to wages actually earned because such a holding would encourage malingering and transform com*49pensation into a pension. Id., p. 192. There is " 'no ground for compensation if the failure [to find work] has its origin in general business conditions ....’” Id., p 193 (quoting Jordan v Decorative Co, supra, p 525). To award maximum benefits, it must be determined that the employee’s earning capacity in other fields is circumscribed by the disability. Id., p 194.

We ordered an award of less than the maximum benefit where an employee received no actual postinjury earnings. Coleman v Whitehead & Kales Co, 268 Mich 412; 256 NW 467 (1934). The award represented the diminution of an employee’s earning power when his earning capacity at the time of the injury was compared to his earning capacity when seeking compensation. Id., p 414. Reversing an award based solely on the difference between preinjury and postinjury earnings without ascertaining earning capacity, we repeated the requirement in Barnot v Ford Motor Co, 282 Mich 37, 39; 275 NW 758 (1937), that in order to hold the employer liable for the loss, the difference between preinjury and postinjury wage must be attributable to the injury:

This found and measured his partial disability by decreased earnings rather than by capacity to work and made defendant an insurer required to make up the difference between what plaintiff earned before and after the accident. Such is not the test any more than mere inability to get work. The test to be applied is whether his injury has decreased his capacity to work as before and, therefore, he has earned less by reason of his physical disability and defendant should be made to respond for the loss occasioned by the injury. [Emphasis added.]

While we excused the board’s failure to make a *50specific finding regarding impairment of earning capacity in Donahoe v Ford Motor Co, 295 Mich 422; 295 NW 211 (1940), we did so because the award of the maximum amount could not have exceeded the former wage when added to residual earning capacity.13

We repeated in Pigue v General Motors Corp, 317 Mich 311, 316-317; 26 NW2d 900 (1947), that to limit earning capacity to wages actually earned would encourage malingering, and we stated again that the determination of earning capacity must include an examination of the employee’s opportunity to obtain suitable employment. In Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966), we stated that what the partially disabled employee is able to earn thereafter is a matter of proof and a question of fact. "[I]f the bare elements of proof of what the employee was paid were construed as establishing his 'earning capacity’ the whole purpose of the act would be vitiated.” Id., p 423.

If, as this Court held in Jones v Cutler Oil Co, 356 Mich 487, 490; 97 NW2d 74 (1959), "the real inquiry relates to the monetary worth of the injured workman’s services in the open labor market under normal employment conditions,” then an employer certainly should be able to refute the inference that the partial disability solely caused the employee’s total lack of earnings. Where an employer suggests that other factors, including general economic conditions, have caused or contributed to the loss of wages, the magistrate or the board must go further than finding partial disability and some link to the unemployment—the board must compute impairment of earning capacity^_

*51Judicial interpretation is not warranted whenever the language of a statute is clear and unambiguous. Livonia v Dep’t of Social Services, 423 Mich 466, 487; 378 NW2d 402 (1985); Achtenberg v East Lansing, 421 Mich 765, 770; 364 NW2d 277 (1985). Only if the meaning of a statute is unclear, should a court undertake an analysis of the reasonableness of any given construction. State Treasurer v Wilson, 423 Mich 138, 144; 377 NW2d 703 (1985). It is apparent from the ordinary meaning of the words chosen by the Legislature that the central focus of § 361(1) is on ability or potential for employment and not actual postinjury earnings. Had the Legislature intended to limit earning capacity to actual wages earned or an offer of employment by the employer, the Legislature surely would have used words to that effect.

Properly interpreted, "able to earn thereafter” provides for consideration of economic conditions and other factors insofar as they reflect the availability or unavailability of work for partially disabled employees. Any interpretation that holds that the extent of disability is irrelevant as long as there is some disability and actual wage loss would be contrary to the plain meaning of the statute and would undermine the purpose of worker’s compensation.14

In further support of my belief that the fact-finder is instructed by statute to determine residual earning capacity at the first hearing, I point to the inherent difference between partial and total disability. Section 351 separately and dis*52tinctly provides for the treatment of totally disabled workers. The lead opinion treats whether an employee is totally or partially disabled as irrelevant as a practical matter. If the lead opinion is correct in its dismissal of the possibility of partial benefits in this case, it is hard to fathom why the Legislature would have made the distinction when it enacted § 361(1).15 Where an employee proves an inability to obtain any work because of a partial disability, the maximum rate of compensation should be awarded. Where the lack of opportunity to earn is unrelated to the partial disability, then the lack of earnings should not be compensable under the Worker’s Disability Compensation Act.16

I agree with the conclusion of the lead opinion that the employee should not bear the burden of unfavorable economic conditions only to the extent *53that it is addressing the effect of unfavorable economic conditions in combination with the partial disability that further diminishes the claimant’s ability to find suitable work. Powell v Casco Nelmor Corp, 406 Mich 332, 351; 279 NW2d 769 (1979). The employer should not bear the burden of unfavorable economic conditions that function independently to preclude the claimant from finding employment where the Legislature provided for an assessment of the effect of partial disability on earning capacity. In the appropriate case, the defendant should be able to introduce evidence to support an inference that economic conditions, or other factors independent of the partial disability, are actually responsible for total unemployment. To hold otherwise transforms worker’s compensation insurance into unemployment insurance.

The lead opinion states that the employer may refute the causal connection between partial disability and unemployment with evidence that other factors are the cause of the unemployment.17 I would agree. The result the lead opinion would reach in affirming the board’s lack of any specific determination of earning impairment beyond finding partial disability suggests that measuring the link between the absence of wages and the partial disability is an all-or-nothing proposition on the issue of causation.18 I would reject any all-or-nothing interpretation of the relevancy of the effect of other factors on earning capacity that is suggested *54in the lead opinion. Such an approach ignores that the absence of wages may be only partially attributable to disability. Trask and its progeny require that the extent of the factual link be measured, and only that percentage of actual wage loss be assessed against the employer and ultimately the consumer.

Under the statute, a magistrate could properly find that the partial injury precludes employment to a certain degree, but that other factors, including economic conditions, contribute to the unemployment, and order compensation only to the extent that the work-related injury has precluded employment.

After the second remand from the Court of Appeals in which the board was once again directed to state the residual earning capacity, the board wrote that the partial injury "severely limits [the employee’s] ability to engage post-employment.” 1989 WCABO 126, 128. Although the Court of Appeals has asked the board three times to determine the precise effect the injury has had on earning capacity in accordance with Trask and Thayer, the board insists on administering the statute under an interpretation that provides full benefits for any impairment, no matter how minimal. A precise determination of the extent of impairment is therefore irrelevant in its view. While a certain amount of deference is generally due an administrative interpretation of the application of the administrative code governing its own action, that deference does not extend to administrators ignoring the statute’s plain language and this Court’s precedence and directives.19

*55The required determination of earning capacity is no doubt a difficult task, but it is no more difficult or speculative than determining whether any given disability is the result of a workplace incident. Further, the Legislature has stated in clear language that such a determination is to be made. It is no excuse to tell employers they are to be liable for total wage loss regardless of what the Legislature said in § 361(1) because it is not easy to figure out what the employer should be responsible for.

Accordingly, I would reverse the decision of the Court of Appeals and remand the case to the wcac for a determination of the extent that the partial disability has caused the unemployment. While an inference of one hundred percent would be supported where an employee demonstrates partial wage loss and total unemployment, the record does not show that the finder of fact made any determination of the extent the partial injury contributed to total unemployability.20_

*56Only if the board finds that the partial disability caused total impairment should the maximum award be ordered. If the board determines the work-related injury caused part of the unemployment, the statute requires compensation to be made for that part only.

Riley and Griffin, JJ., concurred with Brickley, J.

MCL 418.101 et seq.; MSA 17.237(101) et seq.

At the time of plaintiff’s injury, a partially disabled employee received compensation payable pursuant to the provisions of § 361(1). See ante, p 7, n 3 for the text of the statute as it read at that time.

The defendant asserts that there was evidence from which the finder of fact could infer that the plaintiff had little, if any, monetary incentive to seriously seek reemployment within his residual earning capacity. The plaintiff testified that he receives or has received social *44security disability benefits, sickness and accident benefits, extended disability benefits, unemployment compensation benefits, and supplemental unemployment benefits.

Since amended by 1980 PA 357, § 1 and 1985 PA 103, § 1.

Defendant points out that there are cases in which a residual earning capacity is low, but not nonexistent, that will nonetheless support a maximum award:

The Court should realize that under certain circumstances even a partially disabled employee can recover the maximum rate of compensation. This occurs where the employee’s residual capacity to earn is very low in comparison to the employee’s wages at the time of injury. For example, if an employee has a high average weekly wage (say, $1,000 per week), but is only able to earn at the minimum wage level thereafter, then two-thirds of the difference between the employee’s average weekly wage at the time of injury and the amount the employee is able to earn thereafter would still place the employee’s rate above the maximum rate; therefore, the partially disabled person would receive the maximum rate. MCL 418.361(1); MSA 17.237(361X1) [as it read at the time of the instant plaintiff’s injury]. The maximum rate is prescribed by statute, tied to a percentage of the state average weekly wage, and adjusted yearly. MCL 418.355; MSA 17.237(355).

When originally enacted in 1912, an injured worker’s compensation was measured by impairment of earning capacity:

The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employe, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury. [1912 (Ex Sess) PA 10, part II, § 11. Emphasis added.]

1912 (Ex Sess) PA 10, part II, § 10 was amended by 1927 PA 63, part II, § 10 (the version found at ante, p 7, n 3 and was still in effect in 1978, the time of plaintiff’s injury).

The employee in Trask developed a serious infection and blood poisoning after receiving a minor skin laceration in the office where she worked as auditor and office manager. By the time she recovered, her employer had experienced a decline in business and had reduced the number of its employees, along with reducing some wages. Her position had been eliminated. Id., pp 693-694.

Although the employee was able to find subsequent employment with another company as a bookkeeper, the position paid thirty dollars less per week. Rather than affirm the award of the difference between preinjury and postinjury wages, this Court remanded for a determination of what part of the wage loss was due to the injury. We stated that changes in labor conditions and wages are elements to be considered in the determination of the proportionate extent of impairment of earning capacity. Id., p 698.

See ante, p 9, n 7.

See, e.g., Juneac v ITT Hancock Industries, 181 Mich App 636, 641; 450 NW2d 22 (1989) (“The applicability of § 361 . . . includes not only wages actually earned after the injury, but also any the employee has the capacity to earn”); Stallworth v Chrysler Corp, 144 Mich App 706; 375 NW2d 797 (1985) (remand for determination of earning capacity); Mitchell v General Motors Corp, 89 Mich App 552, 555-556; 280 NW2d 594 (1979) ("the board erred in concluding that the reason plaintiff left his job is immaterial” because "evidence that an employee left his job for reasons unrelated to his injury tends to establish that he was still able to do the work, and had not suffered a loss in wage earning capacity”); Frammolino v Richmond Products Co, 79 Mich App 18; 260 NW2d 908 (1977) (the capacity of a claimant to work and employment opportunities are factors to be considered along with actual wages to determine wage-earning capacity); Dalton v Candler-Rusche, Inc, 65 Mich App 282; 237 NW2d 290 (1975) (where an injured worker was laid off after his return to work and was able to find other employment, his postinjury wage-earning capacity was *48established before a nonwork-related heart attack that forced the plaintiff to cease all employment); Benefield v W R Grace Co, 34 Mich App 442; 191 NW2d 567 (1971) (where noninjured co-workers also experienced a reduction in wages, the fact that an employee earns less in a job after an injury does not alone establish a reduced earning capacity—if an injury does not reduce an employee’s earning capacity, he is not entitled to compensation).

While the judicially created favored-work doctrine may have shadowed and perhaps confused the determination of earning capacity, it did not displace it. See, e.g., Bower v Whitehall Leather Co, 412 Mich 172, 182; 312 NW2d 640 (1981) (the favored-work doctrine is a judicial creation whose primary purpose is to allow an employer to reduce or eliminate liability by providing for work the employee is capable of performing); Powell v Casco Nelmor Corp, 406 Mich 332, 355, n 12; 279 NW2d 769 (1979) (favored work does not establish earning capacity—favored work only operates to set off employer liability for impairment of earning capacity while the favored work is actually performed).

Amendments of MCL 418.301; MSA 17.237(301) have recently addressed the interplay between favored work and earning capacity with the concept of "reasonable employment.” Wade v General Motors Corp, 199 Mich App 267, 270; 501 NW2d 248 (1993).

Rather than intended to address Trask or Thayer, the legislative purpose in redefining disability in 1927 was more likely intended to correct our holding that subsequent employment in new fields of employment did not establish earning capacity. See Geis v Packard Motor Car Co, 214 Mich 646; 183 NW 916 (1921).

See n 6.

The purpose of worker’s compensation law is that the consuming public should bear the cost of the risk of work-related injuries necessarily inherent in any given industry. Crilly v Ballou, 353 Mich 303, 308; 91 NW2d 493 (1958).

Imposing onto the consumer the costs of impairment for reasons other than a work-related injury has never been the purpose of compensation law.

In a case involving a part-time worker who was totally incapacitated for work, Irvan v Borman’s, Inc, 412 Mich 496, 502; 315 NW2d 521 (1982), we explicitly stated that the emphasis should be on earning capacity, not hours worked:

The primary function of the Worker’s Disability Compensation Act is to compensate employees for loss of "earning capacity” and not merely lost wages. At the same time the act seeks to avoid windfalls to those still able to work. A partially disabled worker may have his or her working capacity diminished only slightly, and still be able to remain in the work force earning close or equal to his or her preinjury salary. [Citations omitted.]

In this case, the defendant argues that Sobotka’s unemployability was due to his preexisting psychological condition. It has been conclusively determined by the magistrate and by the board that the psychological condition was not related to the employment. There was no finding that the work or the injury significantly aggravated or contributed to the preexisting mental condition. Findings of fact in worker’s compensation cases will not be disturbed; only misapprehensions of law will be corrected by this Court. Const 1963, art 6, § 28; MCL 421.38; MSA 17.540; Stephen’s Nu-Ad, Inc v Green, 168 Mich App 219, 222; 423 NW2d 625 (1988); Kidd v General Motors Corp, 414 Mich 578, 592; 327 NW2d 265 (1982). Therefore, the extent to which plaintiff’s psychological condition limits his employability cannot be defendant’s responsibility. Carter v General Motors Corp, 361 Mich 577, 594; 106 NW2d 105 (1960).

Ante, p 26.

The lead opinion would affirm the first decision of the wcab, ante, p 33, in which the board merely stated in essence that it found a work-related injury that continued to disable the plaintiff and therefore full benefits were awarded.

Hearing officers and the Worker’s Compensation Appellate Commission (formerly the Worker’s Compensation Appeal Board) are required to provide legal conclusions and their factual bases on the record in order to facilitate meaningful review. See Leskinen v MESC, 398 Mich 501, 509-510; 247 NW2d 808 (1976); Frammolino, n 10 supra.

The separate opinion relies heavily on Dean St. Antoine’s assessment of the actual application of worker’s compensation law in his 1984 report to then Governor Blanchard. St. Antoine, Workers’ Compensation in Michigan, Costs, Benefits, and Fairness, A Report to *55Governor Blanchard, December 12, 1984. See ante, pp 39-41. As I read the report, it was not an attempt to render a legally correct interpretation of Michigan’s worker’s compensation law so much as it was an attempt to report the actual application of the law in the field. The record of remand in this case reveals that St. Antoine’s report of the practice in worker’s compensation law in Michigan to award full benefits to partially disabled workers who have not returned to work was probably accurate. The report does not advance the argument that such practice is consistent with a correct interpretation of the statute.

The lead opinion asserts, ante, p 15, n 14, that the wcab has three times found a total impairment of earning capacity. The first order dated August 8, 1986, states only that there is a finding of partial disability and therefore an award of full benefits without any mention of impairment. The second order contains a statement that full benefits are in order because there is no evidence in the record to indicate that plaintiff has been able to find work. This is by no means a finding by the wcab that the work-related injury caused a total impairment of earning capacity. Nor would I conclude that the finding as stated in the board’s third order, " 'a disability which severely limits his ability to engage post-employment,’ ” is a statement of total impairment totally due to a work-related injury. Had *56the wcab once stated that it found a total impairment in wage-earning capacity caused by plaintiff’s work-related disability, this case would not be before this Court.