Kincaid v. Detroit Mutual Insurance

Archer, J.

(dissenting). The majority holds that the phrase "weekly compensation rate” in § 352(1)1 of the Workers’ Disability Compensation Act, refers only to that portion of the amount of weekly compensation payable as the obligation of the employer under § 351(1).2 I dissent from this holding and would affirm the decision of the Court of Appeals, which held that the phrase "weekly compensation rate” refers to the actual rate of compensation received by an employee.3

i

Pursuant to § 352 of the Workers’ Disability Compensation Act, an employee who is totally disabled or who is permanently and totally dis: abled is entitled to a supplement to his weekly compensation if the disabling injury occurred between September 1, 1965, and December 31, 1979. The relevant language of § 352 provides:

The supplement shall be computed as a percentage of the weekly compensation rate which the *443employee or the dependent of a deceased employee is receiving or is entitled to receive on January 1, 1982 had the employee been receiving benefits at that time, rounded to the nearest dollar. [MCL 418.352(1); MSA 17.237(352X1).]

The phrase "weekly compensation rate” appears in § 352(1) as enacted by 1982 PA 32, 1982 PA 282, and 1984 PA 46. As originally enacted by 1980 PA 357, § 352(1) contained the phrase "basic compensation rate.” The Court of Appeals relied heavily on this change of phraseology in holding that the Legislature intended to expand the scope of benefits to be included in computation of the supplement.4 Although the majority acknowledges that the Legislature effected this change in the statute, it states:

[W]e do not find, as plaintiff contends, that the modification was made for the purpose of changing or broadening the meaning of the term. {Ante, p 439.]

This finding by the majority directly contravenes an elementary principle of statutory construction. The pertinent rule has been stated as follows:

The courts have declared that the mere fact that the legislature enacts an amendment indicates that it thereby intended to change the original act by creating a new right or withdrawing an existing one. Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights. [1A Sands, Sutherland Statutory Construction (4th ed), §22.30, p 265.]

Accord Sam v Balardo, 411 Mich 405; 308 NW2d *444142 (1981); Detroit Edison Co v Janosz, 350 Mich 606, 613; 87 NW2d 126 (1957).

In Lawrence Baking Co v Unemployment Compensation Comm, 308 Mich 198, 205; 13 NW2d 260 (1944), the Court stated:

"It will be presumed that the legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment. So a change of phraseology from that of the original act will raise the presumption that a change of meaning was also intended.”

The majority fails to acknowledge this rule and cites insufficient evidence to rebut the presumption that the Legislature intended to make a substantive change when it amended the statute.

The majority attempts to justify its nullification of clear legislative intent by stating:

[W]e believe the relationship of those words to other words within § 352(1), as well as to language used in other provisions of the act, points to the conclusion that the Legislature intended to clarify, rather than to expand, the meaning of the words.
As the csp has pointed out, the term, "basic compensation,” in the 1980 version of § 352(1), was a new term without definition which appeared nowhere else in the act. If the term had not been modified, there would have been a question whether "basic compensation” in the third sentence of § 352(1) referred to "weekly compensation” as used in the first sentence of the same section. [Ante, pp 439-440.]

This argument assumes that the term "weekly compensation” in the first sentence of § 352(1) refers only to that portion of the employee’s *445weekly benefits payable as the obligation of the employer. I disagree with this premise. There is nothing in § 352(1) that requires such a restrictive construction of the phrase "weekly compensation.” A more reasonable construction is that the Legislature intended to change the more restrictive phrase "basic compensation,” which would refer only to general disability benefits, to the broader term "weekly compensation rate” in order to ensure that the employee would receive a meaningful supplement to his prior total weekly benefits.

When the statute as a whole is reviewed, there are several instances where the phrases "weekly compensation,” "weekly compensation rate,” "weekly payments,” and "weekly benefits” are used interchangeably to refer either to the obligation of the employer or to the total package of benefits to be received by an injured worker in a given week.5 It follows that the Legislature intended to use the broader meaning of the term when it substituted the word "weekly” for the word "basic” in legislation designed to provide a supplement to the inflation-ravaged benefits relied upon by permanently and totally disabled workers.

A second elementary principle of statutory construction absent from the majority’s analysis is the oft-stated maxim: Expressio unius est exclusio alterius. If the Legislature had intended to restrict the operation of § 352(1) to general disability benefits, it would have expressly said so. In drafting § 352, the Legislature expressly excluded recipients of certain types of benefits from eligibility for the supplement. For example, § 352(9) provides:

This section does not apply to an employee *446receiving benefits under § 361(1).[6] [MCL 418.352(9); MSA 17.237(352X9).]

In contrast, the Legislature omitted differential benefits payable pursuant to § 521(2)6 7 from the enumerated exceptions to application of the compensation supplement. Accordingly, the stated maxim applies, thereby precluding an inference of legislative intent to prohibit addition of differential benefits prior to application of the appropriate multiplier.

ii

The majority indicates that it is attempting to give effect to legislative purpose in light of economic considerations as well as "legislative history.” Ante, p 441. In making this attempt, the majority gives short shrift to the rule that ambiguities in the statute are to be resolved in favor of an injured worker. This fundamental tenet of statutory construction becomes even more crucial in the analysis of legislative provisions for permanently and totally disabled workers. In King v Second Injury Fund, 382 Mich 480, 490; 170 NW2d 1 (1969), the Court adopted this eloquent statement of the public policy of Michigan in granting relief to the plaintiff:

"The Michigan legislature fully intended that the very few people who meet the restrictive definitions of 'total and permanent disability’ needed to be placed in a very special class and provided with special attention. It is recognized that these people will be disabled for the remainder of their *447lives and that the wage structure and cost of living, with the years passing, is rising. It is recognized that these people will need special attention because they cannot earn a living and must hire others to perform household tasks such as cutting their grass, shoveling their snow, and other tasks which a person not so seriously crippled would be able to perform without hired help. To limit such a person to two-thirds of his wage for the rest of his life would mean that he would be getting an extremely small and inadequate amount when, 20 years later, the wage structure and cost of living has risen to an alarming degree and the purchasing power of the dollar has dropped by over one half.”

In answer to these considerations advanced by the plaintiff, today’s majority argues that "[this] proposition is counterbalanced in this case by the maxim that statutes granting the power to expend public funds are to be narrowly construed.” Ante, p 441.

This argument fails to consider that injured workers who lose purchasing power due to inflation will often seek some other form of public assistance. One commentator effectively observed:

[Society] can put [the injured worker] on county relief, or some other form of direct handout. This ... is a poor solution in at least two ways: It stigmatizes the man as a pauper, and it places the cost on the political or geographical subdivision where he happens to have his residence, although that subdivision had no connection with the injury. [1 Larson, Workmen’s Compensation Law, § 2.20, p 6.]

Although the compensation supplement fund is derived from public funds, it is expressly intended by the Legislature to compensate injured workers. Other types of public assistance are not so desig*448nated and consequently bear the stigma that society often places on those receiving general assistance.

hi

For these reasons, I dissent from the majority holding. I would affirm the decision of the Court of Appeals, which upheld the right of injured workers to receive adequate workers’ disability compensation benefits that are meaningfully supplemented to compensate for inflation and its concomitant devastating effect on purchasing power.

Cavanagh, J., concurred with Archer, J. Boyle, J., concurred only in the result suggested by Archer, J.

MCL 418.352(1); MSA 17.237(352X1).

MCL 418.351(1); MSA 17.237(351X1).

Kincaid v Detroit Mutual Ins Co, 160 Mich App 580; 408 NW2d 820 (1987).

Id. at 587.

See §§ 301(5)(b), 301(10), 321, 335, 351(1), (2), and (3), 353(2), 354(1), 357(1) and (2), 358, 360(1), 361(1), 371(2), 372(l)(a) and (b), 375(1), 801(2) and (5).

MCL 418.361(1); MSA 17.237(361X1). This section provides a weekly benefit to partially disabled workers to partially compensate for the difference between an injured employee’s earnings before and after the injury.

MCL 418.521(2); MSA 17.237(521)(2).