White v. General Motors Corp.

Griffin, J.

(dissenting). This appeal focuses upon § 373,1 an amendment of the Workers’ Disability Compensation Act,2 which created a rebuttable presumption that employees who retire, receive a nondisability pension or social security benefits, and then apply for workers’ compensation are not disabled within the meaning of a standard set forth in the amendment. The issue to be decided is whether the presumption applies in this case which was pending at the time of enactment and *411where the plaintiff-retiree claims to have suffered a work-related injury prior to the amendment’s effective date. Since § 373 contains no exception from coverage for retirees claiming injury before its effective date, and in view of its remedial purpose directed at a perceived abuse of the workers’ compensation system, I would hold that it is applicable in this case with respect to workers’ compensation benefits payable after January 1, 1982, when the amendment became effective.

i

As a general rule, "statutes are presumed to operate prospectively unless the contrary intent is clearly manifested.” Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). An exception to the general rule is recognized where a statute is remedial or procedural in nature. Franks v White Pine Copper Div, 422 Mich 636, 672; 375 NW2d 715 (1985); Selk, supra at 10; Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 485; 124 NW2d 286 (1963). Moreover, "a statute is not regarded as operating retrospectively merely because it relates to an antecedent event . . . .” Franks, supra at 671; Selk, supra at 9.

A

In the case at bar, plaintiff argues that § 373(1) is substantive, rather than procedural. He maintains that §373(1) establishes a new, more stringent standard of disability for those receiving non-disability pension or social security benefits. Plaintiff contends that prior to enactment of § 373 a retiree-claimant could satisfy the disability requirement then in effect by demonstrating impair*412ment of wage-earning capacity within his particular field of employment. Kaarto v Calumet & Hecla, Inc, 367 Mich 128; 116 NW2d 225 (1962). He points out that the standard embodied in § 373(1) requires a showing of inability "to perform work suitable to the employee’s qualifications, including training or experience.” Plaintiff argues that this "new standard” affects the substantive rights of retiree-claimants and therefore should be applied prospectively.

Plaintiff relies on Hurd v Ford Motor Co, 423 Mich 531, 534; 377 NW2d 300 (1985). In that case, the Court examined § 301(2),3 another provision of the same public act, 1980 PA 357, and found that it "was enacted to invalidate this Court’s decision in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978), thus effecting a substantive change in the law and that the provisions of this amendment have prospective application,”

Prior to enactment of § 301(2), at issue in Hurd, the eligibility of an employee with a mental disorder for workers’ compensation was determined by the "honest perception” standard set forth in Deziel, supra. In Hurd, however, we concluded that by enacting § 301(2), as part of 1980 PA 357, the Legislature changed the standard of mental disability and that such a change was substantive in nature.

Justice Moody was quite right when he wrote:

Whether a ruling is procedural or substantive is sometimes difficult to decide; a legal rule may have both procedural and substantive aspects that are difficult to separate. [Moody, Retroactive appli*413cation of law-changing decisions in Michigan, 28 Wayne L R 439, 449, n 44 (1982).][4]

I believe that a careful reading of §373(1) reveals that it is both procedural and substantive in its wording and effect. The provision might be regarded as purely procedural if it contained only the following:

(1) An employee who terminates active employment and is receiving nondisability pension or retirement benefits under either a private or governmental pension or retirement program, including old-age benefits under the social security act, 42 USC 301 to 1397f, that was paid by or on behalf of an employer from whom weekly benefits under this act are sought shall be presumed not to have a loss of earnings or earning capacity as the result of a compensable injury or disease under either this chapter or chapter 4.

However, the provision also includes these words:

This presumption may be rebutted only by a preponderance of the evidence that the employee is unable, because of a work related disability, to perform work suitable to the employee’s qualifications, including training or experience. This standard of disability supersedes other applicable standards used to determine disability under either this chapter or chapter 4. [Emphasis supplied.]

Obviously, § 373(1) refers both to a "presumption” and to a "standard of disability.” The language of § 373 itself makes clear that the standard set forth is different than that which would other*414wise apply. Such an interpretation is indicated by the addition of § 373(2) which mandates that eligibility for medical benefits shall not be barred by the new standard. Furthermore, the Legislature’s intent to establish a new and different disability standard is emphasized by the inclusion of this language:

This standard of disability supersedes other applicable standards used to determine disability under either this chapter or chapter 4. [Emphasis supplied.]

While recognizing its procedural characteristics, I believe that § 373, when viewed as a whole, reflects a purpose on the part of the Legislature to change the disability standard applicable to an "employee who terminates active employment and is receiving . . . benefits under either a private or governmental pension or retirement program . . . .” Furthermore, I agree with the plaintiff that the standard set forth in § 373(1) is more stringent than the one which otherwise would have obtained. See Kaarto, supra; Adair v Metropolitan Building Co, 38 Mich App 393; 196 NW2d 335 (1972).5 Consistent with the holding in Hurd, supra, I conclude that § 373 is substantive as well as procedural in nature.

B

Defendant argues that even if § 373 is substantive, it should be applied retrospectively because it *415is a remedial statute, citing Rookledge v Garwood, 340 Mich 444, 453; 65 NW2d 785 (1954).

In Rookledge this Court held:

It is generally understood that if a statute or amendment is "designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good,” it will be regarded as remedial in nature. In re School District No 6, Paris and Wyoming Townships, Kent County, 284 Mich 132, 144 [278 NW 792 (1938)]. The same connotation is given to those statutes or amendments which apply to procedural matters rather than to. substantive rights. The definitive rule in this respect, found in 50 Am Jur, pp 33, 34, Statutes, § 15, is:
"Legislation which has been regarded as remedial in its nature includes statutes which abridge superfluities of former laws, remedying defects therein, or mischiefs thereof implying an intention to reform or extend existing rights, and having for their purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society, or of the public generally.”

There can be no question but that § 373 was enacted by the Legislature for the purpose of remedying a perceived abuse of the workers’ compensation system. Professor Theodore St. Antoine, who served two governors as an adviser on workers’ compensation reform, described the problem in a report to Governor Blanchard in these terms:

For many years the most hotly discussed topic concerning the Michigan workers’ compensation system was the so-called "retiree problem.” It was almost unique to this State. Its legal underpinning was the notion developed by the Workers’ Compensation Appeal Board, with some support from the *416judiciary, . . . that a retired worker, even one who had voluntarily retired and gone on a company-funded pension, could still be suffering from a loss of wage earning capacity. If the retiree could demonstrate that he or she had incurred a disability caused by pre-retirement job activity or working environment (a bad back from 30 years on the assembly line or a dust disease from 30 years in a foundry), the retiree was entitled to workers’ compensation. It should be emphasized that in many of these cases the disability was undoubtedly genuine, at least in the physical impairment sense, and such an employee would unquestionably be eligible for medical benefits. The fighting issue was whether he was also entitled to recover for wage loss. . . . [F]or a "Big Three” automobile manufacturer (the most common target of this practice), it was plainly provoking, not to mention costly, to see workers take early retirement and walk out of a plant one day and then proceed to file their workers’ compensation claims the next week. [St. Antoine, Report on Workers’ Compensation in Michigan: Costs, Beneñts, and Fairness (1984), p 60.]

As early as 1975, Professor St. Antoine, as chairman of the Governor’s Workmen’s Compensation Advisory Commission, had delivered a report to Governor Milliken which stated in part:

The question of the retirees is one of the most important, and perhaps the single most intractable, of all the issues currently arising under the Michigan workmen’s compensation system. In 1973, the "Big Three,” General Motors, Ford, and Chrysler paid out over 24 million dollars to retirees. With the additional costs of administering these claims and, where necessary or appropriate, retaining counsel, the total costs to the companies exceeded $30 million. According to the Michigan Department of Commerce Data Base, other self-*417insurers and the insurance carriers paid almost as much, over 20 million dollars. Hence the total cost of claims by retirees exceeded 60 million dollars in 1973, the most recent year for which reasonably firm statistics are available. With increased benefit levels since 1973 and an increased volume of claims, reasonable estimates for the total retiree cost in Michigan for 1975 range from 80 to 90 million dollars. [Report of Governor's Workmen's Compensation Advisory Commission (1975), p 17.]

Although the 1975 advisory commission was unable to reach agreement upon recommendations for improvement of the system in Michigan, the report further stated:

As a solution, some employer spokesmen offer a two-step approach. Any worker who retired because of old age or under a pension plan would be rebuttably presumed to have removed himself from the labor market and therefore not capable of suffering a loss of earning capacity. The presumption could be overcome by evidence showing that the worker had been unable to obtain substantial employment because of a disability rather than because of age or economic conditions. Then, after rebutting the presumption, any retiree-claimant who was also eligible for pension benefits would have his workmen’s compensation reduced to the extent of his employer funded pension benefits.
This solution addresses what many employers consider to be the central problem: Is the retiree prevented from working by a disability which occurred in and arose out of the course of employment or has the retiree withdrawn from the labor market and is merely seeking a little something extra? [Id., p 21.]

In 1977 an attempt to enact legislation dealing *418with the "retiree problem” fell short.6 One commentator, in summarizing this effort, stated:

Some of the notorious abuses of workers’ compensation in Michigan were also attacked by S. 1285 .... More importantly for curbing the "retiree problem,” S. 1285 would have created a rebuttable presumption that retirees have not suffered a loss of earnings or earning capacity as a result of a compensable injury or disease. [Hunt, Workers’ Compensation in Michigan: Problems and Prospects (Kalamazoo: W. E. Upjohn Institute for Employment Research, 1979), pp 22-23.]

On April 11, 1979, Governor Milliken delivered a special message to the Legislature on workers’ compensation which further underscored the remedial nature of the legislation embodied in § 373. He said:

A frequent criticism is that Michigan, almost alone among the states, pays a large portion of its workers’ compensation benefits to persons who have left the labor market for reasons other than disability._
*419I recommend that we eliminate or minimize compensation payments to those persons no longer in the labor market.
Previous reform negotiations have produced general agreement that a presumption should be established that recipients of pensions and social security retirement benefits have not suffered a loss of earning capacity, unless rebutted by a preponderance of evidence. This presumption should be established in the statute. [1979 Journal of the Senate 608.]

Finally, on December 30, 1980, while this case was pending before the hearing referee, § 373 was enacted by the Michigan Legislature as part of 1980 PA 357,7 the first step in a series of reforms of the Michigan workers’ compensation system. In light of the legislative history and other circumstances surrounding its enactment, I would conclude that § 373 is remedial8 within the meaning of the rule laid down in Rookledge, supra. See also Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959); Karl v Bryant Air Conditioning Co, 416 Mich 558; 331 NW2d 456 (1982).

c

As this Court said in Karl, supra at 575, a remedial statute may operate retrospectively if it does not "take away vested rights.” See also Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969); Hansen-Snyder, supra.

In assessing whether a "vested” right would be taken away, it is important to have in mind that *420the nature of the right to workers’ compensation is quite different from the right to recover damages in tort or other civil actions. As the Court said in Franks, supra at 654:

Workers’ compensation benefits are social-welfare income-maintenance benefits. Workers’ compensation is the first or progenitor safety net providing a means of income maintenance for persons who have met misfortune or whose regular income source has been cut off. All the social welfare programs — workers’ compensation, unemployment compensation, social security old age, disability, and survivors benefits, no-fault automobile benefits, aid to families with dependent children, and general assistance — are directed to the same objective, income maintenance. All these programs are funded by impositions on employers and others of mandatory payments (to the government, insurers or, in the case of the self-insured, to the beneficiary), with statutorily prescribed benefits. In providing for such beneñts, the Legislature did not covenant not to amend the legislation. [Emphasis supplied.]

In a concurring opinion, Justice Levin in Franks, supra at 683, wrote:

Workers’ compensation benefits are payable weekly, and are geared to weekly wage loss. The nature of workers’ compensation is that events after an award of benefits may change the extent of an entitlement to benefits. A disabled worker may cease to be disabled or obtain gainful employment. The number of the worker’s dependents may change. The right to receive workers’ compensation benefits thus generally depends on one’s status, week by week, and is subject to change during any week.
A workers’ compensation award, thus, differs from a judgment in a tort action where, when the plaintiff prevails, a lump-sum award is fixed and *421payable without regard to whether predictions concerning the severity or longevity of the claimed damages are borne out by subsequent experience.

Taking into consideration the nature of the right to workers’ compensation, I conclude that § 373 does not abolish or take away vested rights. See also Rookledge, supra; Harsha v Detroit, 261 Mich 586; 246 NW 849 (1933); Bejger v Zawadzki, 252 Mich 14; 232 NW 746 (1930).

D

Even though a statute is remedial and does not abolish or take away vested rights, it will not be applied retrospectively if a contrary legislative intent has been manifested. Karl, supra at 571; Selk, supra at 10, citing Rookledge, supra.

In other words, the question whether a statute is to apply prospectively or retrospectively is always governed, in the final analysis, by legislative intent if it can be determined. As the Court has said, "the Rookledge principle is also simply one of statutory construction.” Selk, supra at 10.

As the Court of Appeals said in Wojciechowski v General Motors Corp, 151 Mich App 399, 408-409; 390 NW2d 727 (1986), the Legislature did not indicate "its retrospective or prospective intention [with respect to § 373] in clear and express language.” Furthermore, a careful examination of the statute and the circumstances surrounding its enactment reveal no manifest intent that its provisions should not apply to one whose injury preceded the effective date. On the contrary, legislative history subsequent to its enactment tends to confirm an intent that § 373 should apply to all "employee[s] who terminate active employment and [are] receiving nondisability pension or retire*422ment benefits” regardless of when they were injured.

Notice should be taken of the fact that on May 14, 1987, the Legislature enacted and gave immediate effect to 1987 PA 28, which amended various provisions of the Workers’ Disability Compensation Act. Included was an amendment of § 354(17) (providing for coordination of social security and certain employer-financed benefits). The amendment provides:

The decision of the Michigan Supreme Court in Franks v White Pine Copper Division, 422 Mich 636 (1985) is declared to have been erroneously rendered insofar as it interprets this section [§ 354], it having been and being the legislative intention not to coordinate payments under this section resulting from liability pursuant to section 351, 361, or 835 for personal injuries occurring before March 31, 1982. It is the purpose of this amendatory act to so affirm. This remedial and curative amendment shall be liberally construed to effectuate this purpose.

Without venturing comment concerning the constitutionality of such a pronouncement, an issue not before us, I believe the amendment sheds some light on the intent of the Legislature, at least as of May 14, 1987.

It is significant that the Legislature, through its limited and carefully worded amendment, sought to "overrule” only that part of our decision in Franks which interpreted § 354. Of course, in Franks we also considered whether § 358 (providing for the offset of unemployment compensation benefits) should apply to a workers’ compensation claimant whose injury preceded the provision’s effective date. We held that "the setoff provision of § 358 may be applied to reduce workers’ compensa*423tion liability to workers injured prior to its effective date.” Franks, supra at 668-669.

It is also noteworthy that on May 14, 1987, when the Legislature enacted 1987 PA 28, which amended § 354 and several other sections of the act, it chose not to amend §373, despite the fact that more than a year earlier, on May 5, 1986, the Court of Appeals in Wojciechowski, supra at 408, had ruled that § 373 "which creates a presumption of no loss of wage earning . . . should be retroactively applied” in a case where the injury occurred prior to the provision’s effective date.

Of course, courts should not read too much into silence on the part of the Legislature. On one occasion Justice Voelker caustically questioned that members of the Legislature are "clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the latest decisions and advance sheets . . . .” Van Dorpel v Haven-Busch Co, 350 Mich 135, 146; 85 NW2d 97 (1957).9

However, where, as in the case of workers’ compensation reform legislation, the final product of intense bargaining represents a compromise to accommodate strong, divergent interests, it would be unrealistic to believe that the contending forces in and beyond the Legislature were not fully aware of what was left out of the package, as well as what was included. Particularly in such situations, silence and inaction on the part of the Legislature, can be very meaningful.10_

*424Guidance may also be drawn from the fact that, while it enacted 1980 PA 357 on December 30, 1980, the Legislature specifically directed that §373 should not take effect until a year later, on January 1, 1982. Comments made by Justice Levin in Franks, although related to other provisions of the 1980 and 1981 reform acts, are equally applicable to § 373:

The legislative purpose in providing a specific future effective date was to indicate when the provisions of the amendatory acts . . . would take effect.
[T]here is no basis in the language of the . . . reform legislation or in its history that would justify the conclusion that the Legislature, which expressly stated that these amendments were all to become effective on January 1, 1982, did not intend that they would be effective as to all weekly payments of workers’ compensation becoming due on or after that effective date even though the worker was injured before that date. [Id. at 681, 683-684 (Levin, J., concurring).]

Moreover, when the effectiveness of a statute has been postponed to a specific future date (for one year in the case of § 373) it seems reasonable to believe, in the absence of some contrary indication, that a purpose of the Legislature was to provide advance notice to those who would be affected by its provisions. Obviously, if, as plaintiff contends, the Legislature had intended that § 373 should apply only to those who would be injured in work-related accidents occurring after the effective date, the purpose of notice could not be served.

In the absence of contrary intent expressed by the Legislature (e.g., such as that provided with respect to § 354), I believe a reasonable construe*425tion requires that a statute which contains a specific future effective date should be applied from and after that date to all who are expressly covered by its terms. The Legislature has often demonstrated that when it wishes to "grandfather” or except from coverage a particular group, it can find the language to do so.

Accordingly, I would hold that the provisions of § 373 of 1980 PA 357 are applicable with respect to workers’ compensation benefits payable after January 1, 1982, in determining the amount, if any, of weekly benefits due and payable to any employee described in §373(1) without regard to when the employee may have been injured or disabled.

Levin, J., concurred with Griffin, J.

MCL 418.373; MSA 17.237(373).

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

MCL 418.301(2); MSA 17.237(301X2).

Justice Moody’s commentary focused upon judicial changes in the law; however, I believe his statement is equally applicable to statutory changes.

See, generally, St. Antoine, Workers’ Compensation in Michigan: Costs, Beneñts, and Fairness (1984); 2 Larson, Workmen’s Compensation Law, § 57.22; Welch, Worker’s Compensation in Michigan: Law & Practice, § 8.01 et seq.; Leslie, The tortured course of the deñnition of disability in Michigan workers’ compensation law, past, present and future, 5 Cooley L R 65 (1988).

See 1977 Journal of the Senate 2350-2351, and proposed SB 1285, § 371(1) which would have provided:

An employee who retires or who otherwise terminates active employment and is eligible for or receiving pension or retirement benefits under a private or governmental program or is eligible for or receiving social security retirement benefits, shall be presumed not to have a loss of earnings or earning capacity as the result of a compensable injury or disease. This presumption may be rebutted only by proof by the employee by a preponderance of the evidence that the employee is unable, solely because of disability as defined in this act, to perform substantial work suitable to the employee’s qualifications, training, or experience and not merely disabled from earning full wages at the work in which the employee was last subject to the conditions resulting in disability. This subsection shall not be construed as a bar to receiving medical benefits payable under section 315.

For additional information on the legislative history of 1980 PA 357, see VanderLaan & Studley, Workers’ compensation reform: A case study of the legislative process in Michigan, 14 U Mich J L Ref 451 (1981).

In Hurd, supra, the Court did not find that the statute there involved was remedial in the sense of Rookledge.

Criticizing courts which rely too heavily on legislative silence, Justice Voelker referred to the practice as the "Rip-Van-Winkle doctrine of judicial stagnation and inertia,” Van Dorpel, supra at 148.

As a part of 1982 PA 32, approved with immediate effect on March 10, 1982, the Legislature repealed the enacting clause of 1980 PA 357, and simultaneously reenacted § 373 along with certain other provisions, providing again that § 373 "shall take effect January 1, 1982.” As we noted in Franks, supra at 668, that action taken subsequent to January 1, 1982, had the effect at the time of directing retrospective operation of § 373.