Franks v. White Pine Copper Division

Levin, J.

(concurring). I have signed the opinion of the Court because I agree with the Court’s conclusions and with the general direction of the reasoning. I write separately because I am not in full agreement with the analysis and reasoning regarding the application of the January 1, 1982 effective date of the workers’ compensation reform packages enacted in 1980 and 1981.

I

Both the 19801 amendatory act and the 1981 amendatory act at issue in the instant case state that "[t]his amendatory act shall take effect January 1, 1982.”2 (Because this 1981 amendatory act *679was not given immediate effect, it did not become operative until March 31, 1982.) *3

A

In these cases, consolidated in this Court for argument on appeal, the workers, Franks, Chambers, and Gomez, were injured before the enactment of the 1980 and 1981 amendments. They claim, among other contentions, that the amenda-tory legislation was not intended to affect the rights of persons injured before the effective date of the 1980 and 1981 amendments.

B

The 1981 amendatory act at issue in the instant case, concerning coordination of social security, pension, and retirement benefits, was one of a number of acts comprising the 1981 workers’ compensation reform package.

In Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32; 348 NW2d 652 (1984), this Court considered the provision of another act, also a part of the 1981 workers’ compensation reform package, that increased the interest on unpaid compensation from five percent to twelve percent.4 That act also provided, "This amendatory act shall take effect January 1, 1982.” The majority in Selk held that the higher interest rate applied in all cases where the award remained unpaid on December 31, 1981, and, thus, necessarily to all awards that were paid on or after the January 1, 1982 effective date, with the result that although a *680worker’s injury preceded January 1, 1982, the increase in interest rate was fully retroactive in every such case that remained pending on the January 1, 1982 effective date. Weekly disability payments that became due, in the consolidated cases then before the Court, in three- and five-year periods before the January 1 effective date, and even earlier in some other cases that were awaiting the Selk decision, thus bore interest, as a result of the Selk decision, at twelve percent from the pre-January 1, 1982 dates of disability.

I dissented and expressed the view that interest accrued at the higher rate on and after, but not before, the January 1, 1982 effective date, without regard to the date of payment. I read the effective date as evidencing a legislative intent that weekly payments of workers’ compensation that became due before January 1, 1982, on account of injuries that occurred before that date — unpaid on January 1, 1982, because the employer disputed liability or for other reasons — bear interest at five percent until that date and bear interest at twelve percent on and after that date.5

II

I agree with the majority that the Legislature did not intend that the applicability of the 1980 amendatory act or of the 1981 amendatory act at issue in the instant case depend on the date of injury, and agree with their conclusions that

— in Chambers and Gomez, weekly payments of workers’ compensation that become due on or after March *68131, 1982,6 are to be reduced by fifty percent of social security payments and the proportion of pension and retirement payments funded by the employer thereafter received or being received for the same periods although the worker was injured before January 1, 1982,

and

— in Franks, weekly payments of workers’ compensation that become due on or after January 1, 1982, are to be reduced by unemployment compensation benefits paid or payable for the same periods although the worker was injured before January 1, 1982, but unemployment compensation paid for weekly periods before the January 1, 1982 effective date of the 1980 amendment is not deductible from workers’ compensation benefits that remain unpaid, payable for the same pre-January, 1982 periods.

I agree with those conclusions, however, on the basis, set forth in dissent in Selk, that the effective date stated in the amendatory act is determinative.

A

The legislative purpose in providing a specific future effective date was to indicate when the provisions of the amendatory acts providing for coordination of benefits would take effect.

In stating, in both the 1980 amendatory act and this 1981 reform act, that "[t]his amendatory act shall take effect January 1, 1982,” the Legislature indicated its intention that the coordination provisions of those acts would become effective on January 1, 1982. (The 1981 act, respecting social security and pension and retirement benefits, was not given immediate effect and therefore did not become operative until March 31, 1982.)_

*682The subject matter of the amendatory acts is the coordination of workers’ compensation benefits with unemployment compensation, social security, pension, and retirement benefits; the purpose of the amendatory acts is to provide for such coordination.

The purpose of the January 1, 1982 effective dates was to state when the Legislature desired that the coordination would become effective. The words "[t]his amendatory act shall take effect January 1, 1982” thus mean that the coordination shall become effective on January 1, 1982, and not before that date. Accordingly, an employer may not coordinate benefits as to weekly payment periods before January 1, 1982, but coordination is required beginning January 1, 1982, as to each weekly payment becoming due on or after that date, although the worker was injured before that date.

B

In concluding that the Legislature did not intend that the 1980 amendatory legislation would affect persons who were injured before January 1, 1982, the Court of Appeals relied, in Franks, on the statement in Tarnow v Railway Express Agency, 331 Mich 558; 50 NW2d 318 (1951), that the law in effect at the time of injury controls an employee’s right to workers’ compensation benefits. The Court of Appeals also relied on general expressions in Hughes v Judges’ Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979), Ballog v Knight Newspapers, Inc, 381 Mich 527, 533-534; 164 NW2d 19 (1969), and Hansen-Snyder Co v General Motors Corp, 371 Mich 480; 124 NW2d 286 (1963), stating the general rule that legislation is ordinarily not given retroactive effect. The acts there under consideration, however, did not have *683specific effective dates.7 The absence of specific effective dates left the question of how those acts might affect events that had already occurred open to judicial construction. The 1980 amendatory act and this 1981 amendatory act, however, have a specific effective date, January 1, 1982.

C

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 payable without regard to whether predictions concerning the severity or longevity of the claimed damages are borne out by subsequent experience.

D

I agree with the signers of the opinion of the Court that there is no basis in the language of the 1980 or 1981 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 *684to all weekly payments of workers’ compensation becoming due on or after that effective date even though the worker was injured before that date. The Legislature apparently intended, without regard to whether the worker was injured on or after or before the January 1, 1982 effective date of the 1980 and 1981 reform legislation, that there be coordination of weekly workers’ compensation benefits an employer is obliged to "pay or cause to be paid,” and of weekly benefits "payable,” "paid or payable,” "received or being received”8 on or after that date with unemployment compensation, social security, and pension and retirement benefits payable for the same period.9

1980 PA 357, MCL 418.101 et seq.; MSA 17.237(101) et seq., MCL 418.358; MSA 17.237(358).

The workers’ compensation act was amended to provide that net weekly workers’ compensation disability benefits "shall be reduced by 100% of the amount of benefits paid or payable to the injured employee under the Michigan employment security act,” for identical periods of time and chargeable to the same employer.

1981 PA 203, MCL 418.354; MSA 17.237(354).

The workers’ compensation act was amended to provide that "[t]he employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits” "shall be reduced” by

(i) "[f]ifty percent of the amount of the old-age insurance benefits received or being received under the social security act,” and

*679(ii) "[t]he after-tax amount of the payments received or being received under a self-insurance plan, a wage continuation plan, or under a disability insurance policy provided by the same employer” to the extent that employer contributions funded the pension or retirement payments, for the "same time period.”

Acts that are not given immediate effect become effective ninety days after the adjournment of the Legislature. Const 1963, art 4, § 27.

1981 PA 194, MCL 418.801; MSA 17.237(801).

Selk v Detroit Plastic Products (On Resubmission), supra (Levin, J., dissenting).

General Motors does not in these cases seek to have the amendment given effect as of January 1,1982.

See 1943 PA 245 considered in Tarnow v Railway Express Agency, supra, 1960 PA 75 considered in Hansen-Snyder Co v General Motors Corp, supra, 1974 PA 337 considered in Hughes v Judges’ Retirement Bd, supra, p 85, and 1965 PA 240 considered in Ballog v Knight Newspapers, Inc, supra:

See ns 1 and 2.

See Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959).