Tyler v. Livonia Public Schools

Kelly, J.

(dissenting). I disagree with the majority that plaintiff’s disability pension payments under the Public School Employees Retirement Act (psera)1 are not excepted from coordination with worker’s compensation payments under the Worker’s Disability Compensation Act (wdca).2 I would reverse the decision of the Court of Appeals, because the Legislature has failed to express an intention that coordination occur.

The Court of Appeals opinion relied on the fact that the Legislature chose the phrase “plan or program” in § 354(1) and the term “plan” in § 354(14). It used the distinction to support its position that all publicly created pension plans are subject to coordination, while some privately negotiated pensions may not be subject to coordination. The majority in this Court has wisely declined to rely on the plan/program distinc*400tion. It nonetheless perpetuates it in its distorted reading of § 354(14).

The majority maintains that the Legislature’s choice of “created” and “amended” in § 354(14) evidences a legislative intent that only pension plans established through collective bargaining be free of coordination. It fails to recognize that even statutorily created pension plans are subject to contractual negotiation and, in some cases, the Legislature has made them mandatory bargaining subjects. For example, MCL 38.556e; MSA 5.3375(6.5) provides that the pension system sections of the Fire Fighters and Police Officers Retirement Act are a mandatory subject of bargaining.

In light of this fact, I disagree that the Legislature intended the distinction the majority draws between statutorily and privately created pension plans. Had the Legislature wished to draw a line between privately and publicly created systems in § 354(14), it easily could have, and most likely would have, done so in a far less confusing manner.

I conclude, that the better view is that the Legislature utterly failed to consider the interaction of the psera with the wdca’s coordination provisions. I note that, while the psera does not, the State Police Retirement Act (spra)3 does contain its own coordination provision. Specifically, under its disability retirement section, the SPRA states:

The retirement allowance payable under this section, when added to the statutory worker’s compensation benefits applicable in the case, shall not exceed the average annual salary paid to the member for the 2 years immedi*401ately before the duty disability retirement allowance effective date. [MCL 38.1626(4); MSA 5.4002(26)(4).]

The Fire Fighters and Police Officers Retirement Act4 also contains its own specific provision requiring coordination of disability benefits with worker’s compensation benefits.5 Had the Legislature intended to include such a provision in the psera, it could easily have done so. The lack of such a provision, coupled with the ambiguous language of § 354(1) and § 354(14), shows that the Legislature did not consider the effect of those sections on the psera.

Even if the Legislature had addressed coordination in the context of the instant case with the intent of preventing double recovery, the majority’s decision does not comport with such an intent. The majority assumes that coordination requires that plaintiffs worker’s compensation payments be decreased by the amount of the pension benefits received under the psera. As indicated under MCL 38.1626(4); MSA 5.4002(26)(4), there is a more proper way to prevent double recovery. It is to reduce the total benefits only enough to ensure that the psera allowance, added to *402worker’s compensation benefits, does not exceed the average annual salary paid before disability. Requiring offset of wdca benefits in the full amount of PSERA benefits does not comport with the goal that worker’s compensation benefits should “ ‘restore wage-earning capacity lost in on-the-job accidents.’ ” Franks v White Pine Copper Div, 422 Mich 636, 654-655; 375 NW2d 715 (1985).

Where the Legislature has ambiguously expressed itself, we may be called on to inteipret its intent. However, as my colleagues in the majority have frequently pointed out in other contexts, it is improper for us to engage in result-oriented judicial legislation. If the Legislature wishes to amend § 354(1), § 354(14), or the language in the psera to cause coordination of benefits, it knows how to accomplish that. Rather than awaiting legislative amendment of the statute, the majority elects to do it itself through a tortured reading of § 354(1) and § 354(14). I decline to join in it.

For the above reasons, I respectfully dissent.

Cavanagh, J., concurred with Kelly, J.

MCL 38.1301 et seq.; MSA 15.893(111) et seq.

MCL 418.354(14); MSA 17.237(354)(14).

MCL 38.1601 et seq.-, MSA 5.4002(1) et seq.

MCL 38.551 et seq.; MSA 5.3375(1) et seq.

The Fire Fighters and Police Officers Retirement Act specifically provides:

Amounts paid under Act No. 317 of the Public Acts of 1969 [MCL 418.101 et seq.; MSA 17.237(101) et seq.] to a retired member shall be offset against and payable in place of benefits provided under this act. If the benefits under Act No. 317 of the Public Acts of 1969 are less than the benefits payable under this act, the amount to be paid out of the funds of the retirement system shall be the difference between the benefits provided under Act No. 317 of the Public Acts of 1969 and the benefits provided in this act. Upon the termination of benefits under Act No. 317 of the Public Acts of 1969, the benefits shall be paid pursuant to this act. [MCL 38.556(2)(f); MSA 5.3375(6)(2) (0. ]