Lesner v. Liquid Disposal, Inc

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED MAY 7, 2002

ROBERT C. LESNER, Father of

Randy Lee Lesner, Deceased,

Plaintiff-Appellee,

v No. 116205

LIQUID DISPOSAL, INC., and

HARTFORD ACCIDENT AND INDEMNITY,

Defendants-Appellants.

________________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

The plaintiff’s son was fatally injured in the course of

employment. Plaintiff, a partial dependent of the decedent,

sought worker’s compensation benefits. Through extended

proceedings, there has been uncertainty with regard to the

proper amount of the benefits to be paid to plaintiff under

the formula established by this Court in Weems v Chrysler

Corp, 448 Mich 679; 533 NW2d 287 (1995).

We hold that the formula for calculating worker’s

compensation death benefits for surviving partial dependents

established in Weems is inconsistent with the governing

statute, MCL 418.321. Accordingly, we overrule that portion

of the Weems opinion. However, the portion of this opinion

that overrules Weems is to have limited retroactive effect.

We further hold that Weems correctly held that the

minimum and maximum limits in MCL 418.355 (2) and MCL

418.356(2) do not require an alteration after the partial

dependent benefits calculation. In addition, we hold that the

500-week limitation on benefits applies to benefits for a

partially dependent person.

Set forth in this opinion is the proper method for

determining partial dependent benefits in keeping with the

controlling statutory language. Accordingly, we remand this

case to the Worker’s Compensation Appellate Commission for

further proceedings consistent with this opinion.

I. Facts and Proceedings

In January 1982, plaintiff lived with his wife and two

adult sons. All four individuals made financial contributions

to the household as plaintiff drew a small pension and the

others earned money from employment. Plaintiff, then 57 years

old and disabled from employment since 1978, was partially

dependent on the contributions of his sons and wife. One of

the plaintiff’s sons died as the result of a work-related

accident in mid-January 1982.

The following month, plaintiff, as a survivor and partial

dependent of the deceased son, sought benefits pursuant to §

321 of the Worker’s Disability Compensation Act, MCL 418.321.

A hearing referee found that plaintiff was a partial

dependent, and ordered a weekly benefit of $170.21 until

further order of the bureau.

After both sides appealed to the former Worker’s

Compensation Appeal Board, a two-member panel affirmed the

referee’s decision, with some modification.1

The Court of Appeals granted leave to appeal2 and

affirmed in part and reversed in part.3

While defendants’ application for leave to appeal was

pending in this Court, we decided Weems, supra, which provided

a formula for calculating benefits for a partial dependent.

Then, in lieu of granting leave to appeal in the present case,

1
The WCAB ordered compensation “at the rate of $170.23

per week from January 13, 1982 [in accordance with MCL

418.356(2)] for a period not to exceed 500 weeks from the date

of the employee’s death” and further ordered a reduction of

that benefit amount, in accordance with the formula set forth

in Franges v General Motors Corp, 404 Mich 590; 274 NW2d 392

(1979). Franges concerned allocation of the cost of obtaining

a third-party tort recovery.

Unpublished order, entered July 6, 1993 (Docket No.

136338).

The Court of Appeals remanded for application of a

formula it had employed in LePalm v Revco DS, Inc, 202 Mich

App 33, 43-46; 507 NW2d 771 (1993). The Court directed that

the plaintiff receive “the greater of the amount calculated

under the LePalm formula or fifty percent of the average

weekly wage in 1982" and that the award “be reduced

appropriately pursuant to Franges.”

we directed the WCAC to recalculate death benefits using the

formula set forth in Weems. 449 Mich 901 (1995).

On remand, the WCAC once again recalculated the benefit

amount. A further recalculation occurred when the case

returned to the Court of Appeals.4

We granted leave to appeal in order to clarify this area

of the law and consider whether the formula for the

calculation of worker’s compensation death benefits for

surviving partial dependents established in Weems is

consistent with the governing statute, MCL 418.321.

II. Standard of Review

This case presents an issue of statutory interpretation,

which we review de novo as a question of law. Levy v Martin,

463 Mich 478, 482, n 12; 620 NW2d 292 (2001); Donajkowski v

Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999).

III. Analysis

A. The Statute at Issue

Death benefits for a dependent are governed by MCL

418.321. In 1982, when the plaintiff’s decedent died, the

language for this section, drawn from 1980 PA 357, read:

4
The Court of Appeals initially denied leave to appeal

for lack of merit in the grounds presented. Unpublished

order, entered June 5, 1997 (Docket No. 199205). In lieu of

granting leave to appeal, we remanded the case to the Court of

Appeals for consideration as on leave granted. 457 Mich 856

(1998). The Court of Appeals then decided this matter in an

unpublished opinion per curiam, entered December 28, 1999

(Docket No. 211230).

If death results from the personal injury of

an employee, the employer shall pay, or cause to be

paid, subject to [MCL 418.375], in 1 of the methods

provided in this section, to the dependents of the

employee who were wholly dependent upon the

employee's earnings for support at the time of the

injury, a weekly payment equal to 80% of the

employee's after-tax average weekly wage, subject

to the maximum and minimum rates of compensation

under this act, for a period of 500 weeks from the

date of death. If at the expiration of the

500-week period any such wholly or partially

dependent person is less than 21 years of age, a

hearing referee may order the employer to continue

to pay the weekly compensation or some portion

thereof until the wholly or partially dependent

person reaches the age of 21. If the employee

leaves dependents only partially dependent upon his

or her earnings for support at the time of injury,

the weekly compensation to be paid shall be equal

to the same proportion of the weekly payments for

the benefit of persons wholly dependent as the

amount contributed by the employee to such partial

dependents bears to the annual earnings of the

deceased at the time of injury.

Later, the section was amended by 1985 PA 103 and 1994 PA

271. One significant change was made to the final sentence of

the section to provide an eighty-percent multiplier in the

formula for the calculation of benefits.5

5
The current language, as enacted in 1994 PA 271, reads:

If death results from the personal injury of

an employee, the employer shall pay, or cause to be

paid, subject to [MCL 418.375], in 1 of the methods

provided in this section, to the dependents of the

employee who were wholly dependent upon the

employee's earnings for support at the time of the

injury, a weekly payment equal to 80% of the

employee's after-tax average weekly wage, subject

to the maximum and minimum rates of compensation

under this act, for a period of 500 weeks from the

date of death. If at the expiration of the

500-week period any such wholly or partially

dependent person is less than 21 years of age, a

worker's compensation magistrate may order the

B. The Weems Formula is Inconsistent with the Formula

Provided by the Plain Language of the Statute

As we have indicated with great frequency, our duty is to

apply the language of the statute as enacted, without

addition, subtraction, or modification. See, e.g., Helder v

Sruba, 462 Mich 92, 99; 611 NW2d 309 (2000); Robinson v

Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). We may not

read anything into an unambiguous statute that is not within

the manifest intent of the Legislature as derived from the

words of the statute itself. Omne Financial, Inc v Shacks,

Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). In other words,

the role of the judiciary is not to engage in legislation.

Tyler v Livonia Public Schools, 459 Mich 382, 392-393, n 10;

590 NW2d 560 (1999).

Interpreting the plain language of MCL 418.321 at the

time of the work related death of the plaintiff’s son in 1982,

that statute provided that the weekly benefit to be paid to a

partially dependent person (BPD) was calculated by multiplying

the benefit that would be paid if the person were wholly

employer to continue to pay the weekly compensation

or some portion thereof until the wholly or

partially dependent person reaches the age of 21.

If the employee leaves dependents only partially

dependent upon his or her earnings for support at

the time of injury, the weekly compensation to be

paid shall be equal to the same proportion of the

weekly payments for the benefit of persons wholly

dependent as 80% of the amount contributed by the

employee to the partial dependents bears to the

annual earnings of the deceased at the time of

injury.

dependent (BWD) by a percentage figure (“the proportion”). The

benefit for a wholly dependent person (BWD) was eighty percent

of the decedent’s after-tax average weekly wage (WWAT)6. The

proportion (P) was calculated by dividing the amount the

decedent contributed to the partial dependent (C)7 by the

decedent’s annual earnings (AE). Thus:

BPD = (BWD)(P), where

P = (C/AE), and

BWD = (.80)(WWAT).

Accordingly,

BPD = (C)(.80)(WWAT)/(AE), or

Benefit = (decedent’s contribution)(.80)(decedent’s weekly wage after taxes)

(decedent’s annual earnings)

This equation is the proper one; it is directly based on

the plain language of MCL 418.321 as it was in force in 1982.8

6
MCL 418.321 calls for “a weekly payment equal to 80% of

the employee's after-tax average weekly wage, subject to the

maximum and minimum rates of compensation under this act, for

a period of 500 weeks from the date of death.” These

limitations, to which the weekly payment is “subject,” are

respectively the maximum benefit of MCL 418.355(2), the

minimum benefit of MCL 418.356(2), and the 500-week limitation

that is expressly stated in MCL 418.321. When these

limitations are applicable, they can be substituted into the

formula for (BWD). We will discuss these limitations later in

the opinion.

7
The “amount” of a contribution must be computed with

respect to a period and, given the ratio being described by

the Legislature, it surely meant an annual amount.

8
As indicated above, the Legislature added, in 1985 PA

103, a second .80 multiplier that remained in effect after

1994 PA 271. See the final lines of the statutory language

quoted in footnote 5 and Justice BOYLE ’s partial

concurrence/partial dissent in Weems, 448 Mich 719.

With that change, P = (.80)(C)/(AE), so that:

In our view, the statute on its face requires a factual

determination of “the amount contributed by the employee” to

the partial dependent, that is, the amount actually

contributed by that deceased worker, in order to calculate the

amount of benefits to which the partial dependent is entitled.

However, in Weems, supra at 695-697, this Court created

its own formula for determining benefits payable to a partial

dependent under MCL 418.321, despite the plain language of the

statute.9 Rather than merely examining, as the statute

directed, “the amount contributed by the employee” to the

partial dependent, the Weems Court substituted other factors

to determine the level of benefits. In particular, it

concluded that the partial dependent would receive the amount

obtained by dividing the deceased employee’s annual after-tax

earnings by the sum of those earnings and the partial

BPD = (.80)(C)(.80)(WWAT)/(AE), or

Benefit = (decedent’s contribution)(.64)(decedent’s weekly wage after taxes)

(decedent’s annual earnings)

This modified formulation, currently applicable, would

have been appropriately applied in Weems, where the fatal

accident occurred in March 1986, well after the effective date

of 1985 PA 103. In the present case, however, the accident

occurred in 1982, so the statutory modification is not

applicable.

While we recognize that MCL 418.321 requires

significant study to parse, we also recognize that the

complexity and density of a statute does not in itself cause

the statute to be ambiguous and thus warrant construction of

the statute.

dependent’s regular and substantial annual income.10 See

Weems, supra at 696. The problem with this calculation is

that it is not derived from the language of the statute. MCL

418.321 includes no mention of the income of a partial

dependent as a factor in the calculation of the benefits due

that partial dependent.11

As explained by Justice CAVANAGH in his partial dissent in

Weems, in order to determine the benefits due a partial

dependent, a faithful application of MCL 418.321 “would

10
Like the present case, Weems involved a situation with

only one partial dependent. In a footnote, the Weems majority

seemed to indicate that the formula it adopted should be

modified in a case involving multiple partial dependents. See

Weems, supra at 697, n 22 (discussing treatment of a situation

with multiple partial dependents). Because we are overruling

the Weems formula and the present case involves only one

partial dependent, this opinion does not address situations

involving multiple partial dependents.

11
Moreover, the Weems formula distorts the evident

legislative goal of allowing different levels of benefits on

the basis of the different circumstances of otherwise

similarly situated partial dependents. This is illustrated by

considering that the Weems formula, by eschewing any

determination of the amount that the deceased employee

actually contributed to the partial dependent’s support, would

provide the same benefit level to a partial dependent in each

of the following two hypothetical cases. Assume that in both

cases A and B, the deceased employees had exactly the same

after-tax earnings and had a partial dependent who had the

same regular and substantial income. Now consider that in

case A, the partial dependent had substantial medical or

educational expenses that the partial dependent in case B did

not and that these expenses were paid for by the deceased.

This would mean that the employee in case A contributed more

to the partial dependent’s support than in case B. That no

allowance for the difference in the level of support actually

contributed by the deceased employee to the partial dependent

is made by the Weems formula demonstrates its inconsistency

with the language of MCL 418.321.

require a factual determination by the trier of fact” to

establish the amount contributed by the employee to the

partial dependent. Id. at 709. We agree. This is necessary

for the simple reason that the amount contributed by the

deceased employee to the partial dependent will vary from case

to case and cannot be determined by any blanket formula.

The Weems majority rejected such a factual inquiry,

apparently primarily on the basis of the view that such a

factual determination would be “unworkable”:

Such a determination is absolutely unworkable

in practice. It would be impossible in most cases

to even roughly estimate which portion of the

decedent’s income was used for the sole support of

the dependent. [Weems, supra at 698.]

We acknowledge that, in many cases, the factfinder will

be presented with a difficult task in determining what amount

of money to consider as having been contributed by the

deceased employee to the partial dependent. In large part,

this is because household expenses are often paid in

essentially a lump sum for items that benefit multiple members

of the household.12 Yet the difficulty of an administrative

tribunal in making a factual determination called for by a

statute is not a justification for ignoring the statute. The

reason is that the Legislature, the policy-making arm of our

government, in taking up this matter, is held to have

12
For example, a rental payment might allow both an

employee and a partial dependent to live in the same

apartment. Similarly, groceries might be purchased for a

household with all of its members sharing in the food.

considered this issue and settled on this approach. It is not

within our authority to disregard that choice. See, e.g.,

Helder, supra at 99 (when a statute is clear on its face, the

judicial role is to apply the statute in accord with its plain

language, not to articulate its view of “policy”).

Accordingly, we overrule Weems to the extent that it is

inconsistent with this opinion. In particular, we overrule

the Weems formula for calculating benefits due a partial

dependent because it is inconsistent with the plain language

of MCL 418.321.13

C. Statutory Limitations

In deducing the proper formula to be employed,

consideration must also be given to the limitations stated in

the opening sentence of MCL 418.321.14

1. Maximum and Minimum Benefits

Recall that an element of the calculation for a partial

dependent is the benefit that would be paid if the survivor

had been wholly dependent on the decedent (BWD). If one were

determining the benefit for a wholly dependent person, the

first sentence of MCL 418.321 instructs that it might be

necessary to reduce the benefit in light of the maximum

benefit of MCL 418.355(2) or to raise it to reach the minimum

13
Specifically, we note that we have not overruled the

Weems analysis regarding determining whether a person is

partially dependent.

14
See n 6.

benefit specified by MCL 418.356(2).

The majority in Weems held that no separate adjustment

should be made after the benefits for a partially dependent

person are calculated. The majority said that “a partially

dependent person’s weekly benefits are inherently subject to

the maximum and minimum rates of compensation because the

calculation of a wholly dependent person’s weekly benefit is

included in the partially dependent person’s calculation.”

448 Mich 684-685. We agree.

The minimum or maximum benefit language in MCL 418.321 is

located in the sentence discussing benefits for wholly

dependent persons, not the calculation for partially dependent

persons.15 Therefore, where the maximum or minimum is

applicable, it is to be inserted at the step where (BWD) is

determined.

For that reason, when (BWD) is more than the maximum or

less than the minimum, it will be necessary to substitute the

minimum or maximum for (BWD), which is calculated using the

15
Unlike our concurring colleague, we do not believe

that MCL 418.321 is ambiguous concerning the introduction of

the minimum or maximum benefit rate into a partially dependent

person’s benefit calculation. The maximum or minimum benefit

clause is directed solely at the calculation for a wholly

dependent individual and is the only reference to the minimum

or maximum benefit rate in the statute. Since, under the

plain language of the statute, a partial dependent’s benefit

calculation first requires the calculation of the benefit that

the partial dependent would have received if wholly dependent,

we conclude there is no ambiguity about the point of

introduction of a minimum or maximum benefit rate into the

calculation of a partial dependent’s weekly compensation.

formula stated ante at page 7. That change would mean that

the usual value of (BWD), which is (.80)(WWAT) or 80% of the

decedent’s weekly wage after taxes, would be replaced by the

statutory maximum or minimum (SM) under MCL 418.355(2) or MCL

418.356(2). This change would be necessary because in such

cases the benefit level of a partial dependent is tied by the

language of MCL 418.321 to the benefits that would be provided

a wholly dependent person. Ordinarily, a wholly dependent

person would be entitled to 80% of the deceased employee’s

after-tax earnings, but that is not the case in situations in

which such a wholly dependent person’s benefits would be

subject to the maximum or minimum benefit restrictions.

Thus, where the minimum or maximum applies, as the law

existed in 1982, the statutory formula would be:

BPD = (C)(SM)/(AE), or

Benefit = (decedent’s contribution)(statutory maximum or minimum)

(decedent’s annual earnings)

In a case arising under the amended language of 1985 PA

103 and currently applicable, it would be:

BPD = (.80)(C)(SM)/(AE), or

Benefit = (.80)(decedent’s contribution)(statutory maximum or minimum)

(decedent’s annual earnings)

2. 500-Week Limitation

The first sentence of MCL 418.321 also states a 500-week

limitation of benefits for a wholly dependent person. This

limitation also applies to benefits for a partially dependent

person. The second sentence of MCL 418.321 provides a

specific means for partially (and wholly) dependent persons to

seek an extension of benefits beyond 500 weeks. In light of

the entire structure of MCL 418.321--
--in which the benefit for

a partially dependent person is derived arithmetically from

the benefit that would be paid if the person were wholly

dependent--
--the second sentence communicates the Legislature’s

intent that the 500-week limitation is likewise applicable to

partially dependent persons.

V. Retroactivity

The general rule is that judicial decisions are given

complete retroactive effect. Michigan Ed Emp Mut Ins Co v

Morris, 460 Mich 180, 189; 596 NW2d 142 (1999). However,

recognition of the effect of changing settled law has led this

Court to consider limited retroactivity when overruling prior

case law. In examining the potential effect of a retroactive

decision, this Court gauges (1) the purpose served by the new

rule, (2) the extent of reliance on the old rule, and (3) the

effect of retroactivity on the administration of justice. Id.

at 190.

The purpose of the rule adopted in this opinion is to

correct what we believe to be the flawed construction of MCL

418.321 in Weems. However, Weems has been controlling

authority for over six and one-half years. Thus, it appears

that there has been widespread reliance on the Weems formula

in calculating worker’s compensation benefits for partial

dependents of deceased employees. Further, attempting to

revisit the benefit levels finally determined or agreed upon

during the period that Weems was controlling authority could

have a detrimental effect on the administration of justice by

imposing an enormous burden on the worker’s compensation

system, not to mention the reliance of the beneficiaries on

the benefits previously awarded under Weems.

For these reasons, we hold that the present opinion is to

be given only limited retroactive effect. The interpretation

of MCL 418.321 articulated in this opinion is to be applied

only to the present case; to other cases pending decision by

a worker’s compensation magistrate or on appeal, to either the

WCAC or the Court of Appeals, in which the determination of

the level of benefits to be paid a partial dependent is in

issue; and to future cases in which the level of benefits due

a partial dependent under MCL 418.321 needs to be initially

determined.

VI. Conclusion

In the present case, the WCAC and the Court of Appeals,

as they were bound to do, attempted to apply Weems as binding

precedent from this Court. However, for the above reasons, we

overrule the portion of Weems that provides a formula for

calculating worker’s compensation death benefits for surviving

partial dependents. The portions of this opinion that

overrule the Weems opinion are to have limited retroactive

effect.

We further hold that the minimum and maximum benefit

limits do not require an alteration after the partial

dependent benefits are calculated, but rather are to be

inserted before that calculation. In addition, we hold that

the 500-week limitation on benefits applies to partially

dependent persons.

For these reasons, it is necessary to again remand this

case to the WCAC. On remand, the commission shall calculate

the plaintiff’s benefits as a partial dependent in accordance

with MCL 418.321 as explained in this opinion, and in

accordance with other provisions of law, including those

stated in Franges, supra. MCR 7.302(F)(1).

CORRIGAN , C.J., and TAYLOR and MARKMAN , JJ., concurred with

YOUNG , J.

S T A T E O F M I C H I G A N

SUPREME COURT

ROBERT C. LESNER, father of

Randy Lee Lesner, deceased,

Plaintiff-Appellee,

v No. 116205

LIQUID DISPOSAL, INC., and

HARTFORD ACCIDENT AND INDEMNITY,

Defendants-Appellants.

___________________________________

KELLY, J. (concurring).

I agree with the formula that the majority has adopted to

be used for determining death benefits of a partial dependent.

However, it is obvious to me that § 321 of the Worker's

Disability Compensation Act1 is ambiguous. Consequently, the

majority's plain meaning analysis is inadequate to determine

the Legislature's intentions in writing it.

The majority has adopted the formula proposed in Justice

MCL 418.321.

Cavanagh's dissent in Weems v Chrysler Corp,2 except that it

retains the Weems majority's application of the maximum and

minimum rates of compensation for injuries. Sometimes, the

formula yields a benefit for a whole dependent that falls

above the maximum rate or below the minimum rate. In those

cases the statutory maximum or minimum is substituted for the

figure representing eighty percent of the decedent's after-tax

weekly wage in the formula.3

When the maximum and minimum amounts do not apply, the

majority's formula for a partial dependent is as follows:4

Benefit =(.80)(decedent's annual contribution)(.80)(decedent's after-tax weekly wage)

(decedent's annual earnings)

Whenever the maximum or minimum is substituted, the benefit

for a partial dependent is computed as follows:5

Benefit = (.80)(decedent's annual contribution)(statutory maximum or minimum)

(decedent's annual earnings)

Justice Cavanagh's formula in Weems differs in this

2
448 Mich 679; 533 NW2d 287 (1995).

In 2002, the minimum is $357.56 per week and the

m a x i m u m i s $ 6 4 4 . 0 0 p e r w e e k .

Http://www.cis.state.mi.us/wkrcomp/82_

now.htm, on April 19, 2002.

There are two 80% multipliers in this formula. The

first is the multiplier in the whole dependent's benefit,

which is 80% of the after-tax weekly wage of the decedent.

The second 80% multiplier, which was added by a 1985 amendment

of the act, is found in the partial dependent's formula. Slip

op at 7, n 8.

5
The 80% multiplier in this formula is the one found in

the formula for a partial dependent's benefit.

respect: The death benefit for a partial dependent is

calculated without regard to the maximum and minimum rates.

Then, whenever the resulting death benefit falls outside the

maximum-minimum benefit range, the benefit is adjusted upward

to the minimum or downward to the maximum, as the case may be.

Both interpretations are reasonably derived from the

language of the statute. Section 321 of the Worker's

Disability Compensation Act states that a wholly dependent

survivor's benefit is calculated as follows:

If death results . . . the employer shall pay

. . . a weekly payment equal to 80% of the

employee's after-tax average weekly wage, subject

to the maximum and minimum rates of compensation

under this act, for a period of 500 weeks from the

date of death. [MCL 418.321.]

Another part of the same section then directs how the

benefit is adjusted for a partially dependent survivor:

If the employee leaves dependents only

partially dependent upon his or her earnings for

support at the time of injury, the weekly

compensation to be paid shall be equal to the same

proportion of the weekly payment for the benefit of

persons wholly dependent as 80% of the amount

contributed by the employee bears to the annual

earnings of the deceased at the time of injury.

[MCL 418.321.]

The majority reasons that, because the clause "subject to the

maximum and minimum rates of compensation" appears only in the

whole dependents part of § 321, it refers only to the benefit

paid to a whole dependent. On the other hand, the Weems

dissent rejects that logic because the 500-week limitation of

§ 321 appears in the whole dependents part. Yet it applies to

partial dependents and is not repeated in the partial

dependents part. Also, the partial dependents part does not

state that the partial benefit is subject to the maximum and

minimum rates of compensation, whereas the fact that it is so

subject is undisputed.

Both constructions are antagonized by additional

ambiguity in the wording of §§ 355 and 356. Section 355(2),

which defines the maximum rate of compensation, states:

[T]he maximum weekly rate of compensation for

injuries within the year shall be established as

90% of the state average weekly wage . . . .

Proponents of the Weems dissent can rely on the fact that the

rate referred to is called the maximum rate of compensation.

That suggests that they should adjust the result of all

benefit calculations, whole or partial. On the other hand,

the statutory language can reasonably be read to mean that

placement of the maximum rate within the formula is determined

by § 321.

The language of § 356(3) also can be read in two

different manners. It states:

The minimum weekly benefit for death under

section 321 shall be 50% of the state average

weekly wage as determined under section 355.

Proponents of the Weems dissent argue that, because the

minimum weekly benefit is referred to as the minimum "for

death under section 321," it should replace any death benefit

calculated under § 321 that is lower than it. It should be

the smallest sum that a partial or whole dependent could

possibly receive. On the other hand, one can again point to

the minimum benefit as only one factor in the partial

dependent's benefit calculation.

I find that both are reasonable interpretations of the

language of §§ 321, 355 and 356. Therefore, § 321 is

ambiguous as regards application of the maximum and minimum

benefit rates, and rules of statutory construction must be

applied to determine the Legislature's intent.

It is undisputed that the overarching intention of the

Legislature was to award a death benefit that is less than the

amount that the employee contributed to the dependent. If the

Weems dissent formula reflected legislative intent, it would

yield that result. However, the contrary is true. Using it,

in cases where an employee contributed a small but not de

minimus amount before his death, a partial dependent would

receive the minimum rate of compensation. Thus, the benefit

could be significantly higher than the amount the decedent

contributed to the dependent during his lifetime.6

This is demonstrated by an example from the Weems

dissent:

. . .[I]f, for instance, twenty percent of Mr.

Weems' after-tax earnings were contributed to Mrs.

Weems, the formula yields:

(continued...)

By contrast with the Weems dissent's formula, the

majority's formula yields a death benefit that is normally

eighty percent of the amount that the employee contributed to

the dependent.

Because it satisfies the Legislature's purpose of

compensating part, but not one hundred percent or more, of the

dependent's loss, I agree with the majority's formula. Of the

possible interpretations of § 321, it alone conforms with the

legislative intent to calculate a death benefit that is

normally less than the decedent employee's contribution.

Therefore, I concur in the result of the majority opinion.

6
(...continued)

80% X $ 8,558 X $822.91 = $131.66

$42,791

However, applying § 356, which sets the

statutory minimum for death benefits, the payable

death benefit would be $207.35, the applicable

minimum rate for these parties. [Id. at 718, n 17

(Cavanagh, J. dissenting).]

In this example, the calculated benefit of $131.66 was raised

to $207.35 a week, which was the minimum rate for death

benefits in 1986. However, the employee had contributed only

$8,558 annually before death. Hence, under the Weems dissent

formula, the dependent received only $164.57 a week from the

decedent and would receive $207.35 a week after.

S T A T E O F M I C H I G A N

SUPREME COURT

ROBERT C. LESNER, Father of

Randy Lee Lesner, Deceased,

Plaintiff-Appellee,

v No. 116205

LIQUID DISPOSAL, INC., and

HARTFORD ACCIDENT AND INDEMNITY,

Defendants-Appellants.

___________________________________

CAVANAGH, J. (concurring in part and dissenting in part).

While I agree that the formula the majority adopts today

for calculating worker’s compensation death benefits for

surviving partial dependents is the correct formula under MCL

418.321, I do not agree with the majority’s interpretation of

the minimum and maximum benefit language located in MCL

418.321. Also, I write separately because I believe that

leave was improvidently granted in this case.

The procedural history of this case is substantial.

Plaintiff first sought benefits in connection with his son’s

death in 1982. In 1995, after this Court decided Weems v

Chrysler Corp, 448 Mich 679; 533 NW2d 287 (1995), this case

was remanded to the Worker’s Compensation Appellate Commission

to recalculate death benefits using the formula set forth in

Weems. 449 Mich 901 (1995). Today, the majority overrules

the Weems formula and remands for yet another recalculation

using a new formula.

This case has been up and down the worker’s compensation

and appellate court systems for over twenty years and has been

remanded once already to calculate benefits under the now

abandoned Weems formula. While I remain committed to the

formula set forth in my partial dissent to Weems, which this

Court adopts today, I believe that it is time to put this case

to rest. Leave was improvidently granted. Further, I remain

committed to the interpretation of the application of the

minimum and maximum benefits as expressed in my partial

dissent to Weems. Weems, 448 Mich 711-712, 716-717 (1995).

S T A T E O F M I C H I G A N

SUPREME COURT

ROBERT C. LESNER, Father of

Randy Lee Lesner, Deceased,

Plaintiff-Appellee,

v No. 116205

LIQUID DISPOSAL, INC., and

HARTFORD ACCIDENT AND INDEMNITY,

Defendant-Appellants.

____________________________________

WEAVER, J. (dissenting).

I dissent from the majority’s decision to overrule the

formula established by this Court in Weems v Chrysler Corp,

448 Mich 679; 533 NW2d 287 (1995). As noted by the Weems

majority, in most instances it is difficult, if not

impossible, to calculate the amount contributed by the

decedent solely to the support of the partial dependent. Id.

at 698. The formula articulated in Weems, which takes into

consideration the dependent person’s regular and substantial

income, represents a practical, workable formula that gives

effect to the statute, MCL 418.321, and is faithful to its

intent.1 Therefore, I would not overrule this aspect of the

Weems opinion.

At oral argument, counsel for both plaintiff and

defendants agreed that the formula established in Weems has

proven workable since the decision was made over six years

ago.

Lesner v. Liquid Disposal, Inc

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