Sokolek v. General Motors Corp.

450 Mich. 133 (1995)

SOKOLEK
v.
GENERAL MOTORS CORPORATION
MULLINS
v.
FRANK H WILSON COMPANY
RIZA
v.
DELRAY BAKING COMPANY

Docket Nos. 100072, 95551, 97960, 97961, (Calendar Nos. 13-14).

Supreme Court of Michigan.

Argued May 4, 1995. Decided August 22, 1995.

Freid, Gallagher, Taylor & Associates, P.C. (by Debra A. Freid), for Sokolek.

Charles G. Gale for Mullins.

Sachs, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. (by Granner S. Ries), for Riza.

Munroe & Nobach, P.C. (by Cameron C. McComb), for the defendant in Sokolek.

Sinn, Day, Felker, Chinitz, Lovernick & Roggenbaum, P.C. (by William A. Day), and Daryl C. Royal, for the defendants-appellants Frank H. Wilson Company and Citizens Insurance Company of America.

Conklin, Benham, Ducey, Listman & Chuhran, P.C. (by Martin L. Critchell), for the defendants-appellees Delray Baking Company and West American Insurance Company.

Amicus Curiae:

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Morrison Zack, Assistant Attorney General, for Director, Michigan Bureau of Worker's Disability Compensation.

BRICKLEY, C.J., and LEVIN, J.

I

RIZA v DELRAY BAKING CO

Halil Riza was employed at the Delray Baking Company until his last day of work, January 1, 1971. It was subsequently determined that Mr. Riza had a continuing psychiatric disability.

The plaintiff filed the current action on December 29, 1981, claiming to be totally and permanently disabled. On December 4, 1984, his wife filed a petition requesting reimbursement for nursing and attendant care services she had been providing for the plaintiff. After a hearing, Magistrate Lanita Haith held that the plaintiff was not totally and permanently disabled. The magistrate did not address the request for reimbursement from Mrs. Riza.

The plaintiff appealed, and the WCAB reversed. 1991 WCABO 1535. The WCAB found the plaintiff to be totally and permanently disabled, and ordered the defendant to reimburse Mrs. Riza for all nursing and attendant care provided for the plaintiff from December 1, 1983, to July 30, 1985. After July 30, 1985, however, the board limited the award to compensation for fifty-six hours of work by Mrs. Riza per week, citing § 315(1) of the Worker's Disability Compensation Act, an amendment that came into effect on that date. The amendment provides, in relevant part:

Attendant or nursing care shall not be ordered in excess of 56 hours per week if such care is to be provided by the employee's spouse, brother, sister, child, parent, or any combination of these persons. [MCL 418.315(1); MSA 17.237(315)(1).]

The WCAB held that the statute applied to all payments made after its effective date.

Both the plaintiff and the defendant appealed to the Court of Appeals. That Court reversed the decision of the WCAB and held that the fifty-six-hour limitation in § 315(1) must be applied retroactively. The statutory language, "shall not be ordered," was found to be indicative of a legislative intent to apply the statute to all injuries for which compensation was ordered after the effective date of the statute, regardless of the injury date. 200 Mich. App. 169; 504 NW2d 193 (1993). We subsequently granted leave to appeal. 448 Mich. 852 (1995).

MULLINS v FRANK H WILSON CO

Mr. Charles Mullins worked for the Frank H. Wilson Company until February 16, 1984, when he was forced to quit because of several severe heart and lung conditions. Mr. Mullins filed a petition for hearing with the WCAB on March 5, 1984. The hearing referee, Steven C. Washington, found him to be disabled and entitled to an open award of benefits.

The referee also found that the plaintiff was entitled to be reimbursed for the nursing and attendant care services provided by his wife and daughter. Benefits were awarded for nursing care from February 17, 1984, onward. After July 30, 1985, however, the referee limited the number of compensable hours for such services to fifty-six a week under § 315(1). The referee awarded the plaintiff a compensation rate based on the rate, $7 an hour, that would be charged by an agency that provided home care, and stated that the yearly rate of compensation would be, "subject to cost-of-living increases."

Both the plaintiff and the defendant appealed the referee's decision. The plaintiff argued that the fifty-six-hour limitation did not apply to him because his injury occurred before July 30, 1985. The defendant argued that the fifty-six-hour limitation should have been applied retroactively to the time of the plaintiff's injury. It also contended that the plaintiff should only have been awarded compensation equivalent to the going rate for an independently hired nurse's aid, rather than the rate charged by an agency, and that the cost-of-living increases awarded by the referee were inappropriate.

The WCAB affirmed in part and reversed in part. The board held that § 315(1) did not apply to Mr. Mullins. Hence, the referee's decision to limit reimbursement for nursing and attendant care to fifty-six hours a week after July 30, 1985, was reversed. The board affirmed the referee's decision to award compensation at the rate of $7 an hour, but held that the cost-of-living increases were "unenforceable and without any method by which to compute said cost-of-living increases...." 1991 WCABO 331, 340.

Both parties appealed to the Court of Appeals, which affirmed in part and reversed in part. The Court held that the fifty-six hour a week limitation on compensation for nursing and attendant care imposed by § 315(1) should not apply to the plaintiff, because Mr. Mullins was injured before the effective date of the statute. Retroactive application of the amendment was inappropriate because it affected a substantive right. The Court also affirmed the WCAB's refusal to enforce the cost-of-living increases awarded in the referee's opinion, and reversed the WCAB's decision to award the plaintiff the $7 an hour rate charged by home care agencies. Unpublished opinion per curiam of the Court of Appeals, issued December 9, 1992 (Docket No. 139268). Both parties appealed to this Court, and we granted leave in an unlimited order.^[1] 448 Mich. 852 (1995).

SOKOLEK v GENERAL MOTORS CORP

Janet Sokolek was an employee of General Motors Corporation. Ms. Sokolek suffered an injury to her back while at work on April 16, 1980. She petitioned for worker's compensation benefits and received an open award in November, 1981.

On October 14, 1985, Ms. Sokolek filed a petition to obtain compensation for nursing and attendant care provided by her husband. The magistrate found that the plaintiff was entitled to compensation, and the defendant appealed the decision to the WCAB. GM argued that the magistrate had erred in not applying § 381(3) of the WDCA, the "one-year-back rule." Like § 315(1), the one-year-back rule applying to nursing and attendant care became effective on July 30, 1985. The amendment provides:

Payment for nursing or attendant care shall not be made for any period which is more than 1 year before the date an application for a hearing is filed with the bureau. [MCL 418.381(3); MSA 17.237(381)(3).]

The WCAB found that the amendment did not apply to injuries that occurred before July 30, 1985. It thereby affirmed the decision of the magistrate.

The Court of Appeals denied the defendant's application for leave to appeal. Unpublished order, entered July 1, 1992 (Docket No. 146817). The defendant then appealed to this Court. We also denied leave initially, but on the defendant's motion for rehearing, we remanded the case to the Court of Appeals for consideration as on leave granted the defendant's claim that § 381(3) applied to these facts. 442 Mich. 924 (1993). On remand, the Court of Appeals affirmed the decision of the WCAB. 206 Mich. App. 31; 520 NW2d 668 (1994). The defendant again appealed to this Court, and we granted leave. 447 Mich. 1048 (1994).

II

1985 PA 103 added the following sentence to § 315 of the Worker's Compensation Act:

Attendant or nursing care shall not be ordered in excess of 56 hours per week if such care is to be provided by the employee's spouse, brother, sister, child, parent, or any combination of these persons.[^[2]]

Act 103 added the following sentence to § 381:

Payment for nursing or attendant care shall not be made for any period which is more than 1 year before the date an application for a hearing is filed with the bureau.[^[3]]

The question presented is whether these provisions, limiting the amount of medical benefits payable by an employer or its insurer in respect to an injured worker, apply retroactively in respect to injuries suffered before the July 30, 1985, effective date of Act 103, or apply prospectively.

Cognizant of the fact that the decision in these cases overrules, sub silentio, prior decisions of this Court, we hold that, although the workers in the instant cases were injured before July 30, 1985, these provisions apply to all services rendered on and after the July 30, 1985, effective date. Thus, in Riza and Mullins services rendered before July 30, 1985, are compensable without regard to the fifty-six hour a week limitation, and services rendered on and after July 30, 1985, are subject to the fifty-six hour a week limitation. In Sokolek, the one-year-back limitation is not effective regarding nursing or attendant care services rendered before July 30, 1985, with the result that Ms. Sokolek, who filed on October 14, 1985, within a few months and hence within one year of the July 30 effective date of Act 103, may recover for all services rendered through October 14, 1985.

Worker's compensation benefits are a form of income maintenance for persons whose wage-earning capacity has been suspended or terminated. Franks v White Pine Copper Div, 422 Mich. 636, 654; 375 NW2d 715 (1985). In Lahti v Fosterling, 357 Mich. 578; 99 NW2d 490 (1959), this Court held that the Legislature could increase medical benefits effective retroactively to include persons injured before the effective date of the amendatory act. Similarly, the Legislature may, as here, reduce medical benefits.^[4]

Absent something in the language or in the history of Act 103 that would justify the conclusion that the Legislature did not intend that these amendments would become effective with respect to weekly benefit periods commencing on and after the July 30, 1985, effective date, without regard to whether the injury or disability occurred before that date, we hold that these amendments are effective with respect to weekly benefit periods commencing on and after July 30, 1985, whether or not the injury or disability occurred before that date.^[5]

III

A

Two issues appealed in Mullins v Frank H Wilson Co remain to be decided. We granted the plaintiff's application to appeal the Court of Appeals determination that he was entitled to be compensated for the attendant care of his wife only at the rate charged by a nurse's aid hired independently, rather than at the rate paid to an agency for such a service. We also agreed to decide the propriety of the hearing referee's award of cost-of-living increases, which was reversed by the WCAB and the Court of Appeals as, "unenforceable."

At the hearing before the referee, the only testimony concerning the appropriate rate of compensation for home health care was that of the plaintiff's expert, Karen Hoffner. Ms. Hoffner testified that hiring a "homemaker companion" through a nursing agency would cost between $7 and $7.25 an hour. She also testified that a homemaker companion could be hired independent of such an agency, and that this would cost $3.75 an hour. This lower rate also apparently approximates the amount a homemaker companion would be paid if that person worked for a nursing agency. The difference in price, about $3.25 an hour, is taken by the agency, presumably to pay for overhead costs and for profit.

The statutory provision at issue provides:

The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. [MCL 418.315(1); MSA 17.237(315)(1).]

The term, "reasonable," refers not only to the services to be performed, but to the compensation to be paid to the provider of such services. Kosiel v Arrow Liquors Corp, 446 Mich. 374, 383; 521 NW2d 531 (1994).

The defendant argues that there is no reason why the plaintiff's wife should receive the extra money that an agency charges to address administrative costs. Although we agree that this argument is logically compelling, we hold that what level of compensation is reasonable is a factual determination for the magistrate to decide.

This is in accord with our decision in Kosiel. In that case we held that a magistrate could order a certain level of compensation, "until the further order" from the board, allowing a possible revision in the compensation rate at an unspecified point in the future. Id. at 382. We reasoned in part that the magistrate was following the dictates of the statute, by including a temporal aspect in the determination of what reasonable compensation was. The factual nature of the issue of reasonable compensation was implicit in this decision. Id. at 382-383.

Moreover, the magistrate is in a better position than an appellate court to make this determination. The record before us on appeal is limited, and it is difficult for us to know whether it would be appropriate to award at least part of the extra expense required to hire a home companion from a nursing agency. Many considerations may be necessary to make such a determination.

For example, the cost of minimal benefits and social security contributions may be included in the higher hourly rate paid to a nursing agency, and it may be necessary to provide similar benefits to an independent companion, over and above a standard salary. Nursing agencies may also pay to provide training to their employees above and beyond the abilities of an independent companion, training that may be necessary to care for the plaintiff. In short, this is a multifaceted factual issue, involving the various types of in-home care available, the duties performed by them, their customary billing and payment practices, and the type of services being performed by the plaintiff's wife. Brown v Eller Outdoor Advertising Co, 139 Mich. App. 7, 10; 360 NW2d 322 (1984).

The magistrate did not provide an explanation for his finding that the plaintiff should be compensated for his wife's attendant care at the rate charged by a home nursing agency. We believe the record to be devoid of sufficient information to make such a finding. We therefore remand this portion of the case to the magistrate, to determine what compensation is reasonable under these facts.

B

The hearing referee awarded the plaintiff's compensation, "subject to cost-of-living increases." The WCAB held that this provision of the award was, "unenforceable," and the Court of Appeals affirmed. We find that our opinion in Kosiel, supra, also controls the resolution of this issue.

In Kosiel, the magistrate ordered a certain level of compensation, "until the further order of the Department." We stated that the order

did not represent a final determination of the value of nursing services for the duration of plaintiff's life; rather, it contemplated the need to adjust the amount at some point in the future in response to such changes as increases or decreases in wage rates or inflation.

* * *

Like the statutory standard, the order provides the necessary flexibility to allow a future determination or "reasonableness" in keeping with the humanitarian objectives that underlie the WDCA. [Id. at 381-383.]

Obviously, then, a magistrate is empowered to award cost-of-living increases at a time after a nonfinal determination when such increases are appropriate.

We find that the hearing referee's order in this case served the same permissible purpose as the order in Kosiel, to allow the plaintiff's award to evolve as conditions changed. Admittedly, the order in this case is more troublesome, because it provided an award that was not specific or determinable by some set formula. Because this type of award is permissible, however, we think it best to remand this aspect of the case to the magistrate, as part of the determination of what compensation is reasonable in this case. We feel that it would be inequitable, as well as contrary to the spirit of our reasoning in Kosiel, to hold that the services of the plaintiff's wife must be compensated at a level found to be appropriate in 1985. The Court of Appeals may or may not be correct in its assessment that $3.75 an hour was fair compensation for attendant care a decade ago, but there is little doubt that this figure, well under the current minimum wage, is no longer adequate.

Sokolek affirmed.

Riza reversed.

Mullins affirmed in part, reversed in part, and remanded.

MALLETT, J., concurred with BRICKLEY, C.J., and LEVIN, J.

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

I agree with part III of the lead opinion, but I would not reject the procedural/substantive inquiry in determining the effect of amendments of the Worker's Disability Compensation Act. MCL 418.101 et seq.; MSA 17.237(101) et seq. Today, the lead opinion, virtually without comment or analysis, adopts an approach we have repeatedly rejected when addressing other amendments of the Worker's Disability Compensation Act. See, generally, Franks v White Pine Copper Div, 422 Mich. 636, 678; 375 NW2d 715 (1985) (LEVIN, J., dissenting); Hurd v Ford Motor Co, 423 Mich. 531, 536; 337 NW2d 300 (1985) (LEVIN, J., dissenting); Selk v Detroit Plastic Products, 419 Mich. 1, 15; 345 NW2d 184 (1984) (LEVIN, J., dissenting). Eliminating the procedural/substantive inquiry overrules a vast body of law that is well entrenched in our jurisprudence, an approach the Legislature has necessarily taken into account when amending statutory provisions. Without a compelling justification, which the lead opinion does not provide, I would not abandon this approach to statutory interpretation.

Rather, I agree with Justice RILEY's analysis of when a third-party caregiver's cause of action accrues, continued reliance on a substantive/procedural analysis to determine whether an amendment should be given retroactive effect, and decision that the fifty-six-hour limitation,^[1] at issue in Riza and Mullins, is procedural and therefore should apply retroactively.

The fifty-six-hour limitation is a procedural modification because the amendment limits only the family's right to compensation. Section 315 merely codifies, with a fifty-six-hour limitation, the existing right of the family to receive compensation — a right created by the courts. See Kushay v Sexton Dairy Co, 394 Mich. 69; 228 NW2d 205 (1975); Brown v Eller Outdoor Advertising Co, 111 Mich. App. 538; 314 NW2d 685 (1981). The limitation does not affect the essence of the right, but merely "the amount of compensation which [the caregiver] may eventually receive." White v General Motors Corp, 431 Mich. 387, 395; 429 NW2d 576 (1988). Thus, the amendment is procedural and can be applied retroactively.^[2]

I disagree, however, with Justice RILEY's decision to reach the question whether the one-year-back limitation^[3] on recovery for attendant or nursing care, at issue in Sokolek, should be retroactively applied.

The defendant in Sokolek did not properly preserve the question whether the one-year-back rule should be given retroactive effect, and it is therefore waived. The defendant did not argue before the WCAB or in its initial application to the Court of Appeals that the one-year-back limitation is procedural and that it should therefore apply retroactively. Instead, defendant relied solely on the contention that because the plaintiff filed for compensation after the effective date of the amendment, the amendment applied to the plaintiff's claim. The final paragraph of the Court of Appeals opinion accurately notes:

Because the issue whether § 381(3) should be applied retroactively because it is remedial was not raised by defendant either before this Court or before the WCAB, that issue has not been preserved for appellate consideration and must be considered waived. Achtenberg v East Lansing, 421 Mich. 765, 773; 364 NW2d 277 (1985); Wiand v Wiand, 178 Mich. App. 137, 150; 443 NW2d 464 (1989). [206 Mich. App. 31, 36-37; 520 NW2d 668 (1994).]

I agree with the Court of Appeals that because defendant did not raise this argument below, it is not properly preserved. Because the date of filing has no relevance in determining whether a statutory amendment applies to a third-party caregiver's cause of action, and defendant's belated argument that the amendment should apply retroactively is not preserved for review, I would affirm the Court of Appeals decision in Sokolek.

RILEY, J. (dissenting).

I

A

The majority willingly overrules a significant line of cases, in which this Court has concluded that a disabled person's right to worker's compensation is governed by the law in effect on the date of injury.^[1] It is imperative, however, that we instead distinguish that line of cases involving the disabled person's right to compensation from the present cases in which we are presented with a third-party caregiver's right to compensation that does not necessarily accrue on the date the employee is injured.^[2] The present cases should be distinguished on this basis.

In Grogan v Manistique Papers, Inc, 154 Mich. App. 454; 397 NW2d 825 (1986), the Court of Appeals was asked to decide whether the Second Injury Fund could be reimbursed for benefits paid to an injured worker as the result of a third-party tort action. The fund based its claim on an amendment of the Worker's Disability Compensation Act that had come into effect on May 8, 1984. The Court of Appeals reasoned:

The pertinent inquiry that must be made in the present case is what event or circumstances triggers the application of MCL 418.531(3); MSA 17.237(531)(3). Plaintiff contends that the date of the injury is the crucial event, while the fund asserts recovery from the third party triggers the application of the statute. After considering the arguments made by parties to this case, we find the argument made by the Second Injury Fund to be persuasive.

Although the Legislature made the statute effective immediately on May 8, 1984, it did not clearly express what event was required to occur after the effective date in order to trigger application.... While it is true that it is the injury which allows an injured worker to recover workers' compensation benefits, under § 827(5) it is not until recovery is obtained from a third party that the Second Injury Fund has a right to reimbursement. [Id. at 460.]

Similarly, in this case, the transaction or event that most naturally triggers application of the amendments at issue is not the injury, but the actual rendering of services.

A caregiver is a third party whose expectation and right to compensation does not arise on the date the employee is injured because the third party has no right or expectation of recovery for services that have not yet been rendered. Logic dictates that the caregiver is not entitled to compensation unless or until service is rendered. Attendant care services may be provided at any time following the injury, e.g., one day after the injury or, in some circumstances, not until years following the injury. As a result, I believe that the caregiver's right to compensation accrues as services are rendered and that the law in effect on the date that service is provided governs the caregiver's right to compensation, subject to a determination of whether any subsequent amendments are procedural/remedial or substantive in nature.^[3]

B

Application of this rule in Mullins and Riza^[4] would dictate that plaintiffs be awarded compensation without regard to the fifty-six-hour limitation^[5] until the effective date of the statute.^[6] After the effective date, plaintiffs' rights would be subject to the fifty-six-hour limitation because the rights accrue as service is provided. Similarly, in Sokolek, plaintiff would not be limited by the one-year-back rule because service was provided during the time before the amendment became effective.^[7]

C

After concluding that a caregiver's right accrues as services are rendered, it is necessary to determine whether any pertinent amendments should be applied retroactively. Despite the majority's total failure to do so, I believe that deciding whether an amendment is procedural/remedial or substantive in nature is necessary and must be continued.^[8] Worker's compensation should harmonize with the well-established and broadly applied rule that a procedural/remedial statute applies retroactively.^[9]

The term "retroactive legislation" describes acts that operate on transactions which have occurred or rights and obligations that existed before passage of the act. 2 Singer, Sutherland Statutory Construction (5th ed), § 41.01, p 337. Provisions added by amendment that affect substantive rights will not be construed to apply retroactively unless the Legislature has clearly expressed its intent to that effect. Hurd v Ford Motor Co, 423 Mich. 531, 535; 377 NW2d 300 (1985).

The majority readily and without explanation overrules "sub silentio" a significant line of cases of this Court. Ante at 142. The well-established rule is that the law in effect at the time of the injury (in cases affecting the rights of the disabled person) or the law in effect at the time the right to compensation accrues (in cases such as the present one affecting third parties) governs the rights and duties of the parties unless the Legislature intended otherwise.^[10]Tarnow v Railway Express Agency, 331 Mich. 558; 50 NW2d 318 (1951); Thomas v Continental Motors Corp, 315 Mich. 27; 23 NW2d 191 (1946). It is axiomatic that a statute operates prospectively unless a contrary intent is clearly manifested. Selk v Detroit Plastic Products, 419 Mich. 1, 9; 345 NW2d 184 (1984). However, in Franks v White Pine Copper Div, 422 Mich. 636; 375 NW2d 715 (1985), this Court recognized an exception for statutes that were remedial/procedural in nature.^[11]

Although the distinction between procedural/remedial and substantive is not always easy to discern, it is clear from the lead opinion in White v General Motors Corp, 431 Mich. 387, 395; 429 NW2d 576 (1988), that an amendment affecting the right to receive any payment is substantive, while an amendment that merely affects the right to receive a fixed amount of compensation is procedural:

Unlike the provision in Selk, § 373 involves the question whether a retired employee has a substantive right to compensation under § 373, thus directly affecting the essence of his right, and not merely calculating the amount of compensation which he may eventually receive.

The central purpose of the fifty-six-hour amendment appears to have been to limit the amount of recovery in certain instances. In the present cases of Mullins and Riza, I believe that the statutory fifty-six-hour limitation on attendant care services, as amended by 1985 PA 103, is procedural in nature because it only affects the amount of compensation to which claimants are entitled. White, supra at 394-395. Therefore, the statute should apply retroactively.^[12]

II

A

I do not believe that it is necessary to remand the Mullins case to the magistrate^[13] to determine "what ... compensation is reasonable."^[14]Ante at 145. Review of the decision of the Worker's Compensation Appeal Board in this case indicates that this issue has been resolved. Although member Willard of the WCAB stated that plaintiff was entitled to the prevailing wage of $3.75 an hour on the basis of testimony elicited from a health care expert, he apparently ordered payment at the rate of $7.25 an hour.^[15] The conclusion of the home health care expert should have been controlling. Findings of fact of the Worker's Compensation Appellate Commission are conclusive upon appellate review and may not be set aside by this Court if they are supported by any competent evidence. Holden v Ford Motor Co, 439 Mich. 257, 263; 484 NW2d 227 (1992). I do not believe that there is any competent evidence, analysis, or otherwise to support the order of the WCAB. In fact, the testimony, which was found as fact by two members of the panel, was wholly inconsistent with the order. Therefore, I believe that the rate payable to the attendant caregivers should be the rate consistent with the testimony of the home health care expert.

The Court of Appeals affirmed the WCAB stating that plaintiff's wife and daughter should be compensated at the rate payable to an individual because they do not incur the same expenses as an agency. Therefore, it is unnecessary to remand this case for further fact finding. This determination is inherent in the WCAB's finding that $3.75 an hour was the then usual and customary rate of a nurse's aide.

B

Finally, I address the propriety of a cost-of-living increase. In Kosiel v Arrow Liquors Corp, 446 Mich. 374, 390-391; 521 NW2d 531 (1994), I stated:

[M]odification of the benefits award was inappropriate to the extent that its basis lay with the desires of plaintiff's husband and not with changes in her condition. Furthermore, it is inappropriate to validate the notion that plaintiff, defendant, and the bureau were unable to conceive of the concept of inflation at the time the award was made. Thus, the failure to account for possible inflation constitutes a factual error that does not supersede an application of the res judicata doctrine.

However, in Mullins, the hearing referee held that attendant care was owed according to a schedule that stated that after September 10, 1985, the yearly rate was subject to cost-of-living increases. The hearing referee specifically anticipated inflation by setting up a schedule, while ordering that the award was subject to cost-of-living increases. However, I believe that cost-of-living increases are properly considered when determining the prevailing wage for an attendant caregiver. In this manner, caregivers are entitled to the prevailing wage when services are rendered.

III

A caregiver's right to compensation accrues as services are rendered and the law in effect on that date, subject to a determination whether any amendments are procedural in nature, should govern the caregiver's claim. However, in Sokolek, § 381(3) provides that payments "shall not be made," indicating a legislative intent to limit the hearing referee and the WCAB's authority to award benefits. The fifty-six-hour limitation of § 315 in Mullins and Riza properly should be considered procedural in nature. Therefore, the statute applies retroactively to limit plaintiffs' compensation to fifty-six hours a week. Additionally, it is unnecessary to remand Mullins to determine whether the hourly wage is appropriate. A health care expert testified with regard to the prevailing wage. The prevailing wage includes considerations that the majority would remand to redetermine.

For these reasons, I would reverse the decisions of the Court of Appeals in Sokolek and Mullins and affirm in Riza.

WEAVER, J., concurred with RILEY, J.

CAVANAGH, J.

I dissent. I believe that the date of injury fixes a claimant's entitlement to attendant or nursing care as provided by MCL 418.315(1); MSA 17.237(315)(1).

[A]mendatory acts affecting questions of eligibility have been applied prospectively so as to apply to injury dates occurring on or after the effective date of the provision. Thus, an injured worker's right to benefits accrues on the date of injury, and the law in effect at the time of the work-related injury is controlling. [Dow Chemical Co v Curtis, 431 Mich. 471, 495; 430 NW2d 645 (1988) (CAVANAGH, J., dissenting) (citations omitted, emphasis added).]

Here, as in Dow Chemical, it is on the date of injury that the injured worker's rights became fixed because it is the injury itself that gives rise to the entitlement to benefits.

Accordingly, the decision of the Court of Appeals in Riza should be reversed and the decisions in Mullins and Sokolek should be affirmed. An injured worker's right to benefits accrues on the date of injury, and the law in effect at the time of the work-related injury is controlling.

NOTES

[1] The cost of living and rate of compensation issues in Mullins are not relevant to the other cases decided in this consolidated opinion. In the interest of clarity, they will not be discussed until after the issues common to all three opinions have been resolved.

[2] MCL 418.315(1); MSA 17.237(315)(1).

[3] MCL 418.381(3); MSA 17.237(381)(3).

[4] See Hurd v Ford Motor Co, 423 Mich. 531; 377 NW2d 300 (1985).

[5] Hurd, supra at 540 (opinion of LEVIN, J.).

[1] MCL 418.315(1); MSA 17.237(315)(1).

[2] I wish to explicitly note that the question whether an insurer or employer can recoup payments already made to familial caregivers is not before us. It would appear that although the familial caregiver may not have been entitled to receive compensation for care rendered in excess of fifty-six hours, the insurer or the employer is not injured because payment for care, to the extent allowed in the injured worker's award, would still have been paid by the insurer or the employer; although the payee would have been a nonfamilial caregiver. Regardless, the parties have not argued or briefed this issue and cognizant of the similar problems created by our opinion in Franks v White Pine Copper, supra, I expressly note that this case does not authorize employers or insurers to recoup payments made to familial caregivers in excess of fifty-six hours or to recover for payments made for care rendered more than one year back.

[3] MCL 418.381(3); MSA 17.237(381)(3).

[1] "It has long been the rule in Michigan that in worker's compensation cases the law in effect at the time of the relevant injury must be applied unless the Legislature clearly indicates a contrary intention." Nicholson v Lansing Bd of Ed, 423 Mich. 89, 93; 377 NW2d 292 (1985). See Franks v White Pine Copper Div, 422 Mich. 636; 375 NW2d 715 (1985); Hurd v Ford Motor Co, 423 Mich. 531; 377 NW2d 300 (1985); White v General Motors Corp, 431 Mich. 387; 429 NW2d 576 (1988).

[2] The law in effect at the time the right to compensation accrues governs the rights and duties of the parties. Tarnow v Railway Express Agency, 331 Mich. 558; 50 NW2d 318 (1951); Thomas v Continental Motors Corp, 315 Mich. 27; 23 NW2d 191 (1946).

[3] See part I(C).

[4] I apply the rule for purposes of illustration only because I believe that further analysis indicates that the amendment was procedural in nature and applies retroactively. See discussion below.

[5] MCL 418.315(1); MSA 17.237(315)(1).

[6] We note that the fifty-six-hour limitation is but the maximum number of hours a week for which a caregiver is entitled to compensation for attendant care services. It is not the number of hours to which a caregiver is automatically entitled. Plaintiffs must submit sufficient proofs to convince the factfinder of the number of hours of attendant care that they have provided.

[7] Again, I apply the rule for purposes of illustration only because I believe that this case is properly resolved by reviewing the language of MCL 418.381(3); MSA 17.237(381)(3), which directs the hearing referee and the WCAB that payments "shall not be made." This indicates legislative intent to limit the authority of the hearing referee and the WCAB in awarding the payment of benefits. See Franks, n 1 supra, p 684 (RILEY, J., concurring); Kleinschrodt v General Motors Corp, 402 Mich. 381, 384; 263 NW2d 246 (1978) (COLEMAN, J., dissenting). Therefore, I believe that plaintiffs are limited by the one-year-back rule, making it unnecessary to reach the procedural/remedial versus substantive analysis.

[8] See, generally, Hurd, n 1 supra.

[9] See Detroit v Walker, 445 Mich. 682; 520 NW2d 135 (1994); Stott v Stott Realty Co, 288 Mich. 35; 284 N.W. 635 (1939).

[10] See n 1.

[11] See Hansen-Snyder Co v General Motors Corp, 371 Mich. 480; 124 NW2d 286 (1963); White, supra.

[12] I agree with n 2 of Justice BOYLE's concurrence to the extent that it states that she does not believe these opinions are meant to be a vehicle through which employers or insurers may recoup payments already made to attendant caregivers.

[13] The majority remands the case to the magistrate to determine "whether it would be appropriate to award at least part of the extra expense required to hire a home companion from a nursing agency." Ante at 145.

[14] The statute provides:

The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. [MCL 418.315(1); MSA 17.237(315)(1).]

[15] The order of the WCAB stated that attendant care services were to be paid at the rate of $7.25 an hour. A dissenting member of the three-member panel agreed with member Willard's following statement:

Home health care expert Hoffner testified that the prevailing wage actually received by an attendant caregiver in 1984 and 1985 was the same whether the caregiver was obtained through an agency or not. Therefore, we find as fact that $3.75 per hour was the usual and customary wage for attendant care in 1984 and 1985. Defendant is not required to pay an administrative fee (that rendered an agency rate of $7.00 and $7.25 per hour in 1984 and 1985 respectively) to plaintiff's wife and daughter. [Mullins v Frank H Wilson Co, 1991 WCABO 331, 335 (emphasis added).]

Incredibly, this same member apparently ordered compensation to be paid at the rate of $7.25 an hour in direct contradiction of his finding of fact.