NOTE: THIS IS A SECOND CORRECTED OPINION/ORDER. THE BOLDED CORRECTION IS AN ADDITION TO FOOTNOTE #1.

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1 NOTE: THIS IS A SECOND CORRECTED OPINION/ORDER. THE BOLDED CORRECTION IS AN ADDITION TO FOOTNOTE #1. BRUCE M. MCDANIEL, PLAINTIFF, 2001ACO # 27 S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # PNEUMO CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, DEFENDANT. APPEAL FROM MAGISTRATE GRIT. DOUGLAS G. KIRK FOR PLAINTIFF, DUNCAN A. MCMILLAN FOR DEFENDANT. PRZYBYLO, COMMISSIONER OPINION Defendant appeals the decision of Magistrate Donna J. Grit, mailed February 24, 1999, granting plaintiff benefits for his knee injury. Defendant contends that plaintiff cannot receive benefits because his post-injury average weekly wage exceeds his pre-injury average weekly wage. Plaintiff contends that because during some individual post-injury weeks his wage is less than his pre-injury average weekly wage, he should receive benefits for those weeks. Both parties agree that the statute and current interpretations of the statute fail to address the question definitively. The magistrate shared the parties' view of the law and wrote the following: The parties disagreed on the calculation of differential benefits. The focus of the dispute is that Mr. McDaniel allegedly makes more per year currently, than he did at the time of his injury. Based on a stipulated average weekly wage of $761.73, Mr. McDaniel testified he makes less in his current light duty job during some weeks. Other weeks, he makes considerable overtime, and exceeds his pre-injury average weekly wage. He agreed in the calendar year 1997, he earned well in excess of what his earnings were prior to his injury. The Defendant suggested a total yearly wage which exceeds the Plaintiff s pre-injury wage is sufficient grounds to terminated differential benefits. MCLA (5)(c) provides as follows:

2 (5) If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows: (c) If an employee is employed and the average weekly wage of the employee is equal to or more than the average weekly wage the employee received before the date of injury, the employee is not entitled to any wage loss benefits under this act for the duration of such employment. The Defendant suggests that the language of 301 (5)(c) alone is enough to compel a decision that it need not pay benefits to Mr. McDaniel. Although the parties failed to present specific evidence on Mr. McDaniel s weekly earnings from the time differential benefits were terminated until the time of trial, it was clear some weeks he earns less than he did pre-injury, some weeks he earns more. The Defendant does not cite any case law in favor of its position. It simply quotes the statutory language. The difficulty in the approach however, is whether we focus on Section 301, 361 or 371, or any other section of the Act, the Legislature has never provided a definition of post-injury average weekly wage, or the manner in which parties are to compute a post-injury average weekly wage. The basic problem is that the language of the Act begs the question: what is a postaverage weekly wage? Is a post injury average weekly wage supposed to be calculated based on taking the highest thirty-nine of fifty-two wage earning weeks? If so, why doesn t the statute define the term? To do so would have been a easy matter of the Legislature. Section 301(5)(c) provides no guidance. The Defendant has asked me to read into the statute a definition that does not exist. I am loath to do so. Likewise, the Plaintiff requests yet different spin on the undefined term of post injury wages. The common practice, as has been recognized in workers compensation matters, is for each week s post injury wages to be submitted to a carrier, and for the carrier to calculate, what, if any, differential benefits are owed for each week. The fact that the typical claim for differential benefits is handled in this matter is not proof that it is the appropriate manner. We have been told before that the accepted or common way of doing things in workers compensation matters is not necessarily the legally correct way. Little guidance can be found in 301(5)(b). That Section provides that if the average weekly wage of the employee is less than it was before the injury, benefits shall be 2

3 calculated pursuant to a simple formula. Likewise, Section 361 references the average weekly wage the employee is able to earn after the personal injury, but fails to define the term or provide a manner in which to calculate the post-injury average weekly wage. Section 371(1) also fails to provide sufficient guidance on the issue of post injury wage-earning capacity. On its face, section 301(5) seems to require remedial mathematic application. The post-injury average weekly wage must be less than the pre-injury average weekly wage to support wage loss benefits. However, with every week of post-injury work, the average may change. Thus, the question becomes when does the law require measurement of the post-injury average; a question the statute ignores. Without any appropriate definitive statutory time, we adopt a reasonable time standard. For a reasonable time to pass, we hold that at least one year should expire after the injury and commencement of reasonable employment. This one year limit parallels the one year for calculating pre-injury average weekly wage. After a reasonable time, the average weekly wage equals the sum of the earnings divided by the number of weeks. 1 In this case, a reasonable time has passed, and the magistrate found the post-injury average weekly wage higher than the pre-injury average weekly wage. Plaintiff has completed six years of reasonable employment. In those six years, he earns more on average than he did prior to his injury. Thus, the plain application of section 301(5)(c) disentitles plaintiff to wage loss benefits. Therefore, we reverse the magistrate and deny plaintiff's request for benefits. Commissioner Leslie concurs. Gregory A. Przybylo Richard B. Leslie Commissioners KENT, COMMISSIONER, DISSENTING I respectfully disagree with my colleagues. I believe the magistrate s interpretation of the statute is the correct one. 1 We fully acknowledge the numerous issues that remain unresolved. However, the issues are not essential to the determination of this case and lack the record foundation for proper appellate review. As a result, nothing in our opinion should be construed to require an employee to wait for a year before receiving partial compensation benefits. 3

4 As the magistrate correctly noted, there appears to be no guidance in either the statute or case law on exactly when to begin calculating the potential differential between post- and pre-injury average weekly wages under Section 301(5). I agree with her assertion that the defendant s suggestion, which the majority adopts, has no apparent basis in logic or reason, and would be too draconian in its application to possibly be what the legislature intended: The parties disagreed on the calculation of differential benefits. The focus of the dispute is that Mr. McDaniel allegedly makes more per year currently, than he did at the time of his injury. Based on a stipulated average weekly wage of $761.73, Mr. McDaniel testified he makes less in his current light duty job during some weeks. Other weeks, he makes considerable overtime, and exceeds his pre-injury average weekly wage. He agreed in the calendar year 1997, he earned well in excess of what his earnings were prior to his injury. The Defendant suggested a total yearly wage which exceeds the Plaintiff s pre-injury wage is sufficient grounds to terminated [sic] differential benefits. MCLA (5)(c) provides as follows: (5)If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows: (c) If an employee is employed and the average weekly wage of the employee is equal to or more than the average weekly wage the employee received before the date of injury, the employee is not entitled to any wage loss benefits under this act for the duration of such employment. The Defendant suggests that the language of 301(5)(c) alone is enough to compel a decision that it need not pay benefits to Mr. McDaniel. Although the parties failed to present specific evidence on Mr. McDaniel s weekly earnings from the time differential benefits were terminated until the time of trial, it was clear some weeks he earns less than he did pre-injury, some weeks he earns more. The Defendant does not cite any case law in favor of its position. It simply quotes the statutory language. The difficulty in the approach however, is whether we focus on Section 301, 361 or 371, or any other section of the Act, the Legislature has never provided a definition of post-injury average weekly wage, or the manner in which parties are to compute a post-injury average weekly wage. 4

5 The basis problem is that the language of the Act begs the question; what is a post-injury average weekly wage? Is a post injury average weekly wage supposed to be calculated based on taking the highest thirty-nine of fifty-two wage earning weeks? If so, why doesn t the statute define the term? To do so would have been an easy matter for the Legislature. Section 301(5)(c) provides no guidance. The Defendant has asked me to read into the statute a definition that does not exist. I am loath to do so. Likewise, the Plaintiff requests yet [a] different spin on the undefined term of post injury wages. The common practice, as has been recognized in workers compensation matters, is for each week s post injury wages to be submitted to a carrier, and for the carrier to calculate, what, if any, differential benefits are owed for each week. Little guidance can be found in 301(5)(b). That Section provides that if the average weekly wage of the employee is less than it was before the injury, benefits shall be calculated pursuant to simple formula. Likewise, Section 361 references the average weekly wage the employee is able to earn after the personal injury, but fails to define the term or provide a manner in which to calculate the post-injury average weekly wage. Section 371(1) also fails to provide sufficient guidance on the issue of post injury wage-earning capacity. Mr. McDaniel cannot recover benefits for weeks in which he earned more than his stipulated average weekly wage for the date of injury. That is a simple, equitable result, well established by the statute. However, adopting either the Plaintiff s or the Defendant s legal argument creates potential for abuse and unearned windfall. How can it be said that the Legislature intended a remedial statue to force partially disabled workers, earning far less than their pre-injury average weekly wage, to wait an entire year before calculations are made and benefits are paid? If a determination of differential benefits requires calculating the post injury average weekly wage, over what period do we stall the payment of benefits until the post injury average weekly wage can be calculated? IT BENDS LOGIC TO ASSUME THE LEGISLATURE INTENDED INJURED WORKERS, WHO HAVE OTHERWISE BEEN FOUND TO HAVE SUFFERED COMPENSABLE WORK INJURIES, TO WAIT UP TO A YEAR FOR THE PAYMENT OF DIFFERENTIAL BENEFITS. [Emphasis ours.] Given the facts at hand, I believe the magistrate aptly cut the Gordian knot she faced: 5

6 In Mr. McDaniel s case however, hardship is difficult to identify. Mr. McDaniel s weekly earnings may, on occasion, fall short of his pre-injury average weekly wage. However, on average, he is exceeding his pre-injury wage, and currently making a high wage. Is it a perversion of the Act to allow him to supplement his yearly income with workers compensation benefits when his yearly wages already exceed his pre-injury wages? If there is an easy answer to these questions, I have not found it. As note, there is the possibility of inequitable outcomes regardless of the statutory interpretation. Given that the statute is remedial in nature, it makes sense the most sense to focus on the post injury average weekly wage with a week by week comparison to the pre-injury average weekly wage to calculate what, if any, differential is owing. This creates an uncomfortable result in Mr. McDaniel s situation. However, to rule otherwise would effectively gut the remedial nature of the Act, and would work as a deterrent to an injured workers return to post injury work. I find, as noted above, Mr. McDaniel has established a continuing, but not constant, wage loss related to his work injury. He is entitled to an open award. The Defendant will calculate the accrued and future differential by comparing, week by week, Mr. McDaniel s earnings to his stipulated average weekly wage of $ If in any given week, his wages fall below $761.73, the Defendant shall pay differential benefits equal to 80% of the difference between Mr. McDaniel s average weekly wage before the injury ($761.73) and the amount he actually earns in each post injury week. This calculation shall begin with the date benefits were terminated, November The magistrates solution is proper, and accordingly I would affirm her. James J. Kent Commissioner 6

7 BRUCE M. MCDANIEL, PLAINTIFF, S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # PNEUMO CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, DEFENDANT. This cause came before the Appellate Commission on appeal by defendant from the decision of Magistrate Donna J. Grit, mailed February 24, 1999, granting plaintiff benefits. The Commission has considered the record and briefs of counsel, and believes that the magistrate's decision should be reversed. Therefore, IT IS ORDERED that the decision of the magistrate is reversed and benefits are denied. Gregory A. Przybylo Richard B. Leslie Commissioners

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