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Sington v. Chrysler Corp.7/31/2002
tatute within its constitutional authority and, thus, has established public policy, must be obeyed even by the courts. Said more plainly, the difference in these approaches is that Justice Kelly feels less obligation to adhere to the direction of the people's representatives in the Legislature, and more obligation to defend past judges' errors. We respectfully believe that this approach of Justice Kelly misunderstands who governs in a republic. It is not judges; rather, it is the people. In this case, we have restored the law to what was enacted by the people's representatives. It is our duty to do so.
As to Justice Cavanagh's criticism of our response to Justice Kelly, it is important that the reader understand that, in the ordinary course of things on an appellate court, majority opinions are written and then dissents follow. The majority then responds to the dissent. In the instant case, this was the pattern of things. To fully argue the approaches of Robinson and Justice Kelly is not unseemly nor does it indicate a "manic sensitivity to criticism." Rather, to respond fully to a dissent indicates that the majority is sufficiently respectful of the dissent, and those who could be persuaded by it, to want to ensure that the issue is fully understood. Justice Cavanagh, on the occasions when he writes for the majority in the face of dissent, does no less--nor should he. We claim the same prerogative when he is not in the majority.
On the merits of this case, that is whether Haske was wrong, we consider Justice Kelly's critique of the majority opinion to be highly unconvincing. Contrary to the dissent's position, there obviously is a distinction between "wages earned" and "wage earning capacity." See slip op at 5-6. It is simply inaccurate to state that "capacity to earn wages and wages earned will rarely differ." Slip op at 5. On the contrary, it can clearly be the case that an individual might earn wages below his wage earning capacity. With regard to the second sentence of § 301(4), which establishes that disability does not create a presumption of wage loss, one likely explanation for this sentence is the provision of reasonable employment with full wages to an injured employee despite a reduction in wage earning capacity. That is, a person might suffer a disability under § 301(4), i.e., a reduction in wage earning capacity in work suitable to his qualifications and training, because of an inability to actually earn wages in the ordinary job market, but be paid full wages by an employer for the performance of reasonable employment. In such a situation, the employee would be "disabled," but not suffer wage loss.
We are frankly at a loss to understand the distinction that Justice Kelly would draw between "wage earning capacity" and "earning capacity." Slip op at 7. An employee earns wages for his work. We cannot see any sensible distinction between "wage earning" and "earning" in the present context, let alone what difference such a distinction makes to the practical application of the definition of "disability" in § 301(4). Similarly, we do not see the point of somehow attempting to equate the phrase "wage earner," which refers to a person, with the phrase "wage earning," which is used in § 301(4) as an adjectival phrase to modify the term "capacity" for the purpose of effectively concluding that disability requires a showing of only an inability to perform one particular job suitable to a person's qualifications and training. Id.
We emphatically disagree with Justice Kelly's statement that "the proper definition of disability focuses on a limitation in the capacity to perform the work, not on a limitation in the capacity to earn wages . . . ." Slip op at 8 (emphases re
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