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Sington v. Chrysler Corp.7/31/2002
qualified and trained. As a practical matter, this definition means disability is an incapacity after work-related injury or illness to earn the same or greater wages in work for which the claimant is qualified and trained.
The starting point in analyzing this is the statutory expression "wage earning capacity." The majority attempts to convince that a distinction exists between "wages earned" and "wage earning capacity." In truth, capacity to earn wages and wages earned will rarely differ. This is illustrated by the fact that, when applying its definition to Charles Sington, the majority assumes they are the same. Slip op at 24. Also, it cites with approval Justice Weaver's words: "the most basic interpretation of 'wage earning capacity' is that it describes an employee's ability to earn wages." Slip op at 18.
The majority provides no persuasive examples how it could be that an employee would be earning at under capacity if not disabled. By definition, normally, what the employee earns is what the job will pay at any given time. Hence, "wage earning capacity" and "wages earned" are, practically speaking, synonymous. It follows, then, that as the majority reads it, the first sentence in § 301(4) contradicts the second. It reads: "The establishment of disability does not create a presumption of wage loss."
If one must prove a wage loss to make out a disability, the second sentence of § 301(4) is rendered nugatory. If one cannot be disabled absent a wage loss, the establishment of a disability relies on a wage loss. The majority confirms this by quoting with approval from Pulley to the effect that "the wages earned" are one of the "complex of fact issues" used to determine wage earning capacity. Slip op at 16. Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 423; 145 NW2d 40 (1966). Of course, Haske disagreed with Pulley.
The Haske decision is based on the proposition that § 301(4), properly defined, treats "disability" and "wage loss" as distinct concepts. Defining a disability as the majority does, as a loss of capacity to earn maximum wages in one's field, when there can be no presumption of a wage loss in the definition, is nonsense.
The majority has defined "earning capacity" using a rigid textualist approach to statutory interpretation (and, as I have pointed out, it makes no meaningful distinction from "wages earned"). However, the statutory expression is not "earning capacity." Rather, it is "wage earning capacity."
A plain meaning interpretation of that expression is that "wage earning" is an expression akin to "wage earner," which is defined as "a person who works for wages." Random House Webster's College Dictionary (1995). Hence "wage earning capacity" means "the capacity of a person who works for wages." Using that, the proper interpretation of the first sentence of § 301(4) becomes "disability is a limitation after work-related injury or illness in the capacity of a person who works for wages in work for which the person is qualified and trained." Then, the second sentence of §301(4), " he establishment of disability does not create a presumption of wage loss," is not rendered nugatory or contradictory. Also, the holding in Haske is shown to be correct. See Haske at 653-654 and slip op at 2 (Cavanagh, J.).
Even if "wage earning capacity" were defined as if it read "earning capacity," the majority's definition is off the mark. Black's Law Dictionary (6th ed) defines "earning capacity," inter alia, as the "Fitness, readiness and willingness to work, considered in connection with opportunity to work." The emphasis is on capacity to perform the work.
Using that, the proper interpretation of t
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