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Schmaltz v. Troy Metal Concepts12/23/2003
In this worker 's compensation case, this Court is asked to determine whether a disabled employee's average weekly wage at the time of injury can be recalculated or redetermined to include discontinued fringe benefits when that employee's subsequent employment produces a partial benefit rate. We conclude that the average weekly wage that is used to establish benefit entitlement is determined at the time of injury and may not be subsequently recalculated. Postinjury employment does not affect the time of injury average weekly wage calculation. This was the decision reached by the Worker 's Compensation Appellate Commission (WCAC), a decision which we affirm.
I.
This case comes to us on stipulated facts, which we will review after setting forth the applicable provisions of law. From this case's inception, the sole question posed by the parties is whether, and to what extent, plaintiff's discontinued fringe benefits can be included in his "average weekly wage" when determining his entitlement to wage-loss benefits.
To answer this question, we must examine several provisions in the Worker 's Disability Compensation Act, MCL 418.101 et seq. The act compensates workers for wage loss due to work-related injuries, but it also establishes limits for such compensation. Since 1982, disabled workers have been entitled to receive eighty percent of their after-tax average weekly wage. MCL 418.351(1). However, this compensation is subject to a statutory maximum, which is ninety percent of the state average weekly wage applicable at the time of injury. MCL 418.355(2).
The after-tax wages used to determine wage-loss benefit entitlement are calculated pursuant to MCL 418.313(1), which establishes how the "after-tax" determination is made, and MCL 418.371, which establishes how the "average weekly wage" is calculated. The critical provision for purposes of this case is § 371(2), which provides:
As used in this act, "average weekly wage" means the weekly wage earned by the employee at the time of the employee's injury in all employment, inclusive of overtime, premium pay, and cost of living adjustment, and exclusive of any fringe or other benefits which continue during the disability. Any fringe or other benefit which does not continue during the disability shall be included for purposes of determining an employee's average weekly wage to the extent that the inclusion of the fringe or other benefit will not result in a weekly benefit amount which is greater than 2/3 of the state average weekly wage at the time of injury. The average weekly wage shall be determined by computing the total wages paid in the highest paid 39 weeks of the 52 weeks immediately preceding the date of injury, and dividing by 39. The plaintiff in this case was injured in 1997. At the time of his injury, his weekly wage (or "cash" wage) was $983.59. His fringe benefits, which were discontinued, were valued at $273.96. The applicable state average weekly wage in 1997 was $591.18, two-thirds of which is $394.12. Plaintiff's "cash" weekly pay therefore far exceeded the amount under which fringe benefits may be included in the calculation of plaintiff's "average weekly wage" under § 371(2). In short, plaintiff's average weekly wage at the time of his injury was $983.59.
Plaintiff subsequently found new employment, at wages less than he earned from defendant. In accordance with MCL 418.361(1), he is entitled to weekly compensation equal to "80% of the difference between the injured employee's after-tax average weekly wage before the personal injury and the after-tax average weekly wage which the injured employee is able to earn after the personal injury, but not more than the maximum we
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