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Linton v. Schafer Bakeries6/25/2002
FOR PUBLICATION
In these consolidated cases, plaintiffs appeal by leave granted from opinions and orders of the Worker's Compensation Appellate Commission affirming the magistrate's determination regarding the method of calculating plaintiffs' partial disability benefits. We affirm.
Both plaintiffs sustained partially disabling work-related injuries in 1990 while employed by defendant and have since worked in light duty positions with reduced earnings. As partially disabled employees, they were entitled to differential worker's compensation benefits pursuant to MCL 418.361(1), which provides in relevant part:
(1) While the incapacity for work resulting from a personal injury is partial, the employer shall pay, or cause to be paid to the injured employee 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 . . . .
Each year, the bureau of workers' and unemployment compensation publishes rate tables that convert an average weekly wage into eighty percent of the after-tax average weekly wage for that year. MCL 418.313. These tables are consulted to compute the difference between the after-tax value of a partially disabled employee's average weekly wage at the time of the injury and the after-tax value of subsequent wages.
At issue is which rate tables should be used in calculating plaintiffs' differential benefits. Defendant calculated the benefits by taking plaintiffs' average weekly wages earned during the years after they were injured and converting these wages to after-tax average weekly wages by using the rate table published for the year in which the post-injury wages were earned. Defendant then compared that figure to plaintiffs' after-tax average weekly wage found in the rate table published for 1990, the year of injury , to determine the difference. Plaintiffs' position was that the year-of-injury rate table should be consulted for both the wages at the time of the injury and for all subsequent earnings. The magistrate disagreed and concluded that post-injury wages must be determined by means of the rate table in effect at the time those wages were earned. The WCAC found no legal error and affirmed.
On appeal, plaintiffs contend that the magistrate and WCAC should have concluded that partial disability benefits must be calculated by applying the rate table for the year the injury occurred to all subsequent earnings. We disagree. Questions of law involved in any final order of the WCAC are reviewed de novo. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 697, n 3; 614 NW2d 607 (2000).
As noted by the magistrate and the WCAC, the question of which rate table to consult in calculating differential benefits under subsection 361(1) of the Worker's Disability Compensation Act is one of first impression for this state's courts. However, the issue has been addressed by the WCAC. In McCalla v Marine City Nursery, Inc, 1997 Mich ACO 504, the plaintiff was partially disabled in 1987 and had reduced earnings in 1991. The WCAC concluded that when calculating the plaintiff's differential benefits, the 1991 rate table rather than the 1987 table should be applied to his 1991 earnings:
Section 361 refers to "the after-tax average weekly wage which the injured employee is able to earn after the personal injury." In order to determine the after tax amount of earnings in any given year after the year of injury it is necessary to apply the rate table for the year those earnings were received in order to comply with the sta
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