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Linton v. Schafer Bakeries6/25/2002
tutory mandate that the after tax earnings be used to determine the partial rate. It is precisely because the tax laws and regulations alter the after tax amount in each different year that there is a new Rate Table for each ensuing year. If an employee has earnings in 1991, the after tax amount of those earnings is determined by the tax regulations in that year and in no other year. As a result, it is necessary to employ the 1991 Rate Table to determine the proper after tax amount of earnings in 1991. By applying the 1987 Rate Table to plaintiff's earnings after 1987, defendants do not accurately determine the after tax amount of plaintiff's subsequent earnings in different years. This is contrary to the statutory mandate in section 361(1).
In summary, the proper method for calculating partial disability benefits is to apply the Rate Table for the date of injury to plaintiff's average weekly wage at the time of injury . . . . For any subsequent years, the Rate Table for the year of the earnings will be used to determine the after tax amount of subsequent earnings. [1997 Mich ACO 504 at 6.]
McCalla's method of computation was approved and applied in Mayse v Wirt Transport Co, 1997 Mich ACO 528, and the same method was adopted in Wiggins v Detroit, 2000 Mich ACO 180. See also Welch, Worker's Compensation in Michigan: Law & Practice (4th ed), ยง 15.5, p 15-6.
We believe that McCalla represents a sound approach that is consistent with the language of MCL 418.361(1). In reaching this conclusion, we reject plaintiffs' contention that MacDonald v Great Lakes Steel Corp, 268 Mich 591; 256 NW 558 (1934), requires a different result. MacDonald did not involve a comparison of after-tax earnings before and after an injury , and, more importantly, its observation that the start of the differential calculation is the average weekly wage at the time of the injury, id. at 595, is consistent with McCalla. Further, while we are mindful of plaintiffs' public policy argument, we must conclude that using the year-of-injury rate table for both wages earned at the time of injury and for earnings in subsequent years would be inconsistent with the language of MCL 418.361(1) requiring a comparison of the injured employee's after-tax average weekly wage before the injury and the "after-tax average weekly wage which the injured employee is able to earn after the personal injury . . . ." If plaintiffs' computation method were adopted, the after-tax average weekly wage they would be able to earn in the years after they were injured would be disregarded contrary to the plain language of the statute. We therefore hold that when calculating partial disability benefits under MCL 418.361(1), the rate table for the year in which the claimant was injured should be consulted to determine a worker's average weekly wage at the time of injury, but for subsequent years in which wages were earned, the rate table for the year of those earnings should be consulted.
Affirmed.
Donald S. Owens
David H. Sawyer
Jessica R. Cooper
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