Forsythe v. Valley Consolidated Industries

Per Curiam. This Court granted the application *213 of defendants Vettes Mason Contractors and the Michigan State Accident Fund for leave to appeal from a decision of the Workers’ Compensation Appeal Board. The WCAB found that plaintiff was disabled due to pulmonary disease and a left shoulder injury and it apportioned liability among all defendants except the Silicosis & Dust Disease Fund. Plaintiff was a bricklayer by trade. He filed a workers’ compensation claim, alleging that he was disabled by problems with his left shoulder caused by lifting, reaching, and pulling in his work. He also alleged that he suffered disabling pulmonary diseases due to repeated exposures to airborne irritants in his work. The referee found that plaintiff was disabled both from pulmonary disease and shoulder injury and that each condition, "in itself and irrespective of the other, would cause total disability”; she further determined "that the shoulder injury was not attributable to a single event but resulted from the stresses and strains imposed by his employment”. The referee also held that plaintiff’s pulmonary disease constituted a disability which entitled defendant employers to partial reimbursement by the Silicosis and Dust Disease Fund. By concurrent order, liability was apportioned, for the pulmonary disease only, among the last employer, Valley Consolidated Industries, and the several prior employer defendants, pursuant to MCL 418.435; MSA 17.237(435). Each prior employer was ordered to reimburse the last employer, Valley Consolidated, in proportion to the amount of time plaintiff had worked for that employer. The WCAB affirmed the findings of the referee as to plaintiff’s disabilities. However, the board reversed the referee’s determination of liability of the Silicosis and Dust Disease Fund and held that *214 plaintiffs disabilities from both pulmonary disease and shoulder injury were fully apportionable among all defendant employers pursuant to statute. This Court granted leave to consider on appeal the claim of plaintiffs prior employers (and their respective workers’ disability compensation liability insurers) that apportionment was not permissible because of the amendment to MCL 418.435; MSA 17.237(435) by 1980 PA 357. Valley Consolidated, plaintiffs last employer, contends that the 1980 amendment eliminating apportionment for Chapter 4 disabilities should not be applied retrospectively. We agree with Valley Consolidated’s argument that the statutory amendment should not be applied retrospectively so as to relieve the prior employers from apportionment. Prior to 1980 PA 357, § 435 of the Worker’s Disability Compensation Act, MCL 418.435; MSA 17.237(435), provided that "total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted”. See Johnson v Valley Grey Iron Foundry, 58 Mich App 574; 228 NW2d 469 (1975). This portion of § 435 was not changed by 1980 PA 357. However, prior to 1980 PA 357, § 435 also afforded the last employer the right to require joinder of all prior employers identified by the last employer and, further, required an apportionment of liability for compensation according to the length of time a disabled employee had worked for each employer "in the employment to the nature of which the disease was due and in which it was contracted”. Derwinski v Eureka Tire Co, 407 Mich 469, 482; 286 NW2d 672 (1979). The amendment to § 435, § 1 of 1980 PA 357, eliminated all references to apportionment of lia *215 bility among the last and prior employers. Section 435 now simply provides that the "total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted”. In the present case, that employer would be Valley Consolidated Industries. A statute should be applied retrospectively if the Legislature intends that result. Franks v White Pine Copper Div, Copper Range Co, 122 Mich App 177, 183; 332 NW2d 447 (1982), lv gtd 419 Mich 855 (1984). There is no language in amended § 435 stating that it applies retrospectively. To the contrary, there is language in the amending act which indicates that the Legislature intended amended § 435 to have only prospective effect. The Legislature approved and passed 1980 PA 357 in December, 1980. Section 2 of the amendatory act expressly declared that the amendment to § 435 would become effective January 1, 1981. 1980 PA 357, § 2. See Norwin v Ford Motor Co, 132 Mich App 790, 794; 348 NW2d 703 (1984). The decision of the referee was entered May 21, 1979, and affirmed (as modified) by the WCAB on May 4, 1982. Defendant Valley Consolidated had exercised its claim for apportionment well prior to January 1, 1981. Defendant Vettes argues that the amendment to § 435 should be deemed procedural because it merely serves to establish the employer against whom the employee must proceed and repeals joinder of prior employers. We disagree and find that the amendment to § 435 deals with substantive and not procedural rights. Both this Court and the Michigan Supreme Court have had occasion to consider whether sundry amendments to diverse provisions of the Work *216 er’s Disability Compensation Act were to be applied retrospectively or to be given only prospective application. As a general rule of statutory construction, statutes are presumed to operate prospectively only, unless the contrary intent is clearly manifested. Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). The fact that the statute itself relates to antecedent events does not require a finding that it operates retrospectively. Selk, supra, p 9. On the other hand, an exception to the general rule has been recognized where a statute is remedial or is procedural in nature. Selk, supra, p 10; Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 484-485; 124 NW2d 286 (1963). The Supreme Court has stated on several occasions that the Worker’s Disability Compensation Act, as a whole, is essentially remedial legislation. See McAvoy v H B Sherman Co, 401 Mich 419, 437; 258 NW2d 414 (1977). In such cases, however, the Supreme Court was speaking of the act in the context of the rights of the injured worker to obtain compensation from his or her employer. Prior to the amendment of §435, the last employer could relieve his statutory burden by requiring prior employers to defray a proportionate share of the compensation obligation to the injured employee. The statute, as amended, now places the entire burden of compensating the injured employee on the last employer. The present case is unlike McAvoy, supra, which held that the section requiring employers to make immediate payment, pending appeal, of 70% of the benefits found due by the referee was procedural since substantive benefits ultimately owed, or not owed, remained the same. Here, although the amount ultimately owed by the last employer remains the same, the liability of prior employers is abolished *217 while the cost to the last employer is substantially increased. Clearly, as between a last employer and prior employers, § 435 concerns substantive rights. See Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 218; 139 NW2d 336 (1966), aff'd on other grounds 379 Mich 160; 150 NW2d 752 (1967). The presumption against retrospective application is especially true when "giving a statute operation will interfere with an existing contract, destroy a vested right, create a new liability in connection with a past transaction, or invalidate a defense which was good when the statute was passed”. Hansen-Snyder, supra, p 484. In the present case, the amendment takes away the right of the most recent employer to have its liability for compensation apportioned among prior employers in proportion to the time that the employee was employed in the service of each prior employer. Therefore, the general rule that an amendatory statute is to be given only prospective effect is applicable. Even if we were to accept defendant Vettes’ argument that §435 is remedial because it was amended in response to Derwinski v Eureka Tire Co, supra, we would not find the amendment to be retrospective in effect for the same reasons. Therefore, we find that the WCAB properly apportioned the liability among plaintiffs prior employers. Our finding, granting the prayer of Valley Consolidated that the order of the WCAB be affirmed, makes it unnecessary to address Valley Consolidated’s cross-appeal. Affirmed.