Rowell v. Security Steel Processing Co.

Brickley, J. The issue presented in this worker’s compensation case is a consideration of the proper treatment under MCL 418.371(3); MSA 17.237(371)(3) of partially worked weeks, specifically the week of hiring and the week of injury, in the computation of an employee’s average weekly wage where the employee has worked less than thirty-nine weeks. We hold that in calculating the average weekly wage, the percentage or fraction of work performed in a partially worked week is to be included in the denominator where a week was partially worked becausé the day of hiring or the day of injury fell during the week. Such an interpretation is in accordance with the overriding purpose of the section, which is to provide for a computation of an average weekly wage that "fairly represents” the employee’s earning capacity as fixed at the time of injury. [350] I Ted Rowell was hired as a steel worker. He began his employment with defendant Security Steel Processing Company on Tuesday, April 5, 1983. After finishing out the first week, he then worked six full weeks. His last day of work was Tuesday, May 24, 1983, because of a work-related heart attack. The plaintiff earned $292.50 in his first week of employment, $360 regular pay during each of the intervening six weeks, overtime of $54 in each of two weeks, $67.50 in a third week, and $144 in the week in which he was injured, Rowell’s gross wages totaled $2,772. The hearing referee in Rowell followed the approach suggested by the Court of Appeals in Tagliavia v Barton Malow Co, 185 Mich App 556; 463 NW2d 116 (1990). The partially worked weeks were treated as whole weeks and used to divide the total wage earned in the course of employment. The average weekly wage was determined to be $346.50. The Worker’s Compensation Appeal Board ruled that the "weeks 'actually worked’ ” were 7.4 weeks rather than 8 weeks and that the average weekly wage was $375. Riggs was hired as a construction worker. He began his employment with defendant Mosser Construction, Incorporated on Tuesday, December 8, 1987. After finishing out his first week, he then worked one full week. His last day of work was Monday, December 21, 1987, because of a fall from a ladder and resultant back injury. Plaintiff worked twenty-four hours in his first week of employment and twenty-four hours in the following week, earning $399.36 each week. He was injured in the third week of employment, and was paid $149.76 for that week. Riggs’ gross wages totaled $948.48. [351] In Riggs, the hearing referee applied the special circumstances exception provided by MCL 418.371(6); MSA 17.237(371)(6). On the basis of a forty hour week, the average weekly wage was $603.60. The Worker’s Compensation Appellate Commission, following Tagliavia, found that the average weekly wage was $316.16. The Court of Appeals in Rowell v Security Steel Processing Co, 195 Mich App 578; 491 NW2d 265 (1992), adopted as a first-out opinion its earlier decision in Tagliavia. We granted leave to appeal, 442 Mich 861 (1993), limited to the issue of the proper interpretation of subsection 371(3) of the Worker’s Disability Compensation Act. In Riggs v Mosser Construction, unpublished opinion per curiam, decided September 30, 1992 (Docket No. 151717), the Court of Appeals denied leave to appeal, citing Tagliavia. We consolidated and granted leave to appeal with Rowell, 442 Mich 903 (1993). III Resolution of the correct treatment of the week of hiring and the week of injury, in the context of an employee who has worked less than thirty-nine weeks requires application of MCL 418.371(3); MSA 17.237(371)(3).1 When applying any legislation, it must first be [352] determined whether the language of the statute is clear and unambiguous. Victorson v Dep’t of Treasury, 439 Mich 131, 138; 482 NW2d 685 (1992). [353] Where the language of the statute is clear and unambiguous, no judicial interpretation is warranted. Livonia v Dep’t of Social Services, 423 Mich 466, 487; 378 NW2d 402 (1985). Contrary to the position taken by the dissent, the language of MCL 418.371(3); MSA 17.237(371)(3) is ambiguous in that the phrase, "the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked” is susceptible to several possible meanings. One possibility is that the gross wage is to be divided by a whole number that is rounded up whenever an employee performs any work in a week. Another possibility is that the number of weeks in the denominator only reflects weeks in which an employee has actually worked every day. Under this interpretation, partially worked weeks are to be disregarded in the calculation. Total wages are divided by fully worked weeks. A third possible interpretation would not consider partially worked weeks in either the total wage figure or the number of weeks worked figure. Finally, the interpretation advanced by the plaintiffs suggests that when the Legislature employed the phrase "weeks actually worked,” it intended total wages earned to be divided by the whole number of full weeks worked plus a fractional number representing the partially worked weeks. Where the language employed by the Legislature is susceptible to more than one interpretation, judicial construction is justified. State Treasurer v Wilson, 423 Mich 138, 144; 377 NW2d 703 (1985). The goal of statutory construction is to "ascertain and give effect to the intent of the Legislature in enacting the statute.” In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989). In determining legislative intent, individual [354] provisions should be considered in conjunction with the entire act. Arrowhead Development Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). If the meaning of a statute is unclear, a court must consider the object of the statute and apply a reasonable construction that best accomplishes the Legislature’s purpose. Wilson, supra. Furthermore, literal constructions that produce unreasonable and unjust results that are inconsistent with the purpose of the act should be avoided. Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976). Under the interpretation advanced by the dissent and the Court of Appeals in Tagliavia, supra, the gross wage would be divided by a whole number that rounds up whenever an employee performs any work in a week. In Tagliavia, the Court ruled that if wages are earned in any part of a week, that week shall be included as a whole week in determining the average weekly wage. In so concluding, the Court of Appeals reasoned that that result was required by the second sentence of subsection 371(3), which provides: For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked. We disagree with and disapprove of Tagliavia. In directing that only those weeks in which work is performed shall be considered, the Legislature did not direct that every week in which work is performed shall be counted as a whole week without regard to whether the week was fully or partially worked. Application of the construction suggested by Tagliavia would create a downward distortion of [355] the average weekly wage. For example, the employee who began work on a Friday at the end of a work week, worked one full week and was injured on the following Monday, would effectively have little more than a week’s wage divided by three as the basis for compensation.2 Under the dissent’s proposed formula, wages for one week and two days would be treated as if they fairly represented three weeks wages. In contrast, the employee who begins a job on a Monday and is injured three weeks later on a Friday, would see the basis for his compensation almost triple. It seems an absurd notion that the Legislature intended to distinguish between the employee injured on a Monday and the employee injured on a Friday. Because the resultant disparity would be irrational, we conclude that such a result was not the intention of the Legislature. Similarly, we reject any interpretation of the statute that would disregard the partially worked weeks in question when dividing the gross wage. This would cause an upward distortion of the average weekly wage. For example, the employee discussed previously who began employment on a Friday, worked a full week and is injured the following Monday would have his total wages earned divided by one. This skews the average because the total wage figure would be inflated by the inclusion of two days wages. The result would be unfair to employers and would be inconsistent with the general provisions of subsection 1 regarding fair assessment of average weekly earnings. While an interpretation of subsection 3 that would totally disregard partially worked weeks in [356] either the numerator or the denominator might lead to an equitable solution, the Legislature did not choose the precise words that would lead to that interpretation. The Legislature specifically states that weeks in which work is performed are to be considered. However, the precise words that would lead to the distorted result reached by the dissent are absent. To interpret subsection 3 as rounding partially worked weeks up to the next whole number requires reading the words "any week in which work did occur is considered a week 'actually worked’ ”3 into the statute. It is our conclusion that when the Legislature employed the phrase "weeks actually worked,” it intended total wages earned to be divided by the whole number of full weeks worked plus a fractional number representing the partially worked weeks in question here. Application of this construction leads to a calculation of an employee’s average weekly wage that would most closely parallel a mathematical average. The employee who was hired to start on a Friday, worked one full week, and was injured on a Monday would have his total wages divided by 1.4 if his work week is based on five working days.4 III This interpretation is most consistent with the overall legislative intent expressed in § 371 when read in its entirety. An examination of the other subsections surrounding subsection 3 reveals the Legislature’s overriding desire to have the basis for compensation reflect an accurate measure of [357] wages. Section 371(2) establishes that wage is to include overtime, premiums, cost of living adjustments, and any fringe or other benefit that does not continue during the disability.5 Section 371(2) further provides that where an employee has worked more than thirty-nine weeks before an injury, the highest paid weeks of the fifty-two weeks before the injury are to be the basis for determining wage loss. This reflects a legislative purpose to utilize those weeks that are as fair as possible to the employee when dividing by thirty-nine. While the Legislature did not specifically address the treatment of the partially worked weeks sub judice when an employee works less than thirty-nine weeks, it did specifically address the employee who worked less than one week. Section 371(4) provides that the basis for determining wage loss for the employee injured during the first week of employment will be a determination of the number of hours the worker was to have worked, multiplied by the hourly rate, or simply the weekly salary.6 It would be incongruous for the Legislature to have intended more protection for the employee injured in the first week of employment, under the provisions of subsection 4, than it intended for the employee injured in the second week of employment, under the provisions of subsection 3. Similarly, § 371(5) provides that where an hourly earning cannot be computed, the usual wage for similar services shall be considered as the basis for calculating compensation.7 Subsection 6 applies "[i]f there are special circumstances under which the average weekly wage cannot justly be [358] determined by applying subsections (2) to (5) . . . ,”8 Where there are special circumstances, the Legislature provided that the average weekly wage could be computed by dividing the aggregate earnings by the number of days worked and then multiplying by the number of days customarily worked, "not less than 5.” This provision demonstrates that the Legislature was willing to depart from the traditional definition of a work week if necessary to justly determine the basis for compensation. Read together, the provisions of § 371 illustrate that the Legislature attempted to draft a statute that would be sensitive to accuracy as the basis for the determination of weekly wage loss in a variety of employment situations. Treating the partially worked week of hiring and the partially worked week of injury as fractions of a full week comes closest to producing a true average weekly wage. The consideration of these partially worked weeks as fractions in the calculation would be fair to both the employee and the employer. The treatment of these partially worked weeks as fractions is a rational and reasonable interpretation of the statute. It is also consistent with the expressed legislative desire contained in subsection [359] 1 to provide for a fair and accurate representation of an injured worker’s average weekly wage. IV Therefore, we conclude that the treatment of the partially worked week of hiring and the partially worked week of injury as fractions of full weeks for the purposes of calculating the average weekly wage of an employee with less than thirty-nine weeks of employment best carries out the Legislature’s overall intentions for calculating the average weekly wage in this situation.9 The judgment of the Court of Appeals is reversed in each case, and the cases are remanded to the Worker’s Compensation Appellate Commission for further proceedings. Cavanagh, C.J., and Levin, Boyle, Griffin, and Mallett, JJ., concurred with Brickley, J. Footnotes [1] The quoted language is from subsection (3) of § 371 of the Worker’s Disability Compensation Act. Section 371 in its entirety provides: (1) The weekly loss in wages referred to in this act shall consist of the percentage of the average weekly earnings of the injured employee computed according to this section as fairly represents the proportionate extent of the impairment of the employee’s earning capacity in the employments covered by this act in which the employee was working at the time of the personal injury. The weekly loss in wages shall be fixed as of the time of the personal injury, and determined considering the nature and extent of the personal injury. The compensation [352] payable, when added to the employee’s wage earning capacity after the personal injury in the same or other employments, shall not exceed the employee’s average weekly earnings at the time of the injury. (2) 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. (3) If the employee worked less than 39 weeks in the employment in which the employee was injured, the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked. For purposes of this subsection, only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked. (4) If an employee sustains a compensable injury before completing his or her first work week, the average weekly wage shall be calculated by determining the number of hours of work per week contracted for by that employee multiplied by the employee’s hourly rate, or the weekly salary contracted for by the employee. (5) If the hourly earning of the employee cannot be ascertained, or if the pay has not been designated for the work required, the wage, for the purpose of calculating compensation, shall be taken to be the usual wage for similar services if the services are rendered by paid employees. (6) If there are special circumstances under which the average weekly wage cannot justly be determined by applying subsections (2) to (5), an average weekly wage may be computed by dividing the aggregate earnings during the year before the injury by the number of days when work was performed and multiplying that daily wage by the number of working days customary in the employment, but not less than 5. (7) The average weekly wage as determined under this section shall be rounded to the nearest dollar. [MCL 418.371; MSA 17.237(371).] [2] Chappell v Hall Electric (Docket No. 95965), is being held in abeyance for the decision in these consolidated cases. Chappell worked one full week without incident, and earned gross wages of $634.40 in that normal work week. He was injured on the second day of the second work week, and earned $253.76 in that week. [3] Post, p 364. [4] The determination of the number of days customarily worked in a week, which becomes the basis for calculating the fraction of the week partially worked, would be a factual determination to be made by the magistrate. [5] See n 1 for the text of MCL 418.371(2); MSA 17.237(371)(2). [6] See n 1 for the text of MCL 418.371(4); MSA 17.237(371)(4). [7] See n 1 for the text of MCL 418.371(5); MSA 17.237(371))(5). [8] See n 1 for the entire text of MCL 418.371(6); MSA 17.237(371)(6). Appellant Riggs included the argument in his application for leave to appeal that subsection 6 should be applied. The magistrate had determined that wage loss should be calculated under subsection 6. The Worker’s Compensation Appellate Commission reversed, finding there was no testimony to establish "special circumstances” and instead applied subsection 3, dividing the total wage by a denominator that included the partial week at the beginning of employment and the partial week in which the disabling injury occurred. The Court of Appeals denied application for leave to appeal. This Court’s grant of leave to appeal was limited to the issue whether the Work-, er’s Compensation Appellate Commission properly calculated plaintiff’s average weekly wage pursuant to MCL 418.371(3); MSA 17.237(371)(3). 442 Mich 903 (1993). [9] This opinion addresses the specific partial weeks presented by both plaintiffs, the week employment commenced and the week of injury. While we do not foreclose the applicability of our interpretation of MCL 418.371(3); MSA 17.237(371)(3) to all other situations presenting partial weeks, we note that application of subsection 3 assumes that fully worked weeks are the norm in the employment the injured worker was performing.