Houston v. Allied Supermarkets, Inc.

Michael J. Kelly, J. Claimant appeals as of right from a circuit court order affirming a decision of the Michigan Employment Security Com [767] mission which denied her application for unemployment benefits. We affirm the circuit court. Claimant began working for Allied Supermarkets, Inc., in 1952 and last worked on February 25, 1982, when she went on sick leave. On July 1, 1985, claimant’s doctor released her for return to work, upon the condition that she not be placed in a stressful situation. Allied indicated that it had no employment available for claimant due to her medical restriction and discharged her from employment on July 9, 1985. On September 3, 1985, claimant filed an application for unemployment benefits and for preservation of unused credit weeks from February 24, 1982, to July 1, 1985. Benefits were denied based on claimant’s failure to comply with MCL 421.28a(10); MSA 17.530(1)(10), which requires that a request for preservation of credit weeks due to continuous involuntary disability must be made within three years of the date that the disability begins. Because her request was made more than three years after the onset of her disability, she had no credit weeks preserved and thus was deemed ineligible for unemployment compensation. The three-year filing requirement of subsection (10), MCL 421.28a(10); MSA 17.530(1)(10), was one of several general amendments to the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq., included in 1983 PA 164, effective July 24, 1983. Prior to the enactment of 1983 PA 164 and the addition of subsection (10), an unemployed individual could preserve credit weeks due to a continuous involuntary disability by a request filed within forty-five days after the commencement of unemployment without regard to the duration of the disability. 1979 PA 28, § 28a(6). Subsection (10) states: [768] Notwithstanding any other provision of this section, a request for preservation of credit weeks must be made within 3 years after the date the disability began. The sole issue in this case is whether the three-year limitation period for requesting preservation of credit weeks provided in subsection (10) applies to an individual whose disability commenced prior to the effective date of 1983 PA 164. Claimant argues that it does not and alleges that, instead, subsection (6), as amended by 1983 PA 164, controls this case. The amended version of subsection (6) provides: [C]redit weeks may be preserved if the commission receives a written request and a physician’s statement, as described in subsections (1) and (2) within 90 days after the commencement of the unemployment, within 90 days after being advised of his or her rights by the commission, or if the individual is unable to submit the written statement and request due to a medical inability, within 90 days after the end of that medical inability. [MCL 421.28a(6); MSA 17.530(1X6).] We agree that subsection (10) does not apply retroactively to bar claimant’s case, but disagree with her contradictory contention that the amended version of subsection (6) should be applied to make her filing timely. This Court addressed the issue of the retroactivity of the 1983 PA 164 amendments to mesa in Harris v Pennsylvania Erection & Construction, 143 Mich App 790; 372 NW2d 663 (1985), which held that the statutory language provided only for prospective effect from the stated date of effect. Although that opinion decided the retroactivity of amended subsection (6), we find the analysis persuasive regarding subsection (10) as well. [769] Absent a clear showing of contrary legislative intent, statutes related to remedies or modes of procedure which do not create or eliminate vested rights are to be retroactive in effect. Kalamazoo City Ed Ass’n v Kalamazoo Public Schools, 406 Mich 579, 601-603; 281 NW2d 454 (1979). The 1983 amendments to § 28a of mesa relate to procedural rules rather than substantive rights; however, there is a clear showing of legislative intent that these amendments be given only prospective effect from the stated date of effect. Section 72 of the mesa, MCL 421.72; MSA 17.569(22), delineates the effective dates for the 1983 amendatory language to the mesa, which includes § 28a(6) and (10), the subsections involved in Harris and the instant case. Section 72 provides: (1) Except as otherwise provided in this section and the 1983 amendatory act which added this section, the 1983 amendatory act which added this section shall take effect upon its date of enactment. (2) The amendments made to section 43(g) by the 1983 amendatory act which added this section shall take effect January 1, 1983. (3) The amendments made to sections 14, 15, 18, 21, 22a, 24, 32a, 33, 34, and 49 by the 1983 amendatory act which added this section which amendments provide for the extension of certain appeal periods from 20 to 30 days shall take effect October 1, 1983. Reading this section of the act as a whole, and not piecemeal, in view of the Legislature’s indication of retroactivity for parts of the amendments, immediate application for other sections of the amendments, and prospective application for still other sections of the amendments, we are per [770] suaded that there is a clear showing of legislative intent against retroactive application for § 28a(10) of mesa. Had the Legislature intended this subsection to be given retroactive effect, it would have said so in the enabling portion. Instead, the Legislature clearly provided that the three-year filing limitation became effective July 24, 1983, and we are bound by that directive. However, based upon this same reasoning, claimant’s filing was untimely under the prior version of mesa § 28a(2), which provided: Unused credit weeks shall not be preserved pursuant to this section unless the commission receives a written statement from the individual’s physician within 45 days after the commencement of the disability, or if the individual is unable to submit the written statement due to a medical inability, within 45 days after the end of that medical inability the commission receives the written statement from the individual’s physician. [1979 PA 28, § 28a(2).] As previously noted, the present version of § 28a, as amended by 1983 PA 164, does not have retroactive effect, and this includes subsection (2) as well. Under the prior version of § 28a(2), claimant was required to have filed a physician’s statement within forty-five days after the commencement of her disability, or within forty-five days after the end of her medical inability to provide such a statement. Claimant’s failure to file such a statement within this time constraint outlawed her claim, so it is not necessary to reverse the denial of her claim for unemployment benefits. Affirmed. L. P. Borrello, J., concurred.