Krimmel v. Sears, Roebuck & Co.

Per Curiam. Defendant appeals by leave granted from an August 1, 1988, order of the Workers’ Compensation Appeal Board disallowing a setoff for the $10,000 "commission” received by plaintiff and a setoff for employer-paid disability insurance benefits. We affirm. Defendant first claims error in the wcab’s refusal to consider plaintiff’s after-injury receipt of $10,000 for his role in effectuating the sale of a Coney Island franchise as income subjecting plaintiff’s weekly disability compensation to setoff pursuant to MCL 418.371(1); MSA 17.237(371)(1). We disagree._ [674] Defendant does not argue plaintiffs receipt of the $10,000 affected either the existence of plaintiff’s disability or plaintiffs after-injury wage earning capacity. Instead, defendant claims subsection 371(1) mandates a recipient’s weekly wage benefits be offset by any postinjury earned income. Defendant looks to the following language of subsection (1) of § 371 to support its position: The compensation 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 injury. However, this section addresses the limitation of weekly benefits based on the establishment of an after-injury earning capacity, not any receipt of after-injury wages or earned income. Thus, as defendant does not contend the apparently one-time $10,000 compensation affected plaintiffs wage earning capacity, subsection (1) of §371 provides no support for defendant’s claim. Moreover, our search has revealed no authority authorizing the claimed setoff absent proof of a new wage earning capacity or subsequent employment. As our Supreme Court stated in Leizerman v First Flight Freight Service, 424 Mich 463, 473; 381 NW2d 386 (1985), "wage earning capacity, rather than actual wages earned, is the criterion by which entitlement to benefits is measured.” Absent authority supporting a setoff under the circumstances presented in the instant case, we decline to usurp the Legislature’s role and make such authority. We also reject defendant’s remaining claim, that retroactive application of the amendments to the Workers’ Disability Compensa [675] tion Act as set forth in 1987 PA 28, MCL 418.354(17)-(20); MSA 17.237(354)(17)-(20), violates the Michigan and United States Constitutions, adopting the reasoning set forth on these issues by another panel of this Court in Romein v General Motors Corp, 168 Mich App 444; 425 NW2d 174 (1988). Affirmed.