Tyler v. Livonia Public Schools

Markey, J. This appeal of a September 24, 1993, opinion and order of the Worker’s Compensation Appellate Commission, one member dissenting, comes to this Court “for consideration as on leave granted” pursuant to the order of the Michigan Supreme Court, Tyler v Livonia Public Schools, 447 Mich 970 (1994). The wcac decision affirms the decision of the magistrate, which, while awarding plaintiff worker’s compensation disability benefits, allows defendant Livonia Public Schools to coordinate those — 699 — benefits with plaintiffs disability pension provided pursuant to MCL 38.1386; MSA 15.893(196). We affirm. The pertinent facts are not in dispute. After many years of employment in the public school system as a general laborer, plaintiff suffered work-related back injuries that have disabled him from further employment. His last day of work was November 9, 1989. Plaintiff is receiving a disability pension pursuant to the Public School Employees Retirement Act, MCL 38.1386; MSA 15.893(196). The sole question presented is whether those disability pension benefits can be coordinated against defendant’s worker’s compensation liability. Plaintiff presents two issues for review: I. Did the wcac err as a matter of law in concluding that plaintiff’s disability pension may BE utilized for coordination PURPOSES UNDER § 354 OF THE WDCA TO FUND A PORTION OF DEFENDANT’S WORKER’S COMPENSATION LIABILITY TO PLAINTIFF? II. If DEFENDANT MAY UTILIZE PLAINTIFF’S PENSION BENEFIT TO FUND A PORTION OF ITS WORKER’S COMPENSATION LIABILITY TO PLAINTIFF, DOES THIS VIOLATE CONST 1963, ART 1, § 10 AND CONST 1963, ART 9, § 24? The legal questions presented were not decided by the WCAC on the basis of a longstanding administrative interpretation of the relevant statutory provisions, but as an issue of first impression. Accordingly, we review such legal issues de novo, according only minimal deference to the administrative construction of the statute, and set aside an agency’s ruling regarding a question of law only where a party’s substantial rights were prejudiced because of a substantial and material error of law. Schuhknecht v State Plumbing Bd, 277 Mich 183, 186-187; 269 NW 136 (1936); Ron — 700 — ney v Dep’t of Social Services, 210 Mich App 312, 315; 532 NW2d 910 (1995). The pertinent portions of § 354 of the Worker’s Disability Compensation Act (wdca), MCL 418.354(1)(d) and (14); MSA 17.237(354)(1)(d) and (14), are as follows: (1) This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to section 351, 361, or 835 with respect to the same time period for which . . . payments under ... a disability insurance policy provided by the employer; or pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. Except as otherwise provided in this section, the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under section 361(2) and (3) shall be reduced by these amounts: * * * (d) The after-tax amount of the pension or retirement payments received or being received pursuant to a plan or program established or maintained by the same employer from whom benefits under section 351, 361, or 835 are received, if the employee did not contribute directly to the pension or retirement plan or program. Subsequent increases in a pension or retirement program shall not affect the coordination of these benefits. * * * (14) This section does not apply to any payments received or to be received under a disability pension plan provided by the same employer which plan is in existence on March 31, 1982. Any disability pension plan entered into or renewed after March 31, 1982 may provide that the payments under that disability pension plan provided by the employer shall not be coordinated pursuant to this section. — 701 — The WCAC unanimously viewed subparagraph 14 as addressing disability pension arrangements resulting from collective bargaining, and this assessment is correct. What the parties and the wcac seem to have overlooked, however, is the delicate phraseological distinctions the Legislature made between subparagraphs 1 and 14. In subparagraph 1, the Legislature authorized coordination for, inter alia, “pension or retirement payments pursuant to a plan or program established or maintained by the employer.” By comparison, in subparagraph 14, an exception was made for payments received or to be received under a “disability pension plan provided by the same employer which plan is in existence on March 31, 1982.” Section 354 was initially added to the WDCA by 1981 PA 203, effective March 31, 1982. The Legislature linked the effective date of the statute with its disavowal of intent to affect preexisting disability pension plans for a reason that becomes obvious when the distinction between “plans” and “programs” is understood. Section 354(1), which deals collectively with plans and programs, is distinguished from subparagraph 14, which deals only with “plans,” because a “plan” is a reflection of a contractual relationship between an employer and an employee, subject to regulation under the Employee Retirement Income Security Act (erisa), 29 USC 1001 el seq. By the same token, the erisa provides a blanket exemption from its regulatory ambit for “government plans” established or maintained by the government of any state or political subdivision for its employees. 29 USC 1002(2)(a)(32) and 1321(b)(2). Although the Legislature did not provide a glossary in 1981 PA 203 (which became, inter alia, § 354 of the wdca), we — 702 — must construe the statute in a manner that recognizes that phraseological distinctions in the subparagraphs of a statutory section presumably reflect a legislative intent to treat some things differently. Stowers v Wolodzko, 386 Mich 119, 133-134; 191 NW2d 355 (1971); In re Brzezinski, 214 Mich App 652, 663-664; 542 NW2d 871 (1995). We think the distinction between a “program” and a “plan” as used in § 354 is based on a “program” as being a reference to a govemmentally created system of reimbursement, protection, or remuneration. The disability pension benefits called for by the Public School Employees Retirement Act constitute a “program” that, albeit “established” by the Legislature, is “maintained” by the individual school district employer funding the program. For this purpose, funding is equivalent to “maintaining” such a program. Dezwaan v Holland Motor Express, 189 Mich App 575, 578; 473 NW2d 788 (1991). Plaintiff thus errs in contending that, if the disability pension benefits he receives are not immune from coordination because they are not a “plan” for purposes of subparagraph 14, they are likewise not a “plan” for purposes of coordination under subparagraph 1. This argument overlooks the crucial fact that subparagraph 1 applies to “programs” as well as “plans.” In recognizing that the reference in subparagraph 14 to “plans” refers only to contractual obligations, the Legislature reveals that it properly concerned itself with constitutional limitations on its authority. But for its inclusion of such a provision, the entire section might be declared unconstitutional as an impairment of the obligation of contracts, in violation of Const 1963, art 1, § 10 and US Const, art I, § 10. — 703 — See Monroe Beverage Co, Inc v Stroh Brewery Co, 211 Mich App 286, 297; 535 NW2d 253 (1995); Washtenaw Community College Ed Ass’n v Washtenaw Community College Bd of Trustees, 50 Mich App 467, 471-473; 213 NW2d 567 (1973). The Legislature thus applied coordination to contractual plans only if such plans are renewed or created after March 31, 1982, because the constitutional impediment does not apply to contracts made after the effective date of a statute. See, e.g., Seitz v Probate Judges Retirement System, 189 Mich App 445, 451-452, 455; 474 NW2d 125 (1991). In contrast, government benefits payable pursuant to statute are not contractual in nature. See Powers v Peoples Community Hosp Authority, 183 Mich App 550, 554; 455 NW2d 371 (1990); Guilbault v Dep’t of Mental Health, 160 Mich App 781, 784-785; 408 NW2d 558 (1987). Hence, the Legislature is not constrained by the Impairment of Contracts Clauses of the state and federal constitutions in modifying or amending statutory pension programs before the time that rights thereunder become fixed. Plaintiff attempts to turn this prophylaxis on its head by arguing that the effect of coordinating his disability pension is to impair a contractual obligation. Plaintiff argues that, while under the Constitution of 1908, pensions granted by public authorities were not deemed to be contractual obligations but rather gratuitous allowances that could be revoked at will, Const 1963, art 9, § 24 declares that the accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions “shall be a contractual obligation thereof which shall not be diminished or impaired.” Thus, the Constitution of 1963 treats pension benefits as contractual obliga — 704 — tions that may not be impaired by legislative enactment. Advisory Opinion re Constitutionality of 1972 PA 258, 389 Mich 659, 662-663; 209 NW2d 200 (1973); Campbell v Judges’ Retirement Bd, 378 Mich 169, 180-182; 143 NW2d 755 (1966). Accepting that principle, we find that it simply does not apply to disability pensions, except for persons who are already disabled and therefore whose right to such pension has vested (“accrued”). See, e.g., Campbell, supra at 180-181. In Advisory Opinion, supra, our Supreme Court quoted from the constitutional convention debates where proponents of what became art 9, § 24 aptly described nondisability pension benefits as simply deferred compensation for work performed. The same cannot be said of a disability pension for a person not yet disabled. Because plaintiff was not disabled on March 31, 1982, and had no right to a disability pension at that time, the subsequent adoption of coordination of such disability pensions with worker’s compensation benefits neither deprived him of any vested right nor impaired the obligation of any contract. Yet, had plaintiff been potentially entitled to a disability pension under a collective bargaining agreement or other contractual form of obligation that was not entered into or renewed after March 31, 1982, subparagraph 14 of § 354 would be necessary to prevent an impairment of the obligation of such a contract. See Kosa v State Treasurer, 408 Mich 356, 371-372; 292 NW2d 452 (1980); Washtenaw Community College Ed Ass’n, supra. In failing to recognize the distinction between “plans” and “programs,” the wcac lost itself in a thicket of reasoning from which it could not logically — 705 — extricate itself. The wcac majority argued that, although the Public School Employees Retirement Act was not in relevant part amended after 1979, technical amendments after March 31, 1982, constituted a “renewal” or “entering into” of a disability pension plan. The original statute had no expiration date or sunset clause, however, and thus the Legislature simply “continued” the program rather than “renewed” it. Likewise, the Legislature, if it did anything, “created” a pension program rather than “entered into” one, the latter term usually applying to contractual obligations, not statutory enactments. For like reason, it is irrelevant to this case, as the WCAC majority concluded, whether plaintiff or defendant had the burden of proof with respect to the application of subparagraph 14. Because that subparagraph does not apply by its terms, being limited to “plans” and having no application to “programs,” evidentiary technicalities need not be considered. It may be that the employee should have the burden of proof, but the employer, who knows the details and dates of “entering into” and “renewing” such plans, may have the burden of coming forward with evidence— an issue to be addressed in some proper case and on which at this time we express no opinion. Affirmed. R J. Sullivan, J., concurred.