GUSLER v. FAIRVIEW TUBULAR PROD

WILLIAMS, J.

This case involves an interpretation of the relation between §§ 351 and 355 of the Worker's Disability Compensation Act (WDCA). MCL 418.351, 418.355; MSA 17.237(351), 17.237(355). Particularly, the question is whether the identical reference "except as provided in section 355" appearing in § 351 after both "not more than $64.00 * * *" and "not less than $27.00 * * *" means that both maximum and minimum categories shall be increased "as provided in section 355".

The question arises because § 355 commences, "The maximum weekly rate in each dependency classification in this act shall be adjusted once each year". Although the administrators of the WDCA and the Court of Appeals have invariably interpreted the act to mean there is escalation in both maximum and minimum categories, defendants in this case claim the escalation of minimum benefits is not legislatively intended.

We hold that the phrase, "except as provided in section 355" activates weekly benefit increases for both the "not more than" and the "not less than" classifications for the following reasons. First, the Legislature placed the "except as provided in section 355" provision after both the "not more than" and the "not less than" classifications for a purpose. Unless both classifications are subject to the same escalation, then as to the classification not increased the legislative use of "except as provided in section 355" accomplishes nothing. It will not be presumed that the Legislature used words without a purpose. Second, "[s]tatutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice". Third, legislative history shows that the language in §§ 351 and 355 is a particular change from the former language in MCL 412.9(a); MSA 17.159(a) which provided escalation exclusively for the upper limits. Fourth, the invariant interpretation of §§ 351 and 355 since 1969 by the Bureau of Workers' Compensation has been to escalate across the board. The Court of Appeals is affirmed.

I. FACTS

On March 25, 1977, plaintiff Karen Gusler injured her back in the course of her employment with defendant Fairview Tubular Products (Fairview). At that time, plaintiff was earning the minimum wage with no fringe benefits. Deductions for federal and state taxes and Social Security reduced her weekly gross pay of $96 to $77.62.

Following plaintiff's injury, defendant Fairview and its insurer, defendant Farm Bureau Insurance Group (Farm Bureau), voluntarily paid workers' compensation benefits of $64 per week, two-thirds of plaintiff's average weekly wages. Based upon these facts, stipulated to by the parties, plaintiff thereafter petitioned the Bureau of Workers' Disability Compensation for a determination of the correct weekly benefit rate. On June 5, 1978, an administrative law judge increased the weekly benefit to $96, the minimum rate for an employee injured during 1977 with two dependents.

The unanimous Workers' Compensation Appeal Board, like the hearing referee, relied upon Jolliff v American Advertising Distributors, Inc, 49 Mich. App. 1; 211 N.W.2d 260 (1973), lv den 391 Mich. 780 (1974), in affirming the augmented award on December 27, 1978. The Court of Appeals affirmed by per curiam opinion.

Leave to appeal was granted on November 20, 1979. 407 Mich. 926 (1979). The parties were instructed to address the following issue:

"Whether the cost-of-living increases on workers' disability compensation benefits, provided for in MCL 418.355; MSA 17.237(355), apply to the minimum as well as the maximum weekly rates for total disability, as set forth in MCL 418.351; MSA 17.237(351)."

Oral argument was conducted on May 6, 1980.

Two sections of the WDCA are involved in the instant case. The first establishes dependency classifications, setting compensation rates within each classification as follows:

"While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 2/3 of his average weekly wages, but not more than $64.00, if such injured employee has no dependents; $69.00 if 1 dependent; $75.00 if 2 dependents; $81.00 if 3 dependents; $87.00 if 4 dependents; and $93.00 if 5 or more dependents; except as provided in section 355. Compensation shall be paid for the duration of the disability. Weekly payments shall not be less than $27.00 if there are no dependents; $30.00 if 1 dependent; $33.00 if 2 dependents; $36.00 if 3 dependents; $39.00 if 4 dependents; and $42.00 if 5 or more dependents; except as provided in section 355. Compensation shall be paid for the duration of the disability. The conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury and thereafter the question of permanent and total disability shall be determined in accordance with the fact as the fact may be at that time." MCL 418.351; MSA 17.237(351). (Emphasis supplied.)

The second provision before us sets forth an adjustment mechanism for benefit rates on an annual basis as follows:

"(1) The maximum weekly rate in each dependency classification in this act shall be adjusted once each year in accordance with the increase or decrease in the average weekly wage in covered employment, as determined by the employment security commission. The average weekly wage in covered employment determined by the employment security commission for the year ending June 30, 1967, shall be the base on which such adjustments are made.

"(2) A second adjustment, if any, shall be made on January 1, 1970 and shall reflect the change, if any, between the average weekly wage for June 30, 1969 and the average weekly wage for June 30, 1968 and the adjustment shall be made in like manner on each January 1 thereafter, utilizing the average weekly wage for the preceding June 30.

"(3) Adjustment for the statutory maximum rate shall be made only if there has been an increase or decrease in the average weekly wage of at least $1.50 during the preceding year, applied to the June 30, 1967, base and the director shall announce the adjustment each December 1, to become effective the following January 1. If any year the change is less than $1.50, the director shall announce no change for the following year but the amount of change in such year shall be carried forward and added to or subtracted from subsequent annual determinations until the total change shall be at least $1.50, in which year an adjustment shall be made. There shall be an adjustment made of $1.00 in the maximum rates for each $1.50 increase or decrease in the average weekly wage. The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed without further change as to the personal injury occurring within such year." MCL 418.355; MSA 17.237(355). (Emphasis supplied.)

In each year succeeding 1969, the effective date of the present MCL 418.355, the Director of the Bureau of Workers' Disability Compensation increased both maximum and minimum rates. However, the facial conflict between the cited provisions did not receive judicial attention until the 1973 decision of the Court of Appeals in Jolliff which approved the administrative interpretation, escalating in all categories.

In the case at bar, increases in the minimum weekly rate for employees with two dependents resulted in plaintiff's receipt of compensation benefits equalling her gross pay at the time of the injury. Defendants argue strenuously that the Legislature never contemplated such a windfall to injured employees.

We begin our analysis by turning to the precise issue framed by our grant of leave to appeal: "Whether the cost-of-living increases in workers' disability compensation benefits, provided for in MCL 418.355; MSA 17.237(355), apply to the minimum as well as the maximum weekly rates for total disability, as set forth in MCL 418.351; MSA 17.237(351)."

Defendants conclude that the clear language of modification in MCL 418.351, "except as provided in section 355", must be nugatory because it leads to facial conflict with the latter section. However, the first principle guiding our interpretive process was restated in 2A Sutherland, Statutory Construction (4th ed), § 46.06, p 63:

"`It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.' A statute should be construed so that effect be given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error."

In cases of statutory interpretation, we are bound to determine legislative intent. It does not impress us that the Legislature inadvertently or deliberately inserted language in MCL 418.351 which becomes meaningless on reference to MCL 418.355.

If MCL 418.355 was intended by the Legislature to be applied to each dependency classification, as is apparently the case from the referential language of MCL 418.351, our task under the first guiding principle of statutory construction is complete. Each word in these two provisions is given effect by such a reading.

However, our inquiry does not end at this point. The second principle to be applied to our analysis is found in 2 Sutherland, Statutory Construction (2d ed), § 490, p 913:

"Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience and to oppose all prejudice to public interests." Quoted in Boyer-Campbell Co v Fry, 271 Mich. 282, 297; 260 N.W. 165 (1935).

This is essentially a call for the same sort of weighing of humanitarian purposes and beneficent objectives which has characterized this Court's construction of the WDCA since its inception. Sheppard v Michigan National Bank, 348 Mich. 577, 589; 83 N.W.2d 614 (1957) (opinion of SMITH, J.). Applying this second principle, we are persuaded that § 355 represents the Legislature's attempt to provide some relief from the pervasive inflation which has particularly afflicted our state over the past 20 years.

The goal of the WDCA is to provide in an efficient and dignified form certain financial and medical benefits for employees who suffer injuries at the workplace. The victims of such injuries are assured of a certain recovery of benefits, regardless of fault, in lieu of the nebulous prospect of a tort recovery against the employer.

As applied to plaintiff, an employee working at the minimum wage, this goal of efficient and dignified support is translated into weekly benefits for plaintiff and her two children of, at most, $96. This sum is determined for her at the time of her injury, and remains static for her unless she should meet the stringent requirements of "total and permanent disability", MCL 418.361(2); MSA 17.237(361)(2). Even the Jolliff incremental benefits have brought plaintiff only to parity with her gross wages at the time of her injury. Although both the minimum wage and the cost of living can be expected to rise in succeeding years, plaintiff's benefits have been frozen until she regains her health. Since the minimum hourly wage today is $3.10, her earnings for a 40-hour week would be $124. Consequently, her $96 a week benefits would not encourage her to malinger.

Material assistance in construing these statutes is provided by an examination of the historical transmutations of the present § 351, formerly MCL 412.9; MSA 17.159.

Until 1949, the formula for setting compensation benefits was circumscribed by a maximum rate of $21 and a minimum rate of $10 per week, without regard to the number of dependents. 1948 CL 412.9, amended by 1949 PA 238 to establish new minimum and maximum rates based on the number of the claimant's dependents. By 1952 PA 263, six dependency classifications were established, and the rates for both minimum and maximum benefits were increased. Similar increases for maximum and minimum rates were implemented by 1954 PA 175 and 1956 PA 195. Clearly, then, the Legislature during that period was concerned with providing additional protection for the minimum-wage earner.

This concern was again manifested in 1965, when minimum rates were increased by 50% across the board. However, 1965 PA 44 amended MCL 412.9 by adding annually augmented rates only for those already receiving maximum benefits. By removing the language limiting increased benefits to the maximum rates, as it did by 1969 PA 317, the Legislature provided a clear signal of its intent to allow uniform cost-of-living increments. As the Court of Appeals noted in Keyzer v Christian Rest Home, 32 Mich. App. 286, 288; 188 N.W.2d 672 (1971):

"Had the Legislature desired to effect the interpretation now placed upon the act by defendant, it could easily have done so in simple language. It is not for this Court to add language to a clear and explicit statute."

The replacement for repealed MCL 412.9, MCL 418.351, explicitly provided cost-of-living adjustments for both maximum and minimum rates through reference to the new MCL 418.355. We would indeed be arrogating to ourselves the legislative power if we were now to read into § 351 the precise limitations which the Legislature found objectionable and inimical to the spirit of the WDCA over 11 years ago.

There remains one additional principle to be employed in settling the meaning of the escalator clause. This was early described by the United States Supreme Court in United States v Moore, 95 U.S. 760, 763; 24 L.Ed. 588 (1877), as follows:

"The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons."

Defendants concede that the invariant interpretation of the instant WDCA provisions since 1969 is against them. In that year, the Director of the Bureau of Workers' Compensation first announced increases for both minimum and maximum rates, following the Legislature's deletion of the limitational language in § 351. Without exception, the administrative law judges of the bureau, the Workers' Compensation Appeal Board, and the Court of Appeals have found the escalator clause applicable across the board. We acknowledged in Magreta v Ambassador Steel Co, 380 Mich. 513, 519; 158 N.W.2d 473 (1968), the deference owed to the Bureau of Workers' Disability Compensation interpretation of the WDCA. It is fully in keeping with our Magreta holding that we now give appropriate weight to the longstanding construction given these provisions by the agency legislatively designated to administer them.

Magreta also speaks to the subject of legislative acquiescence. The Legislature's silence after the Court of Appeals issued its interpretation of certain statutory language "can only be construed as consent to the accuracy of that interpretation". See In re Clayton Estate, 343 Mich. 101, 106-107; 72 N.W.2d 1 (1955). As Magreta notes, 380 Mich. 520:

"We would not be understood to hold that standing alone this principle [of legislative acquiescence] is controlling, yet we must assume that the Legislature was aware of the prior interpretation of the act. Session after session the act has been amended in some particular, but no specific amendment of the language here under consideration was made."

The Legislature has not spoken to the issue presented in this case since it removed language limiting cost-of-living increases to the maximum rates from MCL 418.351 in 1969. While such silence, standing alone, may not be controlling, it is combined with an invariant interpretation by the agency charged with administration of the WDCA. These factors, and the clear indications of legislative intent disclosed by the first two guiding principles, provide overwhelming evidence that the cost-of-living adjustments of MCL 418.355 are to apply uniformly to all dependency classifications.

The parties and amici briefed the issue whether, if Jolliff applies to minimum rates, an employer can be required to pay workers' compensation benefits in excess of the statutory two-thirds of the employee's average weekly wage. This issue is not squarely presented by the instant facts, since plaintiff is receiving exactly the same amount she would have earned working full time in 1977. However, we would be remiss if we did not now confront the issue defendants have raised.

This Court has never adhered to the notion that wage-loss substitution is the sole purpose of the WDCA. As early as 1932, we sustained an award of $7 per week to an injured volunteer fire chief whose annual salary was $25 per year. Carothers v City of Stanton, 257 Mich. 107; 241 N.W. 178 (1932). Similarly, in King v Second Injury Fund, 382 Mich. 480; 170 N.W.2d 1 (1969), we held the two-thirds average weekly wage limitation inapplicable to differential payments by the Second Injury Fund to totally and permanently disabled employees. We subsequently denied leave to appeal in Keyzer v Christian Rest Home, which held that a part-time employee with an average weekly wage of $30.40 was entitled to benefit payments of $27 and that the percentage weekly wage provision was modified by the specific minimum provision. The two-thirds average weekly wage limitation was then considered in two 1976 cases. In Lahay v Hastings Lodge No 1965 BPOE, 398 Mich. 467; 247 N.W.2d 817 (1976), we had occasion to consider the limitation as it applied to an employee injured on a part-time job who suffered no impairment of earning capacity in his regular full-time employment. Defendants rely heavily upon Lahay as indicative of this Court's rejection of benefit payments in excess of the two-thirds average weekly wage limitation, but defendants misconstrue our holding in the case. The decision simply disallows inclusion of separate, unrelated contemporaneous employment unaffected by a disability when applying MCL 418.371(1); MSA 17.237(371)(1), limiting compensation payable to average weekly earnings at the time of injury plus wage-earning capacity after the injury. Under such circumstances, since he continued without limitation his principal full-time employment, we found it legitimate to compensate plaintiff based on two-thirds of his average weekly wage in the part-time employment. This benefit for disability in his part-time employment was an amount which was less than the minimum rate for full-time employment where he continued to receive his full wages. Following Lahay, the Workers' Compensation Appeal Board held unanimously that the decision had no applicability to the type of factual situation presented in the instant case. Hiltz v Phil's Quality Market, 1977 WCABO 3692.

We next confronted the two-thirds average weekly wage limitation in Gasparick v HC Price Construction Co, 398 Mich. 483, 491; 247 N.W.2d 824 (1976). After setting forth an illustration in fn 4, we state:

"This example illustrates how the legislative policy expressed in the statute can operate to compel one employer to pay an employee more in compensation than he would have paid in wages. This result, however, is understandable if one remembers that it is the legislative intent to compensate loss of earning capacity, not merely lost wages."

Gasparick effectively refutes the defendants' contentions that this Court has refused, since Lahay, to countenance workers' compensation benefit payments equal to or in excess of an employee's actual gross wages.

However, amici also point to the language in Higgins v Monroe Evening News, 404 Mich. 1, 15; 272 N.W.2d 537 (1978):

"The statutory provisions dealing with computation of compensation use a sliding scale based upon weekly wage loss with minimum and maximum rates, the maximum rates to be adjusted on an annual basis. MCL 418.351; MSA 17.237(351) and MCL 418.355; MSA 17.237(355)."

Higgins involved a determination of compensability for injuries suffered by the assistant to a substitute newspaper carrier, and turned on the absence of an employment contract. It did not involve construction of § 351. Furthermore, the language quoted above does not purport to interpret the relationship between §§ 351 and 355. It is only a passing reference using an inexact and elliptical paraphrase of these two sections.

The most recent case to treat the two-thirds average weekly wage limitation is Wemmer v National Broach Machine Co (After Remand), 89 Mich. App. 312; 280 N.W.2d 845 (1979), lv den 406 Mich. 1002 (1979). Wemmer contains an interesting discussion of one of the WDCA provisions which the defendants have cited as an indication of legislative intent to limit benefit payments, MCL 418.357; MSA 17.237(357). Section 357 mandates an annual 5% reduction in benefits being received by injured workers after age 65, until the total benefits received are reduced by 50%. Contrary to the proposition for which defendants have cited it, § 357 explicitly states in pertinent part: "Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act". (Emphasis added.) Wemmer notes that whenever minimum weekly benefits are increased by the Director of the Bureau of Workers' Disability Compensation, those augmented amounts prevail where they exceed the two-thirds limitation. Stein v Director, Bureau of Workmen's Compensation, 77 Mich. App. 169; 258 N.W.2d 179 (1977). Wemmer concludes, 89 Mich. App. 329, "When the minimum rates exceed the two-thirds limitation, the minimums become the floor beneath which total payments may not fall."

From this litany of cases, it is clear that the Court has found that the Legislature has not made the two-thirds average weekly wage limitation controlling in every instance.

Defendants protest that the present minimum rate for a person with no dependents, $134, exceeds the amount that individual would earn working a 40-hour week at the minimum wage, $124. Defendants assert that such a situation encourages fraud. Whatever defendants, this Court or any one else thinks about this situation, the adjustments, if any, must be undertaken by the Legislature.

Our task of resolving the facial conflict between MCL 418.351 and MCL 418.355 has been assisted by the principles of effectuation of each word of each statute, ascertainment of legislative intent with a view to furthering the humanitarian objectives of the WDCA, and construction of the salient provisions by the Bureau of Workers' Disability Compensation, as well as by recognition that the Legislature has failed to act in this area since removing the restraints on cost-of-living increments for minimum weekly benefits in 1969.

Having employed these tools of analysis, we hold that there is no conflict between MCL 418.351 and MCL 418.355. The provisions of the latter statute awarding cost-of-living benefits apply to both minimum and maximum rates. We further find that where such increases would result in benefit payments exceeding two-thirds of the claimant's average weekly wage at the time of the injury, the average weekly wage limitation is superseded by the rate newly established for the claimant's dependency classification.

The Court of Appeals is affirmed.

No costs, a public question being involved.

BLAIR MOODY, JR., J., concurred with WILLIAMS, J.

BLAIR MOODY, JR., J. (dissenting).

I respectfully dissent from the majority opinion. I concur in general with the reasoning in the opinion written by Justice WILLIAMS and therefore have affixed my signature. The following explains additional reasons for my decision.

To overrule a decade of established precedent and practice requires this Court to judicially erase a clear legislative command, to avoid segments of legislative history, and to usurp the legislative function.

In an attempt to succinctly recapitulate the salient features of the statutory provisions applicable to this case, it is noted that § 351(1) requires payment to a totally incapacitated employee of "not more than * * * $75.00 if 2 dependents; * * * except as provided in section 355 * * * not less than * * * $33.00 if 2 dependents; * * * except as provided in section 355." Thus, the plain language of the statute subjected both ceiling and base classifications to the adjustment provisions of § 355.

At the time of the plaintiff's injury § 355 provided: "(1) The maximum weekly rate in each dependency classification in this act shall be adjusted once each year in accordance with the increase or decrease in the average weekly wage." This provision also asserted: "(3) Adjustment for the statutory maximum rate shall be made only if there has been an increase or decrease in the average weekly wage of at least $1.50 during the preceding year." Section 355 referred to "maximum rates" and "maximum weekly rate" in two other sentences.

Several arguments are advanced to support the position of the defendants that no adjustment to the minimum rates prescribed in § 351 is authorized pursuant to § 355 because none was intended by the Legislature.

It is first urged that since the plain language of § 355 makes no specific reference to minimum rates, it would be unreasonable to conclude that "maximum rates" refers to anything more than ceiling rates established in § 351 to which § 355 is cross-referenced. Accordingly, it is posited that the cross-reference in § 351 following the base or minimum classifications is surplusage.

This very point was addressed by the WCAB in Jolliff v American Advertising Distributors, Inc, 49 Mich. App. 1; 211 N.W.2d 260 (1973), lv den 391 Mich. 780 (1974). In that case, the board unanimously reasoned:

"Sec. 9 of Part II as it was known in 1965, and which is now known as § 355 ([MCL] 418.355) provides: `The maximum weekly rate in each dependency classification in this act shall be adjusted * * *'. (Emphasis supplied.) I submit that the word maximum as used in this section refers to the top amount which is payable in each dependency classification within the act, and is not to be construed just to refer to the maximum rate which is payable when the employee's weekly wage may exceed the state's average weekly wage so that the maximum which he receives is the top amount payable each week under the act. If there be those who would disagree, I refer such skeptics to the plain language of § 9, Part II which at the time of the employee's injury in 1970 provided * * *." 1972 WCABO 575, 579.

Given the statutory language, the WCAB analysis is a reasonable interpretation of legislative intent. Clearly all 12 of the statutory rates of payment of compensation provided in § 351, which include both ceiling and base categories, constitute dependency classifications. Certainly the Legislature must have intended some purpose for the cross-reference clause which follows the "minimum" classifications listed in § 351. To judicially discard this cross-reference phrase would also necessitate an absolute avoidance of the explanatory clause in the very first sentence in § 355.

Both clauses were inserted and approved by the Legislature. When read together, the two provisions blend together to mean that the adjustments in § 355 would apply to all dependency classifications listed in § 351. The plain language of these two sections, including all phrases and cross-references, strongly suggests a legislative command that should not be judicially erased. This is particularly true when the humanitarian and remedial aims of the act are promoted.

It is claimed that the legislative history of these provisions reveals an error in the drafting of the statute. The original version of what is now § 355 was first introduced into the legislative tableau by 1965 PA 44, MCL 412.9(a); MSA 17.159(a). This act expressly provided upward adjustments for ceiling classification rates from September 1, 1965 to January 1, 1969. There were no specific adjustments made to the base classification rates covering this period.

However, both the ceiling and base rate classifications were subjected to the provisions of subsection (f), the antecedent of § 355. Under the provisions of the act, subsection (f) would become operative commencing January, 1969. It is urged that since the Legislature failed to make provision for adjusting the base classifications from September 1965 to January 1969, there was no intention, irrespective of the specific legislative mandate, to apply the automatic adjustment provision of subsection (f) to the minimum categories after January, 1969.

Reaching back further into legislative history, however, illuminates a different view. Prior to 1949, disability compensation payments were established at two-thirds of the average weekly wage. Payments could not exceed $21 nor fall below $10 per week. Pursuant to 1949 PA 238, dependency classifications were introduced and both ceiling and base rates were raised. For instance, an employee with no dependents could be paid no more than $24 nor less than $11 per week, slight increases over the prior statutory maximum and minimum rates. In addition, specific amounts were established on a steadily increasing progression in all dependency classifications.

This pattern was maintained by 1952 PA 263. Upward adjustments in each dependency classification, including ceiling and base categories, were specifically enacted. As an example, an employee with no dependents could be paid not more than $28 nor less than $14. The Legislature apparently was reacting to the then-gradual increase in the average weekly wage of Michigan workers with accompanying inflation and accommodated the economic progression by a specific act that raised to some extent both the benefit ceiling and floor.

Following the same mold, 1954 PA 175 provided for additional increased payments in all dependency classifications. In 1956, the Legislature altered the pattern. Under 1956 PA 195 increases were extended to the ceiling rates, whereas base dependency classification rates were unchanged.

It was not until 1965 when, pursuant to 1965 PA 44, the Legislature once again increased all dependency classification payments. Apparently a need to increase minimum as well as maximum benefits was again recognized. Weekly payments for ceiling rates with no dependents were raised to not more than $58 as of September 1, 1965, nor less than $27. As previously related, the ceiling payments were adjusted upward from September 1, 1965 seriatim to January 1, 1969. The recently raised base rate remained steady until January 1, 1969. At that point, the provisions of subsection (f), the antecedent of § 355, pursuant to the plain language of the act would automatically adjust both the ceiling and base rates.

Viewing a full recount of legislative history and in the face of a specific legislative command, one cannot readily conclude that the Legislature did not intend § 355 to apply to the base dependency classifications set forth in § 351. At one time the differential amount between the ceiling and the base payment was absolutely constant. There is a background of consistent increases to both ceiling and base classification payments on almost every legislative occasion. Furthermore, payment rates were consistently subject to legislative alteration to reflect necessary changes due to economic conditions.

There is also another noteworthy feature to legislative history. It is doubtful that the Legislature, in 1965, could anticipate what would be enacted in 1969. In the 1965 act, the Legislature utilized language to allow for automatic adjustments that would carry beyond 1969. In 1969, the Legislature revised the act and specifically retained the cross-reference clause in § 351 which applied to minimum rates. The Legislature endorsed its prior 1965 enactment.

If one were to accept as arguable the proposition that the Legislature in 1965 mistakenly applied subsection (f) to the base classification, it becomes doubly difficult to accept when the Legislature again applied the cross-reference clause to all classifications in the 1969 act. Section 355 having been applied twice to both categories of classification in § 351 lends strength to what was the intent of the Legislature.

Inconsistencies within the act lend little assistance to ascertaining legislative intent. It is urged that comparing § 351 with the death benefit provision of MCL 418.321; MSA 17.237(321) indicates there is no plausible reason why the Legislature would intend to adjust the minimum rate upward in disability classifications, while not doing so for surviving dependents of an employee killed during the course of employment. However, the Legislature may have had a reason for treating death cases differently than cases involving a disabled worker. Furthermore, it is just as plausible to suggest that the Legislature made a mistake by leaving out of § 321 a cross-reference clause to § 355.

Also, it is argued that an adjustment of minimum compensation rates for disabled employees would impair the effectiveness of MCL 418.357; MSA 17.237(357), which requires an annual 5% reduction in benefits each year after the age of 65 for a period of 10 years to a minimum of 50% of the benefits paid at age 65. It is claimed that to adjust minimum rates upwards under § 355 would make the 50% reduction impossible to effect.

However, § 357 specifically provides in pertinent part:

"Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act."

It may therefore be discerned that the Legislature compassionately recognized the potentially serious impact that cost of living increases have on the elderly. The reduction down to 50% of the benefits paid at age 65 was to be tempered so that in no event would the benefits fall below the adjusted minimum weekly benefits under § 355.

Finally, it is urged that, in view of arguably inequitable results, it is likely that the Legislature did not intend to apply increasing adjustments to minimum classification benefits. In one regard this assertion would be answered by raising unfair hypothetical results had the base rates remained at the same level over the years.

More succinctly, this assertion was anticipated and answered nearly a decade ago by WCAB member Michael Gillman. In his separate concurrence with the unanimous Jolliff decision, Gillman stated:

"The impact of this decision is not simply to increase plaintiff's weekly compensation 67 cents (from $37.33 to $38), but to impose upon the insurers and self-insureds of this state a new compensation liability not previously considered — annually increasing minimums as well as maximums.

"There are practical problems and inequities that spring immediately to mind for service industry employers and others who hire part-time help.

"Seeing these, it will be easy to criticize the decision of this board as producing an inequitable result. Let us here submit that it is not this board's decision but the act as amended in 1965 that establishes the law before us. Section 9, Part II ([§] 351) specifically makes separate provision for increase in maximums and in the minimum dependency classifications. This writer is satisfied that such was the intent of that Legislature and would refer those who quarrel with such finding to the makers of the law." 1972 WCABO 582.

It is for the Legislature to change its prior specific statutory commands in the Worker's Disability Compensation Act. This has been done. In 1980, by 1980 PA 357, the Legislature, reacting to a battered Michigan economy, once again revised § 351 and § 355 to be effective January 1, 1982.

I would affirm the Court of Appeals.