ROWELL v. SECURITY STEEL CO

RILEY, J. (dissenting).

Because MCL 418.371; MSA 17.237(371) does not permit the utilization of fractional work weeks to calculate worker's compensation benefits, I respectfully dissent.

At issue in the instant case is the calculation of worker's compensation benefits due injured workers who work less than thirty-nine weeks but more than a week for their employer before their injury. More specifically, the issue presented is whether MCL 418.371; MSA 17.237(371) permits the calculation of weekly earnings for worker's compensation benefits by computing the first and last weeks of employment as fractional weeks. The majority holds

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 because 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. [ Ante at 349.]

Contrary to the method utilized by the majority, I begin by examining the language employed by the Legislature to resolve this issue. MCL 418.371; MSA 17.237(371) 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 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.

This Court has long held that "[i]n every exposition of a statute, the intention of the Legislature is undoubtedly the end to be sought. . . ." Leoni Twp v Taylor, 20 Mich. 148, 154-155 (1870). Because the Legislature is presumed to understand the meaning of the language it places into law, "[s]tatutory analysis necessarily begins with the wording of the statute itself." Carr v General Motors Corp, 425 Mich. 313, 317; 389 N.W.2d 686 (1986). Each word of an act is "presumed to be made use of for some purpose," and "so far as possible, effect must be given to every clause and sentence." Univ of Michigan Bd of Regents v Auditor General, 167 Mich. 444, 450; 132 N.W. 1037 (1911). Accordingly, the Court may not substitute or redefine a word. People v Crucible Steel Co of America, 150 Mich. 563, 567; 114 N.W. 350 (1907). Nor may the Court assume that a mistake was made or that the Legislature inadvertently utilized one word instead of another. Detroit v Redford Twp, 253 Mich. 453, 456; 235 N.W. 217 (1931). Moreover, unless the statute or circumstances dictate otherwise, the Court should utilize the common understanding of words and phrases. People ex rel Platt v Oakland Co Bank, 1 Doug 282, 287 (Mich, 1844). Hence, "[a] fundamental principle guiding this Court is that a clear and unambiguous statute leaves no room for judicial construction or interpretation." Coleman v Gurwin, 443 Mich. 59, 65; 503 N.W.2d 435 (1993). In other words, "[a] statute is not open to construction as a matter of course, but only where the language used in the statute requires interpretation — where it is ambiguous or where 2 or more constructions can be placed upon it, where it is of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning." City of Lansing v Lansing Twp, 356 Mich. 641, 649; 97 N.W.2d 804 (1959).

These rules of statutory construction are especially appropriate in the instant case:

"The compensation act is in derogation of the common law and, therefore, its measure of relief may not be extended beyond its express terms; it is a legislative creation permitting no enlargement by principles of equity or common-law adaptations. It is arbitrary and where it speaks nothing can be added nor changed by judicial pronouncement. It imposes liability upon operatives under its provisions and measures exclusive relief in its own terms." [ Solakis v Roberts, 395 Mich. 13, 20; 233 N.W.2d 1 (1975), quoting Tews v C F Hanks Coal Co, 267 Mich. 466, 468-469; 255 N.W. 227 (1934).]

Subsection 3 provides that "the average weekly wage shall be based upon the total wages earned by the employee divided by the total number of weeks actually worked." The subsection defines, for its purposes only, that "only those weeks in which work is performed shall be considered in computing the total wages earned and the number of weeks actually worked." Accordingly, any week in which work did not occur is not considered in the calculation, while any week in which work did occur is considered a week "actually worked." There is no exception for the first, last, or any other partially worked week as long as "work is performed" that week. In the instant case, therefore, each plaintiff's wages should be divided by the total number of weeks in which at least some work occurred, regardless of the actual hours worked or wages earned each week. This subsection is uncomplicated and provides for a readily determinable weekly wage. The fairness of the provision is not our concern.

The majority, however, ignores the clear meaning of the statute and substitutes a standard fashioned from whole cloth. Nowhere in the statutory scheme is there reference to the utilization of fractional work weeks. To the contrary, the subsection at issue mandates that the "total number of weeks actually worked" be utilized to compute a claimant's benefits. The ordinary meaning of this phrase is to interpret "week" as seven consecutive days (beginning on Sunday) and "total number of weeks" to mean the combined or full number of weeks that work occurred. "[W]eeks actually worked" is specifically defined as any week in which work is performed. Contrary to the majority's holding, the subsection does not provide that shortened weeks at the beginning and end of a worker's employment are to be computed as fractions — the statutory definition of "actually worked" does not differentiate between shortened and full work weeks or between the first, middle, and last weeks of employment. In fact, no mention of first or last weeks exists in the section at issue whatsoever. Nor is there a provision for partially worked weeks. The section clearly provides that the total number of weeks in which any work was performed — regardless of the amount of work performed or when the week was worked — is to be used in the calculation. In short, there is no provision for the utilization of fractional weeks for the first and last weeks worked.

The majority, however, posits that the language is ambiguous by proffering four different interpretations of the language at issue, ante at 353, and then chooses the one interpretation it finds the most palatable. Yet, three of these interpretations are simply untenable distortions of language of the statute. The true objection of the majority, is that the clear language of the statute is "unfair." Ante at 355. This Court, however, may not misinterpret statutes so that they may seem more fair to its individual members.

If the Legislature wished to ensure that fractional weeks be utilized, it would have clearly expressed that intention. For example, subsection 3 explicitly provides that weeks during which no work occurred are not to be counted as weeks for the purpose of determining compensation. Similarly, subsection 4 provides for special calculations if an employee is injured before completing the first work week "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." Similarly, subsection 6 defines a week for its purposes as "the number of working days customary in the employment. . . ." The Legislature, therefore, has clearly articulated computations that account for the exigencies of employment and the untimely halt of employment due to injury. Nevertheless, the Legislature did not provide for special fractional calculations for incomplete weeks, calculations by multiplying the contracted hours by the hourly wage, or weeks "customary in the employment" in subsection 3. The majority, however, examines the separate subsections to support its conclusions that the Legislature intended its formula. To the contrary, the Legislature's purposeful decision not to include such special calculations reveals that it intended otherwise. In short, the length or timing of the work week is irrelevant in the instant case. The language utilized is not so doubtful or obscure that reasonable minds might be uncertain of its meaning. Indeed, the language could not be clearer. The majority simply engrafts on the statute a novel means of computing benefits in contradiction with its plain terms.

The majority protests that "[i]n 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." Ante at 354. To the contrary, the Legislature clearly provided that any week in which work occurred was to be considered a week "actually worked." The majority's interpretation has the anomalous result of counting partially worked weeks at the beginning and the end of employment as fractions, but counting weeks partially worked in between the first and last week as a full week. Thus, a week "actually worked" possesses two entirely different definitions for the same worker at the same job. Such a reading is nothing if not "incongruous" or "absurd."

Contrary to the majority, we must assume that the Legislature intended to choose the precise words it utilized, and that it consciously chose not to utilize fractional weeks in the subsection at issue. We must not substitute the Legislature's words for our preferences. The Legislature enacted this language with the passage of 1980 PA 357. The act completely revised the prior statutorily mandated calculation by eliminating the calculation of wages by "multiplying the hourly rate or earning by the average number of hours worked. . . ." The extensive alteration engendered by the act, carefully crafted a model for calculating the appropriate benefits to a claimant in the specific circumstances of an employee injured before completing thirty-nine weeks of employment. Like all legislation, the provision at issue was a legislative compromise. The majority undoes that compromise by amending the statute via judicial fiat. The Legislature did not find it fit to modify the statute — neither should this Court.

When confronted with an unambiguous statute, we are not to find metaphysical and subtle meanings hidden between or behind the language of the statute. This case is not one about the justice or injustice of the statute involved. The majority bases its holding on the possible unfairness that might result from the application of the clear language. Yet, within our system of separate powers, the lawmaking function resides with the Legislature, not this Court. Roosevelt Oil Co v Secretary of State, 339 Mich. 679, 694; 64 N.W.2d 582 (1954) ("it is not the function of the court to legislate"). Thus, unless proven unconstitutional, "[t]he wisdom of the provision in question in the form in which it was enacted is a matter of legislative responsibility with which courts may not interfere." Melia v Employment Security Comm, 346 Mich. 544, 561; 78 N.W.2d 273 (1956). "Adherence to the language and legislative intent of a statute is essential to ensure that `courts . . . declare the sense of the law' and do not `exercise will instead of judgment. . . .' Hamilton, The Federalist Papers, No 78, Kramnick, ed (England: Penguin Books, 1987 [originally published in 1788]), p 440." Coleman, supra at 65. In other words, as a court of law, we do not create law or base opinions on questions of policy or our personal feelings. To the contrary, when construing a statute, our objective must only be to discern the Legislature's intent. The majority's conclusion that fractional weeks may be the basis for the computation of benefits, therefore, is nothing more than the unwarranted usurpation of legislative authority — the exercise of will instead of judgment.