Spencer v. Clark Township , 142 Mich. App. 63 ( 1985 )

142 Mich. App. 63 (1985) 368 N.W.2d 897

SPENCER
v.
CLARK TOWNSHIP

Docket No. 71924.

Michigan Court of Appeals.

Decided April 16, 1985.

Moher, Andary & Cannello (by Thomas G. Moher), for plaintiff.

Corcoran & Lewinski, P.C. (by Guy W. Lewinski), for defendants.

Before: MacKENZIE, P.J., and J.H. GILLIS and J.B. SULLIVAN,^[*] JJ.

PER CURIAM.

On September 24, 1973, plaintiff injured his back while working part-time for defendant Clark Township as a volunteer ambulance attendant. During the time in question plaintiff was also employed full-time as a carpenter for a local construction company. Plaintiff received $2 per hour as an ambulance attendant and $4.50 an hour as a carpenter.

As a result of his injury, which necessitated repeated hospitalizations and eventual surgery, plaintiff has been unable to return to either of his former jobs. Defendant Employers Insurance of Wausau, which provided defendant Clark Township with workers' disability insurance, commenced voluntary payments of $93 per week to plaintiff from the date of his injury through December of 1976. When his benefits ceased, plaintiff requested a hearing with the Bureau of Workers' Disability Compensation. In a decision dated December 23, 1977, a hearing referee awarded plaintiff $99 per week pursuant to MCL 418.161; MSA 17.237(161), which provides that volunteer ambulance attendants who are injured in the performance of their duties shall receive compensation based on the state average weekly wage. Defendants timely filed an appeal with the Workers' Compensation Appeal Board.

The board, in a decision dated May 13, 1983, affirmed the hearing referee's finding that plaintiff was entitled to receive compensation benefits. It further held, however, that MCL 418.161(1)(a); MSA 17.237(161)(1)(a), which was amended in 1976 to include volunteer ambulance attendants, did not apply retroactively to plaintiff's 1973 injury. Therefore, plaintiff's award of $99 was reduced to $53.33 per week pursuant to MCL 418.351; MSA 17.237(351) and MCL 418.357; MSA 17.237(357). Plaintiff was granted leave to appeal the board's determination. Defendants have filed a cross-appeal alleging that plaintiff's completion of a rehabilitation program has negated his right to receive any benefits.

Findings of fact made by the Workers' Compensation Appeal Board are conclusive and may not be set aside if supported by record evidence absent a showing of fraud. Morris v Metals Engineering Mfg Co, 122 Mich. App. 404, 407; 332 NW2d 495 (1983). However, an appellate court may examine the board's application of legal standards. Morris, supra; MCL 418.861; MSA 17.237(861).

The first issue presented on appeal is whether MCL 418.161(1)(a); MSA 17.237(161)(1)(a) is to be applied retroactively to plaintiff's 1973 injury. The statute, amended in 1976 to include for the first time voluntary ambulance drivers and attendants, presently reads as follows:

"A volunteer ambulance driver or attendant shall be considered to be an employee of the county, city, village, or township and entitled to the benefits of this act when personally injured in the performance of duties as a volunteer ambulance driver or attendant and shall be considered to be receiving the state average weekly wage at the time of injury, as last determined under section 355, from the county, city, village, or township for purposes of calculating the weekly rate of compensation provided under this act."

In effect, volunteer ambulance drivers and attendants, along with volunteer fire fighters, safety patrol officers, and civil defense workers, are entitled to receive the maximum rate of compensation allowed by law if injured during the course of their public employment. See MCL 418.351(1); MSA 17.237(351)(1) and MCL 418.355(2); MSA 17.237(355)(2).

As a matter of statutory construction, a statute is presumed to operate prospectively unless the Legislature either expressly or impliedly indicates its intention to give retroactive effect. Selk v Detroit Plastic Products, 419 Mich. 1, 9; 345 NW2d 184 (1984); Hughes v Judges' Retirement Board, 407 Mich. 75, 85; 282 NW2d 160 (1979). This general rule does not apply, however, to statutes which are remedial or procedural in nature. Selk, supra, p 10; Freij v St Peters Evangelical Lutheran Church, 72 Mich. App. 456; 250 NW2d 78 (1976), lv den 399 Mich. 862 (1977). Statutes which operate in furtherance of a remedy already existing and which neither create new rights nor destroy existing rights are held to operate retrospectively unless a contrary legislative intent is manifested. Selk, supra, p 10; Hansen-Snyder Co v General Motors Corp, 371 Mich. 480, 485; 124 NW2d 286 (1963). The question therefore becomes whether MCL 418.161(1)(a); MSA 17.237(161)(1)(a) as amended is remedial in nature.

It has been held that a statute or amendment is remedial if it is "designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good". Rookledge v Garwood, 340 Mich. 444, 453; 65 NW2d 785 (1954), quoting In re School Dist No 6, Paris & Wyoming Twps, Kent County, 284 Mich. 132, 144; 278 N.W. 792 (1938). See, also, Freij, supra, p 459. Similarly, statutes are remedial which

"abridge superfluities of former laws, remedying defects therein, or mischiefs thereof implying an intention to reform or extend existing rights, and having for their purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society, or of the public generally." Rookledge, supra, p 453, citing 50 AM Jur, Statutes, § 15, pp 33-34.

We conclude from the foregoing that the statute with which we are here concerned is remedial in nature. The 1976 amendment to § 161 did not create a substantive right in workers such as plaintiff to collect compensation benefits but instead expanded an already existing remedy. See Lahti v Fosterling, 357 Mich. 578, 587; 99 NW2d 490 (1959). The question we face is not whether plaintiff is entitled to receive benefits but rather in what amount. That amount has been determined by the Legislature.

Like their counterparts in § 161(1)(a) who fight fires, patrol thoroughfares, and provide for the civil defense, volunteer ambulance attendants provide valuable services to counties and municipalities at a reduced rate. Many such volunteers, like plaintiff, derive the main source of their income from other occupations. Yet without the benefit of § 161(1), a volunteer injured during the course of his public employment who is thereby prevented from engaging in either of his jobs would receive compensation benefits based only on his rate of pay as a volunteer. Section 161(1)(a) remedies that situation by allowing volunteers instead to receive compensation based on the state average weekly wage. It seems likely that the 1976 amendment was enacted to correct a legislative oversight; there is no good reason to think that the Legislature, prior to 1976, intended to exclude volunteer ambulance drivers and attendants from this coverage.

Finally, the 1976 amendment is conducive to the public good. The services provided by volunteer ambulance drivers and attendants bear directly on the health and safety of those individuals in need of emergency medical attention. Society as a whole is benefitted both from the health and number of its members and by the knowledge that such emergency medical services are available in the event of crisis.

When seen against the whole of the Worker's Disability Compensation Act, which is to be liberally construed, see e.g., Elliott v Smith, 47 Mich. App. 236, 240; 209 NW2d 425 (1973), lv den 390 Mich. 767 (1973), we conclude that § 161(1)(a) as amended is remedial in nature and must therefore be given retroactive effect.

The second issue presented on appeal is whether plaintiff, by completing a rehabilitation program in the electronics field, has established a "wage earning capacity" pursuant to MCL 418.371(1); MSA 17.237(371)(1), and is thereby precluded from receiving compensation benefits.

A claimant's wage earning capacity following an injury is a question of fact which will depend upon the nature of the work performed, the availability of suitable employment, the nature and extent of the disability, and the wages earned subsequent to injury. Frammolino v Richmond Products Co, 79 Mich. App. 18, 26-27; 260 NW2d 908 (1977); Mitchell v General Motors Corp, 89 Mich. App. 552, 555; 280 NW2d 594 (1979), lv den 407 Mich. 881 (1979).

Upon a review of the facts here, the board concluded that, despite plaintiff's rehabilitative efforts, his wage earning capacity had not been increased:

"Not only has there been no offer of any work herein * * *, the record is persuasive of definite limitations in plaintiff's adopted vocation preventing any permanent employment." (Emphasis in original.)

Such findings of fact are conclusive as to plaintiff's wage earning capacity. Defendants' contentions are therefore rejected.

Affirmed in part and reversed in part.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.