Achtenberg v. City of East Lansing , 421 Mich. 765 ( 1985 )

421 Mich. 765 (1985) 364 N.W.2d 277

ACHTENBERG v.
CITY OF EAST LANSING.
SPEARS
v.
CITY OF HAZEL PARK.

Docket Nos. 73656, 74036. (Calendar Nos. 25, 26).

Supreme Court of Michigan.

Argued January 11, 1985. Decided March 19, 1985.

Sablich, Ryan, Bobay & Kaechele, P.C. (by Theodore P. Ryan), for plaintiffs Achtenberg.

Sam W. Thomas (E.R. Whinham, of counsel) for plaintiff Spears.

Smith, Haughey, Rice & Roegge (by Lance R. Mather) for defendants City of East Lansing and Michigan Mutual Insurance Company.

Charfoos & Krut, P.C. (by Myron B. Charfoos), for defendants City of Hazel Park and Michigan Mutual Liability Insurance Company.

Rehearing denied in Achtenberg, 422 Mich 1202.

CAVANAGH, J.

We consolidated these cases^[1] to resolve a conflict within the Court of Appeals regarding the applicability of the statutory presumption of work-related personal injury found in MCL 418.405; MSA 17.237(405). Compare Spears v Hazel Park, 131 Mich App 457; 346 NW2d 340 (1984), with Achtenberg v East Lansing, 134 Mich App 108; 351 NW2d 268 (1984). We hold that the statute requires application of the presumption only when a claimant is not awarded any form of pension benefit. For the reasons set forth below, we reverse the judgment of the Court of Appeals in Spears and affirm the judgment in Achtenberg.

I

Henry Spears was a firefighter for the City of Hazel Park for nearly 19 years. On October 12, 1973, he felt dizzy while climbing a fire truck ladder. Two days later, he suffered a heart attack while on a fishing trip.

Richard Achtenberg was an East Lansing firefighter for 23 years. Approximately 20 hours after completing his last shift, he suffered a fatal heart attack at home on February 29, 1976.^[2]

Both cities provide their firefighters with pension plans which afford employees duty-related or non-duty-related benefits. Both plaintiffs applied for both types of benefits. The pension boards ultimately awarded the plaintiffs non-duty-related benefits. Plaintiffs argue that they are also entitled to workers' compensation benefits due to the statutory presumption that the heart attacks were work-related.

MCL 418.405; MSA 17.237(405) (hereafter § 405) provides:

"(1) In the case of a member of a full paid fire department of an airport run by a county road commission in counties of 1,000,000 population or more or by a state university or college or of a full paid fire or police department of a city, township, or incorporated village employed and compensated upon a full-time basis, a county sheriff and the deputies of the county sheriff, members of the state police, conservation officers, and motor carrier inspectors of the Michigan public service commission, ``personal injury' shall be construed to include respiratory and heart diseases or illnesses resulting therefrom which develop or manifest themselves during a period while the member of the department is in the active service of the department and result from the performance of duties for the department.

"(2) Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.

"(3) As a condition precedent to filing an application for benefits, the claimant, if he or she is one of those enumerated in subsection (1), shall first make application for, and do all things necessary to qualify for any pension benefits which he or she, or his or her decedent, may be entitled to. If a final determination is made that pension benefits shall not be awarded, then the presumption of ``personal injury' as provided in this section shall apply. The employer or employee may request 2 copies of the determination denying pension benefits, 1 copy of which may be filed with the bureau." (Emphasis added.)

In both cases, the hearing referee and the Workers' Compensation Appeal Board concluded that the injuries were not duty-related. They also declined to apply the § 405 presumption. However, the Court of Appeals reached conflicting conclusions regarding application of the presumption.

II

The Spears panel embraced the plaintiff's argument that § 405 should be read in conjunction with MCL 418.161; MSA 17.237(161) (hereafter § 161). That section states:

"Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept like benefits that are prescribed in the charter but shall not be entitled to like benefits from both their local charter and this act." (Emphasis supplied.)

The Spears panel concluded that the term "like benefits" found in § 161 was equivalent to the term "any pension benefits" found in § 405(3). Spears, supra, p 464. Furthermore, the Court found that the benefits received by Spears were not "like benefits." Accordingly, the Court of Appeals reversed the WCAB decision and remanded with an order to apply the presumption of work-relatedness. Id.

The Achtenberg panel read § 405 differently. The majority held that the term "any pension benefits" precluded application of the § 405 presumption because the plaintiff received some form of pension benefit, i.e., non-duty-related benefits.^[3] The Achtenberg majority also called for legislative action to clarify whether §§ 405 and 161 should be read together.^[4]

III

When the language of a statute is clear, courts must apply it as written. See Bannan v Saginaw, 420 Mich 376; 362 NW2d 668 (1984); Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971). We believe that the meaning of the phrase "any pension benefits," as found in § 405(3), is clear. The presumption of work-related personal injury is found in § 405(2). However, § 405(3) limits operation of the presumption. Before filing an application for workers' compensation benefits, the claimant shall do all things necessary to qualify for any pension benefits to which the claimant may be entitled.^[5] If pension benefits are not awarded, then the § 405(2) presumption shall apply. Therefore, the presumption of work-related personal injury only applies if the claimant is not awarded any form of pension benefits.

In enacting § 405, the Legislature chose not to distinguish between various types of pension benefits. Instead, by using the phrase "any pension benefits," the Legislature indicated that the presumption would not apply if a claimant received any one of various forms of pension benefits.

Although interpretation of legislative intent is not required under this analysis, we think it is instructive in light of prior decisions in this case. The Legislature was aware of the difficulties involved in establishing a causal relationship between respiratory and heart diseases, and the rigors of firefighting.^[6] The Legislature wanted to guarantee that firefighters, police officers, and other workers enumerated in § 405(1) would receive some disability compensation in the event they were injured but were not covered by a pension. For example, in Achtenberg, the WCAB noted that the statutory presumption would be applied when an injured employee's pension rights were not vested. Likewise, in the case where a city pension plan did not cover respiratory and heart diseases, the presumption arose. In these situations, for example, firefighters and other workers were assured of at least workers' compensation benefits.

Plaintiffs argue that Spears properly departed from a literal construction of § 405 by elevating the spirit of the section over its letter. See Spears, supra, pp 462-463. Such a departure may be justified when a literal construction would produce absurd and unjust results and would be inconsistent with the purposes and policies of the act. However, our literal interpretation produces none of these results. The plaintiffs are not placed in a disadvantaged position vis-a-vis other employees. Plaintiffs received non-duty pension benefits. They were allowed to present evidence that they were entitled to duty-related benefits. In both cases, the WCAB concluded as a matter of fact, that the plaintiffs failed to establish work-relatedness. Neither plaintiff now argues that the evidence supports a contrary conclusion. This is why operation of the presumption is so important to their case.

We reject the analysis employed in Spears since we do not agree that the term "any pension benefits" is equivalent to the term "like benefits."^[7] While § 405 and § 161 are generally similar in purpose, the intended scope of each is clearly different and does not warrant the implication that two different phrases have an identical meaning.

IV

Finally, in Achtenberg, we decline to address the argument that the decedent's children are separately entitled to benefit of the presumption. We have declined to review issues which were not presented before the WCAB or the Court of Appeals. See Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965); Louagie v Merritt, Chapman & Scott, 382 Mich 274, 282; 170 NW2d 13 (1969). The record indicates that the question now sought to be reviewed was not properly raised before the WCAB or the Court of Appeals.

In Spears, the decision of the Court of Appeals is reversed. In Achtenberg, the decision of the Court of Appeals is affirmed.

WILLIAMS, C.J., and LEVIN, RYAN, BRICKLEY, BOYLE, and RILEY, JJ., concurred with CAVANAGH, J.

NOTES

[1] Leave granted 419 Mich 879 (1984).

[2] Spears proceeds on her own behalf. Achtenberg's claims are advanced by the decedent's widow and to a lesser extent by his minor children. We collectively refer to these claimants as "plaintiffs."

[3] Judge CYNAR, a member of the unanimous panel in Spears, dissented in Achtenberg and adhered to the result reached in Spears. 134 Mich App 115.

[4] We note with interest that, at the time of this writing, no such legislative activity has arisen. The proposed amendment (House Bill 4630) noted in Achtenberg, supra, pp 114-115, was not adopted as of the last legislative session ending December 31, 1984. We are aware of no other legislative activity regarding § 405.

[5] Under different circumstances, general rules of statutory construction have mandated that the term "any" be deemed to be all inclusive. Cf. McGrath v Clark, 89 Mich App 194, 197; 280 NW2d 480 (1979) (use of phrase "any money judgment" in MCL 600.6013; MSA 27A.6013, is considered all-inclusive); In re Certified Questions, Karl v Bryant Air Conditioning Co, 416 Mich 558, 569; 331 NW2d 456 (1982) (use of word "any" requires construction, without further legislative inquiry, that comparative negligence applies to any and all products liability actions). We believe that these rules are equally applicable here.

[6] See Achtenberg, supra, p 114, citing Schave v Dep't of State Police, 58 Mich App 178; 227 NW2d 278 (1975), lv den 394 Mich 765 (1975). Plaintiff's reliance on Schave is misplaced. There, the Court noted that the plaintiff could not be entitled to pension benefits since, in part, he had returned to active duty. Therefore, submitting an application for benefits in compliance with § 405(3) would have been a useless act. Here, however, it was clear that both plaintiffs were potentially entitled to some form of pension benefit.

[7] Since we conclude that Spears erred when it deemed "like" benefits equivalent to "any" pension benefits, it is unnecessary to address recent decisions construing § 161. See, for example, Bannan, supra, and Vasser v Muskegon, 415 Mich 308; 329 NW2d 690 (1982). Our decision in the case at bar is based on the clear meaning of § 405 read alone.