RONALD G SWEATT V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
RONALD G. SWEATT,
FOR PUBLICATION
September 25, 2001
9:10 a.m.
Plaintiff-Appellee,
v
No. 226194
WCAC
LC No. 99-000026
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
Updated Copy
December 7, 2001
Before: Griffin, P.J., and Neff and White, JJ.
GRIFFIN, P.J. (dissenting).
I respectfully dissent. In my view, my colleagues have ignored the plain meaning and
combined effect of the interrelated statutes, MCL 418.361(1) and MCL 791.205a. I would
reverse.
Plaintiff is a former corrections officer who sustained a work-related injury while
employed by defendant. Thereafter, plaintiff received worker's compensation benefits until he
was incarcerated on January 12, 1995, for a conviction of delivery of heroin. Following his
release from prison, but while still on parole, plaintiff filed a petition seeking reinstatement of his
worker's compensation benefits. At the time of the hearing on plaintiff 's petition, defendant's
representative conceded, "Mr. Sweatt could still not do the type of correction officer work that he
was doing before he was injured."
Defendant argued to the worker's compensation magistrate, and later to the en banc
Worker's Compensation Appellate Commission (WCAC), that it was not liable for reinstatement
of plaintiff 's worker's compensation benefits by operation of the combined effect of two statutes.
Specifically, MCL 418.361(1) of the worker's compensation act provides, in relevant part:
[A]n employer shall not be liable for compensation under section 351
[total incapacity], 371(1) [weekly loss of wages], or this subsection [partial
incapacity], for such periods of time that the employee is unable to obtain or
perform work because of imprisonment or commission of a crime. [Emphasis
added.]
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Further, MCL 791.205a forbids the hiring of felons, such as plaintiff, by the Department
of Corrections:
(1) Beginning on the effective date of this section [March 25, 1996], an
individual who has been convicted of a felony, or who is subject to any pending
felony charges, shall not be employed by or appointed to a position in the
department [of corrections].
* * *
(3) This section does not apply to a person employed by or appointed to a
position in the department before the effective date of this section.
At trial, a disability management coordinator for defendant testified that persons with
partial disabilities, such as plaintiff, would normally be returned to favored work. However,
there was no effort to return plaintiff to favored work because "[h]e's on parole, and he has been
convicted of a felony, and there is a State law that prohibits [the] Department of Corrections from
hiring individuals who have been convicted of felonies."
At trial, defendant sought to admit into evidence documents establishing that plaintiff 's
employment with defendant was terminated following his felony conviction. In addressing the
magistrate's ruling excluding these documents, the WCAC made a finding of fact that plaintiff 's
employment with defendant was terminated before the effective date of MCL 791.205a:
We believe that the documents at issue are not of critical evidentiary
importance for the disposition of this case. By seeking to introduce these proofs,
defendant is trying to establish that Mr. Sweatt was not employed by the
Department of Corrections after November 19, 1991, thereby making the primary
prohibition against the hiring of ex-felons (subsection (1) of MCL 791.205a)
applicable to plaintiff. Because we conclude, based on the trial record, that
plaintiff was not employed by the Department of Corrections at the time MCL
791.205a went into effect and that MCL 791.205a therefore effectively prohibits
the Department of Corrections from re-hiring plaintiff because he is an ex-felon,
the question of the introduction of these proofs becomes irrelevant.
The WCAC dissenters agreed with the majority in regard to this finding:
We adopt the conclusion of the four-person majority in this matter that
plaintiff was not employed by the Department of Corrections at the time MCL
791.205a, the ex-felon statute, went into effect for the reasons set forth in the
controlling opinion.
On appeal, plaintiff does not contest the unanimous WCAC conclusion regarding his
employment status as of the effective date of MCL 791.205a.
On remand from the WCAC, the magistrate awarded worker's compensation benefits on
the basis that "I find no evidence to support a finding that the State of Michigan would have
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made an offer of reasonable employment to plaintiff but for the statutory prohibition." Sitting en
banc, the WCAC affirmed in a four-to-three decision. First, the majority agreed
with defendant's theoretical legal effort to link the prohibition on the hiring of exfelons in MCL 791.205a to Section MCL 418.361(1). Under the right factual
circumstances, the former provision can indeed operate to relieve the Department
of Corrections from liability by operation of the "commission of a crime"
language in Section 361(1).
However, the WCAC held:
Linkage of the two statutory provisions [MCL 418.361(1) and MCL
791.205a] requires a critical additional finding of fact. The question of whether
an employee is unable to obtain or perform work because of the commission of a
crime is a question of fact. In order for the Department to avoid payment of
compensation under Section 361(1), it must prove, as a matter of fact, that were it
not for the statutory prohibition on hiring an ex-felon, it would have made an offer
of reasonable employment to plaintiff. [Emphasis in original.]
Although defendant did not argue that plaintiff 's claim was barred because of plaintiff 's
failure to accept reasonable employment, the WCAC majority concluded that plaintiff 's petition
must be granted because defendant did not sustain its burden of proving that but for the statutory
prohibition preventing defendant from hiring plaintiff, defendant would have offered reasonable
employment to plaintiff.
The three dissenting members of the WCAC rejected the convoluted logic of the
majority:
[T]he majority proceeds to place an artificially-created burden on
defendant to prove it would have done the very thing the ex-felon statute prohibits
defendant from doing, namely, offering employment to an ex-felon. The majority
believes that in order for defendant to link Section 361(1) with the ex-felon
statute, it must first prove, as a matter of fact, that but for the ex-felon statute it
would have made an offer of reasonable employment to plaintiff. We disagree
and find such action is neither legally required nor reasonable. In effect, the
majority subjects defendant to a proverbial "Catch 22" situation, ostensibly
overlooking the overriding and clear application of the ex-felon statute and
exacting from defendant what the statute prohibits.
Defendant appeals to this Court by leave granted. Judge Neff and I agree that the
rationale relied on by the WCAC majority was erroneous. The new evidentiary burden of proof
and production created and imposed on defendant to establish that, but for a statutory prohibition,
defendant would have offered plaintiff reasonable employment is without a statutory basis.
However, the reasoning of Judge Neff is similarly flawed.
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In affirming the WCAC's decision, the lead opinion rejects the rationale of the WCAC
but nevertheless affirms on different grounds. Judge Neff reasons as follows:
When plaintiff sought reinstatement of his benefits following his release
from incarceration, he could work, and had, in fact, been working within his
limitations. Ante at ___.
Judge Neff also stated:
The test [under MCL 418.361(1)] is not whether an employee is unable to
work for the previous employer, but rather merely whether "the employee is
unable to obtain or perform work because of . . . commission of a crime." The
record is clear that plaintiff is not unable to obtain or perform work for that
reason. [Opinion by Neff, J., ante at ___ (emphasis in original).]
As previously noted, subsection 361(1) excludes an employer from liability for worker's
compensation benefits for such periods that the employee is unable to obtain or perform work
because of imprisonment or commission of a crime. Judge Neff is correct that the record is clear
that following plaintiff 's release from imprisonment, he could obtain and perform favored work
and in fact did so. However, the record is clear that during his imprisonment plaintiff was also
able to obtain and perform favored work. In this regard, the lead opinion acknowledges the
following:
During his incarceration and after his parole on June 1, 1996, plaintiff
worked at various jobs that accommodated his injury-related limitations on stair
climbing, standing, and lifting. All indications in the record suggest that plaintiff
was a willing and able worker within his limitations. When plaintiff was released
from prison, the statutory prohibition of § 361 no longer applied, that is, under the
WDCA plaintiff was again entitled to disability benefits. [Opinion by Neff, J.,
ante at ___.]
In his brief, plaintiff admits working pursuant to a work-release program while in prison:
During his incarceration, plaintiff was employed by Miller Industries as
part of a work release program in a job that required him to handle only eightounce parts . . . . He held that job from May of 1995 until July of 1996, after his
actual release . . . . At that time, he entered rehabilitation for 90 days after an
overdose, and was told that his job would be held for him . . . .
The parties, magistrate, WCAC majority, WCAC dissenters, my colleagues, and I all
agree that subsection 361(1) operates to exclude defendant from liability for worker's
compensation benefits for the period that plaintiff was imprisoned. Also see Jones v Dep't of
Corrections, 185 Mich App 65; 460 NW2d 229 (1990). However, if the "test" proposed by the
lead opinion for subsection 361(1) were applied to the present circumstances, plaintiff would also
be entitled to worker's compensation benefits during his period of imprisonment. This is because
plaintiff was able to obtain and perform work during his imprisonment and thus "plaintiff is not
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unable to obtain or perform work for that reason." (Opinion by Neff, J., ante at ___.) Judge
Neff 's construction of § 361 and its test for application fails because its results, as applied to
plaintiff, are simply illogical. In addition, such a construction renders the "commission of a
crime" bar a nullity because no criminal conviction would prevent an employee from obtaining
work from all employers.
The legislative history of how the Legislature came to exclude employers from worker's
compensation liability as a result of an employee's "imprisonment or commission of a crime" is
accurately traced in the brief of the Attorney General:
Senate bill 7, as introduced on January 10, 1985 (1985 Journal of the
Senate 34), was intended to establish a Workers' Compensation Appellate
Commission and Hearing Judges. As introduced, there was no mention in the bill
of any change to § 361(1).
A substitute (S-4) was reported favorably out of the Senate Committee on
Labor on May 22, 1985 (1985 Journal of the Senate 904).
The bill passed the Senate on May 23, 1985 (1985 Journal of the Senate
919).
On June 24, 1985 the House Committee on Labor reported out substitute
(H-4) (1985 Journal of the House 1442), with still no mention of § 361(1).
During the debate, on June 25, 1985, Rep. Engler moved to amend (H-4)
as follows, by adding at the end of § 361(1):
"HOWEVER, AN EMPLOYER SHALL NOT BE LIABLE FOR
COMPENSATION UNDER SECTION 351, 371(1), OR THIS SUBSECTION
FOR SUCH PERIODS OF TIME THAT THE EMPLOYEE IS UNABLE TO
OBTAIN OR PERFORM WORK BECAUSE OF IMPRISONMENT,
COMMISSION OF A CRIME, DISCHARGE FOR GOOD CAUSE,
VOLUNTARY RETIREMENT, OR A PERSONAL ACCIDENT OR ILLNESS
THAT IS UNRELATED TO THE PERSONAL INJURY." (1985 Journal of the
House 1499-1500.)
Then, there prevailed the motion of Representatives Engler and
Ciaramitaro to strike out the comma after "CRIME," and all words following, so
that the motion then read:
"HOWEVER, AN EMPLOYER SHALL NOT BE LIABLE FOR
COMPENSATION UNDER SECTION 351, 371(1), OR THIS SUBSECTION
FOR SUCH PERIODS OF TIME THAT THE EMPLOYEE IS UNABLE TO
OBTAIN OR PERFORM WORK BECAUSE OF IMPRISONMENT, [OR]
COMMISSION OF A CRIME." (1985 Journal of the House 1499).
The amended motion was adopted (1985 Journal of the House 1500).
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There were no further changes by either the House or the Senate, and, with
immediate effect, this wording became law when deposited with the Secretary of
State on July 30, 1985.
Before this legislation (1985 PA 103), a disabled worker could draw worker's
compensation benefits while imprisoned. Sims v R D Brooks, Inc, 389 Mich 91; 204 NW2d 139
(1973). Further, a criminal conviction would not disqualify a worker from receiving benefits.
DeMars v Roadway Express, Inc, 99 Mich App 842; 298 NW2d 645 (1980). The Engler
amendment was obviously intended to change the law. In this regard, shortly after the enactment
of 1985 PA 103, the Worker's Compensation Appeal Board in Bush v Murco, Inc, 1986 WCABO
1079, 1081, discerned the following legislative intent:
Presumably the primary motivation behind the enactments of Sections
301(10) and 361(1) is Sims v R D Brooks, Inc, 389 Mich 91 (1973), and other
cases similar thereto. Plaintiff in Sims was ruled entitled to benefits in spite of his
incarceration. The Legislature by enacting the above-mentioned sections cured,
what to some seemed, an apparent injustice. Incarceration, it should be noted,
both placed plaintiff on the "public rolls" and rendered him incapable of accepting
"favored work." The former runs counter to the purpose behind the establishment
of the Act. The latter prevents the employer from mitigating his compensation
liability. [Emphasis added.]
When viewed in context, the Engler amendment references the plaintiff 's inability to
obtain or perform work from his employer because of specified circumstances. These included
not only imprisonment and commission of a crime, but also discharge for good cause, voluntary
retirement, or accident or illness unrelated to the worker's disability. Although ultimately the
three latter categories were not adopted, the exclusion of benefits, when read in context, is tied to
the employee's ability to work for his employer. Such events break the causal connection
between the employee's original injury and the employer's liability. The inquiry necessitated by
the amendment is whether the plaintiff 's inability to work for the defendant is due to his workrelated disability or an intervening cause: [discharge for good cause, voluntary retirement,
unrelated accident or illness,] imprisonment, or conviction of a crime.
Recently, in Kelley v Desai Constr, Inc, 2000 Mich ACO 2436, 2438; 14 MIWCLR 1227
(2000), the WCAC acknowledged that there is no employer worker's compensation liability when
the employee's inability to obtain or perform work from the employer is due to a subsection
361(1) bar:
The primary rule governing interpretation of statutes is to ascertain and
give effect to the intention of the legislature, to each word, sentence and section of
the statute in question. State ex rel Wayne Co Prosecuting Attorney v Levenburg,
406 Mich 455 [280 NW2d 810] (1979). Here, the intent of subsection 361(1)
appears to be to deny benefits to those injured employees whose incarceration is
an impediment to employment. Such employees have, in effect, removed
themselves from the workforce by committing a crime for which incarceration
results. Because imprisonment forecloses an employer from finding reasonable
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employment for its injured employee, its right to reduce its liability is denied.
Thus, without the statutory provision, such an employer would actually be
punished by virtue of its employee's incarceration. [Emphasis added.]
I agree with the above statement and would apply its rationale to plaintiff 's conviction of
a crime. In my view, such a construction of the statute is consistent with the plain meaning of the
statute and its intent to terminate an employer's liability for specified actions of its employee.
Here, it is plaintiff 's commission of a felony that prevents defendant from mitigating its worker's
compensation liability. The causal connection between plaintiff 's original injury and defendant's
liability has been broken by plaintiff 's felony conviction that now bars defendant from rehiring
plaintiff. The break in the chain of causation occurs as a matter of law, not as a matter of fact.
Accordingly, an evidentiary hearing on this issue is a spurious and futile exercise. Under
subsection 361(1), it is plaintiff, not defendant, who must suffer the consequences of his
misconduct.
In summary, this case involves the combined effect of two interrelated statutes. In this
regard, it is a fundamental rule of statutory construction that when two statutes relate to the same
subject or share a common purpose they are to be read in pari materia and must be read together.
State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998); Jennings v Southwood,
446 Mich 125, 136-137; 521 NW2d 230 (1994). As the Supreme Court stated in State
Treasurer, supra at 417, quoting with approval from Detroit v Michigan Bell Telephone Co, 374
Mich 543, 558; 132 NW2d 660 (1965):
"Statutes in pari materia are those which relate to the same person or thing,
or the same class of persons or things, or which have a common purpose. It is the
rule that in construction of a particular statute, or in the interpretation of its
provisions, all statutes relating to the same subject, or having the same general
purpose, should be read in connection with it, as together constituting one law,
although enacted at different times, and containing no reference one to the other."
[Citations omitted.]
Subsection 361(1) of the worker's compensation act is clear that defendant is not liable
for worker's compensation benefits when plaintiff "is unable to obtain or perform work because
of imprisonment or commission of a crime." (Emphasis added.) Because, as a matter of law,
plaintiff is unable to work for defendant because of his commission of a felony, MCL 791.205a,
under the plain language of the worker's compensation act, benefits are not owed by defendant.
MCL 418.361(1).
I would reverse.
/s/ Richard Allen Griffin
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