Tulppo v. Ontonagon County

207 Mich. App. 277, 1994 WL 588619
CourtMichigan Court of Appeals
DecidedOctober 17, 1994
DocketDocket No. 151277
StatusPublished
Cited by11 cases

This text of 207 Mich. App. 277 (Tulppo v. Ontonagon County) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tulppo v. Ontonagon County, 207 Mich. App. 277, 1994 WL 588619 (Mich. Ct. App. 1994).

Opinion

Per Curiam.

Plaintiff appeals by leave granted from a March 20, 1992, order of the Worker’s Compensation Appellate Commission, affirming a worker’s compensation magistrate’s decision that denied plaintiff compensation for wage loss sustained in his second job as a sergeant in the Michigan National Guard. We reverse.

Plaintiff was injured in the course of his full-[279]*279time employment as a deputy sheriff with the Ontonagon County Sheriff’s Department on August 2, 1983, when he stepped into a hole and severely twisted his right ankle while inspecting a campsite. Following a period of conservative treatment for the injury, plaintiff underwent surgery on his ankle in October 1984, and received voluntary compensation payments for time lost from work. Plaintiff continued to perform his duties as a deputy sheriff, but pain and swelling in his ankle kept him from completing all the physical requirements of National Guard service. Consequently, he was honorably discharged on medical grounds from the National Guard in November 1986. He remained capable of performing his duties with the sheriff’s department and in fact was promoted to undersheriff in 1989.

Plaintiff sought an open award of compensation for wage loss commencing from his 1986 discharge from the National Guard. Following a hearing, the magistrate found that plaintiff’s wages from the National Guard could not be considered in computing his worker’s compensation wage-loss benefits because § 371(1) of the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq.; MSA 17.237(101) et seq., limits wage-loss benefits to loss of wage-earning capacity in employments covered by the act. In concluding that National Guard service was not an employment covered by the act, the magistrate noted that the wdca lacked any reference to the federal government as a covered employer or to members of the National Guard as covered employees in §§ 151(1) and 161, MCL 418.151(1); MSA 17.237(151X1) and MCL 418.161; MSA 17.237(161), respectively.

In his appeal to the wcac, plaintiff argued that his wage loss from the National Guard was covered by the wdca because his injury arose out of a [280]*280covered employment. Plaintiff also claimed that the denial of compensation for wage loss from the National Guard constituted a denial of equal protection of the law. The wcac affirmed, adopting the magistrate’s decision, and declined to consider plaintiff’s equal protection argument.

i

A

On appeal to this Court, plaintiff asserts that § 372 of the wdca, MCL 418.372; MSA 17.237(372), unlike § 371(1), contains no exclusion of the type of employments that may be considered for purposes of determining wage loss, and that only wages that are reported to the Internal Revenue Service may be considered. Plaintiff maintains that his National Guard wages must be considered in computing weekly wage loss because that income is reported to the irs. We find this argument to be unpersuasive.

Section 372 of the wdca provides in relevant part:

(1) If an employee was engaged in more than 1 employment at the time of a personal injury or a personal injury resulting in death, the employer in whose employment the injury or injury resulting in death occurred is liable for all the injured employee’s medical, rehabilitation, and burial benefits. Weekly benefits shall be apportioned as follows:
(a) If the employment which caused the personal injury or death provided more than 80% of the injured employee’s average weekly wages at the time of the personal injury or death, the insurer or self-insurer is liable for all of the weekly benefits.
(2) For purposes of apportionment under this [281]*281section, only wages which were reported to the internal revenue service shall be considered, and the reports of wages to the internal revenue service are conclusive for the purpose of apportionment under this section. [MCL 418.372; MSA 17.237(372).]

Section 372 provides a method for allocating the burden of paying an employee’s total wage loss among an employee’s concurrent employers in certain cases. Here, for example, the county was liable for plaintiffs entire weekly benefits because his employment with the sheriffs department provided more than eighty percent of his total average weekly wages at the time of his injury.1 MCL 418.372(l)(a); MSA 17.237(372)(l)(a).

Accordingly, we cannot accept plaintiff’s argument that § 372 makes any employment for which a federal tax has been imposed an employment covered by the act for purposes of calculating wage loss.

B

We next turn to § 371 of the wdca, which is used to determine weekly wage loss and provides in pertinent part:

(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. [MCL 418.371; MSA 17.237(371). Emphasis added.]

[282]*282The language, "covered by this act,” was added as a result of 1982 PA 32. In order to determine whether "weekly loss in wages” includes plaintiff’s income from the National Guard, we must decide whether National Guard service is employment covered by the wdca. This is an issue of first impression in this state.

The wdca does not expressly define the phrase "employments covered by this act.” However, § 111 of the act, MCL 418.111; MSA 17.237(111), provides that "[e]very employer, public and private, and every employee” is subject to the provisions of the act unless otherwise specifically provided elsewhere in the act. Section 151 of the act expressly lists the state, and each county, city, township, incorporated village, and school district as employers subject to the act. Likewise, the definition of employee in § 161 of the act includes persons "in the service of the state, a county, city, township, village or school district, under any appointment, or contract of hire, express or implied, oral or written.”

Although the magistrate and the wcac held that National Guard service was not covered employment because the federal government was not listed as a covered employer, we do not find it necessary to look beyond the language of the statute. Instead, we hold that, for the limited purpose of determining average weekly wage loss under § 371 of the wdca, Michigan National Guard members are state employees and, consequently, fall within the express language of §§ 151 and 161.

The National Guard is a component of the state militia and as such is a state institution subject to the jurisdiction and laws of the state except where controlled by federal laws. Houston v Moore, 18 US (5 Wheat) 1; 5 L Ed 19 (1820). See generally 53 [283]*283Am Jur 2d, Military, and Civil Defense, §§30-45, pp 971-984. The federal constitution authorizes Congress to provide for activating the militia in times of national emergency, and to provide for organizing, arming, and disciplining the militia, as well as determining the amount of their pay. US Const, art I, § 8, els 15-16.

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Bluebook (online)
207 Mich. App. 277, 1994 WL 588619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tulppo-v-ontonagon-county-michctapp-1994.