EARNEST E CAMPBELL SS # xxx Plaintiff,
v.
GENERAL MOTORS CORP, Defendant.
No. 2006-48
Michigan Workers Compensation
State of Michigan Department of Labor & Economic Growth Board of Magistrates
May 1, 2006
The
social security number and dates of birth have been redacted
from this opinion.
THE
PLAINTIFF John C Chowning, P 48439, for Plaintiff.
THE
DEFENDANT Thomas J Ruth, P 44434, for the Defendant.
OPINION
MICHAEL T HARRIS MAGISTRATE 199 G, JUDGE
OPINION
ON REMAND FROM THE WCAC UPON INSTRUCTIONS OF THE MICHIGAN
COURT OF APPEALS
SUMMARY
OF THE PROCEEDINGS
Because
he proved at trial that he had a disability under MCL
418.301, I granted plaintiff an open award of compensation. I
rejected defendant’s contention that plaintiff had
taken a regular retirement from active employment, finding
that Section 373 did not apply because the plaintiff’s
presence in the jobs bank was not “active
employment.” The Workers Compensation Appellate
Commission affirmed that decision, [1]but the Court of Appeals
reversed.[2] The Supreme Court then denied
review, so the case is here on remand with instructions to
apply the retirement presumption.[3] Having done so, I find
plaintiff failed to prove that he was sufficiently disabled
to overcome the retirement presumption, and additional
disability benefits are denied.
APPLICATION
OF THE RETIREE PRESUMPTION OF SECTION 373
My
original opinion is attached as an exhibit. In that document,
I discussed the Section 373 retirement presumption as
follows:
“Since
the WDCA Section in which the phrase appears deals with
retirement and pension matters it could be argued that the
term “active employment” was intended to contrast
with retiree status or inactive employment. It is significant
in this context that the legislature chose the word
“active” rather than “regular” or
“usual.” Applying the definition in the
dictionary and considering the context of the phrase, it
certainly appears at first blush that the legislature
inserted the word “active”...
