Opinion
Docket No. 140957.
Decided December 7, 1992, at 10:15 A.M. Leave to appeal sought.
O'Connell, Roeser Brennan (by Vicki L. Brennan), for the plaintiff.
Sinn, Day, Felker, Chinitz Lovernick, P.C. (by T.F. Felker, Jr.), for the defendants.
Before: REILLY, P.J., and MICHAEL J. KELLY and CAVANAGH, JJ.
ON REMAND
Plaintiff, Gerald Pastula, was a police officer for defendant the City of Wixom until he was injured in the course of his employment on February 28, 1980. Defendants voluntarily paid workers' compensation benefits to him, and he also received a duty-disability pension pursuant to city ordinance.
In 1983, § 161 of the Workers' Disability Compensation Act (WDCA) was amended, providing a "like benefits" provision requiring an injured employee to make an election to receive either workers' compensation benefits or pension benefits. 1983 PA 162. Thereafter, defendants filed a petition with the Bureau of Workers' Disability Compensation requesting that plaintiff be required to make such an election. Defendants' petition was denied, and they appealed to the Workers' Compensation Appeal Board (WCAB). The WCAB affirmed the denial of defendants' petition. Defendants' subsequent application for leave to appeal to this Court was denied. Thereafter, defendants sought leave to appeal to the Michigan Supreme Court. In an April 30, 1991, order, the Supreme Court remanded this matter to this Court for consideration as on leave granted. Pastula v Wixom, 437 Mich. 983 (1991). We affirm the WCAB'S refusal to require plaintiff to make an election of benefits under the "like benefits" provision of § 161.
MCL 418.161; MSA 17.237(161).
Defendants' sole argument on appeal, that the WCAB erred as a matter of law in holding that the "like benefits" provision in § 161 of the WDCA is not applicable under the circumstances in this case, has been previously rejected by this Court in the similar case of Moore v City of Southfield Police Dep't, 160 Mich. App. 289; 408 N.W.2d 136 (1987). We believe Moore was correctly decided. Therefore, under Moore, defendants' claim must fail.
Affirmed.