The WCAB majority found that plaintiff successfully rebutted this presumption for the following reasons: Using the 2 prong test as numerated in Peck v General Motors, 164 Mich. App. 580, 593 [ 417 N.W.2d 547 (1987)], the retired plaintiff must meet the following criteria: "(1) he must establish that he has physical restrictions resulting from a work related injury or disease, and;
For these reasons, there is universal agreement that statutes like G.L.c. 152, § 35E, promote legitimate governmental goals and do not violate rights of equal protection. See Richardson v. Belcher, 404 U.S. 78, 82-84 (1971); Rosa v. Warner Elec. Contr., 849 P.2d 845, 848 (Colo.Ct.App. 1992), aff'd, 870 P.2d 1210 (Colo.), cert. denied, 115 S.Ct. 69 (1994); Acosta v. Kraco, Inc., 471 So.2d 24, 25 (Fla.), cert. denied, 474 U.S. 1022 (1985); Brown v. Goodyear Tire Rubber Co., 3 Kan. App. 2d 648, 653 (1979), aff'd, 227 Kan. 645, appeal dismissed, 449 U.S. 914 (1980); Berry v. H.R. Beal Sons, 649 A.2d 1101, 1103 (Me. 1994); Peck v., General Motors Corp., 164 Mich. App. 580, 599 (1987), vacated on other grounds sub nom. Pankow v. General Motors Corp., 432 Mich. 892 (1989); McClanathan v. Smith, 186 Mont. 56, 66 (1980); Harris v. Department of Labor Indus., 120 Wn.2d 461, 478-481 (1993).
Other state and federal courts faced with an equal protection attack on similar benefit coordination provisions have reached the same conclusion. See Peck v. General Motors Corp., 164 Mich. App. 580, 417 N.W.2d 547 (1987); Brown v. Goodyear Tire Rubber, 3 Kan. App. 2d 648, 599 P.2d 1031 (1979); McClanathanv. Smith, 186 Mont. 56, 606 P.2d 507 (1980); Meyer v. Ind. Comm'nof Colorado, 644 P.2d 46 (Colo.Ct.App. Div. III, 1981, re'h. den. 1981, cert. denied 1982); Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), 452 So.2d 932 (Fla.S.Ct. 1984), appeal dismissed, 105 S.Ct. 498, 83 L.Ed.2d 391 (1984) (statute terminated the right to wage loss benefits when injured employee reached age sixty-five and became eligible for social security benefits); O'Neil v. Department of Transportation, 468 So.2d 904 (Fla.S.Ct. 1985), cert. denied 474 U.S. 861, 106 S.Ct. 174 (1985); Brooks v. Island Creek Coal Co., 678 S.W.2d 791 (Ky.Ct.App. 1984); Acosta v. Kraco, Inc., 471 So.2d 24 (Fla.S.Ct. 1985), cert. denied 474 U.S. 1022, 106 S.Ct. 576 (1985); Boehm v.Ind. Comm'n of Colorado, 738 P.2d 804 (Colo.Ct.App. 1987); White v. General Motors Corp., 431 Mich. 387, 429 N.W.2d 576 (1988); Sampson v. Weld School Di
In other words, a retired worker must demonstrate by a preponderance of the evidence that the work-related impairment precludes him from performing any other work, either within or without his field of skill, for which he is qualified by virtue of his prior training or experience and to which he can transfer, adapt or utilize job skills and such knowledge previously acquired. Bowie, 661 A.2d at 1132 (quoting Peck v. General Motors Corp., 417 N.W.2d 547, 552-53 (Mich. App. 1987), rev'd, in part, on other grounds, Pankow v. General Motors Corp., 438 N.W.2d 80 (Mich. 1989)).
Some courts have held that state workers' compensation statutes do not concern the "compensation, terms, conditions, or privileges of employment" and thus are not affected by the Age Discrimination in Employment Act. See Peck v. General Motors Corp., 164 Mich. App. 580, 417 N.W.2d 547 (1987); O'Neil v. Department of Transportation, 442 So.2d 961 (Fla.App. 1983). The Michigan Court of Appeals rationalized that while "[t]he ADEA addresses discrimination by employers against employees, [t]he Workers' Disability Compensation Act is a uniform system of compensation mandated by the state and not the employer."
This allows a greater amount of compensation to be paid to younger employees who are unable to collect company retirement benefits and to create a sound economic environment within the state since Michigan is in the unique position of allowing retired employees to collect compensation along with nondisability pensions.Peck v. General Motors Corp., 164 Mich. App. 580, 417 N.W.2d 547, 554 (1987), rev'd, in part, on other grounds, 432 Mich. 892, 438 N.W.2d 80 (1989); White v. General Motors Corp., 431 Mich. 387, 429 N.W.2d 576, 589-591 (1988). We conclude that, like the Michigan statute, the presumption set forth in section 223 was designed, in part, to reduce compensation costs to employers generally.
Specifically, plaintiff claimed that case law suggested that a skilled worker who was unable to return to work as a skilled worker was totally disabled and entitled to full benefits even though the worker may be earning a salary as an unskilled employee. See MacDonald v Great Lakes Steel Corp, 268 Mich. 591, 594-595; 256 N.W. 558 (1934); Geis v Packard Motor Car Co, 214 Mich. 646; 183 N.W. 916 (1921); Peck v General Motors Corp, 164 Mich. App. 580, 591-592; 417 N.W.2d 547 (1987). Reference was also made to the distinction in Sobotka v Chrysler Corp (On Rehearing), 198 Mich. App. 455, 462-463; 499 N.W.2d 777 (1993), lv gtd 443 Mich. 869 (1993).
McDonald v Holland Motor Express, Inc, 201 Mich. App. 285, 288-289; 506 N.W.2d 234 (1993). Accordingly, plaintiff must rebut the presumption established in § 373 by showing that work suitable to his qualifications, training, or experience is unavailable, not simply that he cannot perform the favored work in which he was employed at the time of retirement. Peck v General Motors Corp, 164 Mich. App. 580; 417 N.W.2d 547 (1987), rev'd in part on other gds 432 Mich. 892 (1989); see also Brown v Beckwith Evans Co, 192 Mich. App. 158, 163-164; 480 N.W.2d 311 (1991). Because the commission failed to determine whether the plaintiff carried his burden of proof on this issue in light of its resolution of the threshold question, the cause must be remanded for factfinding regarding this issue.
MCL 418.373(1); MSA 17.237(373)(1) creates a rebuttable presumption that workers receiving nondisability pension or retirement benefits are not entitled to collect workers' compensation benefits. Peck v General Motors Corp, 164 Mich. App. 580; 417 N.W.2d 547 (1987). Specifically, the statute provides in relevant part:
Accordingly, plaintiff is not entitled to benefits unless he can defeat the statutory presumption. The nature of plaintiff's burden was analyzed by this Court in Peck v General Motors Corp, 164 Mich. App. 580, 592-593; 417 N.W.2d 547 (1987): Relevant inquiries under § 373(1) are: What is the retired employee's residual physical capacity after his work-related injury? What skills and knowledge has he acquired through training or experience?