Opinion
Docket No. 74865.
Decided December 12, 1984.
Marshall Lasser, for plaintiff.
Smith, Haughey, Rice Roegge (by Lance R. Mather), for defendant.
Plaintiff appeals as of right from a grant of summary judgment, GCR 1963, 117.2(3), in the defendant's favor.
Plaintiff, an Illinois resident, was injured on October 22, 1980, while driving a truck for the defendant-employer. He was off work from October 22, 1980, until December 22, 1981, and again from May 8, 1982, until June 27, 1982, a total of 68.3 weeks. Plaintiff has worked without interruption from June 27, 1982. Plaintiff received benefits pursuant to the workers' compensation laws of the State of Illinois at a rate of $295.73 for all the periods he was off work, except from March 31, 1981, through May 15, 1981, and again from May 8, 1982, until June 27, 1982. Thus, he received benefits for a total of 54.5 weeks. The reason for this 13.8 week period without benefits is unknown.
Plaintiff then sued for no-fault benefits, to which defendant, a self-insurer, responded with a motion for summary judgment pursuant to GCR 1963, 117.2(3). Defendant argued that plaintiff had received a total of $34,630 in workers' compensation benefits which could be used as a setoff against the no-fault benefits to which plaintiff was entitled, citing MCL 500.3109(1); MSA 24.13109(1). Defendant argued that, since plaintiff was entitled to a maximum recovery of $29,847.10 under the no-fault act, a complete setoff was available. The trial judge agreed and thus granted defendant's motion.
MCL 500.3109(1); MSA 24.13109(1) provides as follows:
"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury."
Under this section, any workers' compensation benefits which were intended to serve the same purpose as no-fault benefits are available for setoff. Jarosz v Detroit Automobile Inter-Ins Exchange, 418 Mich. 565, 577; 345 N.W.2d 563 (1984). Those benefits which plaintiff received pursuant to § 138.8(b) of the Illinois workers' compensation act, i.e., temporary total disability benefits, were intended to compensate for work loss and thus were available for a setoff.
However, the trial judge also allowed defendant a setoff for the amount plaintiff received under the terms of a $25,750 settlement. This was incorrect for two reasons. According to the terms of the settlement, at least some part of the $25,750 was intended to compensate for permanent partial disability, which under the Illinois act is intended to compensate for permanent damage to the plaintiff's body, not for work loss. Thus, at least a portion of the settlement figure was plainly not available as a setoff.
Furthermore, pursuant to Thacker v Detroit Automobile Inter-Ins Exchange, 114 Mich. App. 374; 319 N.W.2d 349 (1982), the amount plaintiff received under the terms of his settlement is entirely irrelevant. The plain language of § 3109(1) provides that the no-fault insurer is entitled to set off the workers' compensation benefits which are "provided or required to be provided under the laws of any state or the federal government * * *". (Emphasis added.) As interpreted by Thacker, this phrase refers to the sum which plaintiff had a legal right to insist upon and receive, had he taken the benefits for the entire time he was entitled to them, rather than trading away those rights for a lump-sum payment. Thacker, supra, p 378. See also James v Allstate Ins Co, 137 Mich. App. 222; 358 N.W.2d 1 (1984).
In applying this principle to the case before us, determining the amount which defendant is entitled to set off is simplified due to the fact that plaintiff has returned to work without interruption after missing 68.3 weeks. However, the case is complicated by the fact that, for an unknown reason, plaintiff received temporary total disability benefits for only 54.5 weeks. Pursuant to § 3109(1), defendant is entitled to a setoff for the amount plaintiff was entitled to receive, even if he did not in fact receive the benefits in question. Thus, we must remand this case to the trial court for a determination as to the reason for the 13.8 week cessation of benefit payments. If no legitimate basis existed for the cut-off and plaintiff was actually entitled to benefits under the Illinois workers' compensation law, then defendant will be entitled to a setoff for the full 68.3 weeks of compensation benefits which plaintiff had a right to insist upon due to his inability to return to work.
After determining the number of weeks for which plaintiff was entitled to receive temporary total disability benefits, the trial court shall multiply that figure by the amount plaintiff was entitled to receive in benefits, i.e., $295.73. Defendant shall be entitled to utilize the sum of this computation as a setoff against its liability under the Michigan no-fault act.
Reversed and remanded. We do not retain jurisdiction.