
    RIDGE v HOLLAND MOTOR EXPRESS
    Docket No. 141551.
    Submitted August 4, 1993, at Grand Rapids.
    Decided September 20, 1993, at 9:05 a.m.
    George B. Ridge sought workers’ disability compensation benefits after he left his job with Holland Motor Express and began receiving retirement benefits from his labor union’s pension fund, to which both he and Holland had made contributions. A magistrate found that the retiree presumption in MCL 418.373; MSA 17.237(373) applied and that Ridge successfully had rebutted the presumption and established his entitlement to workers’ compensation benefits. The Workers’ Compensation Appeal Board affirmed, finding that the statute was not applicable because Ridge had made contributions to the pension fund and, therefore, the pension benefits were paid on behalf of Ridge as well as Holland. Holland appealed by leave granted.
    The Court of Appeals held:
    
    1. MCL 418.373; MSA 17.237(373) does not require that an employer be the sole contributor to a program providing pension benefits. The presumption in the statute is applicable whenever the employer from whom weekly benefits are sought has contributed to a program providing the claimant with nondisability pension or retirement benefits, and even if others, including the claimant, have also contributed.
    2. The wcab erred in ruling that Holland was not entitled to the benefit of the statutory presumption merely because Ridge had also contributed to the pension fund.
    3. The decision of the wcab must be reversed and the matter remanded to the Workers’ Compensation Appellate Commission for review of the magistrate’s decision that Ridge overcame the statutory presumption.
    Reversed and remanded.
    Fitzgerald, P.J., dissenting, stated that the language of MCL 418.373(1); MSA 17.237(373X1) is not ambiguous and, therefore, not subject to judicial interpretation.
    References
    Am Jur 2d, Pensions and Retirement Funds § 1694.
    See ALR Index under Pensions and Retirement; Presumptions and Burden of Proof; Workers’ Compensation.
    
      Workers’ Compensation — Retiree Presumption — Nondisability Pensions — Contributions to Pension Program.
    An employee who terminates active employment and receives nondisability pension or retirement benefits under either a private or governmental pension or retirement program that was paid by or on behalf of an employer from whom weekly workers’ compensation benefits are sought is presumed not to have a loss of earnings or earning capacity as the result of a compensable injury; this presumption applies whenever the employer from whom weekly benefits are sought has contributed to a program providing the claimant with nondisability pension or retirement benefits, and even if others, including the claimant, have also contributed to the program (MCL 418.373[1]; MSA 17.237[373][1]).
    
      Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Lisa A. Klaeren and Douglas A. Merrow), for the plaintiff.
    
      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for the defendant.
    Before: Fitzgerald, P.J., and Connor and Taylor, JJ.
   Connor, J.

Defendant appeals by leave granted a decision of the Workers’ Compensation Appeal Board. We reverse.

Plaintiff was a truck driver for defendant. When he was fifty-seven years old, plaintiff left his job and began receiving retirement benefits from his labor union’s pension fund. A magistrate found that the retiree presumption in MCL 418.373; MSA 17.237(373) applied. The magistrate also found that plaintiff had successfully rebutted the presumption and established that he was entitled to workers’ compensation benefits. Defendant appealed to the wcab. The wcab found that MCL 418.373; MSA 17.237(373) was not applicable in this case and affirmed the magistrate’s award. The wcab reasoned that, because plaintiff had made some contributions to his union’s pension fund, the pension benefits were paid on behalf of plaintiff as well as defendant, and, consequently, the retiree presumption did not apply.

The presumption in MCL 418.373(1); MSA 17.237(373X1) applies to certain employees receiving nondisability retirement benefits. It applies only when those benefits are "paid by or on behalf of an employer from whom weekly [workers’ compensation] benefits . . . are sought.” Id. Significantly, in the statute there is one example of retirement benefits that can trigger the presumption: social security old-age benefits. See id.

Throughout plaintiffs employment with defendant, both plaintiff and defendant paid social security taxes on plaintiffs behalf. Yet plaintiffs receiving social security old-age benefits would have triggered the presumption. This demonstrates that, contrary to the wcab’s decision, the statute does not require that the employer be the sole contributor to the program providing pension benefits. We hold that the presumption in MCL 418.373; MSA 17.237(373) is applicable whenever the employer from whom weekly benefits are sought has contributed to a program providing the claimant with nondisability pension or retirement benefits, and even if others, including the claimant, have also contributed.

In this case, plaintiff is receiving benefits from a union pension fund to which defendant had contributed. Consequently, the wcab erred in ruling that defendant was not entitled to the benefit of the presumption in MCL 418.373; MSÁ 17.237(373) merely because plaintiff had also contributed to the pension fund. We reverse the decision of the wcab and remand to its successor, the Workers’ Compensation Appellate Commission, for review of the magistrate’s decision that plaintiff overcame the presumption.

Reversed and remanded. We do not retain jurisdiction.

Taylor, J., concurred.

Fitzgerald, P.J.

(dissenting). I respectfully dissent. MCL 418.373(1); MSA 17.237(373X1) 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 NW2d 547 (1987). Specifically, the statute provides in relevant part:

An employee who terminates active employment and is receiving nondisability pension or retirement benefits under either a private or governmental pension or retirement program, including old-age benefits under the social security act, 42 USC 301 to 1397f, that was paid by or on behalf of an employer from whom weekly benefits under this act are sought shall be presumed not to have a loss of earnings or earning capacity as the result of a compensable injury or disease under either this chapter or chapter 4. [Emphasis added.]

The Legislature is presumed to have intended the meaning plainly expressed in a statute. Gordon v Allstate Ins Co, 197 Mich App 609, 615; 496 NW2d 357 (1992). If the meaning of the language is clear and unambiguous, judicial construction is unnecessary and impermissible. Wilson v League General Ins Co, 195 Mich App 705, 709; 491 NW2d 642 (1992).

The statutory language in § 373(1) is clear and unambiguous, thus precluding judicial construction. Hence, I disagree with my colleagues’ conclusion that the statute is ambiguous and subject to judicial interpretation.  