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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5986

September 30, 1981

RETIREMENT SYSTEMS:

State employees-disability retirement benefits

The retirement of a member for duty disability is to be made by the State Employees' Retirement Board in accordance with the provisions of 1969 PA 306.

Mr. Stephen Van Note

Executive Secretary

State Employees' Retirement Board

Department of Management & Budget

Stevens T. Mason Building

Lansing, Michigan

In your first question, you have requested my opinion whether the State Employees' Retirement Board may use the decision reached by the Michigan State Accident Fund, the state's worker's compensation insurance carrier, as its determination whether the duty disability claimant's injury occurred in the performance of state duties.

The State Employees' Retirement Act, 1943 PA 240, Sec. 21, MCLA 38.21; MSA 3.981(21), provides:

'Subject to the provisions of sections 33 and 34, upon the application of a member, or his department head, or the state personnel director, a member who becomes totally incapacitated for duty in the service of the state of Michigan without willful negligence on his part, by reason of a personal injury or disease, which the retirement board finds to have occurred as the natural and proximate result of the said member's actual performance of duty in the service of the state, shall be retired: Provided, The medical advisor after a medical examination of said member shall certify in writing that said member is mentally or physically totally incapacitated for the further performance of duty in the service of the state, and that such incapacity will probably be permanent, and that said member should be retired: And provided further, That the retirement board concurs in the recommendation of the medical advisor.'

Retirement boards are creatures of the Legislature, and it has enumerated their powers. OAG, 1963-1964, No 4155, p 453 (August 31, 1964); OAG, 1975-1976, No 4965, p 393 (April 16, 1976). It is a cardinal rule of statutory construction that the Legislature must be held to intend the meaning which it has plainly expressed and in such cases there is no room for construction, or attempted interpretation to vary such meaning. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971).

The Legislature has clearly stated in 1943 PA 240, Sec. 21, supra, that the State Employees' Retirement Board is required to determine whether a totally incapacitating injury 'occurred as the natural and proximate result of the said member's actual performance of duty in this service of the state.'

It is a basic principal of law that duties, responsibilities, or powers given by the constitution or statute to one public body may not be delegated to another public body or officer. OAG, 1979-1980, No 5663, p 615 (February 14, 1980). See also, OAG, 1961-1962, No 4078, p 531 (September 10, 1962).

It is my opinion, therefore, that the State Employees' Retirement Board may not use the decision reached for worker's compensation eligibility by the State Accident Fund as the determination whether the claimant's injury occurred in the service of the state for the purposes of 1943 PA 240, Sec. 21, supra.

In your second question you ask '[i]f the answer to the above is negative, how is the Retirement Board to reach this determination?'

The answer to your question, very briefly, yet completely stated, is that the State Employees' Retirement Board is to reach its determinations pursuant to the Administrative Procedures Act of 1969, 1969 PA 306, Sec. 71 et seq; MCLA 24.271 et seq; MSA 3.560(171) et seq.

The Retirement Board may promulgate regulations, under the power granted by 1969 PA 240, Sec. 2, MCLA 38.2; MSA 3.981(2), for the conduct of its hearings.

In answer to your second question, it is my opinion that the State Employees' Retirement Board is to reach its decision in disability retirement cases in accordance with 1969 PA 306, Sec. 71 et seq, supra.

Frank J. Kelley

Attorney General


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