# Utility Workers Union v. Consumers Power Co. > Court of Appeals for the Sixth Circuit · January 6, 1981 · 637 F.2d 1082 URL: https://www.frixlaw.com/law-library/cases/8912592 ## Case - **Full name:** UTILITY WORKERS UNION OF AMERICA AFL-CIO, and Its Michigan State Utility Workers Council, Lewis J. Tinklepaugh, Clarence J. Segorski, Leo Lingram, Burnell Clough, Robert Yon, Ray Rogers and Paul De Hate v. CONSUMERS POWER COMPANY, and The Pension Plan for Employees of Consumers Power Company - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** January 6, 1981 - **Citations:** 637 F.2d 1082 - **Precedential status:** Published - **Opinion:** Dissent by Engel - **Judges:** Engel, Keith, Peck - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8912592 ## Opinion text ENGEL, Circuit Judge, dissenting. I respectfully dissent. I find more persuasive the opinion of Judge Garth in Buczynski v. General Motors Corp., 616 F.2d 1238 (3rd Cir. 1980), cert. granted,-U.S. -, 101 S.Ct. 352 , 66 L.Ed.2d 213 (1980). In Buczynski Judge Garth makes an extensive review of the legislative history of ER-ISA and concludes that Congress gave its implicit approval to the prior IRS practice of allowing offsets for workers’ compensation benefits. Given the breadth of the Social Security program, Judge Garth also concludes that Congress approved offsets for disability benefits. In my opinion, the result reached by the majority’s construction of ERISA is inflexible, and is at odds with the statutory and regulatory scheme. The plain language of the pension plan for the employees of Consumers Power Company, which the union now seeks to repudiate, is not inconsistent with the provisions of ERISA, but on the contrary is consistent with the eligibility requirements under the Internal Revenue Code, 26 U.S.C. § 401 (a)(15)(A) (1976), and with its counterpart in ERISA, 29 U.S.C. § 1056 (b)(1) (1976). Both our circuit, in General Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980), and the Third Circuit in Baker v. Otis Elevator, 609 F.2d 686 (3rd Cir. 1979), have recognized that Treasury Regulation § 1.401(a)-13 is a legislative rather than an interpretative regulation and as such is entitled to considerable deference by the judiciary. That regulation provides in part: Furthermore, non-forfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other federal or state law and which are taken into account in determining planned benefits. The majority, which states that it “finds itself in agreement” with the terms of the cited regulation, nonetheless holds that the regulation is not applicable to state laws providing for workmen’s compensation benefits. In support thereof it asserts that it is not bound by the revenue rulings of the Treasury Department, which more particularly recognize that workmen’s compensation law and occupational disease law, being available to the general public, are acceptable as an offset against benefits payable under a qualified pension plan. See Revenue Ruling 67-243 (1968) — 1 C.B. 157 . While I readily recognize that a Treasury Department Revenue Ruling does not have the force of the regulation, it is in my opinion entirely consistent with the regulation itself and with the overall statutory scheme. It is true that workmen’s compensation laws partake both of “wage loss protection” as well as an historic remedy in tort. While admittedly the issue is not without difficulty, in my opinion the majority opinion fails to refute the reasoning of Judge Garth and his recognition that workmen’s compensation is in very real measure much like , social security in the breadth of its coverage. See Buczynski v. General Motors Corp., supra, 616 F.2d at 1246-47 . In my opinion, the district court and the majority here appear overly concerned with the potential impact which the receipt of workmen’s compensation benefits will have upon non-forfeitability where those benefits are to be received even after normal retirement age. While this is, in a sense, true, it is no more true in the case of workmen’s compensation than it is with social security, and thus in my opinion it is not inconsistent with the intent of the statutory scheme. It would seem to me that the litigants ought to be as much concerned with the very direct threat to the stability of the pension plan itself by the impact of the majority’s decision upon the integrity of the fund and its capability for providing real benefits to the workers at Consumers Power upon their retirement. The temporary benefits which a few may gain by the benefit of this “double dipping” must inevitably be offset *1094 by the economic realities that in the future the impact is bound to be felt in the financial weakening of an otherwise sound pension system. ERISA is a most useful addition to the body of American law which is designed to protect the working man against forfeiture of pension rights. The interpretation given the Act by the Third Circuit is, in my opinion, to be preferred because it retains flexibility, avoids potential abuse, while fully protecting the objective of the Act in assuring income protection in a variety of circumstances. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8912592. Public record. Not legal advice.