Corbett v. Montgomery Ward & Co., Inc.

• Decision Date: 06 July 1992
• Docket Number: Docket No. 130455
• Citation: 194 Mich.App. 624,487 N.W.2d 825
• Parties: Jerry D. CORBETT, Plaintiff-Appellee, v. MONTGOMERY WARD & CO., INC., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 825

487 N.W.2d 825

194 Mich.App. 624

Jerry D. CORBETT, Plaintiff-Appellee, v. MONTGOMERY WARD & CO., INC., Defendant-Appellant.

Docket No. 130455.

Court of Appeals of Michigan.

Submitted May 19, 1992, at Lansing.

Decided July 6, 1992, at 9:45 a.m.

Released for Publication Aug. 28, 1992.

Rapaport, Pollok, Farrell & Sablich, P.C. by Steven J. Pollok, Lansing, for plaintiff-appellee.

Crippen, Urquhart, Cmejrek & Weber by James R. Cmejrek, Ann Arbor, for defendant-appellant.

Before DOCTOROFF, C.J., and JANSEN and CORRIGAN, JJ.

CORRIGAN, Judge.

Defendant appeals by leave granted from an award of workers' disability compensation benefits to plaintiff and his wife. We affirm in part, reverse in part, and remand.

Plaintiff, an electronics and appliance repair technician, was employed by defendant from 1972 until September 30, 1985. For the last several of those years, his work essentially involved appliance repair for defendant's residential customers. His job often required lifting or moving heavy objects, sometimes with assistance and sometimes alone.

On April 25, 1985, plaintiff injured his back while moving a sixty-pound television back onto a stand in a customer's home. He later sought medical attention from a company physician and from an orthopedic surgeon, Dr. Trager. He was hospitalized briefly. On August 30, 1985, Dr. Trager authorized plaintiff to return to work, provided that he not lift anything heavier than twenty-five pounds.

Plaintiff's supervisor would not allow him to return to work under that condition. Plaintiff then obtained a "no restrictions" release from Dr. Trager and reported to work again on September 30, 1985. When he appeared, however, he was informed that he was being laid off. He has not been employed by defendant since then. He received unemployment compensation benefits for a period of twenty-six weeks in 1985-86. In 1985, plaintiff earned $531.60 a week, or an annual salary of $27,643.20; his wife earned between $16,000 and $20,000 for the same period.

Plaintiff sought other employment, first in Michigan and later in Florida. He and his wife moved to Florida, where plaintiff thought he had secured a position with another retail chain, but the job fell through. Plaintiff has since earned a limited income selling real estate and mobile homes in Florida.

Defendant voluntarily paid plaintiff workers' compensation benefits for the period of April 25 to September 30, 1985, but refused further payment, claiming that plaintiff was not longer disabled. Plaintiff filed a claim with the Bureau of Workers' Disability Compensation in 1986. In June 1987, before the hearing on the matter, plaintiff was examined again by Dr. Trager and also by defendant's medical expert, Dr. DeBruin. Both medical witnesses, as well as plaintiff himself, testified at the hearing on plaintiff's compensation claim.

The magistrate found that plaintiff had suffered a continuing work-related disability and ordered that defendant pay him $316.54 a week. That figure was based in part on the magistrate's finding that plaintiff's wife, "who was working, but making less than her husband," was plaintiff's dependent at the time he was injured.

Defendant appealed the magistrate's decision to the Workers' Compensation Appellate Commission, which affirmed in a split decision. The majority determined that plaintiff's wife had been his dependent at the time of injury:

To effectuate the purpose of the statute, we hold that of [sic] purposes of determining the dependency of a spouse living with a worker at the time of a disabling injury, the income of the injured worker and that of the spouse (if any) shall be treated as joint income, so that whenever an injured worker makes an amount at least equal to that of the spouse, the injured worker is providing half or more of the spouse's support, if there is no other source of household income to be factored in.

* * * * * *

Since the plaintiff here earned in excess of $27,000 and the spouse made $20,000 at the most liberal interpretation of the testimony, she would be a dependent for worker's compensation purposes. Even assuming that plaintiff's spouse earned $20,000 per year, her average weekly wage of $384.62 would be less than one-half of the household's average weekly wage of $916.22, i.e., the amount to which their standard of living was geared.

The dissenting commissioner agreed with the disability finding but concluded that the benefit award had been computed incorrectly, because plaintiff's wife should not have been found to be his dependent.

[Plaintiff's wife earned] $307.69 to $384.62 on a weekly basis. Even at the lesser figure of his wife's estimated wages, plaintiff clearly did not provide one-half or more of her support at [the] time of injury. Presuming both spouses to have enjoyed the same standard of living, half of their combined weekly wages of $839.29 went for plaintiff's support and half for his wife's. Each received, therefore, $419.645 [sic] on a weekly basis. Even the lowest estimated amount earned by plaintiff's spouse, $307.69, is much more than one-half of $419.645 [sic]. Since plaintiff's spouse received less than one-half of her support from plaintiff at [the] time of injury, she cannot be considered his dependent.

Defendant appeals. We affirm the opinion of the appellate commission with respect to the finding of disability but reverse and remand with regard to the dependency issue.

I

Under the provisions of M.C.L. Sec. 418.301(1); M.S.A. Sec. 17.237(301)(1), "[a]n employee, who receives a personal injury arising out of and in the course of employment ... shall be paid compensation." At the time of plaintiff's injury, the statute defined "disability" as "a limitation of an employee's wage earning capacity in the employee's general field of employment resulting from a personal injury or work related disease." M.C.L. Sec. 418.301(4); M.S.A. Sec. 17.237(301)(4).

The role of this Court in reviewing decisions of the WCAC was recently clarified in Holden v. Ford Motor Co., 439 Mich. 257, 261-263, 484 N.W.2d 227 (1992). The Court first cited 1985 P.A. 103, which created the WCAC and made other changes in the workers' compensation statutory scheme:

Under Act 103, beginning October 1, 1986, ... findings of fact by a workers' compensation magistrate were to be considered conclusive, on administrative appellate review by the WCAC, if supported by "competent, material, and substantial evidence on the whole record." MCL 418.861a(3); MSA 17.237(861a)(3).

* * * * * *

Act 103 did not change the standard for judicial review of final decisions in workers' compensation proceedings.... Act 103 provides that the findings of fact made by the WCAC, not the findings of the magistrate, are to be conclusive, on judicial appellate review, in the absence of fraud.

... [J]udicial review by the Court of Appeals or this Court of a WCAC decision is to be of the findings of fact made by the WCAC and not the findings of fact made by the magistrate. And the findings of fact made by the WCAC are conclusive if there is any competent evidence to support them.

Applying Holden, then, we examine the findings of fact of the WCAC in this case. After reviewing the record in detail, we do not hesitate to conclude that the WCAC's finding of disability is supported by "competent evidence." Defendant's own expert, Dr. DeBruin, recommended that plaintiff be restricted from lifting objects exceeding thirty pounds. While he did not agree with Dr. Trager's diagnosis of a herniated disk and attributed plaintiff's problem to degenerative disk disease, he agreed that part of the "stresses" that contributed to that degeneration included plaintiff's years of lifting while employed by defendant.

Furthermore, plaintiff himself provided extensive evidence of permanent impairment from his 1985 injury. In a pre-Holden case, the Supreme Court held that "testimony of plaintiff and his wife, without more, and even though arguably disputed by certain medical witnesses, is sufficient to support the [Workers' Compensation Appeal Board's] finding of disability." Sanford v. Ryerson & Haynes, Inc., 396 Mich. 630, 637, 242 N.W.2d 393 (1976).

The WCAC's finding that plaintiff's layoff was related to his disability is similarly acceptable. The magistrate concluded that defendant was "not convinced that plaintiff had recovered, a conclusion more than amply supported by the record." We also find sufficient evidence in the record to justify this conclusion. For example, two days before plaintiff was laid off, his position was filled by a newly hired worker, suggesting plaintiff was laid off because of his injury, not for economic reasons.

We therefore affirm the WCAC's finding that plaintiff suffered a work-related disability, making defendant liable for compensation to him.

II

The workers' compensation system also provides for the compensation of dependents of an injured worker. M.C.L. Sec. 418.353(1); M.S.A. Sec. 17.237(353)(1) provides in part:

(a) The following shall be conclusively presumed to be dependent for support upon an injured employee:

(i) The wife of an injured employee living with such employee as such wife at the time of the injury.

* * * * * *

(b) ... Except as to those conclusively presumed to be dependents, no person shall be deemed a dependent who receives less than 1/2 of his support from an injured employee.

Subsection (a)(i), supra, was found unconstitutional in Pike v. Wyoming, 431 Mich. 589, 594-595, 433 N.W.2d 768 (1988). The Pike Court followed Day v. W.A. Foote Memorial Hosp., 412 Mich. 698, 701, 316 N.W.2d 712 (1982), which had held that surviving spouses "are required to prove their dependency in fact" to receive compensation under M.C.L. Sec. 418.331; M.S.A. Sec. 17.237(331), the statute providing for survivor's benefits to dependents of workers who die in the course of their employment. ¹ See also Costa v. Chrysler Corp., 152 Mich.App. 530, 535, 394...