Jolliff v. American Advertising Distributors, Inc.

• Decision Date: 28 August 1973
• Docket Number: No. 2,Docket No. 14046,2
• Citation: 211 N.W.2d 260,49 Mich.App. 1
• Parties: LeRoy F. JOLLIFF, Plaintiff-Appellee, v. AMERICAN ADVERTISING DISTRIBUTORS, INC., and Fidelity and Casualty Company, Defendants-Appellants, v. MICHIGAN SECOND INJURY FUND, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 260

211 N.W.2d 260

49 Mich.App. 1

LeRoy F. JOLLIFF, Plaintiff-Appellee, v. AMERICAN ADVERTISING DISTRIBUTORS, INC., and Fidelity and Casualty Company, Defendants-Appellants, v. MICHIGAN SECOND INJURY FUND, Defendant-Appellee.

Docket No. 14046.

Court of Appeals of Michigan, Division No. 2.

Aug. 28, 1973.

Released for Publication Oct. 24, 1973.

Leave to Appeal Denied Feb. 21, 1974.

Roberr D. Thompson, Southfield, Gary L. Calkins, Lansing, for defendants-appellants.

Donald W. Loria, Detroit, for Jolliff.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., A. C. Stoddard, Gary L. Calkins, Asst. Attys. Gen., for second injury defendants.

Before V. J. BRENNAN, P.J., and DANHOF and BASHARA, JJ.

V. J. BRENNAN, Presiding Judge.

Plaintiff, LeRoy F. Jolliff, an employee of the defendant American Advertising Distributors, Inc., suffered frostbite of both hands on January 8, 1970, while distributing advertising circulars from door to door. Defendant employer appeals, by leave granted, from an adverse decision of the Workmen's Compensation Appeal Board.

Defendant argues first that the appeal board erred by awarding compensation in excess of the minimum amount provided by statute. The statute establishing the relevant manimum amount of compensation provides, in pertinent part, that, '(w) eekly payments shall not be less than $27.00 if there are no dependents * * * except as provided in section 355'. M.C.L.A. § 418.351; M.S.A. § 17.237(351). The appeal board had applied the formula from M.C.L.A. § 418.355; M.S.A. § 17.237(355) in adjusting upward the minimum compensation. That statute provides:

'(1) The maximum weekly rate in each dependency classification in this act shall be adjusted once each year in accordance with the increase or decrease in the average weekly wage in covered employment, as determined by the employment security commission. The average weekly wage in covered employment determined by the employment security commission for the year ending June 30, 1967, shall be the base on which such adjustments are made.

'(2) A second adjustment, if any, shall be made on January 1, 1970 and shall reflect the change, if any, between the average weekly wage for June 30, 1969 and the average weekly wage for June 30, 1968 and the adjustment shall be made in like manner on each January 1 thereafter, utilizing the average weekly wage for the preceding June 30.

'(3) Adjustment for the statutory maximum rate shall be made only if there has been an increase or decrease in the average weekly wage of at least $1.50 during the preceding year, applied to the June 30, 1967, base and the director shall announce the adjustment each December 1, to become effective the following January 1. If in any year the change is less than $1.50, the director shall announce no change for the following year but the amount of change in such year shall be carried forward and added to or subtracted from subsequent annual determinations until the total change shall be at least $1.50, in which year an adjustment shall be made. There shall be an adjustment made of $1.00 in the maximum rates for each $1.50 increase or decrease in the average weekly wage. The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed without further change as to the personal injury occurring within such year.'

As one may note, and as the defendant strenuously insists, the latter statute continuously and exclusively refers to adjustment of the Maximum benefit only. However, the former statute, in establishing the minimum rates of compensation, makes specific reference to the latter statute.

Thus, from the face of the statutes involved, we have two contradictory indications of legislative intent. On the one hand, the statute which establishes a minimum level of compensation in each dependency category states that such minimum is subject to the provisions of the latter statute, which provides for adjustment of benefit levels. However, in providing for the adjustment of such levels, the latter statute speaks only of the adjustment of the 'maximum' level. We believe the construction of the act which is most consistent with its 'humanitarian objectives and beneficent purposes' ¹ is that given it by the board. We hold that the minimum compensation rates established by M.C.L.A. § 418.351; M.S.A. § 17.237(351) are adjustable according to the provisions of M.C.L.A. § 418.355; M.S.A. § 17.237(355) and accordingly affirm the determination of the Workmen's Compensation Appeal Board.

Defendant employer also objects to the board's award of certain medical expenses to plaintiff employee. The record before us is somewhat vague as to precisely who bore the expenses. The employee's testimony indicates that 'medicare' paid for those expenses. Yet, in its brief, the defendant indicates that it paid the amount of such expenses to the plaintiff subject to an agreement that the plaintiff disburse the funds to those who actually supplied the services. In awarding these expenses, the board, through member Storie, said:

'It takes...