Loper v. Cascade Tp.

• Decision Date: 02 August 1984
• Docket Number: No. 71154,71154
• Citation: 135 Mich.App. 106,352 N.W.2d 357
• Parties: Norene LOPER, Widow of Calvin Loper, Deceased, Plaintiff-Appellee, v. CASCADE TOWNSHIP and Auto-Owners Insurance Company, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 357

352 N.W.2d 357

135 Mich.App. 106

Norene LOPER, Widow of Calvin Loper, Deceased, Plaintiff-Appellee, v. CASCADE TOWNSHIP and Auto-Owners Insurance Company Defendants-Appellants.

No. 71154.

Court of Appeals of Michigan.

Submitted Dec. 13, 1983.

Decided June 4, 1984.

Released for Publication Aug. 2, 1984.

Ryan, Boerema, Jarosz & Kail by Thomas A. Ryan, Grand Rapids, for plaintiff-appellee.

Cholette, Perkins & Buchanan by Kenneth L. Block, Grand Rapids, for defendants-appellants.

Before HOLBROOK, P.J., and BRONSON and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

Defendants appeal from the July 17, 1981, decision of the Workers' Compensation Appeal Board (WCAB) affirming the award of death benefits to plaintiff, Norene Loper.

Decedent, Calvin Loper, had been a volunteer fire fighter for defendant Cascade Township for over ten years. Following an incident in which a boy drowned, decedent and several other Cascade Township volunteer fire fighters enrolled in a scuba diving course so that they might, in the future, be better able to respond to water emergencies. On September 20, 1975, decedent accidentally drowned while taking a certification test as part of that course.

On May 11, 1976, Norene Loper filed a petition for workers' compensation death benefits. The hearing officer awarded benefits and the WCAB affirmed. Defendants' application for leave to appeal to this Court was denied on May 17, 1982. On April 26, 1983, the Supreme Court remanded the case to this Court for consideration as on leave granted. 417 Mich. 969 (1983).

I

The findings and conclusions of the WCAB are set forth below:

"It was unrebutted that the idea of a scuba diving class first surfaced when decedent was called, as a volunteer fireman working for defendant, to a gravel pit where a boy had drowned. The firemen talked between themselves that it would be a good thing for the township and they could be of better service if they were certified scuba divers. Defendant admitted, at oral argument, that the subject was discussed at one of the business meetings of the fire department. The so-called volunteers were reimbursed at the rate of six dollars an hour for fighting fires and each monthly business meeting. The fire chief testified he asked decedent if he were interested in taking the course, when decedent had dropped by the firehouse on a visit. The fire chief further indicated volunteers were not paid for taking the course but said he told the men that, if there was any money available at the end of the fiscal year, he would see if he could get them reimbursed. The fire chief stated he made monthly reports to the township council on the progress of the firemen taking the course. He admitted, as did the township manager, that the fire department and the township would be better served as a result of the men taking the scuba diving course.

"Defendant frames the issue on appeal, that at the time of Mr. Loper's death, 'was he in the performance of his duties as a member of the volunteer fire department for Cascade Township?'

"We answer in the affirmative. The idea was conceived while the volunteers were in the course of an unsuccessful attempt to rescue a drowning boy. The idea was further discussed during a business meeting of the volunteers and firemen of Cascade Township. Decedent was asked by the chief of Cascade Township Fire Department if he wanted to take the course. Progress reports were made to the township board regarding the men taking the course. Both the chief and a township official agreed that the fire department was better equipped to serve and the township was better off as a result of the firemen taking the course.

"We find plaintiff has sustained her claim that decedent was acting in the scope of his employment as a volunteer fireman working for defendant at the time of his death, by a great preponderance of the evidence. The above facts far outweigh defendant's argument that the township board did not directly seek out each volunteer and ask them to take the course. It remains undisputed that, acting in his official capacity, the fire chief did ask decedent to take the course."

II

We disagree with defendants' contention that the WCAB's decision fails to comport with the requirements of MCL 418.859; MSA 17.237 (859). We find that the decision does provide a sufficiently detailed basis to allow effective appellate review and complies in all respects with the statute and Nunn v. George A. Cantrick, Co., Inc., 113 Mich.App. 486, 317 N.W.2d 331 (1982).

III

This Court's review of a WCAB decision is very limited:

"We are charged with the responsibilities of reviewing questions of law, determining whether there is any fraud, and deciding whether there is any competent evidence in the record to support the findings of fact made by the appeal board. MCL 418.861; MSA 17.237(861), Aquilina v. General Motors Corp., 403 Mich. 206, 267 N.W.2d 923 (1978)." Fuchs v. General Motors Corp., 118 Mich.App. 547, 552, 325 N.W.2d 489 (1982), lv. den. 417 Mich. 1077 (1983).

Defendants seek review of a question of law, namely, whether the WCAB applied an incorrect standard in awarding benefits.

MCL 418.161; MSA 17.237(161) provides in part:

"(1) As used in this act, 'employee' means:

"(a) * * * Members of a volunteer fire department of a city, village, or township shall be considered to be employees of the city, village, or township, and entitled to all the benefits of this act when personally injured in the performance of duties as members of the volunteer fire department."

MCL 418.301; MSA 17.237(301) states in part:

"(1) An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. In the case of death resulting from the personal injury to the employee, compensation shall be paid to the employee's dependents as provided in this act."

Defendants argue that this case is controlled by the "in the performance of duties" language in Sec. 161 which, according to defendants, is a much narrower standard than the "arising out of and in the course of employment" standard in Sec. 301. We note that defendants did not specifically raise this issue before the WCAB. While this Court will not ordinarily consider an issue raised for the first time on appeal, the rule is not inflexible and will not be applied where consideration of the issue is necessary to a proper determination of the case or where the issue is one of law concerning which the necessary facts have been presented. We find these conditions present in the case before us and will therefore address the question.

It is this Court's opinion that the Legislature did not by its use of the phrase "personally injured in the performance of duties as members of the volunteer fire department" intend that volunteer fire fighters should be held to a stricter standard for proving entitlement to benefits than ordinary employees under the act. To the contrary, we believe that inclusion of volunteer fire fighters within the definition of "employee" in Sec. 161 was intended to place such persons on the same footing as ordinary employees. In reaching this conclusion we are mindful of the established principle that the Worker's Disability Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. Fuchs v. General Motors Corp., supra, 118 Mich.App. p. 554, 325...