Murphy v. Michigan Bell Telephone Co., 128256

• Decision Date: 25 June 1993
• Docket Number: No. 128256,128256
• Citation: 200 Mich.App. 422,505 N.W.2d 3
• Parties: Candace MURPHY, widow of Dennis D. Wainman, Deceased, Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant-Appellant. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 3

505 N.W.2d 3

200 Mich.App. 422

Candace MURPHY, widow of Dennis D. Wainman, Deceased Plaintiff-Appellee, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant-Appellant. (After Remand)

No. 128256.

Court of Appeals of Michigan.

Submitted June 17, 1992, at Lansing.

Decided March 17, 1993.

Approved for Publication June 25, 1993 at 9:00 a.m.

Released for Publication Sept. 23, 1993.

Rapaport, Pollok, Farrell & Waldron, P.C. by Steve J. Pollok and Kassia L. Snyder, Lansing, for plaintiff-appellee.

Lacey & Jones by Michael T. Reinholm, Birmingham, for defendant-appellant.

Before SULLIVAN, P.J., and MacKENZIE and ISIDORE B. TORRES, ^* JJ.

PER CURIAM.

Defendant appeals by leave granted from an order of the Workers' Compensation Appeal Board issued on remand from this Court affirming with modification a decision of a hearing referee awarding benefits to plaintiff on behalf of the decedent's two dependent children until their eighteenth birthdays. We reverse.

Plaintiff's decedent, Dennis Wainman, was employed by defendant, Michigan Bell Telephone Company, and died from a work-related injury. At the time of his injury, the decedent had three dependents, his wife, Candace, and two minor children, Kelly, born August 7, 1968, and Sean, born December 13, 1971. Defendant voluntarily paid weekly death benefits to the three dependents. The benefits were reduced when Candace married Charles Murphy in June 1973. Charles Murphy adopted Kelly and Sean in September 1975.

Defendant continued to pay benefits on behalf of Kelly and Sean until September 1981, when the five-hundred-week benefit period expired. Plaintiff filed a petition for hearing on October 5, 1984, on behalf of Sean and Kelly, to require defendant to continue to pay weekly death benefits. At a hearing on July 24, 1985, the referee held that Sean and Kelly were entitled to weekly death benefits until their sixteenth birthdays, reasoning that they were conclusively presumed to be dependent upon the decedent as long as they lived with their natural mother. The referee also opined that Murphy's adoption of Sean and Kelly in 1975 did not alter the children's conclusive status of dependency until their sixteenth birthdays.

Defendant appealed, and the WCAB affirmed. Defendant applied for leave to appeal, arguing that the WCAB erred in holding to the effect that, as a matter of law, a child under sixteen years of age is entitled to weekly death benefits even after the five-hundred-week period. Defendant argued that after the five-hundred-week period, a dependent under twenty-one years of age may receive weekly death benefits only if actually dependent upon the decedent. Defendant argued that plaintiff did not demonstrate the children's factual dependency on the decedent and that the WCAB failed to evaluate the factual issue.

This Court, while retaining jurisdiction, remanded the matter to the WCAB to clarify the basis for its decision and directed the WCAB to answer four questions:

(1) are decedent's children entitled as a matter of law to benefits beyond the five-hundred-week period so long as they are not yet sixteen years old; (2) are decedent's children entitled to benefits beyond the five-hundred-week period because as a matter of fact they remain dependents of the deceased; (3) what significance, if any, do the children's sixteenth birthdays have in light of the references to twenty-one and eighteen years of age in [M.C.L. § 418.321; M.S.A. § 17.237(321), and M.C.L. § 418.335(1); M.S.A. § 17.237(335)(1) ], respectively; and (4) if the children are entitled to benefits beyond the five-hundred-week period because as a matter of fact they remain dependent upon decedent, does this entitlement extend to their eighteenth or twenty-first birthdays?

The WCAB issued a supplemental decision answering the four questions as follows:

[T]he decedent's children, who were less than 21 years of age at the expiration of the 500-week period are entitled, as a matter of law, to continuing benefits after the 500-week period expires, as set forth in Section 321, if a hearing referee orders payment of such benefits.

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[B]ecause defendant has not borne its burden of proof in challenging either the conclusive or factual dependency of Sean and Kelly, the decedent's children are entitled to benefits beyond the 500-week period.

[T]heir sixteenth birthdays have no significance in the context of Sections 321 and 335(1), but only in the context of [M.C.L. § 418.331(b); M.S.A. § 17.237(331)(b) ].

* * * * * *

Section 335(1) sets age 18 as the age beyond which no additional weekly benefits are to be paid and the language of [M.C.L. § 418.335(2); M.S.A. § 17.237(335)(2) ] requires the application of the revised version of Section 335, i.e., the version cutting off benefits at age 18 for the decedent's dependent children.

The WCAB then issued an order affirming with "significant modification" the decision of the referee and directing defendant to pay weekly compensation benefits on behalf of Kelly and Sean for the period from the expiration of the five-hundred-week benefit period to their respective eighteenth birthdays. We find the WCAB's answers to our questions unsatisfactory.

Although dependency and the right to any death benefit generally is fixed at the time of an employee's injury, certain exceptions exist. Section 341 of the Workers' Disability Compensation Act, M.C.L. § 418.341; M.S.A. § 17.237(341), provides:

Questions as to who constitutes dependents and the extent of their dependency shall be determined as of the date of the injury to the employee, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions except as otherwise specifically provided in sections 321, 331 and 335.

Thus, at the time of a deceased employee's injury, a dependent's right to death benefits is fixed, irrespective of subsequent changed conditions, except as provided in §§ 321, 331, and 335 of the WDCA. Section 321 of the WDCA, M.C.L. § 418.321; M.S.A. § 17.237(321), provides:

If death results from the personal injury of an employee, the employer shall pay, or cause to be paid, ... to the dependents of the employee who were wholly dependent upon the employee's earnings for support at the time of the injury, a weekly payment ... for a period of 500 weeks from the date of death.

Section 335 of the WDCA, M.C.L. § 418.335; M.S.A. § 17.237(335), provides, in part:

Where, at the expiration of the 500-week period, any ... dependent person is less than 18 years of age, a hearing referee ... may order the employer to continue to pay the weekly compensation, or some portion thereof, until ... dependent person reaches the age of 18. The payment of compensation to any dependent child shall cease when the child reaches the age of 18 years, if at the age of 18 years he or she is neither physically nor mentally incapacitated from earning, or when the child reaches the age of 16 years and thereafter is self-supporting for 6 months. If the child ceases to be self-supporting thereafter, the dependency shall be reinstated.

Section 331(b) of the WDCA, M.C.L. § 418.331(b); M.S.A. § 17.237(331)(b), provides in part:

The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

* * * * * *

(b) A child under the age of 16 years, or over 16 years of age if physically or mentally incapacitated from earning upon the parent with whom he or she is living at the time of the death of such parent. [Emphasis added.]

Under § 321, an employer must pay benefits to the dependents of an employee who dies from a work-related injury for five hundred weeks from the date of death. Under § 331(b), a child under the age of sixteen years is conclusively presumed to be dependent upon the person with whom the child is living at the time of the death of the employee parent. Thus, an employer is required to pay weekly benefits for five hundred weeks to a child of an employee who dies from a work-related injury if the child is less than sixteen years old.

No statute requires an employer to continue to pay weekly death benefits after the five-hundred-week benefit period. However, §§ 321 and 335 provide that a hearing referee or a workers' compensation magistrate may order an employer to continue to pay the weekly compensation benefits to a dependent child until the child reaches the age of twenty-one or eighteen years, respectively. Thus, under § 321, payment of five hundred weeks of benefits to a dependent person is mandatory. After the five-hundred-week benefit period, continued payments to a dependent person are permissive, if ordered by a hearing referee or a workers' compensation magistrate.

Sections 321 and 335 both...