Neff v. Hillcrest Drive-In
| Decision Date | 23 November 1976 |
| Docket Number | Docket No. 27464,DRIVE-IN and M |
| Citation | 250 N.W.2d 71,72 Mich.App. 463 |
| Parties | Emma NEFF, Plaintiff-Appellee, v. HILLCRESTichigan State Accident Fund, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Vandeveer, Garzia, Tonkin, Kerr & Heaphy by James A. Sullivan, Detroit, for defendants-appellants.
Edward M. Welch, Jr., Battle Creek, for plaintiff-appellee.
Before WALSH, P.J., and ALLEN and CORKIN, * JJ.
The defendants appeal from a ruling of the Workmen's Compensation Appeal Board reversing certain rulings by the administrative law judgment and ordering an unspecified increase in the compensation payments approved by the judge. This appeal requires us to interpret M.C.L.A. § 418.371; M.S.A. § 17.237(371) (text set forth Infra) especially subsection 3 of the statute. 1 That section sets forth special rules for computing compensation awards for workers who were injurded on a less than full-time job. This is an appeal by leave granted pursuant to GCR 1963, 806.2(1); M.C.L.A. § 418.861; M.S.A § 17.237(861).
In September of 1967, the plaintiff began working at two separate jobs. First, she arranged with a Mrs. Stechmann to care for the latter's two children in the plaintiff's home for eight hours per day, five days per week, in return for $20.00 per week. Shortly after she began the baby-sitting project, the plaintiff also began working for the defendant Hillcrest Drive-In as a waitress. The waitress job was limited to the evening hours. The parties have stipulated that the plaintiff was employed by the defendant on a part-time basis averaging less than 25 hours per week and earned an actual average wage of $41.50 per week.
On October 16, 1967, the plaintiff suffered a totally disabling injury while working as a waitress for the defendant. 2 The disability forced the plaintiff to abandon both of her jobs. The defendant conceded that the injury was compensable under the worker's compensation laws and began voluntary payments of $30.00 per week based on the statutory minimum for an injured employee with one dependent. M.C.L.A. § 418.351; M.S.A. § 17.237(351). Those payments are continuing today.
Since 1967, the plaintiff has filed and then withdrawn several petitions for increased benefits. The petition which led to the present appeal was filed on July 30, 1973. Plaintiff's theory was that M.C.L.A. § 418.371(3) required that she be treated as a full-time employee of the defendant for purposes of calculating the compensation award. Defendant countered that the special statutory provision cited by the plaintiff (the entire statute is set forth Infra) was not intended to apply where a plaintiff's other job involved 'independent contracting' rather than work as an 'employee'. The parties necessarily also disagreed over whether the plaintiff as a baby-sitter had been an independent contractor or an employee.
A hearing was held before the Administrative Law Judge on January 22, 1974. Following that hearing, the judge found that M.C.L.A. § 418.371(3) did not apply to this case. He therefore refused to increase the payments beyond the $30.00 per week which the defendant was already paying.
The plaintiff appealed that decision to the Workmen's Compensation Appeal Board pursuant to M.C.L.A. § 418.859; M.S.A. § 17.237(859). In an unanimous opinion dated January 16, 1976, the Appeal Board reversed the Administrative Law Judge and found that the plaintiff was entitled to a compensation award equal to that which she would have received if she had been working for the defendant an average of 40 hours per week. The Appeal Board did not make an express finding of the amount of compensation because it professed to have insufficient data to determine the plaintiff's average weekly wage. Instead, the Board expressed the hope that the parties would be able to agree on the amount of to award once their legal dispute had been resolved.
The parties are divided over the answers to two material questions:
(1) Does it make any difference whether the plaintiff, in her baby sitting capacity, was an independent contractor or an employee?
(2) If the answer to (1) is 'yes', was she an independent contractor or employee?
Since the Administrative Law Judge denied the request for additional compensation, we know that he answered the questions 'yes' and 'independent contractor'. Due to the imprecise language of the Board's opinion, there is simply no way for us to know how the Appeal Board answered the same questions. In order to reach its ultimate conclusion, it may have answered the first question 'no' and then simply ignored the second; or, it may have answered 'yes' and 'employee'.
The first question traditionally would have been called a question of law, whereas the second might have been called a question of fact. The uncertainly about the Appeal Board's rationale creates a problem because of the severe limitations imposed upon our review power by Const.1963, art. 6, § 28 and M.C.L.A. § 418.861. While we are free to reverse the Board's rulings of law whenever we find error, its findings of fact are conclusive absent a showing of fraud. Before the Supreme Court's decision in Deziel v. Difco Laboratories, Inc., 394 Mich. 466, 232 N.W.2d 146 (1975), we probably would have been forced to remand this case to the Appeal Board for an elaboration of its findings. But Deziel has defined a concept known as a 'jural relation' which falls somewhere between fact and law. And, most significantly, Deziel held that the courts are empowered to review Appeal Board findings of jural relations in the same manner as we review the findings of law. The relevant portion of Chief Justice Kavanagh's opinion in Deziel is set forth below:
'In the first place we consider it in order to discuss a claim that is asserted in each of these cases, Viz., that the ruling by the Appeal Board is a finding of fact which is made binding upon us if supported by any evidence by Const.1963, art. 6, § 28.
'What is always at issue in these cases is a 'jural relation'--a right to compensation in the claimant, and a liability for it in the defendant. As pointed out in 1 Wigmore on Evidence (3rd ed.), § 1, p. 2, '(t)he material on which this claim of plaintiff rests, if successful, is composite.'
'This means simply that in determining any jural relationship, the facts upon which such relationship is to be predicated are 'ordinary facts' and the jural relationship itself (which in a very real sense is also a fact) is deemed a 'holding', 'ruling', or 'conclusion' of law.
'It is to the former, the facts upon which the jural relationship is based--' ordinary facts'--that the constitution addresses itself, and not the latter--which are called legal principles. See, generally, Wigmore, Supra, '(a) Law and Fact, distinguished.'.' 394 Mich. at 474--475, 232 N.W.2d at 150.
It now appears the Appeal Board finding that the plaintiff was an 'employee' should be reviewed in the same manner as the Appeal Board finding in Deziel that that plaintiff's disability was not 'caused' by his employment. Continuing the analogy, findings in the present case that the plaintiff cared for two children and that she received $20.00 per week for that care are findings of 'ordinary facts' which we cannot dispute in the absence of a showing of fraud. But--assuming that the Appeal Board even reached the second of the two previously stated questions--the conclusion that the plaintiff was an 'employee' amounted to a definition of that term by an inductive application of 'ordinary facts'. Or, to again use the language of Deziel, the Appeal Board has found that the 'jural relation' known as 'employee' exists in this case. We treat that finding as we would any other ruling of law made by the Appeal Board.
The parties agree that the plaintiff is entitled to compensation equal to two-thirds of her 'average weekly wage' subject to the statutory maximum and minimum awards. M.C.L.A. § 418.351. They disagree, however, as to how her average weekly wage should be computed. That leads us to M.C.L.A. § 418.371 which reads as follows:
'(1) The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.
'(2) Average weekly wage means the weekly wage earned by the employee at the time of his injury, inclusive of overtime, premium pay, and cost of living adjustment, and exclusive of any fringe or other benefits which continue during disability, but in no case less than 40 times his hourly rate of wage or earning. When it is found that the established normal work week for the employee's classification of employment in the establishment of the employer where the employee suffered a personal injury is less than 40 hours, then the average weekly wage shall be established by multiplying the employee's hourly rate or earning by the number of hours customarily worked in the employee's classification or employment in that place of employment or his actual earned wages, whichever is greater.
'(3) When a hearing referee finds that the employee was employed specifically and not temporarily on a part-time basis, the average weekly wage shall be determined by multiplying the hourly rate or earning by the average number of hours worked in the part-time employment. When it is found that the employee has worked an average of 25 hours or more per week in all of his current...
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Walker v. Department of Social Services
...n. 5 supra. In the instant case, defendant has not argued that plaintiff was an independent contractor.8 See Neff v. Hillcrest Drive-In, 72 Mich.App. 463, 467, 250 N.W.2d 71 (1976), vacated 400 Mich. 804, 282 N.W.2d 920 (1977).9 The board considered the more extensive set of factors enuncia......
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Morin v. Department of Social Services
..."beyond withdrawing her children if she felt that ... plaintiff was not performing satisfactorily." Neff v. Hillcrest Drive-In, 72 Mich.App. 463, 475, 250 N.W.2d 71 (1976), vacated on other grounds & remanded for reconsideration, 400 Mich. 804, 282 N.W.2d 920 (1977). It is also clear that d......