Washburn v. American Roofing Co.

217 N.W.2d 104, 52 Mich. App. 188, 1974 Mich. App. LEXIS 1014

• Court: Michigan Court of Appeals
• Decided: March 26, 1974
• Docket: Docket 13804
• Status: Published

Opinions

Lesinski, C. J.

This case is before us on leave granted to appeal a decision of the Workmen’s Compensation Appeal Board. The appeal board, in modifying an earlier referee’s decision, ruled that plaintiff’s two stepchildren were no longer "dependents” within MCLA 412.9; MSA 17.159 (now MCLA 418.353; MSA 17.237[353]). Consequently, the board ordered reduction in the benefits being paid to the plaintiff.

At the time plaintiff was injured, his family included his wife and her two sons by a former marriage. His award included a dependency augmentation for the two children. The marriage was ended by divorce in June, 1967. At that time the eldest stepson had in fact ceased to be dependent on plaintiff. There is a stipulation that the youngest stepson ceased to be dependent-in-fact on July 15, 1968. There is concession by the plaintiff that had the boys been his own sons, his benefits, attributable to them, should have been terminated.

Plaintiff says that the case of Pendell v Northwestern Leather Co, 2 Mich App 249; 139 NW2d 773 (1966), mandates a reversal of the board in this case. We disagree. Pendell stands only for the proposition that the insurer may not move to reduce benefits under subparagraph "d” of the statute (MCLA 412.9; MSA 17.159)¹ to "other dependents” under 16 years of age, merely because they no longer receive more than one-half of their support from the injured worker. In that case the injured worker continued to receive dependency augmentation payments for three grandchildren under 16 years of age though she no longer contributed more than 50% to their support. We decline to allow such an anomaly where the legislation does not allow it.

As we read this statute, the stepchildren of the injured employee are "dependent children” under § 353(2). In arriving at this construction we read §353 as a whole. The act provides special rules governing dependency in instances where the workman is injured. MCLA 418.353(1)(a)(b); MSA 17.237(353)(1)(a)(b). Subsection (a)(ii) reads that dependency is conclusively presumed where "a child” under 16 years of age is living with his parent at the time of the injury of such parent. We hold that here the phrase "a child”, means a person of immature or tender years, in this instance under 16 years of age,² and the child or stepchild of the injured employee.

Any other solution, dicta in Pendell, supra, notwithstanding, would be a clear windfall to an injured worker. The plaintiffs position, if adopted, would lead to the absurd result that stepchildren would be preferred over children born of the union between an injured worker and his or her spouse. Furthermore, to say that the statute provides for reduction of benefits only at death would allow an injured workman to receive benefits beyond the point where dependency of the children had in fact ceased. We are convinced that the Legislature intended no such result.

Affirmed. No costs, a public question being involved.

1 MCLA 412.9; MSA 17.159:

"(b) For the purposes of this section and of section 10, dependency shall be determined as follows:

"The following persons shall be conclusively presumed to be dependent for support upon an injured employee:

"1. The wife of an injured employee living with such employee as such wife at the time of the injury.

"2. A child under the age of 16 years, or over said age, if physically or mentally incapacitated from earning, living with his parent at the time of the injury of such parent.

"(c) In all other cases questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury. No person shall be considered a dependent unless he or she is a member of the family of the injured employee, or unless such person bears to such injured employee the relation of husband or wife, or lineal descendant, or ancestor or brother or sister. 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.

"(d) Weekly payments to any injured employee shall be reduced by the additional amount provided for any dependent child or husband or wife or other dependent when such child either reaches the age of 21 years or after becoming 16 ceases for a period of 6 months to receive more than 1/2 of his support from such injured employee, if at such time he or she is neither physically nor mentally incapacitated from earning, or when such husband or wife shall be divorced by final decree from his or her injured spouse, or when such child, husband or wife, or other dependent shall be deceased.”

2 Where the Legislature wanted a certain child, a natural child, or a workman’s own child to receive special treatment, it plainly said so. See MCLA 418.331(1)(b); MSA 17.237(331)(1)(b). "In all cases mentioned in this section the total sum due the surviving spouse and his own children shall be paid directly to the surviving spouse for his own use, and for the use and benefit of his own children.”