JERRY SIMMONS V TRI-COUNTY ELECTRIC CO
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
February 3, 2004
JERRY SIMMONS,
Plaintiff-Appellee,
v
No. 245930
WCAC
LC No. 01-000242
TRI-COUNTY ELECTRIC CO, and
CINCINNATI INS CO,
Defendants-Appellants.
Before: Owens, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
This worker’s compensation case is before us on remand from the Supreme Court for
consideration as on leave granted. Simmons v Tri-County Electric Co, 467 Mich 937 (2003). In
addition to the issues raised in defendants’ application, the Supreme Court’s order directs this
Court “to consider the question whether the applicability of MCL 418.371(6) is a question of
fact, of law, or a mixed question of law and fact.” Defendants appeal the magistrate’s and
Workers’ Compensation Appellate Commission’s [WCAC’s] determination of the proper
method for calculating plaintiff’s average weekly wage under MCL 418.371. Defendants also
argue that there was insufficient evidence to support the magistrate’s finding that plaintiff’s wife
was a dependent. We affirm.
I. FACTS
Although defendants have not admitted liability, they have been voluntarily paying
plaintiff weekly wage loss benefits. The question presented in this case is whether the WCAC
properly affirmed the magistrate’s decision regarding the amount of benefits.
Plaintiff is a journeyman electrician. He testified that he was employed by various
independent contractors, and that he was assigned to employers and placed in different jobs
through his union hall. He testified that at the time in question he was earning $27.40 per hour,
and that between January 1998 and January 1999 he worked during 35 weeks and earned a total
of $43,676.75. Almost all of these earnings were from employers other than defendant TriCounty.
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Plaintiff was allegedly injured while working for defendant on January 21, 1999, a
Thursday. His last five weeks of employment were for defendant. It appears that plaintiff
started working for defendant on December 21, 1998, a Monday.
Plaintiff claimed that he was hired to work 40 hours per week. However, he did not
actually work that many hours due to holidays and inclement weather. During his first and
second week, he only worked four days each because of the Christmas and New Year holidays.
During the third week he missed one day and during the fourth week he missed two days because
of inclement weather. However, in the fourth week he was able to receive overtime pay for
working on a Saturday, which resulted in higher wages for that week. Finally, he only worked
four days during the fifth and last week because he was injured on Thursday. The amounts
plaintiff earned each week were $899.60, $806.20, $889.60, $917.40 and $889.60, for a total of
$4,392.40.
Plaintiff filed a petition claiming that he was being paid compensation at an incorrect
rate. Defendants voluntarily paid plaintiff compensation based on an average weekly wage
computed under MCL 418.371(3), by dividing the total compensation plaintiff received during
his five weeks of work by five, which resulted in an average weekly wage of $878.48 per week.
Plaintiff filed a petition arguing that this was an inappropriate way of calculating his wages
under the circumstances, inasmuch as he was only paid for days actually worked, and lost five
days of work due to inclement weather and holidays through no fault of his own. Plaintiff
contended that because most five-week periods of employment would not include so many lost
days, utilizing subsection (3) penalized him by failing fairly to represent his real loss of earning
capacity. Plaintiff argued that his average weekly wage should be determined by adding all
wages earned in the year of employment immediately preceding his injury and dividing by the
number of weeks actually worked, which results in a weekly wage of $1,247.90. Alternatively,
he contended that his hourly rate should be multiplied by forty hours, the number of hours he
“contracted” to work, which according to the magistrate results in an average weekly wage of
$1,112. Defendants responded that this would in effect require them to compensate plaintiff
based on wages earned from other employers. Defendants also argued that plaintiff had failed to
show that his wife was a factual dependent, which if true would entitle him to a higher weekly
wage loss benefit rate than if he had no dependents.
The magistrate found that under the circumstances, plaintiff’s average weekly wage
should not be computed under MCL 418.371(3), but rather under MCL 418.371(6). Because
subsection (6) requires a calculation somewhat different than that used by plaintiff, the
magistrate directed the parties to work out the average weekly wage under that subsection
themselves. The magistrate rejected defendants’ argument that plaintiff failed to establish the
dependency of his wife. Because plaintiff testified that his wife was not employed at the time of
his injury and has not been employed since, the magistrate found it reasonable to infer that
plaintiff provided more than one-half of her support.
Defendants appealed. The Commission’s majority opinion and order agreed with the
magistrate that the “unique” facts in this case required application of MCL 418.3781(6) in order
to produce an accurate average weekly wage. Likewise, the majority agreed with the magistrate
that plaintiff’s testimony that his wife has not worked and that he has claimed her as a dependent
on income tax returns was sufficient evidence to support an inference that she is a factual
dependent.
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II. STANDARD OF REVIEW
We consider three issues on appeal: (1) whether the applicability of MCL 418.371(6) is a
question of fact, of law, or a mixed question of law and fact; (2) whether the Commission erred
in affirming the magistrate’s decisions regarding the proper method of calculating plaintiff’s
average weekly wage; and (3) whether the Commission erred by affirming the magistrate’s
finding that plaintiff’s wife was a dependent.
In Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 703; 614 NW2d 607 (2000)
our Supreme Court explained that judicial review of WCAC decisions should be very limited,
citing the following language from Holden v Ford Motor Co, 439 Mich 257, 269; 484 NW2d
227 (1992):
If it appears on judicial appellate review that the WCAC carefully
examined the record, was duly cognizant of the deference to be given to the
decision of the magistrate, did not “misapprehend or grossly misapply” the
substantial evidence standard, and gave an adequate reason grounded in the record
for reversing the magistrate, the judicial tendency should be to deny leave to
appeal ….
Under Holden, “[a]s long as there exists in the record any evidence supporting the WCAC’s
decision, and as long as the WCAC did not misapprehend its administrative appellate role (e.g.,
engage in de novo review; apply the wrong rule of law), then the judiciary must treat the
WCAC’s factual decisions as conclusive.” Mudel, 462 Mich 703-704. While the Commission
reviews the magistrate’s findings for compliance with the substantial evidence standard in
accordance with MCL 418.861a(3), the judiciary’s review of the Commission’s findings is more
limited and solely designed to ensure the integrity of the administrative process. Mudel, 462
Mich 699, 701.
Despite this Court’s limited review of the WCAC’s findings, it may still reverse the
Commission’s decision where it is based on erroneous legal reasoning or the wrong legal
framework. Maier v General Telephone Co, 247 Mich App 655, 660; 637 NW2d 263 (2001), lv
den 466 Mich 879 (2002). Issues of law involved in a final order of the WCAC are reviewed de
novo for legal error. Mudel, 462 Mich 697 n 3.
III. APPLICABILITY OF MCL 418.371(6)
Both defendants and plaintiff argue that the applicability of MCL 418.371(6) is a
question of fact. We agree that the applicability of §371(6) presents a question of fact dependent
upon the specific circumstances of each case.
Issues of statutory construction present questions of law subject to review de novo.
Maier, supra, 247 Mich App 659. In the past, this Court has treated the applicability of a
particular section of the WDCA as a question of law or mixed question of law and fact subject to
review de novo. See Maier, supra, 247 Mich App 659-660; Toth v Autoalliance International
Inc, 246 Mich App 732, 739; 635 NW2d 632 (2001), lv den 465 Mich 951 (2002); Taylor v
Second Injury Fund, 234 Mich App 1, 13; 592 NW2d 103 (1999). However, none of those cases
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directly addressed the issue of whether the applicability of the subsection presented an issue of
fact, of law, or of fact and law.
The ultimate goal of statutory construction is to ascertain and give effect to the intent of
the Legislature. Rowell v Security Steel Co, 445 Mich 347, 353; 518 NW2d 409 (1994).
Individual provisions must be considered in conjunction with the entire act to determine this
intent. Id., at 354. Both this Court and our Supreme Court have concluded that the Legislature
drafted the provisions of §371 with the intent to provide statutory formulas which would give the
fact-finder the flexibility necessary to compute an accurate average weekly wage. Rowell, 445
Mich 356-358; Toth, 246 Mich App 739. In Rowell, the Court wrote:
Read together, the provisions of § 371 illustrate that the Legislature
attempted to draft a statute that would be sensitive to accuracy as the basis for the
determination of weekly wage loss in a variety of employment situations. [445
Mich 358].
With regard to §371(6), our Supreme Court explained:
Where there are special circumstances, the Legislature provided that the average
weekly wage could be computed by dividing the aggregate earnings by the
number of days worked and then multiplying by the number of days customarily
worked, “not less than 5.” This provision demonstrates that the Legislature was
willing to depart from the traditional definition of a work week if necessary to
justly determine the basis for compensation. [Rowell, 445 Mich 347].
Section 371 of the Worker’s Disability Compensation Act, MCL 418.371, states in
relevant part:
(1) The weekly loss in wages referred to in this act shall consist of the
percentage of the average weekly earnings of the injured employee computed
according to this section as fairly represents the proportionate extent of the
impairment of the employee’s earning capacity in the employments covered by
this act in which the employee was working at the time of the personal injury. . . .
(2) As used in this act, “average weekly wage” means the weekly wage
earned by the employee at the time of the employee’s injury in all employment. . .
The average weekly wage shall be determined by computing the total wages paid
in the highest paid 39 weeks of the 52 weeks immediately preceding the date of
injury, and dividing by 39.
(3) If the employee worked less than 39 weeks in the employment in
which the employee was injured, the average weekly wage shall be based upon
the total wages earned by the employee divided by the total number of weeks
actually worked. For purposes of this subsection, only those weeks in which
work is performed shall be considered in computing the total wages earned and
the number of weeks actually worked.
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(4) If an employee sustains a compensable injury before completing his or
her first work week, the average weekly wage shall be calculated by determining
the number of hours of work per week contracted for by that employee multiplied
by the employee’s hourly rate, or the weekly salary contracted for by the
employee.
(5) If the hourly earning of the employee cannot be ascertained, or if the
pay has not been designated for the work required, the wage, for the purpose of
calculating compensation, shall be taken to be the usual wage for similar services
if the services are rendered by paid employees.
(6) If there are special circumstances under which the average weekly
wage cannot justly be determined by applying subsections (2) to (5), an average
weekly wage may be computed by dividing the aggregate earnings during the year
before the injury by the number of days when work was performed and
multiplying that daily wage by the number of working days customary in the
employment, but not less than five.
Review of §371(6) along with the provisions of subsections (2) through (5) reveals that
the applicability of these provisions depends upon a fact-based analysis of the individual
circumstances of each case. The use of the terms “special circumstances” and “justly” in
subsection (6) show that its application is not limited to situations where subsections (2) through
(5) cannot be used to calculate an average wage, but instead may be used in any situation where
the application of subsections (2) through (5) would result in an average weekly wage which did
not accurately reflect the plaintiff’s true weekly earnings. Simply put, whether the method set
forth in §371(6) should be used to calculate the average weekly wage depends on the specific
circumstances presented in each case, and is a question of fact which should be determined by
the magistrate or WCAC rather than a question of law to be decided by the courts. This
interpretation is consistent with our Supreme Court’s opinion in Mudel, supra, which emphasizes
the WCAC’s role as an administrative factfinder and this Court’s limited review of the WCAC’s
findings of fact.
IV. SPECIAL CIRCUMSTANCES
As discussed above, whether special circumstances exist under §371(6) to make
application of the other subsections unjust is a question of fact for the magistrate. Under Mudel,
supra, this issue can only be reviewed by the WCAC for abuse of discretion, or for whether the
factual predicates upon which the magistrate’s discretion is exercised are supported by
substantial evidence. This Court’s review of the WCAC’s decision is limited to whether the
Commission “carefully examined the record, was duly cognizant of the deference to be given to
the decision of the magistrate, and did not ‘misapprehend or grossly misapply’ the substantial
evidence standard.” Mudel, 462 Mich 703, Holden, 439 Mich 269.
The basic facts are not at issue; defendants merely argue that the magistrate erred in
calculating plaintiff’s average weekly wage. This Court does not review the magistrate’s
findings. Review of the WCAC’s decision indicates that the Commission properly examined the
record, accorded due deference to the magistrate’s findings, and did not misapprehend or
misapply its standard of review.
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V. EVIDENCE OF WIFE’S DEPENDENCY
Defendants’ argument that there was no evidence supporting the conclusion that
plaintiff’s wife was a dependent also poses a direct challenge to the magistrate’s findings of fact.
This Court does not review the magistrate’s findings. Review of the Commission’s opinion
shows that it properly reviewed the magistrate’s finding under the applicable standard.
Affirmed.
/s/ Donald S. Owens
/s/ Bill Schuette
/s/ Stephen L. Borrello
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