Order Michigan Supreme Court
Lansing, Michigan
July 11, 2008 Clifford W. Taylor,
Chief Justice
135704 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
FRANCIS J. PULSIPHER, Deceased, by Robert P. Young, Jr.
MARIAN PULSIPHER (Spouse), Stephen J. Markman,
Justices
Plaintiff-Appellee,
v SC: 135704
COA: 278407
WCAC: 2004-000275
STATEWIDE FOREST PRODUCTS and
TRAVELERS INSURANCE COMPANY,
Defendants-Appellees,
and
SILICOSIS, DUST DISEASE & LOGGING
INDUSTRY COMPENSATION FUND,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 17, 2007
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J., concurs and states as follows:
I concur in the order denying leave to appeal. The Workers’ Compensation
Appellate Commission (WCAC) panel’s result does not appear to be erroneous and the
case does not involve issues of significance for Michigan jurisprudence. But, as noted by
Justice Markman, the panel committed numerous analytical errors that future WCAC
panels should not repeat. I generally concur with Justice Markman. I also note other
significant errors in the WCAC’s analysis.
Most notably, the WCAC offers very questionable applications of estoppel and the
two-year-back rule, MCL 418.381. The WCAC concluded that the deceased employee’s
dependent relied on misrepresentations by the insurance agent when she chose not to file
for weekly benefits within two years of her husband’s death. It concluded that, therefore,
she could claim benefits covering a period beginning two years before the estimated date
2
that she gained accurate information regarding her eligibility for benefits. Under this
logic, the panel purported to exclude eligibility for benefits from January 22, 1998, the
date of death, to May 19, 1999, two years before the approximate date that the claimant
learned of her claim, which the panel estimated was May 19, 2001. The logic of this
approach is dubious. Assuming that estoppel may be applied, it would seem that it
should render the claimant eligible for benefits from the date of death, when the
misrepresentations began, until she would have reasonably stopped relying on the
misrepresentations. Then the two-year-back rule should apply as usual from when she
filed the claim, on October 14, 2002, back to October 14, 2000. Thus, no amount of
benefits would be time-barred because the two-year back rule covers the period between
her awareness of her claim and the date she filed. Although the WCAC’s application of
estoppel appears erroneous, its result nonetheless appears correct because it effectively
awards the claimant the maximum allowable benefit; its order allows her to recoup up to
500 times the weekly benefit rate.
I also question the panel’s conclusions that the claimant, who worked full time,
was 100 percent dependent on the decedent and that the decedent’s relevant annual
earnings were $293 because he happened to earn this amount over a few days of work
before his accident. I would still deny leave on these issues, however, because I find no
injustice in the amount of the claimant’s benefit award. The WCAC declined to increase
the amount of the weekly benefit awarded by the magistrate because the claimant did not
properly appeal the amount. The panel acknowledged that the magistrate likely and
significantly underestimated the weekly benefit amount, however. Therefore, even if the
claimant was less than 100 percent dependent on the decedent, her current benefit award
is likely equal to or less than the correct amount due and, therefore, defendants are not
prejudiced by any error.
MARKMAN, J., concurs and states as follows:
I concur in the order denying leave to appeal because the Workers’ Compensation
Appellate Commission (WCAC) reached the right result. I write separately to note
several errors committed by the WCAC in its legal analysis. Although the WCAC
reached a proper result under the correct legal standards applicable to the question
whether the plaintiff’s decedent was an employee of Statewide Forest Products, the
WCAC erred to the extent that it concluded that federal income-tax forms alone may
never determine the legal question of employment. Federal tax forms are always
compelling evidence of the employer-employee relationship and, in some cases, federal
tax forms alone may be sufficient evidence of this relationship. See, e.g., Blanzy v
Brigadier Gen Contractors, Inc, 240 Mich App 632, 642-643 (2000); Betancourt v
Ronald Smith, 1999 Mich ACO 608. I also note that the WCAC majority erred in
concluding that payment of a deceased employee’s earnings after his death is the
determining factor in deciding the extent of the dependency pursuant to MCL 418.321
3
and Lesner v Liquid Disposal, Inc, 466 Mich 95 (2002). However, under the unique
circumstances of this case, the majority’s conclusion that the plaintiff was 100%
dependent on the decedent’s earnings did not result in an increased benefit award to the
plaintiff, and, therefore, any error in the WCAC’s decision is harmless. I further note that
the WCAC clearly erred in concluding that the instructions for the weekly benefit rate
tables to “deduct one dependent for death cases” are not authorized by MCL 418.313(1).
That provision requires an injured employee to be included as a dependent in calculating
the weekly wage-loss benefit in disability cases. Because a deceased employee cannot be
his or her own dependent, the benefit rate table instruction is correct. In this case, the
magistrate correctly determined that there was one dependent of the deceased employee.
TAYLOR, C.J., joins the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 11, 2008 _________________________________________
t0708 Clerk