Schoolenberg v. Meijer, Inc , 107 Mich. App. 363 ( 1978 )

107 Mich. App. 363 (1978) 309 N.W.2d 548

SCHOOLENBERG
v.
MEIJER, INC.

Docket No. 78-1619.

Michigan Court of Appeals.

Decided December 7, 1978.

Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendants Meijer, Inc., and Home Indemnity Company.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael L. Pitts, Assistant Attorney General, for defendant Second Injury Fund.

Before: BEASLEY, P.J., and D.E. HOLBROOK and G.R. COOK,^[*] JJ.

PER CURIAM.

On June 18, 1971, plaintiff received an injury in the course of his employment which left him a totally disabled paraplegic. At the time he was injured, plaintiff was 19 years old, attending college with the intention of becoming a teacher, and employed part-time at the Meijer store. Following the injury, compensation equaling two-thirds of plaintiff's average weekly wage was voluntarily paid. At a hearing before an administrative law judge, plaintiff was held to be entitled to additional payments by virtue of MCL 418.359; MSA 17.237(359). The Workers' Compensation Appeal Board affirmed the decision. Defendants now appeal the granting of the maximum scheduled benefits to plaintiff.

This Court limits review of Workers' Compensation Appeal Board decisions to questions of law involved in the case. Questions of fact decided by the board are conclusive if the correct legal standard has been applied.^[1]

MCL 418.359; MSA 17.237(359) provides:

"Whenever an employee who has not attained his twenty-fifth birthday is injured so that he is entitled to compensation as permanently and totally disabled as defined in this act, if it is established that the injured employee was of such age and experience when injured that, under natural conditions, his wages or position would be expected to increase, that fact, subject to the statutory minimum and maximum weekly payments, may be considered by a hearing referee in determining his weekly payments."

Defendants argue that plaintiff should not receive maximum benefits until 1974, when he would have finished college and begun earning a wage sufficient to support such benefits.

In applying the statute, the majority of the board determined that plaintiff was under 25 years of age and was of such age and experience at the time of the injury that his wages or position would be expected to increase. The decision noted that § 359 does not require a determination that those contingencies would, in fact, occur.

Therefore, there need not be an actual showing that plaintiff's wages or position would actually increase sometime in the future. A holding that the board would have to determine when (or if) plaintiff would have completed his education and when (or if) plaintiff would have attained employment would require a high degree of speculation and pose evidentiary problems of an unusual nature. Clearly, this would not seem to have been the intent of the Legislature.

In ordering the additional compensation, the board relied on Schram v Witt Jewelry Co.^[2] The facts and reasoning in that case are nearly identical to the case at bar. The board, in Schram, also awarded the maximum weekly benefits to a 19-year old who, as did plaintiff in the instant case, planned to continue his college education with the intention of becoming a teacher at the time he became permanently disabled.

In the instant case, the board considered plaintiff's age and experience and determined that they would increase under natural conditions. We find that the board applied the correct legal standard in reaching its conclusion.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Const 1963, art 6, § 28, MCL 418.861; MSA 17.237(861), Askew v Macomber, 398 Mich. 212; 247 NW2d 288 (1976), LaForest v Vincent Steel Processing, Division of Letts Industries, 59 Mich. App. 386; 229 NW2d 466 (1975), aff'd 395 Mich. 364 (1975).

[2] 1972 WCABO 1171, lv den Court of Appeals Docket No. 14,878 (1972), lv den 389 Mich. 756 (1972).