Moore v. Prestige Painting

745 N.W.2d 816

277 Mich. App. 437

Scott R. MOORE, deceased, and Jessica Douglas, Plaintiffs-Appellees, v. PRESTIGE PAINTING and Construction Association of Michigan, Defendants-Appellants.

Docket No. 274252.

Court of Appeals of Michigan.

Submitted December 12, 2007, at Detroit.

Decided December 27, 2007, at 9:05 a.m.

Released for Publication February 28, 2008.

James N. McNally, St. Clair Shores, for the plaintiffs.

Robert W. Macy (Daryl Royal, of counsel), Clinton Twp., Dearborn, for the defendants.

Before: SAAD, P.J., and OWENS and KELLY, JJ.

PER CURIAM.

This case returns to this Court on remand from our Supreme Court, which has asked us to determine "whether the Workers' Compensation Appellate Commission erred in holding that the decedent had `deserted' the plaintiff's daughter, so as to make the daughter a conclusive dependent under the second sentence of MCL 418.331(b)." Moore v. Prestige Painting, 477 Mich. 927, 723 N.W.2d 455 (2006). We conclude that decedent Scott Moore did not desert his daughter, Jamie Douglas, and, as a result, Jamie was not a conclusive dependent pursuant to MCL 418.331(b).

I. Facts and Procedural History

This case arises from the death of Scott Moore during the course of his employment as a painter with defendant Prestige Painting. Jessica Douglas, Moore's former girlfriend and Jamie's mother, initiated this action to recover workers' compensation death benefits from defendants on behalf of Jamie. See MCL 418.321. In her August 14, 2002, opinion, the magistrate recounted the factual background of this case as follows:

There is no real dispute that Scott R. Moore died as a result of electrocution arising out of and in the course of his employment on September 27, 1998. An incident report filled out by the Oakland County Sheriff's Department reflected that Mr. Moore had been painting at Sycamore Creek Apartments in Orion, Michigan when a gust of wind caused him to lose control of an aluminum ladder he was carrying. The ladder made contact with electrical wires and Mr. Moore was electrocuted just before 4:00 pm and died shortly thereafter.

[Douglas] testified she had an exclusive relationship with Scott Moore and lived with him off & on after she became pregnant. During the course of their relationship, Ms. Douglas worked as a paramedic with Concord EMS. She continued to live with Mr. Moore for weeks or months at a time following the birth of her daughter Jamie on April 22, 1998. Ms. Douglas returned to work part-time at Concord EMS after Jamie was born. She testified she and Mr. Moore stopped living together six weeks before he died.

Moore filed a complaint to determine Jamie's paternity on May 29, 1998, presumably when the couple still lived together. Douglas admitted that she moved from Moore's home with Jamie about six weeks before he died, which would have been in mid-August 1998. Although Moore contributed to household expenses when he and Douglas lived together, Douglas claimed that Moore did not provide financial support for her or Jamie after they left. Regardless, Douglas acknowledged that Moore continued to be "a father" to Jamie in the weeks before his death. Moore provided a deoxyribonucleic acid (DNA) specimen for testing to determine whether he was Jamie's father on August 25, 1998, approximately one month before his death. The test results indicated that the probability that Moore was Jamie's father was 99.96 percent.¹

The magistrate concluded that Moore was Jamie's father. The magistrate's August 14, 2002, opinion stated:

The Workers' Compensation Board of Magistrates may make a determination of paternity relating to a child's claim for workers' compensation benefits. Mr. Moore filed a paternity complaint on May 29, 1998 in Wayne County Circuit Court. In connection with that action, blood samples were collected from Mr. Moore, Ms. Douglas and Jamie Douglas. Mario Scarpetta, Ph.D., performed DNA testing on the specimens on September 3, 1998, establishing [that] Scott Moore could not be excluded as the biological father of Jamie Douglas and the probability that he was her father was 99.96%. According to Ms. Douglas, Mr. Moore died five days before there was to be a trial on the paternity issue. I find the testimony of Dr. Scarpetta sufficient to establish that Jamie Douglas is the daughter of Mr. Moore even though the matter was never adjudicated by the Circuit Court.

The magistrate then ruled that Jamie was entitled to workers' compensation death benefits. In so doing, the magistrate noted that Jamie's illegitimacy was of no consequence because, pursuant to Bettelon v. Metalock Repair Service, 137 Mich.App. 448, 452, 358 N.W.2d 608 (1984), illegitimate children must be treated the same as legitimate children for purposes of awarding workers' compensation death benefits.

Defendants appealed the magistrate's decision to the Workers' Compensation Appellate Commission (WCAC). The WCAC reversed, ruling that pursuant to MCL 418.353(1)(a)(ii), "only children under 16 living with the employee at the time of injury are conclusively presumed to be dependents," and that because Jamie was not living with Moore at the time of his death, she was "not a conclusive dependent of Mr. Moore...."² The WCAC also concluded that Jamie was not a "factual dependent" of Moore because she did not receive any financial support from Moore after Douglas and Jamie moved from Moore's home.

The WCAC also considered an argument raised by defendants regarding the admissibility of Scarpetta's testimony.³ The WCAC concluded:

We are persuaded and agree with defendant that the magistrate erroneously stated that Dr. Scarpetta "performed DNA testing on the specimens on September 3, 1998, establishing Scott Moore could not be excluded as the biological father of Jamie Douglas ... [.]" We are further persuaded that the magistrate's belief and reliance on that statement is not supported by the competent, material, and substantial evidence on the whole record.

We carefully examined the record and[,] while duly cognizant of the deference to be given to the decision of the magistrate[,] find grounds for reversal upon application of MCL 418.353 to the found facts of this case.

Plaintiffs sought leave to appeal the WCAC's decision in this Court, which granted leave. On plenary review, this Court reversed the WCAC's finding that Jamie was not a dependent and reinstated the award of benefits. This Court stated:

The WCAC erroneously applied the definition of a dependent provided by § 353(1)(a)(ii) as opposed to the somewhat different definition set forth by § 331(b). The language of § 353(1)(a)(ii) indicates that a child under sixteen years of age must be living with his or her parent at the time of the work-related injury in order to be presumed a dependent. However, a careful reading of MCL 418.331(b) shows that the conclusive presumption of § 331(b) applies to any child under sixteen years old. The absence of a comma between "earning" and "upon," in the first sentence of § 331(b), indicates that the requirement that the child be living with the employee at the time of the death applies only to children over sixteen years of age who are physically or mentally incapacitated from earning. Further, the later language of § 331(b) indicates that a living child by a former spouse is conclusively presumed dependent upon the employee if that child is under the age of sixteen. A parent is legally obligated to support both his legitimate and illegitimate offspring. Bettelon, supra at 452, 358 N.W.2d 608. To require payment of dependent benefits to the children of former spouses (i.e., legitimate children) yet deny those benefits to illegitimate offspring would violate constitutional equal protection guarantees. Id. at 452-453, 358 N.W.2d 608. [Moore v. Prestige Painting, 264 Mich. App. 123, 131-132, 689 N.W.2d 758 (2004), vacated 473 Mich. 860, 699 N.W.2d 303 (2005).]

This Court also reversed the WCAC's decision regarding Scarpetta's testimony, stating:

[W]e conclude that, to the extent the WCAC's opinion could be read as reversing the magistrate's finding of paternity, such a reversal was a misapplication of its appellate role.... Here, Scarpetta's deposition testimony established the reliability of the test results by describing the standard procedures followed by his laboratory and identifying the documents showing that those procedures had been followed. Given that the magistrate was not bound by the rules of evidence, and given Scarpetta's testimony establishing the reliability of the test results, the WCAC, to the extent it found Scarpetta's testimony inadmissible or unreliable, did not review the magistrate's decision to admit this evidence for an abuse of discretion, but instead made its own, erroneous determination of admissibility. [Id. at 132, 689 N.W.2d 758.]

Defendants sought leave to appeal this Court's decision before the Supreme Court. On July 14, 2005, the Supreme Court issued the following order:

In lieu of granting leave to appeal, the decision of the Court of Appeals is vacated. The first sentence of MCL 418.331(b) confers a conclusive presumption of dependency only on a child who was living with the parent at the time of the parent's death. The matter is remanded to the Worker's Compensation Appellate Commission to determine whether plaintiff met her burden of proving that her daughter is the child of the decedent and, if so, whether the daughter is a conclusively presumed dependent under any other provision of MCL 418.331(b). [Moore v. Prestige Painting, 473 Mich. 860-861, 699 N.W.2d 303 (2005) (citation omitted).]

On remand, the WCAC affirmed the magistrate's determination of paternity. The WCAC explained:

Assuming, arguendo, that [the] law of the case [doctrine] would preclude this panel of the Commission from reinstating the DNA testimony as evidence of paternity, we will refrain from doing so. Instead we will look to the other evidence of paternity to make our...