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01/26/76 DAVIS v. MERRILL SCHOOL SYSTEM

January 26, 1976

DAVIS
v.
MERRILL SCHOOL SYSTEM



Appeal from Workmen's Compensation Appeal Board.

Leave to appeal applied for.

Allen, P. J., and Bronson and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. Workmen's Compensation -- Limit on Compensation -- Wage-Earning Capacity -- Average Weekly Earnings -- Actual Earnings.

A section of the Workmen's Compensation Act which provides that compensation payable for an injury, when added to a claimant's wage-earning capacity after the injury, shall not exceed the claimant's average weekly earnings at the time of the injury does not prohibit awarding a claimant an amount greater than the claimant was actually making in the employment in which he was injured (MCLA 418.371[1]; MSA 17.237[371][1]).

2. Workmen's Compensation -- Average Weekly Wage -- 40-Hour Week.

The average weekly wage of a claimant for workmen's compensation may be less than 40 times his hourly rate of wage where the established normal work week for the employee's classification of employment in the establishment of the employer where the employee suffered a personal injury is less than 40 hours (MCLA 418.371[2]; MSA 17.237[371][2]).

3. Workmen's Compensation -- Average Weekly Wage -- Special Circumstances.

Where there are special circumstances under which the weekly wage of a claimant for workmen's compensation cannot justly be determined by applying other provisions of the Workmen's Compensation Act, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying such daily wage by the number of working days customary in the employment, but not less than five (MCLA 418.371[5]; MSA 17.237[371][5]).

4. Workmen's Compensation -- Part-Time Employment -- Disabling Injury -- Average Weekly Wage.

In a workmen's compensation case against a school system, arising out of a disabling injury to a teacher of an adult education class in upholstery, a determination that $11.88 is the average weekly wage of the claimant teacher is unjust where the injury occurred during her part-time employment but it prevented her from pursuing her full-time employment as an upholsterer and where the claimant teacher actually earned well over $100 a week in both her employments; therefore, the average weekly wage of the claimant teacher, who was paid $11.88 a night and who worked one night a week, is to be calculated by multiplying the claimant teacher's daily wage of $11.88 by 5, resulting in an average weekly wage of $59.40 (MCLA 418.371[5]; MSA 17.237[371][5]).

The opinion of the court was delivered by: Maher

Claim by Ethel L. Davis against Merrill School System and Hartford Insurance Company for workmen's compensation. A referee's order awarding compensation was modified by the Workmen's Compensation Appeal Board. Defendant appeals by leave granted.

Plaintiff was injured while teaching an adult education class. The Workmen's Compensation Hearing Referee determined that plaintiff's average weekly wage was $59.40, entitling her to compensation of $39.60 per week. The appeal board modified the decision of the hearing referee by establishing plaintiff's average weekly wage at ...


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