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04/06/76 MCDONALD v. CHRYSLER CORPORATION

April 6, 1976

MCDONALD
v.
CHRYSLER CORPORATION



Appeal from Workmen's Compensation Appeal Board.

Leave to appeal denied, 397 Mich 831.

M. F. Cavanagh, P. J., and R. B. Burns and Quinn, JJ.

SYLLABUS BY THE COURT

1. Workmen's Compensation -- Statutes -- Dependency -- Presumption of Dependency -- Deceased Employees -- Injured Employees -- Constitutional Law -- Equal Protection.

A provision in the Workmen's Compensation Act which extends to a widow who was living apart from her husband for justifiable cause or because he had deserted her a conclusive presumption of dependency upon a deceased employee while no similar presumption is granted for the wife of an injured workman, is not an unreasonable distinction nor a violation of equal protection of the laws; public policy requires that the state maintain an attitude of solicitude toward widows, and, as the widow is the only source of competent non-hearsay testimony as to the issue of justifiable cause for living apart, no purpose is served by denying the presumption, whereas if the disabled employee is also available to provide such evidence the presumption should not be automatically granted (MCLA 418.331, 418.353; MSA 17.237[331], 17.237[353]).

2. Workmen's Compensation -- Dependency -- Presumption of Dependency -- Statutes -- Deceased Employees -- Injured Employees -- Intent of Legislature.

An injured workman who is amicably separated from his wife so that his family can establish eligibility for public assistance is not "living with" his wife and children within the meaning of a section of the Workmen's Compensation Act providing benefits for dependents of injured workmen; because the act provides a presumption of dependency for widows living apart for justifiable cause but provides no such presumption for wives of injured employees, the maxim that the inclusion of one thing is the exclusion of another leads to the Conclusion that the Legislature intentionally varied the applicable sections of the act (MCLA 418.331, 418.353; MSA 17.237[331], 17.237[353]).

The opinion of the court was delivered by: Burns

Claim by Jimmie F. McDonald against Chrysler Corporation for workmen's compensation. Compensation granted. The Workmen's Compensation Appeal Board denied dependency benefits. Plaintiff appeals by leave granted.

Plaintiff appeals from an adverse decision of the Workmen's Compensation Appeal Board reversing its hearing referee and denying dependency benefits.

Plaintiff's left hand was amputated as the result of a die press accident while he was working for defendant. At the time of the accident, plaintiff had been living apart from his wife for two or three years. Plaintiff's uncontroverted testimony was that this separation was amicable and motivated by economic considerations; specifically, that he absented himself from the home in order to enable his family to establish eligibility for public assistance. He testified that he regularly visited his family and that he gave his wife whatever money he could manage from his sporadic employment throughout the period of separation.

We granted leave in part to consider a discrepancy between two sections of the Workmen's Compensation Act, and invited the parties to brief the following question:

"Does the provision in the Workmen's Compensation Act, extending the conclusive presumption of dependency upon a deceased employee to a wife who 'was living apart [from her husband] for justifiable cause or because he had deserted her', MCLA 418.331; MSA 17.237(331), whereas no similar provision is made for the wife of an injured workman, MCLA 418.353; MSA 17.237(353), deny plaintiff the equal protection of the laws?"

The "injured workman" statute, MCLA 418.353; MSA 17.237(353), only grants the conclusive presumption of dependency if the wife is "living with" the workman as of the date of injury; the "living apart for justifiable cause" provision is not contained in this section of the statute. The statute further provides, however, that a wife (and children) not living with the injured workman may, although not afforded the presumption, still ...


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