Bullard v. TITUS CONSTRUCTION CO.

D. S. DeWitt, J. We granted defendants A. F. Murch Company’s and Pacific Employers Insurance Company’s application for rehearing in this case to consider whether we incorrectly ordered the case remanded to the Workers’ Compensation Appeal Board for a determination of whether plaintiffs two stepchildren are dependents in fact. We now conclude that remand was unnecessary. In this Court’s original opinion, 118 Mich App 631; 325 NW2d 521 (1982), we concluded that plaintiffs two stepchildren did not fit within the conclusive presumption of dependency set forth in MCL 418.353(l)(a)(ii); MSA 17.237(353)(l)(a)(ii). However, MCL 418.353(3); MSA 17.237(353X3) only permits an increase in the amount of disability payments when the number of conclusive dependents increases following the employee’s injury. The statute does not provide for an increase for those dependent in fact upon the injured employee. Therefore, it is irrelevant, for purposes of an increase, whether plaintiffs children are, in fact, dependent upon him. Furthermore, under Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981), reh gtd 414 Mich 1102; 323 NW2d 909 (1982), the issue of dependency is now moot. Gusler holds that only the maximum benefit is adjustable. Thus, plaintiffs benefits will not exceed two-thirds of plaintiffs average weekly wage irrespective of whether plaintiff has none or three dependents. The order remanding this case to the appeal board for a determination of whether plaintiff’s children are dependents in fact is vacated. This case is remanded to the appeal board for further proceedings not inconsistent with this opinion.