LARRY H GOLDSTEIN V DAIRY MART
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STATE OF MICHIGAN
COURT OF APPEALS
LARRY H. GOLDSTEIN,
UNPUBLISHED
December 13, 2002
Plaintiff-Appellant,
No. 234330
WCAC
LC No. 99-000514
v
DAIRY MART and ROYAL INSURANCE
COMPANY,
Defendants-Appellees,
and
MICHIGAN DEFENSE TRIAL COUNSEL,
Amicus Curiae.
Before: Talbot, P.J., and Neff and Fitzgerald, JJ.
PER CURIAM.
Plaintiff appeals by leave granted an order of the Worker’s Compensation Appellate
Commission (WCAC) reversing a magistrate’s award of benefits. In light of this Court’s
disposition in McComber v McGuire Steel Erection, Inc, 251 Mich App 491; 650 NW2d 416
(2002), lv pending, we vacate the April 27, 2001, opinion of the WCAC and remand the case to
the WCAC for additional analysis pursuant to the standards enunciated in McComber.1
This case involves plaintiff’s failure to comply with certain requirements when applying
for benefits under the worker’s disability compensation act (the act). MCL 418.101, et seq. At
issue is the requirements in MCL 418.222 that an application for hearing or mediation contain
information regarding any employment the claimant had subsequent to the date of the injury and
that the claimant provide the carrier with any relevant medical records in the claimant’s
possession at time of the filing of an application. A party who willfully fails to comply with
§ 222 is prohibited from proceeding under the act.
1
Although our dissenting colleague states that “the parties agreed during oral argument that the
record is adequate for review,” we respectfully disagree because we do not feel that the record is
adequate to allow a meaningful McComber analysis.
-1-
Plaintiff claimed a work-related aggravation of his right upper extremity and injury to his
back, spine, and neck. Plaintiff’s application for benefits did not reference an earlier neck injury
for which he had undergone surgery and which disabled him from work for eighteen months.
Plaintiff provided defendants with the medical records for that injury nearly two years after he
applied for benefits in the present case. Defendants moved to have the application dismissed on
the basis of a § 222 violation, but the magistrate denied that request.
After remanding the matter to the magistrate, the WCAC rejected the magistrate’s
findings and denied plaintiff’s request for benefits for violating § 222 by failing to disclose the
names of his initial medical providers. This Court granted plaintiff’s application and
consolidated it with the then-pending McComber appeal. The instant appeal, however, was
stayed upon notice of Dairy Mart’s filing of bankruptcy. The cases were disconsolidated and the
opinion in McComber was issued. In the meantime, this Court reopened the instant matter upon
request of the parties.
This Court’s review of worker’s’ compensation cases is limited. Woodman v Meijer
Companies Ltd, Inc, 250 Mich App 598, 603; 649 NW2d 109 (2002). While the WCAC reviews
the magistrate’s decision under the “substantial evidence” standard, this Court reviews the
WCAC’s decision under the “any evidence” standard. Mudel v Great A & P Tea Co, 462 Mich
691, 709; 614 NW2d 607 (2000). This Court’s review begins with the WCAC’s decision, not
the decision of the magistrate. Id. If any evidence exists to support the WCAC’s factual
findings, and if the WCAC did not misapprehend its administrative role in reviewing decisions
of the magistrate, then the courts must treat the WCAC’s factual findings as conclusive. Id. at
709-710.
Whether a willful violation occurred constitutes a question of fact. See Bazinau v
Mackinac Island Carriage Tours, 233 Mich App 743, 754; 593 NW2d 219 (1999). The
magistrate here found that plaintiff’s noncompliance was not willful. The WCAC must consider
the magistrate’s findings of fact conclusive if they are supported by competent, material and
substantial evidence on the entire record. MCL 418.861a(3); Mudel, supra 698-699.
Nonetheless, the WCAC may substitute its own finding of fact where substantial evidence on the
whole record does not exist to support the magistrate’s finding. Id.
This Court recently interpreted § 222’s phrase “the willful failure of a party to comply” in
relation to a plaintiff’s failure to comply in McComber, supra. This Court gave that phrase its
plain and ordinary meaning and determined that a party is prohibited from proceeding under the
act “should a party consciously, intentionally or deliberately fail to provide information or
materials required by § 222.” McComber, supra at 499. The McComber Court rejected the
plaintiff’s argument that “willfulness” requires a pattern of repeated nondisclosure. This Court
decided that a conscious, intentional, or deliberate nondisclosure should not be excused simply
because it was the first act of noncompliance. Id.
The McComber plaintiff had failed to include on his application for benefits the fact that
he had worked for less than one month for another employer after he had sustained his injury at
his employment with the defendant-employer. The record reflected, however, that the plaintiff
had disclosed that employment with his legal counsel and apparently counsel had neglected to
include that information on the plaintiff’s application. The record evidence did not show that the
plaintiff knew that the application did not disclose the employment information. Id. at 493-494.
-2-
This Court determined that in the absence of evidence that the plaintiff had known of the
omission, it was equally plausible that the plaintiff had made a mistake or was careless in
reviewing the application. This Court declined to rule that willful noncompliance existed where
no evidence supported the WCAC’s finding that the plaintiff had willfully failed to disclose his
subsequent employment. Id. at 500-501. Because the WCAC in the present case did not have
the benefit of the McComber analysis, we vacate the WCAC’s order and remand to the WCAC
for reconsideration in light of McComber.
Vacated and remanded to the WCAC for further proceedings consistent with this opinion.
Jurisdiction is not retained.
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
-3-
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