CHARLES E HESSEL V CHIPPEWA REGIONAL CORRECTIONAL FACILITY
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLES E. HESSEL,
UNPUBLISHED
June 12, 2008
Plaintiff-Appellee,
v
No. 272179
WCAC
LC No. 03-000436
CHIPPEWA REGIONAL CORRECTIONAL
FACILITY,
Defendant-Appellant.
Before: Servitto, P.J., and Cavanagh and Kelly, JJ.
PER CURIAM.
Defendant appeals by leave granted a decision of the Worker’s Compensation Appellate
Commission (WCAC), modifying the magistrate’s decision regarding plaintiff’s entitlement to
benefits pursuant to the Worker’s Disability Compensation Act, MCL 418.301 et seq. We vacate
and remand.
I. Basic Facts and Proceedings
Plaintiff suffered an ankle injury in 1997 while working for defendant. He successfully
filed a complaint for worker’s compensation benefits. Plaintiff returned to light duty work for a
period of time, but stopped working for defendant in March 2002, when he had a second surgery
on his ankle. Plaintiff filed a petition for benefits in January 2003, alleging a new injury date of
March 22, 2002.
After stopping work for defendant, plaintiff worked as a high school coach and as a golf
professional in Drummond Island, Michigan. At Drummond Island Resort, plaintiff worked as a
“director”, where he managed, promoted, and taught golf lessons. He earned approximately
$1,000 a season as a coach and about $1,000 a week in his job as a golf professional. The golf
course is generally open May 1 through October 12.
The magistrate found that plaintiff had established an injury to his ankle on March 22,
2002, but plaintiff had not established a compensable disability. He noted that plaintiff
demonstrated that he is an accomplished golfer and teaches golf, earning about $1,000 a week in
his employment with Drummond Island Resort. The magistrate also found that plaintiff
“unreasonably refused to return to reasonable employment as offered by defendant on two
occasions.”
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Plaintiff appealed the magistrate’s decision to the WCAC. The WCAC remanded the
matter to the magistrate to make a determination regarding whether plaintiff was entitled to
benefits under Sington v DaimlerChrysler Corp, 467 Mich 144; 648 NW2d 624 (2002). Hessel v
Chippewa Regional Correctional Facility, 2005 ACO 37, at 10. On remand, the magistrate
found that plaintiff was unable to perform the regular duties of his former position with
defendant and was entitled to benefits. The magistrate concluded that plaintiff’s position at
Drummond Island Resort was within his qualifications and training but paid less than the
maximum wage on an annual basis. Therefore, the magistrate ruled that plaintiff was disabled
under Sington, supra.
After remand, defendant appealed to the WCAC, questioning whether plaintiff had
satisfied his burden of proof that he suffered a compensable disability under Sington. The parties
essentially disputed whether, in working as a golf professional, plaintiff made more or less than
the maximum wage he earned based on his qualifications and training, that is, the amount he
made while working for defendant. Defendant argued that plaintiff’s average weekly wage of
about $1,000 as a golf professional was more than the average weekly wage he earned working
for defendant. Defendant asserted that the fact that plaintiff’s job was seasonal was irrelevant
because the wages are calculated on a weekly rather than annual basis. Plaintiff argued, on the
other hand, that because his work as a golf professional is seasonal, his wage-earning capacity is
less than it was when he was working for defendant before his injury.
The parties referred to a recent WCAC decision, Stokes v DaimlerChrysler Corp, 2006
Mich ACO 24. Hessel v Chippewa Regional Correctional Facility (After Remand), 2006 ACO
128, at 6-9. Considering the arguments in light of Sington and Stokes, the WCAC found plaintiff
disabled under Sington. Id. at 10. However, it also found that he had “unreasonably refused
reasonable employment” and declared that he is not entitled to wage loss benefits until he ends
this refusal. Id. In a July 6, 2006, order, the WCAC modified the initial magistrate’s decision.
Id. at 10-11. This Court granted defendant’s application for leave to appeal. Hessel v Chippewa
Regional Correctional Facility, unpublished order of the Court of Appeals, entered March 9,
2007 (Docket No. 272179).
II. Analysis
Defendant argues in part that the WCAC’s decision must be vacated because it does not
reflect a true majority of the WCAC panel. We agree.
This Court may review questions of law involved with any final order of the WCAC.
MCL 418.861a(14); Holden v Ford Motor Co, 439 Mich 257, 269; 484 NW2d 227 (1992). The
WCAC’s decision may be reversed if it operated within the wrong legal framework or based its
decision on erroneous legal reasoning. MCL 418.861a(14); DiBenedetto v West Shore Hosp, 461
Mich 394, 401-402; 605 NW2d 300 (2000).
MCL 418.274(8) states, “The decision reached by a majority of the assigned 3 members
of a panel shall be the final decision of the commission.” In Aquilina v Gen Motors Corp, 403
Mich 206, 208-209, 212; 267 NW2d 923 (1978), our Supreme Court reviewed a decision of the
Worker’s Compensation Appeal Board, in which one member authored the “controlling
opinion”, two members concurred with the result, one member dissented, and the fifth member
concurred with the dissent. Notably, the two concurring members did not issue opinions. Id. at
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209. The relevant statute, MCL 418.261(2),1 which was identical to § 274(8) in all relevant
respects, provided in relevant part that “The decision reached by a majority of the assigned 5
members shall be the final decision of the board.” Id. at 212. The Court instructed:
[W]e cannot discharge our reviewing responsibilities unless a true majority
reaches a decision based on stated facts. A decision is not properly reviewable
when some of the majority concur only in the result and do not state the facts
upon which that result is based. We must ask the Board members to make a
finding regarding all critical or crucial facts as well as the result when they choose
not to sign the controlling opinion.
We would also encourage concurring Board members to articulate
whether or not they agree with the legal standard and the rationale employed in
reaching the decision. While we are mindful that this process of articulation may
prove burdensome at times, it will most certainly assist the appellate courts of this
state in effectively discharging their responsibilities in these matters. [Aquilina,
supra at 214.]
After remand, the WCAC in the instant case determined that the work plaintiff performed
as a golf professional after his injury:
was not a part of plaintiff’s fully developed qualifications and training as of
plaintiff’s date of injury. Under these circumstances, it does not matter whether
plaintiff’s maximum earnings were with defendant or Drummond Island Resort.
***
Even if the golf professional position was within plaintiff’s qualifications and
training on the date of injury, it was not reasonably available as a maximum
paying job because of its seasonal nature.
Under these circumstances, it becomes obvious that plaintiff has a
disability pursuant to the Sington standards because his maximum earnings within
his qualifications and training as of March 2002, were his earnings with
defendant. [Hessel (After Remand), supra at 9-10.]
The WCAC issued an opinion signed by one member of the three-member panel. A
second panel member concurred only in the result, and the third member concurred in the result
“but only because he believe[ed] that the law of the case doctrine mandate[d] this result.” To the
extent the WCAC reviewed the magistrate’s findings of fact and made its own factual
determinations, by failing to issue a true majority decision, it did not properly make findings
regarding the facts. Aquilina, supra at 212-214. Pursuant to Aquilina, the decision must be
1
MCL 418.261 was repealed by 1989 PA 115, effective June 30, 1991.
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vacated and the matter must be remanded to the WCAC to make proper findings of fact. Id. at
214.
Given our resolution of this issue, it is not necessary to address the other issues raised in
defendant’s appeal.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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