BRUCE E ADRINE V EVENT STAFFING INC
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STATE OF MICHIGAN
COURT OF APPEALS
BRUCE E. ADRINE,
UNPUBLISHED
February 3, 2009
Plaintiff-Appellee,
v
EVENT STAFFING, INC., and ACCIDENT
FUND INSURANCE COMPANY OF AMERICA,
No. 281360
WCAC
LC No. 07-000022
Defendants-Appellants.
Before: Murray, P.J., and Markey and Wilder, JJ.
PER CURIAM.
I.
Introduction
This matter returns to this Court on remand from our Supreme Court for consideration as
on leave granted. Defendant employer and its insurer appeal a September 24, 2007 order of the
Worker’s Compensation Appellate Commission dismissing their appeal for failure to pay 70%
benefits to plaintiff during the pendency of their appeal to the WCAC. We reverse and remand
to the WCAC for reinstatement of defendants’ appeal and a decision on the merits. This appeal
has been decided without oral argument pursuant to MCR 7.214(E).
II.
Facts and Proceedings
Defendant Event Staffing employed plaintiff as a lineman on the Grand Rapids Rampage
Arena Football team. In February of 2006, plaintiff filed for worker’s compensation wage loss
and medical benefits for a January 18, 2006, left arm injury that occurred during a training camp
scrimmage when he was rushing the opposing team’s quarterback and was hit by an offensive
lineman. The magistrate granted plaintiff an open award of wage loss and medical benefits and
ordered defendant or its insurance carrier to “pay compensation at the rate of $637.84 per week,
until further order.”
Defendants filed a claim for review with the WCAC on January 31, 2007. On August 20,
2007, plaintiff moved to dismiss defendants’ appeal on the ground that, pursuant to MCL
418.862(1), although defendants were obligated to pay him 70% of his wage loss benefits
pending appeal, in April of 2007 defendants unilaterally, and without filing a petition to stop,
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ceased paying those benefits. Defendants admitted they had ceased paying benefits on April 15,
2007, acknowledged their error in doing so, and informed the WCAC that
[a] check for the accrued 70% payments were issued on August 17, 2007,
which is the same date that defense counsel received plaintiff’s motion. Payments
of appropriate 70% benefits will continue during the pendency of the appeal.
Despite defendants’ bringing themselves into compliance with MCL 418.862(1), the WCAC
summarily granted the motion to dismiss by order entered on September 24, 2007 “for failure to
pay 70% benefits . . . .” The WCAC denied defendants’ motion for reconsideration.
III.
A.
Analysis
Standard of Review
The first issue to be resolved is a procedural one. Defendants assert that this Court
reviews a WCAC decision dismissing an appeal under MCL 418.862(1) for an abuse of
discretion. They cite this Court’s decision in Dean v Great Lakes Casting Co, 78 Mich App 664,
668-669; 261 NW2d 34 (1977), in support of their assertion. See also Morin v DSS, 134 Mich
App 834; 352 NW2d 325 (1984). Plaintiff counters that MCL 418.861a(14) confers no authority
on this Court to review any decision of the WCAC for an abuse of discretion and, therefore, the
discretionary decisions of the WCAC are beyond appellate review. We hold that this Court has
original jurisdiction to review a decision of the WCAC dismissing an appeal pursuant to MCL
418.862(1) and reviews the ultimate decision to dismiss for an abuse of discretion.
This Court’s review of a decision of the WCAC is limited by constitution and the
Legislature, with the former conferring upon the latter the authority to adopt different standards
of review. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 698, 700; 614 NW2d 607
(2000); Rakestraw v General Dynamics Land Systems, Inc, 469 Mich 220, 224; 666 NW2d 199
(2003), reh den 469 Mich 1224 (2003); Holden v Ford Motor Co, 439 Mich 257, 268; 484
NW2d 227 (1992), reh den 439 Mich 1241 (1992).
Const 1963, art 6, § 28, confers original jurisdiction on this Court to review “[a]ll final
decisions, findings, rulings and orders” of the WCAC “as provided by law.” See also Owens v
Active Metal Co, 38 Mich App 234, 235; 196 NW2d 8 (1972) (The Court of Appeals has
exclusive original jurisdiction to review final orders of the Workmen’s Compensation Appeal
Board pursuant to Const 1963, art 6, § 28.). The September 24, 2007 order dismissing
defendants’ appeal is a final order of the WCAC. Pursuant to Const 1963, art 6, § 28, this Court
has jurisdiction to review that order of dismissal. Owens, supra.
The question then becomes what standard of judicial review is “provided by law.” It is
well established through the decisions of this Court and our Supreme Court that the abuse of
discretion standard of review applies to the appellate review of the decisions of the WCAC to
dismiss appeals on procedural grounds. Vidaurri v Mexican Industries in Michigan, Inc, 458
Mich 851; 587 NW2d 636 (1998); Tomblin v MNP Corp, 456 Mich 871; 569 NW2d 167 (1997);
Garcia v McCord Gasket Corp, 449 Mich 16, 31-32; 534 NW2d 473 (1995); Kocher v
Department of Transportation, 448 Mich 881; 533 NW2d 307 (1995); Laudenslager v Pendell
Printing, Inc, 215 Mich App 167, 171; 544 NW2d 721 (1996); Rodriguez v General Motors
Corp (On Remand), 204 Mich App 509, 513; 516 NW2d 105 (1994), lv den 447 Mich 1000
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(1994). This Court is bound by the rule of stare decisis to follow these decisions. Griswold
Properties, LLC v Lexington Ins Co, 276 Mich App 551, 563; 741 NW2d 549 (2007).
Moreover, Const 1963, art 6, § 28 provides that “direct review by the courts . . . shall
include, as a minimum, the determination whether such final decisions, findings, rulings and
orders are authorized by law.” The sanction of dismissal is necessarily implied from MCL
418.862(1). McAvoy v H B Sherman Co, 401 Mich 419, 461; 258 NW2d 414 (1977), reh den
402 Mich 953-954 (1977). The power to impose the sanction of dismissal conferred upon the
WCAC by implication is a discretionary power. Vidaurri, supra at 851; Tomblin, supra at 871;
Garcia, supra at 31-32; Kocher, supra at 881; Laudenslager, supra at 171; Rodriguez, supra at
513. If the decision whether to dismiss an appeal lies in the discretion of the WCAC, then in
order to determine whether the order was authorized by law, as provided for in Const 1963, art 6,
§ 28, it logically follows that an appellate court must determine whether the order is a product of
an abuse of the discretionary authority conferred upon the WCAC.
Nevertheless, if plaintiff is correct that the Legislature did not confer upon the appellate
courts any authority to review a decision of the WCAC for an abuse of discretion, such a
conclusion does not support plaintiff’s assertion that this Court lacks authority to review the
WCAC’s decision in this case. As noted above, this Court has original jurisdiction to review
“[a]ll final decisions, findings, rulings and orders” of the WCAC “as provided by law”, which
includes the order entered in this action. Const 1963, art 6, § 28 (emphasis added); see also
Owens, supra at 235. Unquestionably, review standards “provided by law” may be found in
MCL 418.861a(14). Our Supreme Court clarified those standards in Mudel. A decision to
dismiss an appeal for failure to comply with procedural rules can be reviewed to determine
whether the decision is supported by an adequate reason grounded in the record. Mudel, supra at
703.
Finally, to the extent that defendants’ challenge to the decision to dismiss their appeal
raises questions of law, this Court continues to exercise de novo review of questions of law
involved in any final order of the WCAC, which includes questions involving the construction of
the provisions of the Workers’ Disability Compensation Act and associated administrative rules.
Id. at 697 n 3; Rakestraw, supra at 224.
B.
The Merits
We now turn to defendants challenge to the WCAC’s decision dismissing their appeal for
failure to comply with MCL 418.862(1).
MCL 418.862(1) provides that the filing of a claim for review does not “operate as a stay
of payment to the claimant of 70% of weekly benefit required by the terms of the award of the
worker’s compensation magistrate or arbitrator.” Accordingly, “[p]ayment shall commence as of
the date of the worker’s compensation magistrate’s or arbitrator’s award, and shall continue until
final determination of the appeal or for a shorter period if specified in the award.” MCL
418.862(1).
The WCAC possesses the authority to dismiss an appeal for noncompliance with MCL
418.862(1), McAvoy v H B Sherman Co, 401 Mich 419, 460-462; 258 NW2d 414 (1977), but the
WCAC need not dismiss an appeal where circumstances present in the record justify a denial of a
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motion to dismiss, see e.g., Morin v DSS, 134 Mich App 834, 839; 352 NW2d 325 (1984)
(holding the WCAB is not required to dismiss an appeal “where there is substantial compliance
with the 70% rule and good cause can be shown for partial noncompliance” or where “payment
was initially made but then inadvertently terminated”). Further, reinstatement of appeals should
be freely allowed where the appellant has substantially complied with the 70% rule because the
“[r]einstatement of an appeal merely revives the opportunity for review and does not prejudice
either party on the merits or defense.” Dean v Great Lakes Casting Co, 78 Mich App 664, 668669; 261 NW2d 34 (1977).1
Defendants initially complied with MCL 418.862(1) by paying the required 70% of
benefits. They stopped payment on April 15, 2007 and did not reinstate payment of benefits
until August 17, 2007, after plaintiff moved for dismissal of their appeal. Concurrent with the
recommencing of payment, defendants paid past-due benefits owed between April 15th and
August 17th and promised to continue paying those benefits under the 70% rule during the
pendency of the appeal. In other words, defendants had brought themselves into compliance
with MCL 418.862(1) before the WCAC entertained plaintiff’s motion to dismiss and,
consequently, plaintiff’s rights under the 70% rule had been restored and vindicated. Under such
circumstances, the dismissal of the appeal served no purpose and neither party will be prejudiced
on the merits or defense if the appeal is reinstated. Dean, supra at 668-669.
In light of our disposition of this issue, we need not address defendants’ remaining
arguments.
The decision of the WCAC dismissing defendants’ appeal is reversed and this matter is
remanded to the WCAC for reinstatement of defendants’ appeal and for a decision on the merits.
We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
1
Neither party has questioned the “substantial compliance” rule.
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