JOSEPH A BARNOWSKY V GENERAL MOTORS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH A. BARNOWSKY,
UNPUBLISHED
December 21, 2001
Plaintiff-Appellant,
V
No. 231169
WCAC
LC No. 00-000183
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
Before: K.F. Kelly, and Hood and Zahra, JJ.
ZAHRA, J. (dissenting).
I respectfully dissent. I conclude that plaintiff is barred recovery on his second petition
for payment in connection with treatment for his mental disability because he failed to timely
appeal the magistrate’s initial order.
Plaintiff’s original petition sought payment for treatment in connection with a wrist
condition and a mental disability. The magistrate’s order was silent in regard to payment in
connection with the mental disability.1 Plaintiff failed to timely appeal that order. As such,
plaintiff’s cross-appeal to the WCAC on the issue was denied. Thereafter, plaintiff filed a
second petition, which was heard by the same magistrate that ruled on the original petition.
The procedure followed by plaintiff resulted in the magistrate reviewing itself. I
conclude that such a result is untenable. Plaintiff was afforded the opportunity to appeal the
magistrate’s original ruling to the WCAC, but failed to do so in a timely manner. As a result, I
1
I disagree with the majority’s characterization of the magistrate’s failure to provide for payment
relative to plaintiff’s mental disability as a mere “clerical error,” “clerical mistake,” or
“oversight.” The definition of the term “clerical error” found in Black’s Law Dictionary (7th ed)
limits such error to mistakes in writing or copying and specifically excludes inadvertence in
judicial reasoning or determination. In ruling on plaintiff’s second petition, the magistrate
indicated that the issue of costs associated with plaintiff’s mental disability was previously
inadvertently not decided. The magistrate’s failure to decide the specific issue of costs is
distinguishable from entry of an erroneous amount of the costs as the result of a clerical error. In
this case, there was no clerical submission in regard to costs associated with plaintiff’s mental
disability. Thus, any error committed by the magistrate was a legal error rather than a clerical
error, review of which is limited to timely appeals before the WCAC.
-1-
conclude that plaintiff’s issue was forfeited.2 To hold otherwise would allow a party that lacks
diligence in pursuit of an appeal to avoid the WCAC rule barring untimely appeals, R 418.4(3),
simply by refilling the case before the magistrate. Moreover, it is clear in this case that plaintiff
recognized the need to appeal the magistrate’s initial ruling to the WCAC given that he filed a
cross-appeal to the WCAC, albeit untimely. I would affirm the WCAC’s decision in this case.
/s/ Brian K. Zahra
2
I flatly disagree with the majority’s statement that “Nothing in the record remotely suggests
that a lack of due diligence caused plaintiff’s untimely filing in the case sub judice.” It is
disingenuous to suggest that plaintiff was not aware of the magistrate’s failure to make any
provision for costs associated with plaintiff’s mental disability until the filing of the second
petition before the magistrate. Plaintiff’s prior cross-appeal specifically challenged the
magistrate’s failure to grant benefits for his mental condition. Thus, it is patently clear that
plaintiff had prior knowledge of the magistrate’s error and simply failed to timely pursue an
appeal.
-2-
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