Dries v. Chrysler Corp.

402 Mich. 78 (1977)

259 N.W.2d 561

DRIES v. CHRYSLER CORPORATION

Docket No. 58463.

Supreme Court of Michigan.

Decided November 28, 1977.

Ripple, Chambers & Steiner, P.C. for plaintiff.

Lacey & Jones (by John L. Salter) for defendant.

PER CURIAM:

A hearing referee found that plaintiff had been disabled by a work-related injury sustained on May 31, 1968. Benefits were limited to the period before January 19, 1971. Plaintiff filed a timely application for review of claim on November 28, 1975. The Worker's Compensation Appeal Board dismissed the appeal on January 21, 1976 because plaintiff had not filed a transcript of the proceedings before the hearing referee.

Plaintiff claims on appeal that the WCAB does not have the power to dismiss a case for failure to *79 provide a transcript. We disagree. Under MCLA 418.261; MSA 17.237(261), the board has the authority to make rules on appellate procedure. The board adopted Worker's Compensation Appeal Board Rule 19, 1959 AACS, R 408.49, which requires that the appealing party file a transcript within 30 days of the filing of the claim for review. The power to dismiss appeals for failing to comply with Rule 19 is necessarily implied from the statute granting the board the authority to make rules on appellate procedure. The power to dismiss is essential to the enforcement of these procedural rules. See McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), in which it was held that the WCAB's power to dismiss appeals for noncompliance with 1975 PA 34 is necessarily implied in that statute.

The remaining claims made by plaintiff are that he substantially complied with Rule 19 and that dismissal of his appeal violates due process. The WCAB gave plaintiff notice that his appeal would be dismissed unless the transcript or a letter from the court reporter showing it had been ordered was received within 30 days of the notice. We are not persuaded that the procedure used here violates the appealing party's due process rights.

Plaintiff's claim that he substantially complied with Rule 19 is a factual matter which has not yet been heard by the board. The case is remanded for a hearing before the WCAB on the question whether plaintiff substantially complied with Rule 19. At the conclusion of the hearing, the board shall make findings of fact concerning plaintiff's attempts to obtain a transcript and determine whether or not he substantially complied with Rule 19. We do not retain jurisdiction.

KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, *80 FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.