It’s true: ‘True majority’ WCAC decisions no longer required

When the Workers’ Compensation Appellate Commission reviews a magistrate’s decision concerning a comp claim, the long-standing law in Michigan has been that the WCAC must issue a “true majority” opinion — one in which a majority agrees in the result and the reasoning behind it.

Not any longer, the Michigan Supreme Court has ruled.

In Findley v. DaimlerChrysler Corp., a workers’ comp magistrate denied a benefits claim. The WCAC affirmed. The WCAC’s decision consisted of a lead opinion by one commissioner. The second commissioner concurred in the result only, without adopting the facts found in the lead opinion or making findings of his own. A third commissioner dissented.

The Michigan Court of Appeals vacated the WCAC decision. Citing MCL 418.274(8) and Aquilina v. General Motors Corp., 403 Mich. 206 (1978), the COA ruled in Findley, that “a true majority decision is one in which at least a majority of the commissioners agree regarding the material facts and the ultimate outcome.”

In making its ruling, the COA turned aside the defendant’s argument that Aquilina was good law when the Workers’ Compensation Appellate Board (the predecessor to the WCAC) reviewed cases de novo but the review standard now is “substantial evidence,” so true majorities are no long necessary.

Importantly, however, our review of the WCAC’’s findings remains the same as our previous review of the WCAB’s findings — we must determine if any competent evidence exists to support the WCAC’s findings. … Thus, the mere fact that the WCAC’s standard for reviewing a magistrate’s decision has changed since Aquilina was decided is simply not relevant to whether competent evidence supports the WCAC’s findings. And, in determining whether any competent evidence exists to support the WCAC’s findings, “we cannot discharge our reviewing responsibilities unless a true majority reaches a decision based on stated facts.” … To allow otherwise would be to corrupt the integrity of the administrative process. … Accordingly, the true-majority requirement articulated in Aquilina continues to be valid.”

Not true, ruled the MSC in a 4-3 order released late Friday. The MSC reversed the COA and reinstated the WCAC’s decision:

In contrast with the statutory mechanism in place at the time Aquilina was decided, the WCAC is now required to treat as conclusive the factual findings of the magistrate where those findings are “supported by competent, material, and substantial evidence on the whole record.” MCL 418.861a(3). Because the WCAC must now give deference to the magistrate’s factual determinations, and may no longer engage in de novo fact finding, a WCAC decision does not require a “true majority” “decision based on stated facts.”

Justice Michael Cavanagh, joined by Justice Marilyn Kelly, dissented.

Although the 1985 legislative amendments brought reforms to the Worker’’s Disability Compensation Act, as the Court of Appeals recognized, the review function of appellate courts remains the same. See, e.g., Holden v Ford Motor Co, 439 Mich 257, 262 (1992). And, even after the legislative amendments, this Court has generally recognized the importance of a “carefully constructed opinion by the WCAC” in facilitating appellate review. … Thus, under the facts of this case, I do not believe that the Court of Appeals clearly erred in applying Aquilina where, as in Aquilina, a commissioner in the majority did not issue a separate opinion but, instead, concurred only in the result reached by the lead opinion.

Cavanagh would have denied leave to appeal. Justice Diane Hathaway would have granted leave to appeal.

Senate to steamroll workers comp bill onto floor

The Michigan Association for Justice Facebook page reported yesterday afternoon that House Bill 5002, the bill to reform (or gut, depending on how you look at it) workers’ compensation will be voted out of committee today, then may proceed to the Michigan Senate floor for a vote.

Proponents of the bill say that it’s necessary to make Michigan’s workers’ compensation system sustainable. But opponents say it’s inhumane to injured workers, some of whom would have more difficulty getting benefits, and the benefits could be drastically reduced.

A footnote here – the reporters at Michigan Lawyers Weekly are not the journalists mentioned in the MAJ Facebook post.

**Update: The Senate on Wednesday passed HB 5002 with an amendment that would exempt police officers and firefighters from what critics call Draconian measures.

DELEG accepting applications for Workers’ Compensation Board of Magistrates

Applications for a position on the Workers’ Compensation Board of Magistrates are being accepted by the Workers’ Compensation Qualifications Advisory Committee of the Michigan Department of Energy, Labor & Economic Growth.

An applicant must be a member in good standing of the State Bar of Michigan and have five years of experience as an attorney in the field of workers’ compensation or pass a written examination. If there is any question as to whether the five years of experience has been met, applicants are encouraged to take the exam so as not to be deemed unqualified. The deadline for filing an application is Friday, April 29, 2011.

For more details, please see the agency’s website at go to “What’s New.”

Source: Michigan Department of Energy, Labor & Economic Growth

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Workers’ compensation group seeks candidates

Workers’ compensation attorneys have an opportunity to bring their expertise to a direct statewide level.

The Michigan Department of Energy, Labor & Economic Growth Workers’ Compensation Qualifications Advisory Committee (QAC) is accepting applications through May 14 for a spot on the Workers’ Compensation Appellate Commission.

Applicants must be a member in good standing of the State Bar of Michigan and have five years of experience as an attorney in the field of workers’ compensation or pass a written examination. A written exam will be given on May 21, 2010 in the Lansing area.

To learn more, call (517) 322-1106 or visit

Honest to a fault

“The plaintiff’s employment was terminated because he threatened to file a lawsuit against this company.”

Schmidt Industries’ extremely truthful response to Patrick Shelson’s interrogatories in a case where Shelson claimed he was canned in retaliation for exercising his rights under the workers’ comp act.

From the Court of Appeals unpublished decision in Shelson v. Schmidt Industries, Inc.:

According to plaintiff, defendant’s owner, David Schmidt, allegedly became quite upset on July 16 when he learned that plaintiff’s doctor did not release him to return to work until July 19, and told plaintiff that if he did not return to work the next day he would “suffer the consequence,” because “it was costing him entirely too much money for [plaintiff] to be on comp [sic].” Plaintiff was placed on light duty work upon his return to work on July 19, and Schmidt told him that he was not working fast enough and that he needed to “speed things up.” Plaintiff was heard threatening to sue defendant, and was thereafter discharged from his employment.

The jury found for Shelson on his retaliation claim.

The COA noted that on appeal, Schmidt raised “a myriad of issues, none of which challenge the evidence supporting the conclusion that plaintiff was discharged for exercising his rights under the WDCA.”

In particular, the COA ruled that Schmidt waived a contractual three-month limit on Shelson being able to sue by not raising the limitation defense until the suit was more than a year old and discovery had closed.

Seven reappointed to Workers’ Compensation Board of Magistrates

Governor Jennifer Granholm has announced seven reappointments to the Workers’ Compensation Board of Magistrates.

The following were named to additional four-year terms on the board:

  • Michael T. Harris of Okemos
  • Timothy M. McAree of Rockford
  • Thomas G. Moher of Sault Ste. Marie
  • Melody A. Paige of Fenton
  • Paul M. Purcell of Saginaw
  • George J. Quist of Grand Rapids
  • Joy A. Turner of Grosse Pointe Park

All terms expire Jan. 26, 2013.

Workers’ compensation magistrates hear administrative claims for benefits and resolve disputes arising under the Workers’ Disability Compensation Act.

The board functions within the Department of Energy, Labor and Economic Growth.

Under the state constitution, the Michigan Senate has 60 days to disapprove the reappointments.