Kihrotris v. Ford Motor Co.

454 N.W.2d 218, 183 Mich. App. 367
CourtMichigan Court of Appeals
DecidedApril 16, 1990
DocketDocket 112562, 112581
StatusPublished
Cited by3 cases

This text of 454 N.W.2d 218 (Kihrotris v. Ford Motor Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kihrotris v. Ford Motor Co., 454 N.W.2d 218, 183 Mich. App. 367 (Mich. Ct. App. 1990).

Opinion

*369 Griffin, P.J.

In this consolidated appeal, defendants Ford Motor Company and Second Injury Fund (sif) appeal by leave granted from a decision of the Workers’ Compensation Appeal Board which held that Ford was not entitled to a credit against the amount it was found to owe plaintiff based on "seventy percent benefits” paid to plaintiff by the sif while the case was on appeal before the wcab. 1 The opinion further held that the sif was not entitled to reimbursement from Ford for the seventy percent benefits it paid to plaintiff, despite the fact that plaintiff’s injuries did not warrant payment of differential benefits by the sif. We reverse.

i

Plaintiff sustained injuries, including a fractured left wrist, when he fell at work on July 27, 1971. Plaintiff apparently continued to work until August 16, 1974, his last day of work. Plaintiff filed a petition for benefits March 11, 1976, claiming disability as a result of injuries sustained during the fall. He filed an amended petition on March 17, 1977, claiming both general disability from injuries sustained in the fall and total and permanent disability based on incurable insanity related to his. work.

In a decision mailed April 27, 1978, a hearing referee awarded plaintiff continuing benefits based upon his 1971 injury and a disabling aggravation of the injury as of August 16, 1974. The referee also found plaintiff incurably insane, thus making plaintiff totally and permanently disabled and making the sif responsible for differential benefits pursuant to MCL 418.521(2); MSA 17.237(521)(2).

Plaintiff’s employer, Ford, had been paying bene *370 fits to plaintiff at the 1971 rate even before the hearing referee’s decision. After the referee’s decision, both Ford and the sif, pursuant to MCL 418.862; MSA 17.237(862), commenced paying plaintiff seventy percent of the awarded benefits while they appealed the case to the wcab.

The wcab on February 25, 1981, affirmed the portion of the referee’s decision finding plaintiff to have an aggravated, disabling injury as of his last day worked, August 16, 1974. However, the wcab reversed the referee’s decision that plaintiff was incurably insane due to his employment. Thus, the sif was in the position of owing nothing to plaintiff and Ford was required to pay disability benefits based on the 1974 rate. This decision of the wcab was not appealed and is therefore final.

The sif then ceased payment of seventy percent benefits to plaintiff, but had already paid $6,114.38 to plaintiff. Ford claimed credit against this amount for the thirty percent it had not paid to plaintiff during the appeal period, and which it now owed to plaintiff. Plaintiff protested and filed a petition for penalties, which resulted in a Rule 5 hearing (1979 AC, R 408.35) before the same referee who had heard the case.

The referee ruled on October 30, 1981, that Ford had to pay benefits for the period August 17, 1974, to April 27, 1978, and from February 25, 1981, until further order. The referee gave credit to Ford for the amount of seventy percent benefits paid by the sif, thereby relieving Ford of any obligation for plaintiff’s benefits for the period April 27, 1978, to February 25, 1981. The referee did not resolve the sif’s request for reimbursement from Ford of the amount that the sif had paid to plaintiff in seventy percent benefits.

The wcab, in an order dated September 22, 1988, affirmed in part and reversed in part the *371 referee’s decision. The wcab affirmed the referee’s decision that Ford was responsible for paying benefits from August 17, 1974, until further order, but ruled that Ford could not have a "credit” for the differential benefits paid by the sif under §862, and ruled, further, that the sif may not be reimbursed for any such payments it made to the plaintiff.

Ford and the sif filed separate applications for leave to appeal to this Court which were consolidated and granted.

ii

On appeal, Ford and the sif argue that the wcab erred by ruling that the interim appeal payments, seventy percent benefits, paid to plaintiff by the sif during the appeal were not available to Ford as a credit toward its liability under the final determination of this appeal and by holding that Ford did not have to reimburse the sif for the benefits it paid to plaintiff. We agree.

The issue before us is a matter of first impression in Michigan. Under MCL 418.862; MSA 17.237(862):

[1] A claim for review filed pursuant to sections 859, 859a, 860, 861, or 864(11) shall not operate as a stay of payment to the claimant of 70% of the weekly benefit required by the terms of the award of the hearing referee, worker’s compensation magistrate, or arbitrator, as applicable. [2] Payment shall commence as of the date of the hearing referee’s, worker’s compensation magistrate’s, or arbitrator’s award, as applicable, and shall continue until final determination of the appeal or for a shorter period if specified in the award. [3] Benefits accruing prior to the award shall be withheld until final determination of the appeal. [4] If the weekly benefit is reduced or rescinded by a *372 final determination, the carrier shall be entitled to reimbursement in a sum equal to the compensation paid pending the appeal in excess of the amount finally determined. [5] Reimbursement shall be paid upon audit and proper voucher from the second injury fund established in chapter 5. [6] If the award is affirmed by a final determination, the carrier shall pay all compensation which has become due under the provisions of the award, less any compensation already paid. [7] Interest shall not be paid on amounts paid pending final determination. [8] Payments made to the claimant during the appeal period shall be considered as accrued compensation for purposes of determining attorneys’ fees under the rules of the bureau. [The sentences have been numbered in the above quote to facilitate discussion below.]

Under sentence six, above, where the award is affirmed, the carrier is entitled to credit for any compensation already paid. As noted by our Supreme Court in Hiltz v Phil’s Quality Market, 417 Mich 335; 337 NW2d 237 (1983), any seventy percent benefits paid to the employee during the pendency of an appeal of a referee’s award are considered to be "compensation” for purposes of the above statute. Id., pp 348-349. If the referee’s award is affirmed, the employer is entitled under the statute to credit for any compensation already paid. Id., p 345.

The instant situation is factually distinct from the one in Hiltz in that here the employer, Ford, is seeking credit for compensation paid to the employee by another source, the sif. However, we hold that, under these circumstances, allowance of such credit in favor of the employer, Ford, is consistent with the plain language and spirit of the act.

As noted supra, the sixth sentence of § 862 provides that the employer is entitled to credit for *373 "any

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Bluebook (online)
454 N.W.2d 218, 183 Mich. App. 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kihrotris-v-ford-motor-co-michctapp-1990.