Perry v. Sturdevant Manufacturing Co.

333 N.W.2d 366, 124 Mich. App. 11
CourtMichigan Court of Appeals
DecidedMarch 9, 1983
DocketDocket 60555
StatusPublished
Cited by16 cases

This text of 333 N.W.2d 366 (Perry v. Sturdevant Manufacturing 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
Perry v. Sturdevant Manufacturing Co., 333 N.W.2d 366, 124 Mich. App. 11 (Mich. Ct. App. 1983).

Opinions

Bronson, P.J.

The claimant appeals by leave granted a decision of the Workers’ Compensation Appeal Board (WCAB), denying her request for imposition of the penalty for late payment provided for in § 801 of the Worker’s Disability Compensation Act (WDCA), MCL 418.801; MSA 17.237(801). The board held that the statutory penalty provision does not apply to late payments of "70% benefits” provided for in § 862 of the act, MCL 418.862; MSA 17.237(862).

After a hearing before a Bureau of Workers’ Disability Compensation referee, the carrier was ordered to pay claimant weekly benefits of $106.67, on August 23, 1978. The carrier filed a timely claim for review with the WCAB, pursuant to MCL 418.859; MSA 17.237(859). At that time the carrier began to pay the claimant 70% of the weekly benefits set by the terms of the referee’s [14]*14award. It was required to do so by § 862 of the WDCA, which states in part:

"A claim for review filed pursuant to sections 859 or 861 shall not operate as a stay of payment to the claimant of 70% of the weekly benefit required by the terms of the hearing referee’s award. Payment shall commence as of the date of the hearing referee’s award and shall continue until final determination of the appeal or for a shorter period if specified in the award.”

Inadvertently, the carrier stopped making payments to the claimant on December 3, 1979. On January 25, 1980, the claimant filed a motion to dismiss the carrier’s claim for review. The carrier resumed making payments on February 3, 1980. The claimant’s motion to dismiss was denied on February 8, 1980. The claimant requested that a $50 per day penalty be imposed on the carrier pursuant to § 801 of the WDCA. The referee denied her request; his decision was upheld by the WCAB. The board held that the penalty provisions of § 801 do not apply to the failure to pay "70% benefits” provided for in § 862 of the act. In support of its decision, the board relied on its earlier opinion in Perini v Chrysler Corp, 1980 WCABO 1198, in which it stated:

"MCL 418.801(2) and MCL 418.862 are similar in legislative purpose. Both are remedies. But each has its own special area of application. They are mutually exclusive. MCL 418.801(2) was designed to insure prompt payment of compensation where there is no asserted or legally valid ongoing dispute as to entitlement. MCL 418.862 was intended to provide the successful hearing level claimant with some minimal economic process; that is, while the claim continued to be disputed. It would do grave violence to clear legislative intent and remedial purposes of these provisions if we [15]*15were to mix them up and hold that MCL 418.801(2) penalties are to be assessed against late payments of weekly 70% benefits which are coercively required to be paid even though there is an ongoing dispute with respect to entitlement and the merits of the claim. The procedural remedy for failure to comply with the 70% requirement is dismissal of the defense appeal. McAvoy v H B Sherman Co, 401 Mich 419 (1977); Karbel v Greyhound Food Management, 1975 WCABO 1851. It follows, of course, that penalties would immediately attach should such a dismissal occur with legal finality. This is not, however, an issue of remedial redundancy. It is simply that the penalty provisions just do not apply to the late payment of 70% benefits with respect to ongoing disputed claims pursuant to MCL 418.862; and this is precisely because we are dealing with a case in which there is indeed an 'ongoing dispute’.” (Emphasis in original.)

Although the board’s decision rests heavily on its analysis of legislative intent, we must first consider appellees’ claim that the language of § 801 clearly and unambiguously precludes imposition of the statutory penalty for failure to pay "70% benefits”. If the words of a statute are clear and unambiguous, judicial construction based on an analysis of legislative intent is neither required nor permitted. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971). We must, however, also observe the general rule that exemptions in a statute are scrutinized carefully. Grand Rapids Motor Coach Co v Public Service Comm, 323 Mich 624, 634; 36 NW2d 299 (1949).

We must begin by examining appellees’ reliance on our opinion in Charpentier v Canteen Corp, 105 Mich App 700; 307 NW2d 704 (1981). This Court was asked to decide when the 30-day "grace period”, during which a carrier may fail to make required payments without incurring the statutory [16]*16penalty, begins to run. The claimant in Charpentier was clearly claiming a penalty for the carrier’s failure to pay the 30% share of benefits stayed pursuant to § 862 of the WDCA. The carrier in Charpentier unquestionably had paid "70% benefits” when they were due. The Court stated:

"[0]ur interpretation does not work undue hardship upon compensation beneficiaries by making them wait for complete payment. By statute, claimants receive 70% of their weekly benefits during the pendency of review or appeal. MCL 418.862; MSA 17.237(862), McAvoy v H B Sherman Co, 401 Mich 419; 258 NW2d 414 (1977). They are not deprived of income during that period.” Charpentier, supra, p 707.

Far from supporting the position taken by appellees, the rationale underlying the Charpentier decision appears to support the claim that statutory penalties may be assessed for nonpayment of 70% benefits. The analysis in Charpentier indicates only that, when the entitlement to immediate payment is the subject of "an ongoing dispute”, the exception in § 801(2) applies.

We cannot agree with appellees’ claim that § 801(2) is plain and unambiguous. At the time of the board’s decision,1 § 801(2) stated:

"If weekly compensation benefits, accrued weekly benefits, medical bills, or travel allowance are not paid within 30 days after becoming due and payable in cases where there is no ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the compensation, medical bills, or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.”_

[17]*17"Seventy percent benefits”, referred to in § 862 as "payment of 70% of the weekly benefit”, are clearly "weekly compensation benefits”. The requirement that benefits be "due and payable” is unrelated to the bureau’s award of benefits in a contested case; benefits are "due and payable” on the 14th day after the employer has notice or knowledge of the disability of the person entitled to payment. MCL 418.801(1); MSA 17.237(801)(1).

The term "cases” in the phrase "cases in which there is no ongoing dispute” does not mean contested cases before the bureau and does not refer to a claim of an employee against her employer, which may or may not lead to the payment of benefits. "Cases” means "instances” or "situations” and refers to "weekly compensation benefits, accrued weekly benefits, medical bills, or travel allowance”. By using the word "or” in this phrase, the Legislature indicated that nonpayment in any category will trigger the penalty provision, even if an ongoing dispute exists concerning a payment in a different category; e.g., nonpayment of admittedly due weekly benefits is not excused by the presence of a dispute over a medical bill.

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Perry v. Sturdevant Manufacturing Co.
333 N.W.2d 366 (Michigan Court of Appeals, 1983)

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Bluebook (online)
333 N.W.2d 366, 124 Mich. App. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-sturdevant-manufacturing-co-michctapp-1983.