Prater v. Game Time, Inc.

351 N.W.2d 882, 134 Mich. App. 669
CourtMichigan Court of Appeals
DecidedMay 15, 1984
DocketDocket No. 69506
StatusPublished
Cited by2 cases

This text of 351 N.W.2d 882 (Prater v. Game Time, Inc.) 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
Prater v. Game Time, Inc., 351 N.W.2d 882, 134 Mich. App. 669 (Mich. Ct. App. 1984).

Opinion

Per Curiam.

Defendants Game Time, Inc., and Hartford Accident & Indemnity Company (defendants) appeal by leave granted the decision of the Workers’ Compensation Appeal Board (WCAB) which affirmed the reversal by the assistant deputy director of the Bureau of Workers’ Disability Compensation of the redemption agreement between defendants and plaintiff.

On May 28, 1981, plaintiff filed for a workers’ disability compensation hearing, claiming that he suffered from work-related injuries to his back, leg, nervous system, cardiopulmonary system, and cardiovascular system. In support of his claim, plaintiff deposed Dr. Lawrence Newman, who testified that plaintiff probably had "fume fever” probably caused by plaintiff’s exposure to welding fumes, [671]*671accompanied by "residual emphysema”. Dr. Newman agreed that plaintiffs cigarette smoking could also have been a contributing factor to his condition. Defendants’ witness, Dr. Richard Bates, testified by deposition that plaintiff did not have emphysema, that at most plaintiff suffered from chronic bronchitis. Furthermore, Dr. Bates found the diagnosis of fume fever and emphysema or any lung disease to be totally unsupported.

On June 10, 1982, a hearing was conducted before a hearing referee at which plaintiff agreed to redeem defendants’ liability. Plaintiff testified at the hearing that he understood that he was settling all claims relating to his former employment with defendants Game Time, Inc., and T & S Equipment Company. Plaintiffs attorney asked him at the redemption hearing:

"[Plaintiff’s counsel]: In other words, we did make a claim relative to the stroke that you suffered, and we made a claim relative to your back problem, but if there is any other problem that were to arise later on, you would not be able to come back and say, 'I’ve obtained more information or I’m more disabled or I have a condition which I did not know about.’ And they’re trying to settle all of the claims at this time. Do you understand that?

"[Plaintiff]: Yes.

"[Plaintiff’s counsel]: You in addition had some lung problems, and, as I understand it, you were taken off your welding job as a result of the lung difficulties; is that correct?

"[Plaintiff’s counsel]: That claim is also being settled in the process of this. Do you understand that?

"[Plaintiff]: Yeah.”

The redemption agreement was approved and an order entered by the hearing referee on June 10, [672]*6721982. On June 15, 1982, plaintiff requested a review of the agreement, stating:

"Here is a copy of my hearing. I would like another review or hearing. I have thought this through carefully and I don’t feel that $18,000 is a fair settlement for what I’ve been through and what I have to go through the rest of my life. With my injured back. And my breathing and lungs from welding at Game Time, Inc., and at T & S Equipment. So I want to appeal this case.”

Plaintiff’s request for a review was approved.

At the resultant hearing on July 20, 1982, plaintiff testified that, when he agreed to the redemption, he was unaware that Dr. Newman had diagnosed emphysema; that plaintiff did not know of that diagnosis until after the hearing when he read the doctor’s deposition testimony. He said he had asked his attorney about "what report Newman gave me, and he told me at the time he would send me a copy of it, but he never sent me a copy either”.

The assistant deputy director, who conducted the review hearing, reversed the redemption order. His reversal was affirmed by a majority of the WCAB on January 10, 1983, who wrote:

"We would affirm the assistant deputy director. In our opinion the plaintiffs reason for requesting reversal is substantially more than a change of heart. It matters not that we may equate lung problems or cardio-pulmonary problems with emphysema; it apparently means something dramatically different to the plaintiff herein. In any event, the assistant deputy director’s review allows the exercise of discretion and we feel that the decision is reasonable and supported by the facts. The hearing before the assistant deputy director clearly reveals that plaintiff was not aware of this specific diagnosis having been made until after the redemption [673]*673hearing. While we, as factfinders, may not be impressed with the distinction before us, it appears to us that if plaintiff had been aware of the existence of this condition he would not have agreed to compromise his claim.”

However, the dissenting member of the WCAB found three problems with plaintiffs assertion of new information:

"First, all medical proofs had been taken well before the redemption date and the contents were presumably available to plaintiff — particularly the diagnosis of his own litigational expert; second, plaintiff’s own petition a year earlier had asserted the pulmonary problem he now claims a new discovery of; third, the existence of 'emphysema’ is itself in serious dispute considering the split of medical opinion.”

These problems caused the dissent to conclude:

"The settlement, per the record made of it, was a conscious agreement to compromise the various medical and causality disputes. It was a substantial amount, freely entered into. Plaintiff’s change of * heart, even coupled with what he claims to be new information, is not enough to convince me that the approved settlement was anything but proper — then and now.”

Defendants argue on appeal that the WCAB erred in affirming the assistant deputy director’s reversal of the redemption order because his reversal was improperly predicated on nothing more than plaintiffs change of heart concerning the desirability of settling his claim for the amount agreed upon. We agree.

MCL 418.837; MSA 17.237(837) provides for review of a referee’s decision affirming or rejecting a redemption agreement. That statute provides in pertinent part:

[674]*674"The director may, or upon the request of any of the parties to the action shall, review the order of the hearing referee entered under this section. Unless review is ordered or requested within 15 days of the date the order of the hearing referee is mailed to the parties, the order shall be final. In the event of review and in accordance with such rules as the director may prescribe and after hearing, the director shall enter such order as he deems just and proper. Any such order of the director may be appealed to the board within 15 days after the order is mailed to the parties.” MCL 418.837(2); MSA 17.237(837X2).

Whether the assistant deputy director properly decided that the instant redemption agreement was unjust and improper is a question of law. See Solo v Chrysler Corp (On Rehearing), 408 Mich 345, 350; 292 NW2d 438 (1980) (the approval of a redemption agreement is not recognized as a finding of fact).

Prior to 1980, the Bureau of Workers’ Disability Compensation apparently treated the 15-day appeal period as a "cooling off’ period. During this time the director could automatically set aside an agreement if either party decided that it no longer wished to settle. Harrington v Brown Brothers, Inc, 409 Mich 468; 295 NW2d 491 (1980). The Court in Harrington disapproved of this treatment:

"We are satisfied that the board has not correctly read or applied these provisions.

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Related

Moore v. Campbell, Wyant & Cannon Foundry
369 N.W.2d 904 (Michigan Court of Appeals, 1985)

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Bluebook (online)
351 N.W.2d 882, 134 Mich. App. 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prater-v-game-time-inc-michctapp-1984.