Townsend v. M-R Products, Inc.

433 N.W.2d 374, 173 Mich. App. 15
CourtMichigan Court of Appeals
DecidedNovember 8, 1988
DocketDocket No. 103297
StatusPublished
Cited by3 cases

This text of 433 N.W.2d 374 (Townsend v. M-R Products, 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
Townsend v. M-R Products, Inc., 433 N.W.2d 374, 173 Mich. App. 15 (Mich. Ct. App. 1988).

Opinion

Per Curiam.

Plaintiff appeals by leave granted from an opinion and order of the Workers’ Compensation Appeal Board reducing from $22,500 to $1,500 the amount of penalties owed her for defendant employer’s failure to pay compensation benefits. We reverse.

Plaintiff injured her back in 1979 while working for defendant. By a decision dated February 3, 1982, and mailed March 11, 1982, she was granted an open award of workers’ compensation benefits. Defendant, which was self-insured for workers’ compensation purposes, appealed the decision. While the appeal was pending, defendant sent to plaintiff one payment for seventy percent of compensation covering the period from February 3, 1982, to April 9, 1982. See MCL 418.862; MSA 17.237(862). On August 26, 1982, the wcab dismissed defendant’s appeal after notification that defendant had failed to make seventy percent payments to plaintiff since April 2, 1982.

Defendant continued to withhold compensation [17]*17payments after its appeal was dismissed. MCL 418.801(2); MSA 17.237(801X2) authorizes the penalization of an employer when benefits are not paid within thirty days after becoming due where there is not an ongoing dispute. On January 6, 1983, pursuant to that statute, plaintiff filed in the Bureau of Workers’ Disability Compensation a petition for penalty payment. A decision dated April 8, 1983, granted a $1,500 penalty to plaintiff. The referee made the following findings:

It is found that on 8-26-82, defendant’s appeal was dismissed by the appeal board for failure to make the required 70% payments (defendant admits that the payments were not made). It is further found that defendant took no action to reinstate appeal. It is further found that defendant has not complied with the terms of Administrative Law Judge Mikko’s award of benefits dated 2-3-82.
Since more than 60 days have elapsed since defendant’s obligation to pay benefits commenced, following dismissal of their appeal, defendant is hereby ordered to pay penalties to plaintiff in the amount of $1,500.00 in accordance with section 418.801(2) of the Act.

Defendant appealed, and the wcab affirmed by opinion and order of February 10, 1984. No further appeal was taken.

When defendant continued to withhold payments, plaintiffs attorney began filing in the compensation bureau a series of copies of the petition filed January 6, 1983, with the date of each petition changed to the current date. Each petition read:

This petition filed for the sole purpose of requesting penalty payments upon the failure of the defendant to make payment in accordance with [18]*18the decision of the administrative law judge dated 2/3/82 and mailed from the Bureau on 3/11/82.

Additionally, plaintiffs attorney filed a circuit court complaint to obtain payment. On July 17, 1984, the court entered an opinion and judgment ruling that defendant owed plaintiff $19,457.91 as of June 9, 1984. That judgment did not purport to encompass penalty payments requested after February 10, 1984.

About May 10, 1985, defendant filed in the compensation bureau an "answer to multiple penalty petitions.” Hearings were held before a bureau referee on May 22, 1985, and August 12, 1985. The referee granted penalties totaling $22,500 by decision mailed October 16, 1985. He attached the following schedule:

Penalty Petition received by the Bureau 9/8/83 covers all overdue payments from the date of the last Penalty Petition (received 12/20/82 and adjudicated 4/8/83) through 8/8/83. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 10/10/ 83 covers payments overdue from 8/15/83 through 9/4/83. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 11/10/ 83 covers payments overdue from 9/12/83 through 10/10/83. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 12/27/ 83 covers payments overdue from 10/17/83 through 11/21/83. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 1/25/84 covers payments overdue from 11/28/83 through 12/19/83. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 2/22/84 covers payments overdue from 12/26/83 through [19]*191/16/84. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 3/21/84 covers payments overdue from 1/23/84 through 2/ 13/84. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 5/16/84 covers payments overdue from 2/20/84 through 4/ 9/84. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 9/14/84 covers payments overdue from 4/16/84 through 8/ 13/84. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 12/17/ 84 was withdrawn by Plaintiff’s attorney at the hearing on 8/12/85.
Penalty Petition received by the Bureau 2/25/85 covers any payments overdue from 8/20/84 through 1/21/85. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 3/27/85 covers payments overdue from 1/28/85 through 2/ 18/85. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 4/24/85 covers payments overdue from 2/25/85 through 3/ 18/85. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 5/2/85 covers payments overdue from 3/25/85 through 4/ 1/85. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 5/15/85 covers payments overdue from 4/8/85. The maximum penalty of $1,500.00 is due.
Penalty Petition received by the Bureau 5/30/85 covers payments overdue from 4/15/85 through 4/ 29/85. The maximum penalty of $1,500.00 is due.
The next weekly payment after 4/29/85 came due on 5/6/85. On 5/29/85, Defendant paid $254.96 to cover the weekly payments of 5/6/85, 5/13/85, 5/20/85 and 5/27/85. Regular weekly payments of $60.99 commenced on 6/3/85 and have continued thereafter to the date of hearing on 8/12/85. All Penalty Petitions filed after 5/30/ 85 are improperly filed since they cover periods during which compensation has been properly [20]*20paid. Therefore, Plaintiffs claims raised in the Petitions received by the Bureau 6/19/85, 6/26/85, 7/5/85 and 7/10/85 are hereby denied.

Defendant appealed. The wcab set aside all but one $1,500 penalty by opinion and order of August 24, 1987. The sole issue on appeal is whether that decision is the product of an erroneous application of MCL 418.801(2); MSA 17.237(801) as construed by this Court in DeKind v Gale Mfg Co, 125 Mich App 598; 337 NW2d 252 (1983), lv den 418 Mich 852 (1983).

MCL 418.801(2); MSA 17.237(801)(2) provides:

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Related

Townsend v. M-R Products, Inc
461 N.W.2d 696 (Michigan Supreme Court, 1990)

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Bluebook (online)
433 N.W.2d 374, 173 Mich. App. 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-m-r-products-inc-michctapp-1988.