Barham v. W.C.A.B.

• Decision Date: 16 July 1990
• Docket Number: Docket No. 106354
• Citation: 184 Mich.App. 121,457 N.W.2d 349
• Court: Court of Appeal of Michigan — District of US
• Parties: George R. BARHAM, Plaintiff-Appellant, v. The WORKERS' COMPENSATION APPEAL BOARD, Defendant-Appellee, and Detroit Edison Company, Bechtel Power Corporation, and Aetna Casualty & Surety Company, Appellees. 184 Mich.App. 121, 457 N.W.2d 349

Page 349

457 N.W.2d 349

George R. BARHAM, Plaintiff-Appellant, v. The WORKERS' COMPENSATION APPEAL BOARD, Defendant-Appellee and Detroit Edison Company, Bechtel Power Corporation, and Aetna Casualty & Surety Company, Appellees.

Docket No. 106354.

184 Mich.App. 121, 457 N.W.2d 349

Court of Appeals of Michigan.

Submitted March 15, 1990.

Decided June 5, 1990.

Released for Publication July 16, 1990.

[184 MICHAPP 123] Sam W. Thomas, P.C., Detroit, and E.R. Whinham, of counsel, Ann Arbor, for plaintiff-appellant.

Law Offices of Richard Jones by James M. Schoener, Troy, for Detroit Edison Co., Bechtel Power Corp. and Aetna Cas. & Sur. Co.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Morrison Zack, Asst. Atty. Gen., for the W.C.A.B. and other state defendants.

Levine, Benjamin, Tushman, Bratt, Jerris & Stein, P.C. by Charle P. Barbach, Southfield, amicus curiae for Michigan Injured Workers, Inc.

Before HOOD, P.J., and MAHER and CYNAR, JJ.

PER CURIAM.

Plaintiff was an employee of Bechtel Power Company. On October 12, 1984, plaintiff allegedly sustained a back injury while working at a Detroit Edison Company construction site. On December 11, 1984, plaintiff filed a petition for benefits with the Bureau of Workers' Disability Compensation. The petition, filed against Bechtel, Edison and their compensation carrier, Aetna Casualty & Surety Company, alleged that plaintiff sustained a continuing and total disability. On [184 MICHAPP 124] January 28, 1986, plaintiff was granted an open award of continuing disability benefits.

On February 24, 1986, Detroit Edison, Bechtel and Aetna (hereinafter collectively referred to as the employer) filed an application for appeal with the Workers' Compensation Appeal Board and commenced payment of seventy percent of the benefits pursuant to M.C.L. Sec. 418.862(1); M.S.A. Sec. 17.237(862)(1). While the appeal was pending, the employer, on April 10, 1987, also filed with the Bureau a Rule 10 petition to stop compensation. The employer alleged that plaintiff had recovered from his disability.

On August 24, 1987, a hearing officer conducted a hearing on the employer's petition to stop. Plaintiff moved to dismiss, arguing that the petition was improper since an appeal was already pending before the Appeal Board. On December 3, 1987, the hearing officer granted the employer's petition to stop compensation, ruling that plaintiff was no longer disabled and thus the employer could cease payment of seventy percent of the benefits. Plaintiff filed a claim for review of this decision with the Appeal Board and the Workers' Compensation Appellate Commission.

Subsequently, on December 11, 1987, plaintiff filed a complaint in the St. Clair Circuit Court for an order of superintending control. The court immediately issued a temporary restraining order and an order to show cause why plaintiff's benefits should not be continued. The court directed Aetna to continue paying plaintiff benefits. The court also enjoined the employer, as well as all administrative agencies of the Bureau of Workers' Disability Compensation, from participating in any further proceedings regarding plaintiff until a hearing on the order to show cause was held. The employer and the agencies filed motions to dismiss, asserting [184 MICHAPP 125] that the circuit court had no superintending control.

On December 21, 1987, another hearing was conducted and in a January 25, 1988, order, the circuit court continued that portion of the restraining order directing Aetna to continue paying plaintiff benefits. The court also held in abeyance the employer's and the agencies' motions to dismiss and instructed plaintiff to seek an appeal in this Court regarding the authority of the hearing officer to grant the employer's petition to stop payment of compensation. The court further ordered plaintiff to appeal the hearing officer's decision to the Appellate Commission. Finally, the court dissolved that part of the restraining order prohibiting the employer from taking additional action with respect to plaintiff's benefits.

On January 29, 1988, plaintiff filed an application for leave to appeal the circuit court's January 25, 1988, order with this Court. ¹ However, on March 2, 1988, while leave was pending, plaintiff filed a motion in the circuit court to amend his complaint for superintending control so that it would be designated a complaint for declaratory judgment. On March 10, 1988, the agencies filed an answer to plaintiff's motion to amend as well as a motion to stay the proceedings pending this Court's review of plaintiff's application for leave. On March 14, 1988, the agencies also filed a motion for immediate consideration and a motion to stay the circuit court proceedings in this Court.

On March 21, 1988, another hearing was conducted in the circuit court and in a March 25, 1988, order, the court (1) directed the employer to [184 MICHAPP 126] continue paying plaintiff benefits until further order of the court, (2) ruled that it had jurisdiction to resolve the merits of plaintiff's complaint for superintending control, (3) directed the employer to file with the court on or before April 20, 1988, a brief addressing the merits of plaintiff's complaint, (4) denied the agencies' motion to stay the proceedings, and (5) ruled that the court should continue proceedings on its prior order to show cause.

On April 19, 1988, a panel of this Court entered an order (1) granting plaintiff leave to appeal the circuit court's January 25, 1988, order, (2) granting the agencies' motion for immediate consideration, and (3) staying the December 11, 1987, and January 25, 1988, orders of the circuit court directing the employer to pay plaintiff benefits. In addition, the Court requested the parties to brief whether, during the pendency of an appeal in the Appeal Board or Appellate Commission, the grant of a petition to stop terminates an employee's right to receive benefits.

Shortly thereafter, plaintiff's counsel forwarded a letter to the panel of this Court that issued the April 19, 1988, order. The letter expressed some confusion with respect to whether plaintiff was entitled to continue receiving benefits because, while this Court stayed the December 11, 1987, and January 25, 1988, orders of the circuit court ordering the employer to pay plaintiff benefits, it failed to stay the circuit court's March 25, 1988, order also directing payment of the benefits.

In response to the above letter, this Court entered a May 20, 1988, order clarifying its prior order. The new order provided that all orders of the circuit court were stayed pending final determination of plaintiff's appeal or until further order of the Court. The order also directed that the hearing officer's December 3, 1987, order granting [184 MICHAPP 127] the employer's petition to stop payment of plaintiff's benefits remain in effect.

Plaintiff filed an application for leave to appeal with the Supreme Court on May 16, 1988. However, in a September 7, 1988, order, the Supreme Court denied plaintiff's application. In addition, this Court granted permission to Michigan Injured Workers, Inc., to file an amicus curiae brief.

Finally on April 10, 1989, plaintiff filed a motion to affirm the circuit court's decision with this Court. The motion was denied in a June 13, 1989, order.

I

On appeal, plaintiff first argues that the circuit court has jurisdiction to enter an order of superintending control over agencies of the Bureau. In addition, plaintiff contends that this Court has no superintending control jurisdiction over such agencies because our superintending control authority is limited to those areas specifically prescribed by statute or court rule.

The process of seeking an order of superintending control is not an appeal but rather is an original civil action designed to order a defendant to perform a clear legal duty. People v. Flint Municipal Judge, 383 Mich. 429, 432, 175 N.W.2d 750 (1970); Fort v. Detroit, 146 Mich.App. 499, 503, 381 N.W.2d 754 (1985); Beer v. Fraser Civil Service Comm., 127 Mich.App. 239, 242, 338 N.W.2d 197 (1983). An order of superintending control is not available to a plaintiff who has another adequate remedy by way of an appeal. Id., p. 243, 338 N.W.2d 197; MCR 3.302(B). When an appeal in the Court of Appeals or the circuit court is available, it must be utilized and a complaint for superintending control must be dismissed. MCR 3.302(D)(2).

[184 MICHAPP 128] A superintending control order enforces the superintending power of a court over lower courts or tribunals. MCR 3.302(A). Tribunals include administrative agencies acting in a judicial or quasi-judicial capacity. Fort v. Detroit, supra. The circuit court and the Court of Appeals have been vested with authority to issue superintending control orders. Such power derives from both statute and court rule which we briefly set forth below.

MCR 3.301(A)(1)(a) provides that a civil action or appropriate motion in a pending action can be brought to obtain superintending control. The rule goes on to state:

Unless a particular rule or statute specifically provides otherwise, an original action may not be commenced in the Supreme Court or the Court of Appeals if the circuit court would have jurisdiction of an action seeking that relief.

Furthermore, MCR 3.302(D)(1) prescribes that the Supreme Court, Court of Appeals and circuit court have jurisdiction to issue superintending control orders to lower courts or tribunals. MCR 7.203(C)(1) specifically states that the Court of Appeals may entertain an action for

superintending control over a lower court or a tribunal immediately below it arising out of an action or proceeding which, when concluded, would result in an order appealable to the Court of Appeals.

Finally, M.C.L. Sec. 600.615; M.S.A. Sec. 27A.615 indicates:

Except as provided in section 10b of Act 369 of the Public Acts of 1919, being section 725.10b of the Michigan Compiled...