Brooks v. Engine Power Components, Inc., Docket No. 213999.

• Decision Date: 26 July 2000
• Docket Number: Docket No. 213999.
• Citation: 241 Mich. App. 56,613 N.W.2d 733
• Parties: Sargent A. BROOKS, Plaintiff-Appellant, v. ENGINE POWER COMPONENTS, INC., and Hartford Accident & Indemnity, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

613 N.W.2d 733

241 Mich. App. 56

Sargent A. BROOKS, Plaintiff-Appellant, v. ENGINE POWER COMPONENTS, INC., and Hartford Accident & Indemnity, Defendants-Appellees.

Docket No. 213999.

Court of Appeals of Michigan.

Submitted November 3, 1999, at Lansing.

Decided May 9, 2000, at 9:20 a.m.

Released for Publication July 26, 2000.

Williams, Hughes, Corwin & Sininger, LLP (by Theodore N. Williams, Jr.), Muskegon, for the plaintiff.

Cox, Hodgman & Giarmarco, P.C. (by Marsha M. Woods), Troy, for the defendants.

Before: HOLBROOK, JR., P.J., and SMOLENSKI and COLLINS, JJ.

SMOLENSKI, J.

The Worker's Compensation Appellate Commission (WCAC) dismissed plaintiff's appeal for failure to file transcripts in a timely manner and subsequently denied plaintiff's motion for reconsideration. Plaintiff appeals by leave granted. We reverse.

The magistrate denied plaintiff's claim for worker's compensation benefits. On April 14, 1998, plaintiff's counsel mailed the claim for review to the WCAC and ordered a hearing transcript from Schultz Reporting. The WCAC received plaintiff's timely filed claim on April 15, 1998. Nearly six weeks later, on May 26, 1998, Schultz Reporting informed plaintiff's counsel that it no longer processed transcripts for Grand Rapids worker's compensation matters, but that Dolman Technologies Group (Dolman) now handled those matters. On or about May 27, 1998, plaintiff mailed the following letter to Dolman requesting the transcripts:

Dear Sir or Madam:

This letter follows receipt of a telephone call from Gretchen Schultz of Schultz Reporting on May 26, 1998, that she had just received our Claim for Review filed in this matter on April 14, 1998. She advised that as of September 30, 1997, Schultz Reporting was no longer covering the reporting duties at the Bureau [of] Workers' [sic] Disability Compensation in Muskegon, that she had a new mailing address and our Claim for Review, as well as many others, was not forwarded to her new address. She further advised me that Dolman Technologies Group had taken over the reporting duties at the Muskegon Bureau.

At this time I am also enclosing a copy of our Claim for Review filed on April 14, 1998, and would ask that you prepare the necessary trial transcript.

If you require any additional information, please do not hesitate to contact me.

On June 29, 1998, the WCAC, after noting that it had not received the transcript due June 15,1998, or an extension request, dismissed plaintiff's appeal for failure to timely comply with M.C.L. § 418.861a(5) and (11); MSA 17.237(861a)(5) and (11). MCL 418.861a(5); MSA 17.237(861a)(5) provides:

A party filing a claim for review under section 859a shall file a copy of the transcript of the hearing within 60 days of filing the claim for review and shall file its brief with the commission and provide any opposing party with a copy of the transcript and its brief not more than 30 days after filing the transcript. For sufficient cause shown, the commission may grant further time in which to file a transcript.

MCL 418.861(a)(11); MSA 17.237(861a)(11) provides that "[t]he commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed."

Plaintiff moved for reconsideration on the ground that Schultz Reporting was the last known entity responsible for Grand Rapids worker's compensation trial transcript preparation and that the delay in receiving the transcript was beyond the plaintiff's control, despite plaintiff's diligent efforts to comply with all appellate time constraints pursuant to the applicable statutes. The WCAC denied plaintiff's motion, explaining in pertinent part:

While plaintiff's attorney informs us that two weeks before the trial transcript was due he learned he had to order it from a different court reporting service, because he never asked for an extension of time to file the transcript, an act completely within his control, this Commission does not believe that good cause has been shown to grant the motion for reconsideration.

On appeal, plaintiff contends that the WCAC abused its discretion in failing to reinstate his appeal. We agree. We review a WCAC decision to dismiss a plaintiff's appeal for failure to comply with a procedural deadline for an abuse of discretion. See Pankey v. Bigard/Drillers, Inc., 222 Mich.App. 15, 19, 564 N.W.2d 464 (1997) (failure to timely file a claim of appeal); Laudenslager v. Pendell Printing, Inc., 215 Mich.App. 167, 170, 544 N.W.2d 721 (1996) (failure to timely file a brief).

In Marshall v. D.J. Jacobetti Veterans Facility (After Remand), 447 Mich. 544, 548-550, 526 N.W.2d 585 (1994), our Supreme Court found that the WCAC acted within its authority in ending prior "chaotic" practices and giving proper notice that it intended to begin adhering to the statutory deadlines for briefing as set forth in M.C.L. § 418.861a(5); MSA 17.237(861a)(5). However, the Court declined to address the problems related to the untimely production of transcripts:

We are aware that the WCAC has dismissed some appeals for failure to file the transcript timely, and we observe that the WCAC's notice also states that transcript deadlines are to be strictly enforced. While the policy reasons for enforcing a deadline on the filing of transcripts may be at least as strong as those for enforcing a briefing deadline, there are circumstances in which an attorney cannot prevent the tardy filing of a timely ordered transcript. We express no opinion regarding the proper outcome in such a circumstance. [Id. at 550, n. 9, 526 N.W.2d 585.]

We can find no published opinion that addresses the "proper outcome" of cases involving the tardy filing of transcripts referred to in Marshall. However, after deciding Marshall, our Supreme Court has issued orders reinstating appeals that the WCAC had dismissed for failure to comply with the sixty-day transcript filing requirement.¹ For example, in Horvath v. Pegasus Tavern, 454 Mich. 912, 564 N.W.2d 894 (1997), our Supreme Court, citing Marshall, supra at 550, n. 9, 526 N.W.2d 585, remanded the case to the WCAC for plenary consideration:

In lieu of granting leave to appeal, the case is remanded to the Worker's Compensation Appellate Commission for plenary consideration. MCR 7.302(F)(1). The WCAC dismissed the defendants' appeal because the transcripts were not filed within sixty days of the filing of the claim for review. Considering all the circumstances, the WCAC abused its discretion by dismissing the appeal. Cf. Marshall v. D.J. Jacobetti Veterans Facility (After Remand), 447 Mich. 544, 550, n. 9 (1994). See also Blazic v. Wayne Co., 454 Mich. 887, 562 N.W.2d 782 (1997).

Three other orders, while not citing Marshall, contain facts and reasoning similar to those set forth in Horvath. In Wimbush v. Noecker Vinyl & Plastics, 453 Mich. 963, 557 N.W.2d 314 (1996), our Supreme Court stated:

In lieu of granting leave to appeal, the case is remanded to the Worker's Compensation Appellate Commission for plenary consideration. MCR 7.302(F)(1). The WCAC abused its discretion in dismissing this case. Counsel for appellant timely filed a claim for review and timely ordered a transcript. The transcript was not timely prepared, but that was for reasons beyond the control of appellant's counsel.

Then, in Bright v. Voss Steel Corp., 454 Mich. 855, 558 N.W.2d 727 (1997), the Court stated:

In lieu of granting leave to appeal, the case is remanded to the Worker's Compensation Appellate Commission for plenary consideration. MCR 7.302(F)(1). The WCAC abused its discretion in dismissing this case. Counsel for appellant timely filed a claim for review and timely ordered a transcript. The transcript was not timely prepared, but that was for reasons beyond the control of appellant's counsel.

Finally, in Tomblin v. MNP Corp., 456 Mich. 871, 569 N.W.2d 167 (...