Delke v. Scheuren, Docket Nos. 119347

• Decision Date: 25 September 1990
• Docket Number: 119375,Docket Nos. 119347
• Citation: 460 N.W.2d 324,185 Mich.App. 326
• Parties: Jeffrey L. DELKE, Plaintiff-Appellee, v. James SCHEUREN, Defendant, and Accident Fund of Michigan, Defendant-Appellant. Jeffrey L. DELKE, Plaintiff-Appellant, v. James SCHEUREN, Defendant, and Accident Fund of Michigan, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 324

460 N.W.2d 324

185 Mich.App. 326

Jeffrey L. DELKE, Plaintiff-Appellee, v. James SCHEUREN, Defendant, and Accident Fund of Michigan, Defendant-Appellant.

Jeffrey L. DELKE, Plaintiff-Appellant, v. James SCHEUREN, Defendant, and Accident Fund of Michigan, Defendant-Appellee.

Docket Nos. 119347, 119375.

Court of Appeals of Michigan.

Submitted May 15, 1990.

Decided Aug. 23, 1990.

Released for Publication Sept. 25, 1990.

Green, Renner, Weisse, Rettig, Rademacher & Clark, P.C. by James M. Rettig, Escanaba, for Jeffrey L. Delke.

Peterson, Beauchamp, DeGrand, Reardon & Hall, P.C. by Ralph B.K. Peterson, Escanaba, for Accident Fund of Michigan.

Before CYNAR, P.J., and WEAVER and GRIFFIN, JJ.

PER CURIAM.

Both plaintiff Jeffrey L. Delke and defendant Accident Fund of Michigan appeal by leave granted from an order of the Workers' Compensation Appeal Board, which vacated a hearing referee's decision regarding plaintiff's claim of retaliatory discharge, but affirmed the referee's determination that the Accident Fund was obligated to defend the employer, defendant James Scheuren, and to pay any damages and costs to which plaintiff may be entitled as a result of the alleged retaliatory discharge. We affirm in part and reverse in part.

Plaintiff suffered a hernia on September 1, 1982, while lifting bales of hay for defendant employer. His last day worked was September 26, 1982. He filed a petition for hearing on November 29, 1982, claiming disability as a result of the work-related injury. On September 6, 1983, plaintiff filed an amended petition, claiming that the employer had discharged him and refused to rehire him in violation of Sec. 301(11) of the act, M.C.L. Sec. 418.301(11); M.S.A. Sec. 17.237(301)(11), which provides:

A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.

By the time of the hearing, plaintiff apparently withdrew his disability claim and proceeded only on the retaliatory discharge claim. In a decision mailed March 29, 1984, the referee denied the claim, finding as fact "that the employer did not discriminate under Sec. 301(11) in not rehiring petitioner based on the institution of proceedings under the Act." In response to an inquiry from defendants, a second decision was mailed on June 20, 1984, which included the following additional language:

ADDENDUM: Defense counsel rightly argue that a second issue presented and argued at trial was not decided in the above decision: whether or not the insurance carrier had an obligation under the Act to provide a legal defense to the claim of discriminatory non-reemployment of Petitioner under section 301(11). As to this second issue I find that section 621(2) mandates that the carrier had the obligation to defend the employer. But as to the ultimate relief sought by the employer, as limited by the decision finding no discriminatory treatment of Petitioner, I have no power to award costs or damages.

Both plaintiff and defendant insurance company appealed. In a decision and order dated June 30, 1989, the WCAB vacated the referee's finding under Sec. 301(11) and denied plaintiff's petition, holding that neither the referee nor the WCAB had authority or jurisdiction to enforce Sec. 301(11). The WCAB also held, however, that it did have jurisdiction to decide the insurance question and that defendant insurer is obligated to defend the employer and to cover any damages and costs awarded in any circuit court action in connection with the alleged retaliatory discharge claim.

Plaintiff contends that the WCAB erred in finding that M.C.L. Sec. 418.301(11); M.S.A. Sec. 17.237(301)(11) does not provide the Bureau of Workers' Disability Compensation with jurisdiction to hear his discrimination claim. He argues that the amendment of Sec. 301 to include subsection (11) manifests a legislative intent to treat retaliatory discharges as a form of personal injury compensable under the act. Plaintiff notes that prior to the amendment a discharge in retaliation for filing a workers' compensation claim was actionable as a violation of public policy. Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976). Because Sec. 301(11) was therefore unnecessary to create a cause of action for retaliatory discharge, plaintiff concludes that the subsection must have been added in order to create an administrative remedy in addition to any legal remedies. Moreover, plaintiff notes that Sec. 301(11) appears to be patterned after Sec. 65(1) of the Michigan Occupational Safety and Health Act (MIOSHA), M.C.L. Sec. 408.1065(1); M.S.A. Sec. 17.50(65)(1). Plaintiff notes that Sec. 65 in addition to its nonretaliation language provides a detailed administrative scheme for handling retaliation claims culminating in court review under the Administrative Procedures Act, M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. Plaintiff concludes that the Legislature's failure to include such a scheme in Sec. 301 implies that the Legislature intended retaliation claims to be treated like all other claims under the workers' compensation act. Finally, plaintiff claims that these conclusions are reinforced by Sec. 841(1) of the act, M.C.L. Sec. 418.841(1); M.S.A. Sec. 17.237(841)(1), which provides:

Any dispute or controversy concerning compensation or other benefits shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau or a worker's compensation magistrate, as applicable. The director may be an interested party in all worker's compensation cases in questions of law.

Because a claim of retaliatory discharge in violation of Sec. 301(11) is a question "arising under this act," plaintiff concludes that the instant dispute must be submitted to the bureau for determination.

On the other hand, defendant argues that in every workers' compensation claim two questions must be answered: (1) is the claimant disabled; and (2) was the disability caused by the employment. Because plaintiff was not "disabled" within the meaning of the act, there is no true workers' compensation claim in the instant case. Like plaintiff, defendant notes that Sec. 301(11) appears similar to Sec. 65(1) of MIOSHA, but draws the opposite conclusion. Because the Legislature spelled out an administrative scheme to remedy violations of the nonretaliation language of MIOSHA, the Legislature's failure to specify such a scheme here means that the Legislature did not intend hearing referees or the WCAB to address themselves to retaliation claims. Finally, defendant argues that Sec. 841(1) does not mandate a different result, because the instant case does not involve any "dispute or controversy concerning compensation or other benefits" under the act.

We believe the WCAB and defendant have the better argument. Even if a retaliatory discharge should be treated as a "personal injury," benefits may be awarded only if a claimant is...