Feld v. Robert & Charles Beauty Salon

• Decision Date: 24 February 1989
• Docket Number: Docket No. 97505
• Citation: 174 Mich.App. 309,435 N.W.2d 474
• Parties: Sylvia FELD, Plaintiff-Appellant, v. ROBERT & CHARLES BEAUTY SALON, and Twin City Fire c/o Hartford Insurance Group, Defendants-Appellees. 174 Mich.App. 309, 435 N.W.2d 474
• Court: Court of Appeal of Michigan — District of US

Page 474

435 N.W.2d 474

Sylvia FELD, Plaintiff-Appellant, v. ROBERT & CHARLES BEAUTY SALON, and Twin City Fire c/o Hartford Insurance Group, Defendants-Appellees.

Docket No. 97505.

174 Mich.App. 309, 435 N.W.2d 474

Court of Appeals of Michigan.

Submitted July 12, 1988.

Decided Jan. 17, 1989.

Released for Publication Feb. 24, 1989.

[174 MICHAPP 310] Thomas F. Brill, Southfield, for plaintiff-appellant.

[174 MICHAPP 311] Nystrom, Nystrom & Hitchcock by Marsha M. Woods, Bloomfield Hills, for defendants-appellees.

Before GRIBBS, P.J., and SHEPHERD and COOPER, ^* JJ.

SHEPHERD, Judge.

Plaintiff Sylvia Feld appeals by leave granted from a Workers' Compensation Appeal Board decision to dismiss her petition for compensation benefits. The two issues raised relate to whether plaintiff has a right to have her attorney present at a medical examination required by Sec. 385 of the Workers' Disability Compensation Act, M.C.L. Sec. 418.101 et seq.; M.S.A. Sec. 17.237(101) et seq., and, if present, whether her attorney may electronically record the audible portions of the medical examination as a notetaking device. The WCAB held that plaintiff did not have the right to have her attorney present and declined to address the second issue. We reverse.

By petition dated August 17, 1982, plaintiff sought compensation benefits from her employer, defendant Robert & Charles Beauty Salon, and her employer's compensation carrier, defendant Twin City Fire c/o Hartford Insurance Group, for injuries plaintiff allegedly sustained when she slipped and fell while leaving the work premises on August 14, 1982. Defendants requested that plaintiff submit to a medical examination pursuant to Sec. 385 of the WDCA. Plaintiff failed to appear when defendants' attorney would not agree that plaintiff's attorney could be present at the medical examination. Defendants responded by moving for suspension and forfeiture of Feld's compensation benefits. A hearing referee ruled that plaintiff's attorney had no right under the statute to be present at the medical examination and ordered a suspension of [174 MICHAPP 312] plaintiff's right to compensation, if any, until she submitted to the examination requested by defendants. On January 29, 1986, the WCAB affirmed the referee's decision that plaintiff had no right to have her attorney present and remanded the matter to the referee for a resolution of the merits of the petition. In so holding, the WCAB made its ruling a limited one and, in anticipation that situations will arise where it will be necessary for other persons to accompany an employee to the medical examination, ruled that such situations should be resolved on an individual basis upon motion of the parties. Panel member Steven Gonzales wrote a concurring opinion wherein he opined that legislative reform or an "authoritative construction" of the statute was necessary.

On November 18, 1986, the referee dismissed plaintiff's petition "for the reason that plaintiff's attorney will not permit her to be examined without his attendance." The WCAB affirmed the dismissal on May 28, 1987, and this appeal followed.

Our review of the decision of the WCAB is limited to questions of law and, in the absence of fraud, restricted to whether there is any competent evidence to support the factual findings. Const. 1963, art. 6, Sec. 28; Gilroy v. General Motors Corp., 166 Mich.App. 609, 612, 420 N.W.2d 829 (1987), lv. den. 430 Mich. 872 (1988). At issue in this case is a question of law; namely, how to interpret Sec. 385 of the WDCA, which states in pertinent part:

"After the employee has given notice of injury and from time to time thereafter during the continuance of his or her disability, if so requested by the employer or the carrier, he or she shall submit himself or herself to an examination by a physician or surgeon authorized to practice medicine under the laws of the state, furnished and paid for by the employer or the carrier. If an examination [174 MICHAPP 313] relative to the injury is made, the employee or his or her attorney shall be furnished, within 15 days of a request, a complete and correct copy of the report of every such physical examination relative to the injury performed by the physician making the examination on behalf of the employer or the carrier. The employee shall have the right to have a physician provided and paid for by himself or herself present at the examination. If he or she refuses to submit himself or herself for the examination, or in any way obstructs the same, his or her right to compensation shall be suspended and his or her compensation during the period of suspension may be forfeited. Any physician who makes or is present at any such examination may be required to testify under oath as to the results thereof." M.C.L. Sec. 418.385; M.S.A. Sec. 17.237(385) (emphasis added).

The WCAB found Sec. 385 clear and unambiguous. Applying the statutory construction maxim of "expressio unius est exclusio alterius," meaning the expression of one thing is the exclusion of another, the WCAB concluded that the express mention of plaintiff's right to have a physician present implied that plaintiff had no right to have an attorney, and apparently anyone else, present at the medical examination requested by the employer. We find that the WCAB erred in its application of this statutory construction maxim to Sec. 385 and that a proper analysis of legislative intent demonstrates that the WCAB erred in ruling that plaintiff had no right to have an attorney present.

The above-quoted maxim is only a tool in interpreting legislative intent. The maxim cannot govern when its application would defeat legislative intent. Dep't of Treasury v. Psychological Resources, Inc., 147 Mich.App. 140, 144, 383 N.W.2d 144 (1985). In construing the legislative intent of Sec. 385 of the WDCA, we are guided by the following principles:

[174 MICHAPP 314] "A statute may be judicially construed if the language used is ambiguous or the statute is susceptible of two or more meanings.... The primary rule of statutory construction is to determine and effectuate the Legislature's intent.... Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished.... An act must be read in its entirety and the meaning given to one section arrived at after due consideration of other sections so as to produce, if possible, a harmonious and consistent enactment as a whole.... Statutes are to be construed so as to avoid absurd consequences." King v. Director of the Midland Co. Dep't of Social Services, 73 Mich.App. 253, 258, 251 N.W.2d 270 (1977) (citations omitted).

Further, while we are mindful that long-standing, invariant administrative interpretations of those charged with administering a statute are entitled to considerable weight, the WCAB's interpretation of Sec. 385 is neither long-standing nor invariant. See Magreta v. Ambassador Steel Co. (On Reh), 380 Mich. 513, 519, 158 N.W.2d 473 (1968); Stratton-Cheeseman Management Co. v. Dep't of Treasury, 159 Mich.App. 719, 724, 407 N.W.2d 398 (1987). To the contrary, a majority of the WCAB panel in Crunk v. General Motors Corp., 1983 WCABO 524, relying on the language of M.C.L. Sec. 600.1445(1); M.S.A. Sec. 27A.1445(1), which entitles a plaintiff to have an attorney present whenever an examination is ordered by "any court, board or commission ...," held that an employee has a right to have an attorney present when the employee is coerced to submit to a medical examination pursuant to Sec. 385 as a fundamental right. Thus, this is not a case where deference to the WCAB's interpretation of the statute is warranted.

The language of Sec. 385, as it relates to its basic [174 MICHAPP 315] purpose, is clear and unambiguous. Section 385 is intended to provide an employer upon receiving notice of the injury with a right to require an injured employee to submit to a medical examination from time to time. The language of Sec. 385 is also consistent with the basic purpose of the notice statute, Sec. 381 of the WDCA, which is to

"give the employer an opportunity to examine into the alleged accident and injury while the facts are accessible and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and minimize the loss." Norris v. Chrysler Corp, 391 Mich. 469, 474, 216 N.W.2d 783 (1974), quoting Littleton v. Grand Trunk R. Co., 276 Mich. 41, 45, 267 N.W. 781 (1936). See also Nicholson v. Lansing Bd. of Ed., 423 Mich. 89, 94, 377 N.W.2d 292 (1985).

Allowing the injured employee to have a physician present during any medical examination requested by the employer is consistent with the objective of the notice statute since it furthers the goal of establishing a course of treatment that will speed the employee's recovery. However, when viewed in the context of where Sec. 385 fits into the overall scheme of the WDCA, there is nothing in Sec. 385 to support the WCAB's decision that the failure to expressly mention that an attorney, or anyone else, may also be present was clearly intended by the Legislature to imply that a plaintiff has no right to have an attorney present. Indeed, the fact that an employee may desire to have an attorney present suggests that a controversy over the employee's right to compensation which may require WCAB intervention is anticipated and that the examination, at least in part, is serving the goal of the notice statute to provide discovery to the employer while the facts are still accessible.

[174 MICHAPP 316] The majority in Crunk focused on several factors, the most significant of which was the language of Sec. 1445 of the Revised Judicature Act (RJA), M.C.L. Sec. 600.1445; M.S.A. Sec. 27A.1445, which states:

"(1) Whenever in any proceedings before any court, board or commission, or other public body or officer, an order is made by such court, board or commission, or...