Reece v. Consolidated Packaging Co.
| Citation | 350 N.W.2d 308,133 Mich.App. 684 |
| Decision Date | 07 June 1984 |
| Docket Number | Docket No. 68470 |
| Parties | Jesse C. REECE, Plaintiff, v. CONSOLIDATED PACKAGING COMPANY, and Liberty Mutual Insurance Company, Defendants-Appellants, Cross-Appellees, and Consolidated Packaging Company, and Employers Mutual Insurance Company, Defendants-Appellees, Cross-Appellants. |
| Court | Court of Appeal of Michigan (US) |
Robert L. O'Connell & Associates by Dan S. Barrett, Pontiac, for plaintiff.
Nelson, Payne, Parsons & Bouwkamp by Stephen C. Bouwkamp, Ann Arbor, for defendants-appellants, cross-appellees Consol. Packaging Co. and Liberty Mut. Ins. Co.
Conklin, Benham, McLeod, Ducey & Ottaway, P.C. by Martin L. Critchell, Detroit, of counsel to Patrick Dugan, Livonia, for defendants-appellees, cross-appellants Consol. Packaging Co. and Employers Mut. Ins. Co.
Before T.M. BURNS, P.J., and MacKENZIE and ROBINSON *, JJ.
Defendant Liberty Mutual Insurance Company (Liberty) appeals by leave granted from a decision of the Workers' Compensation Appeal Board denying Liberty reimbursement from defendant Employers Mutual Insurance Company (Employers Mutual) for workers' compensation benefits Liberty had voluntarily paid to plaintiff, Jesse C. Reese, who is not a party to this appeal. Plaintiff's last day of work with defendant Consolidated Packaging Company (Consolidated), also not a party on appeal, was September 21, 1976, at which time Liberty was Consolidated's compensation insurance carrier. Liberty voluntarily paid plaintiff workers' compensation benefits from September 22, 1976, until October 3, 1978, when it ceased payment on the ground that plaintiff was able to return to work.
Plaintiff filed a petition for further workers' compensation benefits, which petition was received by the Bureau of Workers' Disability Compensation on September 28, 1978. The hearing referee found that plaintiff suffered from a work-related disability as a result of an injury which occurred on March 9, 1974, at which time Consolidated's insurance carrier was Employers Mutual, thus making the latter liable to pay the entire compensation as the carrier on the date of injury. Sosnowski v. Dandy Hamburger, 384 Mich. 221, 226-227, 180 N.W.2d 761 (1970). The referee awarded plaintiff benefits payable by Employers Mutual from September 28, 1977 (i.e., one year prior to the filing of plaintiff's petition, see M.C.L. Sec. 418.833; M.S.A. Sec. 17.237), until further order of the bureau. The referee further determined that Employers Mutual was entitled to credit for the payments made by Liberty from September 28, 1977, to October 3, 1978, but that Employers Mutual was obliged to reimburse Liberty for the payments made during this period.
The Workers' Compensation Appeal Board (WCAB) affirmed the hearing referee's finding that plaintiff's current disability was attributable to the March 9, 1974, injury and the award of benefits to plaintiff, but modified the referee's decision with respect to reimbursement. A two-member majority of the WCAB determined that Liberty was not entitled to reimbursement from Employers Mutual based on M.C.L. Sec. 418.833(2); M.S.A. Sec. 17.237(833)(2) because more than one year had passed from the time Liberty paid plaintiff benefits until Liberty made its claim for reimbursement. The third member of the WCAB concurred in the result, but on the public policy basis that Liberty had cut off plaintiff's benefits, leaving plaintiff with the burden of filing a petition, and that Liberty should have itself requested a liability determination and continued paying plaintiff benefits in the meantime.
As a preliminary matter, we note that Employers Mutual by way of cross-appeal contends that the board and the hearing referee erred in finding that plaintiff's disability was due to a single injury occurring on March 9, 1974, and argues that the board should have found that there was no single date of injury and thus should have applied the "last day of work" rule, M.C.L. Sec. 418.301(1); M.S.A. Sec. 17.237(301)(1), under which plaintiff's date of injury would be his last day of employment, hence making Liberty liable to pay compensation as the insurer at that time. Generally, where leave to appeal is granted to the appellant in a civil case, the appellee has the right timely to file a cross-appeal. GCR 1963, 807.2. In this case, however, the same issue which Employers Mutual raises on cross-appeal was previously raised in an application for leave to appeal by Employers Mutual, which application this Court denied in an order dated May 16, 1983. Hence, under these circumstances, we decline to address Employers Mutual's claim on cross-appeal.
Turning to the issue raised by Liberty in its appeal by leave granted, Liberty's voluntary payment of compensation to plaintiff did not constitute an admission of liability precluding it from reimbursement from Employers Mutual. See Gilbert v. Reynolds Metals Co., 59 Mich.App. 62, 68, 228 N.W.2d 542 (1975). However, the WCAB majority found that Sec. 833(2) of the Worker's Disability Compensation Act applied to Liberty's reimbursement claim against Employers Mutual, and reimbursement was precluded under the one-year limitation of Sec. 833(2). Whether Sec. 833(2) applies to a reimbursement claim such as Liberty's presents a question not heretofore addressed by this Court. Section 833 of the Worker's Disability Compensation Act provides in full as follows:
"(1) If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.
"(2) When an employer or carrier takes action to recover overpayment of benefits, no recoupment of money shall be allowed for a period which is more than 1 year prior to the date of taking such action." M.C.L. Sec. 418.833; M.S.A. Sec. 17.237(833).
Although findings of fact by the board are subject to limited judicial review, where the board misconstrues the law, this Court is free to overturn its interpretation. Carter v. Lakey Foundry Corp., 118 Mich.App. 325, 331-332, 324 N.W.2d 622 (1982). The construction of a statute by the administrative agency authorized by the Legislature to administer the statute is entitled to deference by a reviewing court, but its construction is not binding on the court. Szabo v. Ins. Comm'r, 99 Mich.App. 596, 598, 299 N.W.2d 364 (1980). In the present case, after giving due deference to the board's interpretation, we find that the board's construction of Sec. 833(2) as applying to claims for reimbursement by one insurance carrier against another carrier was erroneous.
The primary purpose of statutory construction is to ascertain and give effect to the intention of the Legislature, and rules of construction serve as guides in determining the legislative intent. Browder v. International Fidelity Ins. Co., 413 Mich. 603, 611, 321 N.W.2d 668 (1982); Carter Metropolitan Christian Methodist Episcopal Church v. Liquor Control Comm., 107 Mich.App. 22, 28, 308 N.W.2d 677 lv. den. 411 Mich. 1037 (1981). The one-year limitation of Sec. 833(2) applies "[w]hen an employer or carrier takes action to recover overpayment of benefits", but this provision is ambiguous in that it does not state whether it applies to reimbursement claims against the disabled employee, another insurance carrier, or both. However, we find guidance in the rule of construction that an ambiguous statutory provision be construed, not in isolation, but with reference to its statutory context. Guitar v. Bieniek, 402 Mich. 152, 158, 262 N.W.2d 9 (1978); Royal Auto Parts v. Michigan, 118 Mich.App. 284, 289, 324 N.W.2d 607 (1982). The one-year...
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