Tew v. Hillsdale Tool & Mfg.

• Decision Date: 13 October 2005
• Docket Number: Docket No. 252661.
• Citation: 268 Mich. App. 399,706 N.W.2d 883
• Parties: Jay Willis TEW, Plaintiff-Appellant, v. HILLSDALE TOOL & MANUFACTURING COMPANY and Liberty Mutual Insurance Company, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 883

706 N.W.2d 883

268 Mich. App. 399

Jay Willis TEW, Plaintiff-Appellant, v. HILLSDALE TOOL & MANUFACTURING COMPANY and Liberty Mutual Insurance Company, Defendants-Appellees.

Docket No. 252661.

Court of Appeals of Michigan.

Submitted April 13, 2005, at Lansing.

Decided October 13, 2005, at 9:05 a.m.

Released for Publication December 27, 2005.

McCroskey, Feldman, Cochrane & Brock, P.C. (by James T. Haadsma), Battle Creek, for the plaintiff.

Batalucco, Hughes & Brasic (by Edward J. Hughes), Grand Rapids, for the defendants.

Before: FORT HOOD, P.J., and METER and SCHUETTE, JJ.

METER, J.

Plaintiff appeals as on leave granted from an order of the Workers' Compensation Appellate Commission (WCAC) that affirmed the magistrate's decision to award only one $1,500 penalty under MCL 418.801(3) for multiple late payments of medical expenses. This Court initially denied plaintiff's application for leave to appeal, after which plaintiff sought leave to appeal in the Supreme Court. In lieu of granting the application, the Supreme Court remanded the matter to this Court for consideration as on leave granted. 469 Mich. 978, 673 N.W.2d 752 (2003).¹ We conclude that the WCAC did not err in upholding the magistrate's decision.

In July 2002, plaintiff filed an application seeking the imposition of multiple penalties against defendant Liberty Mutual Insurance Company (Liberty) for failure to pay medical bills in a timely manner under MCL 418.801(3). MCL 418.801(3) states:

If medical bills or travel allowance are not paid within 30 days after the carrier has received notice of nonpayment by certified mail, in cases where there is no ongoing dispute, $50.00 or the amount of the bill due, whichever is less, shall be added and paid to the worker for each day over 30 days in which the medical bills or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.

The dispute on appeal is whether, under this statutory provision, plaintiff is entitled to one $1,500 penalty for the late payments of all medical bills to date or to a separate $1,500 penalty for each late payment by Liberty.²

The parties stipulated to the following facts:

1. Following a trial of this case, Magistrate Carolyn Bruce Erickson issued an Opinion/Order dated 1-25-93 granting Plaintiff wage-loss benefits at the rate of $367.08 per week from 9-10-91 until further order from the Bureau. The Magistrate found Plaintiff had developed right carpal tunnel syndrome due to his employment activities in 1991; that he developed a low back problem due to a work related injury in 1988; and that he sustained a partial amputation to his right foot as a result of an injury he sustained on 2-24-68. Plaintiff had previously been found to have sustained the industrial loss of use of his right foot due to the injury he had sustained on 2-24-68 when Hillsdale Tool was insured by Lumberman's Mutual Insurance Company. The Magistrate found each of these conditions had been aggravated by Plaintiff's employment activity through his last day of work on 9-10-91, when Hillsdale Tool was insured by Defendant carrier, Liberty Mutual Insurance Company.

2. On Claim for Review, the Workers' Compensation Appellate Commission by Order dated 11-8-93 affirmed . . . the Magistrate's Opinion/Order with regard to the carpal tunnel and back conditions. It modified the Magistrate's Opinion/Order with regard to his right foot condition finding the facts established [that] Plaintiff's work activities caused a symptomatic aggravation rather than a pathologic aggravation of his right foot.

3. Defendant carrier has been paying Plaintiff workers [sic] compensation benefits pursuant to the Bureau Orders since the issuance of said Orders and the denial of Defendant's Application for Leave to Appeal issued by the Michigan Court of Appeals dated 4-5-94.

* * *

4. Plaintiff's present Application for Hearing — Form A filed with the Bureau on 1-31-00 asserts a Claim for Penalty Payment for failure to pay work related mileage expense, reimbursement, meal expense reimbursement, pharmacist expense for medication, and medical expense to U/M Health Systems (for treatment on 9-10-98, 10-5-98 and 3-26-99); White & White (for medical supplies provided on 6-28-99 and 7-27-99) and Huron Valley Radiology (for a date of service of 3-8-99).

* * *

6. Plaintiff has submitted medical bills for medical treatment for plaintiff's work related injuries to Liberty Mutual by certified mail . . ., which were paid by Liberty Mutual more than thirty (30) days after Liberty Mutual received the medical bills, as follows:

[a.] Plaintiff submitted to Liberty Mutual a medical bill from U-M Health System for dates of service from September 10, 1998 through March 26, 1999 in the amount of $3,720.00. Liberty Mutual received this bill on October 5, 1999 and paid the bill on March 30, 2000.

[b.] Plaintiff submitted to Liberty Mutual a medical bill from Huron Valley Radiology for date of service of March 8, 1999 in the amount of $24.00. Liberty Mutual received this bill on October 5, 1999 and paid the bill on March 26, 2001.

[c.] Plaintiff submitted to Liberty Mutual a chiropractic bill from Patsy Jones, D.C., for dates of service from November 9, 1999 — January 14, 2000 in the amount of $637.64. Liberty Mutual received this bill on January 27, 2000 and paid the bill on February 16, 2001.

[d.] Plaintiff submitted to Liberty Mutual a medical bill from White & White Home Medical Equipment for dates of service from June 9, 1999 — July 27, 1999 in the amount of $118.30. Liberty Mutual received this bill on February 3, 2000 and paid the bill on April 6, 2000.

[e.] Plaintiff submitted to Liberty Mutual a medical bill from Stephen Orthopedic Shoes for date of service of January 31, 2001 in the amount of $2,270.00. Liberty Mutual received this bill on May 29, 2001 and paid the bill on September 13, 2001.

[f.] Liberty Mutual agreed to pay medical bills from McAuley Health Services in the amount of $550.00 for date of service of October 14, 1994 by voluntary payment agreement entered into with plaintiff on September 22, 1999. Liberty Mutual paid this bill on March 26, 2001.

7. Plaintiff has submitted nearly all medical bills for payment to Liberty Mutual by certified mail. Liberty Mutual has paid several medical bills in a timely manner.

* * *

10. Plaintiff asserts he is entitled to penalties totaling $9,000.00.

11. Defendant asserts Plaintiff's penalty claim, if any, is limited to $1,500.00.

The magistrate rejected plaintiff's position, relying largely on Townsend v. M-R Products, Inc., 436 Mich. 496, 461 N.W.2d 696 (1990). In Townsend, supra at 501-502, 461 N.W.2d 696, the Court addressed the penalties under MCL 418.801(2) for late payments of weekly compensation and accrued benefits. MCL 418.801(2) states:

If weekly compensation benefits or accrued weekly benefits are not paid within 30 days after becoming due and payable, in cases where there is not an ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the benefits are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.

The Townsend Court concluded that $1,500 was the total amount the plaintiff could obtain as a penalty, even though the defendant "failed to pay benefits to [the plaintiff] from the fall of 1983 through the middle of 1985." Id. at 499, 501-502, 504, 461 N.W.2d 696. The magistrate emphasized that MCL 418.801(3) employed language similar to the language of MCL 418.801(2) and that, therefore, the holding of Townsend applied to this case.

The WCAC affirmed the ruling of the magistrate. After reviewing a number of its past decisions and expressing its sympathy for plaintiff's plight, the commission stated:

In light of these parameters, we agree with the magistrate that we are constrained to follow general past precedent and permit only one penalty to be awarded as a result of any hearing finding undisputed, overdue medical expenses. While plaintiff has managed to describe a factual situation arguably distinct from all past cases, the wide range of precedent giving only one penalty in many different situations constrains us to follow the generally established trend of a single-penalty award. While there is ambiguity in the section, this alone does not prompt us to go in a direction not traveled in the last 15 years. [Tew v. Hillsdale Tool & Mfg. Co., 2002 Mich. ACO 279.]

We find no basis on which to reverse the decision of the WCAC.

This Court's review in workers' compensation cases is limited to questions of law. See Mudel v. Great Atlantic & Pacific Tea Co., 462 Mich. 691, 706, 614 N.W.2d 607 (2000). Findings of fact made or adopted by the WCAC are conclusive on appeal, absent fraud, if there is any competent evidence in the record to support them. Id. at 706, 709-710, 726, 614 N.W.2d 607. This Court does not weigh or balance the evidence but instead merely determines whether "any evidence" exists to support the WCAC's decision. Id. at 727, 614 N.W.2d 607. A decision of the WCAC is subject to reversal if the commission operated within the wrong legal framework, if the decision was based on erroneous legal reasoning, if the commission based a finding of fact on a misconception of law, or if the commission failed to apply the law correctly. Bates v. Mercier, 224 Mich.App. 122, 124, 568 N.W.2d 362 (1997); Jones-Jennings v. Hutsel Hosp (On Remand), 223 Mich.App 94, 105, 568 N.W.2d 680 (1997).

Plaintiff's claim that this Court should reverse the WCAC's decision that he is entitled to only one $1,500 penalty payment under MCL 418.801(3) is without merit. Even considering that plaintiff had multiple bills from multiple health care providers for treatment involving multiple parts of his body, the language of the statute simply does not warrant the imposition of a penalty for each separate medical bill because the Legislature intended only...