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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 29, 2002
 

THOMAS KURTZ,
 

Plaintiff-Appellee,
 

v	 No. 118723
 

FAYGO BEVERAGES, INCORPORATED,
 

Defendant-Appellant.
 

PER CURIAM
 

In this worker’s compensation case, the Worker’s
 

Compensation Appellate Commission dismissed plaintiff’s appeal
 

because the transcript was not timely filed. The Court of
 

Appeals thereafter reversed, relying on Brooks v Engine Power
 

Components, Inc, 241 Mich App 56; 613 NW2d 733 (2000).
 

We conclude that in the circumstances of this case, in
 

which plaintiff did not timely file a request for an extension
 

of time, the WCAC did not abuse its discretion in dismissing
 

the appeal. We thus reverse the Court of Appeals decision and
 

reinstate the WCAC’s dismissal of plaintiff’s appeal.
 
I
 

Plaintiff sought worker’s compensation benefits, claiming
 

that he injured his back in the course of his employment with
 

defendant. The magistrate granted an open award of benefits
 

on December 19, 1995, following trial. On December 28, 1998,
 

defendant filed a petition to stop benefits.1 After a
 

hearing, the magistrate granted the motion in an order mailed
 

June 14, 2000, finding that plaintiff’s disability had ended
 

by December 2, 1998. He also ordered recoupment of benefits
 

from that date.
 

On July 10, 2000, plaintiff filed a timely claim for
 

review. Under MCL 418.861a,2 the transcript was due within
 

sixty days thereafter, or on or before September 8, 2000. 


After receiving the claim for review, the WCAC sent the
 

parties a form letter regarding the appeal procedure, which
 

included the following about transcripts and extensions:
 

TRANSCRIPTS
 

The appellant is responsible for filing the


complete, original hearing transcript with the
 

1 The magistrate denied an earlier petition to stop


benefits on July 25, 1997.
 

2
 

(5) 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.
 

2
 
Commission not later than 60 days after filing the


Claim for Review. Copies of the transcript must be
 

served on all opposing parties. Ref:
 

Section 861a(5). Beginning January 1, 1999, the
 

court reporting service will file the ordered


original and all copies upon the appellant for
 

distribution. The court reporting service will no


longer file transcripts directly with the
 

Commission.
 

EXTENSION OF TIME FOR FILING TRANSCRIPTS
 

Extensions of time will be considered if
 

requested prior to the expiration of the above due


dates, and will normally be granted on good cause


shown. The first extension shall be granted


automatically for 60 days. If extension requests


are not timely, they will only be granted in


extraordinary circumstances. 


Plaintiff failed to file the transcript by September 8,
 

2000, and did not request an extension of time. Therefore, on
 

September 26, 2000, the WCAC issued an order dismissing the
 

appeal. In its letter, the commission stated that it would
 

“consider a timely motion for reconsideration, supported by
 

affidavit or other evidence, showing that the reason for the
 

tardy filing was beyond plaintiff’s control.”
 

Plaintiff filed a motion for reconsideration explaining
 

that he could not file the transcript on or before September 8
 

because the reporter did not complete the transcript until
 

September 14, 2000.3 On October 18, 2000, the WCAC issued an
 

order denying reconsideration, “because plaintiff failed to
 

3 The reporter’s certificate attached to the motion was


dated September 16, 2000, but the plaintiff did not file it


with the WCAC until September 29, 2000, after entry of the


dismissal order. An additional transcript volume was prepared


later as the result of an oversight on behalf of the reporting


firm.
 

3
 
show good cause that the untimely filing of the transcript was
 

the result of circumstances beyond his control.” 


Plaintiff filed an application for leave to appeal with
 

the Court of Appeals. The Court issued a peremptory order
 

reversing and remanding to the WCAC for consideration of
 

plaintiff’s appeal, stating that it was bound by Brooks and a
 

series of peremptory orders of this Court.4 The Court further
 

stated that, but for those authorities, it would affirm the
 

WCAC on the basis that it did not abuse its discretion in
 

dismissing the appeal for failure to timely file the
 

transcript. 


Defendant has filed an application for leave to appeal to
 

this Court.
 

II
 

As we explained in Marshall v D J Jacobetti Veterans
 

Facility (After Remand), 447 Mich 544, 548-550; 526 NW2d 585
 

(1994), the Worker’s Compensation Appellate Commission’s
 

practices regarding deadlines and extensions have previously
 

been characterized as “chaotic.” We noted, however, that
 

effective January 1, 1993, the WCAC provided adequate notice
 

of a change of practice regarding enforcement of its
 

administrative rules and the statutory time limits. That
 

policy stated:
 

4
 Unpublished order, entered February 20, 2001 (Docket


No. 230773).
 

4
 
“The Workers' Compensation Appellate


Commission has unanimously adopted a formal policy


concerning filing requirements when requesting


review of a workers' compensation claim. 


“The Commission's policy will apply to all


appeals filed on or after January 1, 1993. The
 

new policy is as follows: 


“1. Per the statutory requirements of
 

section 861a(5), the transcript is due within 60
 

days of the filing of the appeal. Any motion for
 

an extension of time in which to file the
 

transcript must be filed within that 60-day period.
 

In the event a motion for extension is timely


filed, an automatic 60-day extension shall be


granted from the date of the extension letter.


Warning letters, advising that a transcript has not


been timely received, shall no longer be sent for


any appeals filed on or after January 1, 1993. If
 

the transcript or request for extension is not
 

filed in a timely manner, the appeal shall be
 

dismissed.
 

“2. Per the statutory requirements of
 

section 861a(5), the appellant's brief is due


within 30 days of the filing of the transcript.


Any motion for an extension of time in which to


file the brief must be filed within that 30-day


period. In the event a motion for extension is
 

timely filed, an automatic 60-day extension shall


be granted from the date of the extension letter.


If the brief or request for extension is not filed


in a timely manner, the appeal shall be dismissed


or the decision of the magistrate shall be
 

summarily affirmed. 


“For appeals filed prior to January 1, 1993,
 

each assigned panel of the Commission shall
 

continue to exercise its discretion concerning


extensions and dismissals. Because no party is


guaranteed a particular panel, parties would be


well advised to assume that their panel is composed


of commissioners adhering to the strictest possible


policy concerning the statutory filing


requirements.” [447 Mich 549-550 (emphasis


added).]
 

Marshall involved a dismissal of an appeal because of the
 

plaintiff’s failure to timely file a brief on appeal. We
 

5
 
reversed the dismissal because it occurred before the WCAC
 

gave clear notice of its changed policy. We announced,
 

however, that dismissals of appeals filed after January 1,
 

1993, would be evaluated in light of the new policy. 


Our Marshall decision included a footnote regarding
 

untimely filing of transcripts, a subject that we expressly
 

declined to rule upon:
 

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. [447 Mich 550, n 9.]
 

The Court of Appeals opinion on which the decision in the
 

present case was based, Brooks, dealt at length with the
 

matter of late transcripts. The Brooks Court reviewed several
 

peremptory orders of this Court setting aside dismissals that
 

had been entered on the basis of the failure to timely file
 

transcripts.5 The Court viewed these orders as answering the
 

question left open in Marshall—“the ‘proper outcome’ when the
 

WCAC dismisses an appeal for failure to timely file a
 

transcript, even though the appellant’s attorney could not
 

5
 Tomblin v MNP Corp, 456 Mich 871 (1997); Horvath v
 

Pegasus Tavern, 454 Mich 912 (1997); Bright v Voss Steel
 

Corp, 454 Mich 855 (1997); Alshubi v Chrysler Corp, 454 Mich
 

854 (1997); Wimbush v Noecker Vinyl & Plastics, 453 Mich 963
 

(1996). 


6
 
prevent the tardy filing.” 241 Mich App 61. The Court
 

concluded that our orders
 

constitute binding precedent for the proposition


that the WCAC abuses its discretion when it
 

dismisses an appellant's appeal for failing to


timely prepare transcripts when the appellant can


show that the failure occurred "for reasons beyond


the control of appellant's counsel.” [241 Mich App
 

62.]
 

Brooks established a rule that the WCAC abuses its
 

discretion by dismissing an appeal for failure to timely file
 

a transcript when such failure is the fault of the court
 

reporter and not of the party or counsel. The court
 

reporter’s failure to timely prepare the transcript, however,
 

does not, in itself, excuse a tardy filing. The WCAC’s
 

written policies provide clear notice of the obligation to
 

request extensions of time before the due date. As stated in
 

the form letter sent in this case, as of January 1, 1999,
 

court reporters no longer file transcripts directly with the
 

WCAC, but instead provide them to counsel. Thus, attorneys
 

representing appellants can and should know if a transcript
 

will not be timely filed and are in a position to request an
 

extension within the allotted time. 


Of course, unusual situations may arise in which an
 

appellant’s failure to timely request an extension might be
 

excused. Where such a claim is made, evaluation of the
 

circumstances is entrusted to the WCAC’s discretion.
 

Appellate courts review such decisions regarding failure to
 

comply with procedural deadlines for an abuse of discretion.
 

7
 
Zielke v A J Marshall Co, 306 Mich 474, 477-478; 11 NW2d 209
 

(1943); Meyers v Iron Co, 297 Mich 629, 634-636; 298 NW 308
 

(1941). As we stated in Alken-Ziegler, Inc v Waterbury
 

Headers Corp, 461 Mich 219, 227-228; 600 NW2d 638 (1999):
 

An abuse of discretion involves far more than
 

a difference in judicial opinion. Williams v
 

Hofley Mfg Co, 430 Mich 603, 619; 424 NW2d 278
 

(1988). It has been said that such abuse occurs
 

only when the result is "'so palpably and grossly


violative of fact and logic that it evidences not


the exercise of will but perversity of will, not


the exercise of judgment but defiance thereof, not


the exercise of reason but rather of passion or


bias.'" Marrs v Bd of Medicine, 422 Mich 688, 694;


375 NW2d 321 (1985), quoting Spalding v Spalding,
 

355 Mich 382, 384-385; 94 NW2d 810 (1959), and


noting that, although the Spalding standard has
 

been often discussed and frequently paraphrased, it


has remained essentially intact. 


III
 

In this case, the transcript was due on September 8,
 

2000. Plaintiff did not request an extension and presented
 

an explanation for the delay only in his motion for
 

reconsideration of the dismissal order. There, he explained
 

that the reporter failed to prepare the transcript by the due
 

date. This explanation, however, did not excuse the failure
 

to timely request an extension. In view of the WCAC’s efforts
 

to remove the perceived “chaos” in prior practice and to
 

enforce timely filing requirements, we find no abuse of
 

discretion in this case.
 

As the Court of Appeals decision in Brooks noted, on a
 

number of occasions we have set aside dismissals that were
 

8
 
based on the failure to timely file a transcript. Each of
 

those cases involved its own set of circumstances, and we do
 

not reconsider at this point whether, under the principles
 

enunciated here, we would reach the same decision in those
 

cases. In any event, our peremptory orders in those cases
 

provide little guidance because of the limited discussion of
 

the facts in the orders.
 

Accordingly, we hold that a court reporter’s delay in
 

preparing a transcript does not necessarily excuse a late
 

filing where the appellant fails to request an extension of
 

time under procedures established by the WCAC.6 In the
 

circumstances of this case, the WCAC did not abuse its
 

discretion in dismissing the appeal. We therefore reverse the
 

judgment of the Court of Appeals and reinstate the dismissal
 

order.
 

CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, JJ.,
 

concurred.
 

6
 To the extent that the reasoning in Brooks is
 

inconsistent with our decision here, it is overruled. 


9
 
 

________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

THOMAS KURTZ,
 

Plaintiff-Appellee,
 

No. 118723
 

FAYGO BEVERAGES, INCORPORATED,
 

Defendant-Appellant.
 

KELLY, J. (dissenting).
 

A per curiam opinion is not an appropriate vehicle for
 

resolving the issue in this case. Despite the WCAC's policy
 

regarding filing requirements, this Court has found that the
 

WCAC abused its discretion by dismissing cases due to late
 

filing of transcripts. These were cases where the delay was
 

not caused by the appealing party. See, e.g., Tomblin v MNP
 

Corp, 456 Mich 871 (1997); Bright v Voss Steel Corp, 454 Mich
 

855 (1997). The Court of Appeals in Brooks v Engine Power
 

Components, Inc,1 was in accord with the orders in those
 

cases. Brooks held that the WCAC abused its discretion when
 

it dismissed an appeal because a court reporter filed a
 

transcript untimely.
 

1 241 Mich App 56; 613 NW2d 733 (2000).
 
In light of this precedent, it is unclear that the
 

circumstances of the current untimely filing are insufficient
 

to excuse the delay or the failure to request an extension.
 

I would deny leave, allowing the matter to be resolved under
 

Brooks, or I would grant leave to fully consider the continued
 

viability of that decision.
 

CAVANAGH, J., concurred with KELLY, J.
 

2