Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

December 2, 2009 

135615 

FAROOK MANSOUR, 

Plaintiff-Appellee, 

v SC: 135615 

 COA: 277570 

WCAC: 05-000284 

AZ AUTOMOTIVE CORPORATION, f/k/a 

AETNA INDUSTRIES, INC., 

Defendant-Appellant. 

_________________________________________/ 

 By order of October 10, 2008, the application for leave to appeal the December 4, 

2007 order of the Court of Appeals was held in abeyance pending the decision in 

Petersen v Magna Corp (Docket Nos. 136542-43). On order of the Court, the case 

having been decided on July 31, 2009, 484 Mich 300 (2009), the application is again 

considered, and it is DENIED, because we are not persuaded that the questions presented 

should be reviewed by this Court. 

 CORRIGAN, J. (dissenting). 

 I respectfully dissent from the order denying defendant’s application for leave to 

appeal. Because the split decision in Petersen v Magna Corp, 484 Mich 300 (2009), 

failed to provide a workable standard concerning the circumstances under which a 

magistrate “may” prorate attorney fees, I would remand this case to the Court of Appeals 

to consider defendant’s argument that the award of an attorney fee on unpaid medical 

benefits was erroneous. 

 MCL 418.315(1) provides that “[t]he worker’s compensation magistrate may 

prorate attorney fees at the contingent fee rate paid by the employee.” In Petersen, a 

majority of this Court merely agreed on the result: workers’ compensation magistrates 

may prorate attorney fees among employers and their insurance carriers. The five 

opinions did not offer a controlling rationale. Moreover, the five separate opinions in 

Petersen do not establish a standard agreed on by a majority of justices under which 

workers’ compensation magistrates may exercise their discretionary authority in the first 

instance. Petersen merely tells us that a magistrate “may prorate” attorney fees but that 
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an award is not automatic. See Petersen, supra at 309 (opinion of Kelly, C.J.) (“Hence, 

magistrates are allowed to award attorney fees, but they are not required to do so.”). 

Consequently, Petersen does not explain how magistrates could abuse their discretion in 

awarding attorney fees, much less specify how magistrates may exercise their discretion. 

 In MCL 418.315(1), the Legislature differentiated between magistrates’ 

discretionary authority to prorate attorney fees and their mandatory duty to order 

reimbursement for reasonable medical expenses that an employer fails, neglects, or 

refuses to pay. See MCL 418.315(1) (“If the employer fails, neglects, or refuses so to do, 

the employee shall be reimbursed for the reasonable expense paid by the employee, or 

payment may be made in behalf of the employee to persons to whom the unpaid expenses 

may be owing, by order of the worker’s compensation magistrate.”). Accordingly, MCL 

418.315(1) mandates reimbursement for medical bills that the employer does not pay. In 

contrast, the award of attorney fees under MCL 418.315(1) is discretionary. Because the 

award of attorney fees is a discretionary determination, magistrates presumably must 

make some additional finding before exercising their authority. Yet, neither Petersen nor 

the statutory language assists a workers’ compensation magistrate in determining whether 

to exercise that discretionary authority in a given case. 

 The dearth of guidance from this Court concerning the standard under which a 

magistrate may exercise discretion under MCL 418.315(1) will continue to confound 

members of the bench and bar. In this case, for example, defendant argues that it did not 

immediately pay medical bills for disc surgery to plaintiff’s back because defendant 

reasonably questioned whether the surgery was related to plaintiff’s compensable, workrelated back injury, which was merely a back strain. Peterson does not establish whether, 

and under what circumstances, attorney fees are appropriate when a defendant contests 

his duty to pay a bill that appears unrelated to the compensable injury. Perhaps most 

significantly, defendant observes that the magistrate made no findings with regard to the 

attorney fee issue, but simply awarded a fee on the basis of plaintiff’s request and the fact 

that the bills went unpaid for an undetermined amount of time. It would seem that some 

amount of explicit fact-finding was necessary for the magistrate to properly exercise her 

discretion in awarding a fee. 

 Because Petersen failed to resolve these issues, I would remand this case to the 

Court of Appeals for reconsideration of defendant’s argument that the award of an 

attorney fee on unpaid medical benefits was erroneous. Specifically, I would order the 

Court of Appeals to consider whether the workers’ compensation magistrate made 

sufficient findings and offered adequate analysis to show that she engaged in a proper 

exercise of discretion in requiring defendant to pay attorney fees under MCL 418.315(1). 

See Petersen, supra at 310, 335-336. Moreover, I would ask the Court of Appeals to 

address defendant’s argument that the magistrate erred by awarding attorney fees on 

medical bills where defendant contested whether the services addressed plaintiff’s work-
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

December 2, 2009 

1124 

 

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related injury, and thus whether payment was actually owed by defendant. Unless this 

Court or the Court of Appeals clarifies the standard under which a magistrate may 

exercise discretion, the award of attorney fees under MCL 418.315(1) will become 

automatic. Plainly, the Legislature did not authorize the automatic assessment of attorney 

fees. 

 Accordingly, I would remand this case to the Court of Appeals to consider 

defendant’s argument that the award of an attorney fee on unpaid medical benefits was 

erroneous. 

 YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.