Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

December 2, 2009

135615

FAROOK MANSOUR, Plaintiff-Appellee,

v SC: 135615 COA: 277570 WCAC: 05-000284 AZ AUTOMOTIVE CO RPORATION, f/k/a AETNA INDUSTRIES, INC., Defendant-Appellant.

________________ _______________ __________/

By order of October 10, 2008, the applica tion 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 th e questions presented

should be reviewed by this Court.

C ORRIGAN , J. ( dissenting ).

I respectfully dissent from the order deny ing defendant’s application for leave to appeal. Because th e split decision in Petersen v Magna Corp , 484 Mich 300 (2009), failed to provide a workable standard co ncerning the circumstances under which a magistrate “may” prorate attorney fees, I w ould remand this case to the Court of Appeals to consider defendant’s argument that the aw ard 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 mere ly agreed on the result: worker s’ 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 au thority in the first

instance. Petersen merely tells us that a magistrate “m ay prorate” attorney fees but that2

an award is not automatic. See Petersen, supra at 309 (opinion of Kelly, C.J.) (“Hence, magistrates are allowed to awar d attorney fees, but they ar e not required to do so.”). Consequently, Petersen does not explain how magistrate s 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 expens es that an employer fails, neglects, or refuses to pay. See MCL 418.315(1) (“If the em ployer fails, neglects, or refuses so to do, the employee shall be reimbursed for the re asonable expense paid by the employee, or payment may be made in behalf of the employ ee to persons to whom the unpaid expenses may be owing, by order of the worker’s co mpensation magistrate.”). Accordingly, MCL 418.315(1) mandates reim bursement 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 ex ercising their authority. Yet, neither Petersen nor the statutory language assists a workers’ compensation magist rate in determining whether to exercise that discretionary authority in a given case.

The dearth of guidance fro m this Court concerning th e standard under which a magistrate may exercise discretion under MCL 418.315(1) will c ontinue 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 surg ery to plaintiff’s back because defendant reasonably questioned wh ether the surgery was related to plaintiff’s compensable, workrelated back injury, which wa s merely a back strain. Peterson does not establish whether, and under what circumstances, attorney fees are appropriat e when a defendant contests his duty to pay a bill that appears unrelated to the compensable in jury. Perh aps most significantly, defendant observes that the magistra te 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 fo r the magistrate to properly exercise her discretion in awarding a fee.

Because Petersen failed to resolve th ese issues, I would remand this case to the Court of Appeals for reconsid eration of defendant’s argum ent that the award of an attorney fee on unpaid medical benefits was e rroneous. Specifically, I would order the Court of Appeals to consider whether th e workers’ compensation magistrate made sufficient findings and offered ad equate analysis to show th at 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 wo uld ask the Court of Appeals to address defendant’s argument that the magistra te 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 Mi chigan Supreme Cour t, 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 3

related injury, and thus whether payment was actually owed by de fendant. Unless this Court or the Court of Appeals clarifies th e standard under whic h a magistrate may exercise discretion, the award of attorney fees under MCL 418.31 5(1) will become automatic. Plainly, the Legislature did not au thorize the automatic a ssessment of attorney

fees.

Accordingly, I would remand this case to the Court of Appeals to consider defendant’s argument that the award of an a ttorney fee on unpaid medical benefits was

erroneous.

Y OUNG and M ARKMAN , JJ., join the statement of C ORRIGAN , J.