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 

137402 

RICHARD E. HARVLIE, 

Plaintiff-Appellee, 

and 

BLUE CROSS/BLUE SHIELD, 

 Intervening Plaintiff-Appellee, 

v SC: 137402 

 COA: 276044 

WCAC: 04-000445 

JACK POST CORPORATION and ST. PAUL 

FIRE & MARINE INSURANCE COMPANY, 

Defendants-Appellants. 

_________________________________________/ 

 By order of January 27, 2009, the application for leave to appeal the August 21, 

2008 judgment of the Court of Appeals was held in abeyance pending the decision in 

Petersen v Magna Corp (Docket Nos. 136542-3). 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 defendants’ 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 defendants’ 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 
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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 

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, defendants challenge the award 

of attorney fees when payment was delayed for approximately three months because of 

typical processing lags and plaintiff’s failure to submit evidence in a timely manner. 

Defendants contend that the magistrate abused his discretion in awarding attorney fees 

under the unique facts of this case. Assuming arguendo that a three-month delay is an 

appropriate circumstance for the magistrate to have exercised his discretionary authority, 

it remains unclear whether the magistrate would necessarily have reached the same result 

if payment had been delayed for two months or two weeks. Similarly, it is unclear what 

additional factors would be relevant to the magistrate’s discretionary determination. 

Indeed, the lack of any workable standard complicates the appellate review of such 

awards as well because a reviewing court has no meaningful basis to consider whether a 

magistrate abused his discretion in awarding attorney fees. 

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

Court of Appeals for reconsideration of defendants’ 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 
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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sufficient findings and offered adequate analysis to show that he engaged in a proper 

exercise of discretion in requiring defendants 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 defendants’ argument that the magistrate erred by awarding attorney 

fees on medical bills that plaintiff failed to prove were not diligently paid after defendants 

received notice of them. 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 

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

erroneous. 

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