Michigan Court of Appeals scolds workers' comp commissioner

By Ed Wesoloski Dolan Media Newswires In a recent unpublished decision, it took a Court of Appeals panel one sentence to affirm a Workers' Compensation Appellate Commission's award of benefits, and about a page and a half to scold dissenting Commissioner Gregory Przybylo. The administrative and judicial appellate history of Mohney v. American Int'l Group, et al. (After Remand), is a bit tangled. In the initial COA appeal, Loren Mohney challenged the WCAC's reversal of a magistrate's open award of benefits. Mohney slipped and fell in an icy parking lot at his workplace. The WCAC, in a split decision, remanded the case to the magistrate for further fact-finding on whether the parking lot was actually owned, leased or maintained by Mohney's employer. The parties supplemented the record. The magistrate again concluded that benefits should be awarded. The WCAC reversed, ruling that plaintiff failed to prove at his first trial that his injury arose from his employment. The WCAC also ruled that it had erred by sending the case back to the magistrate. In other words, the WCAC, instead of reviewing the supplemented record and the magistrate's decision, decided that the original record was sufficient to rule that Mohney was not entitled to benefits. The COA reversed. "The WCAC should have reviewed the supplemented record and second opinion from the magistrate, and on remand we direct that it do so." On remand to the WCAC, Mohney was awarded benefits in a split decision, with Przybylo dissenting. In his view, "plaintiff failed to prove his case and the law does not allow him a second opportunity to present proofs." The COA retorted that ''t]he dissenting commissioner appears to have misread or misapprehended our remand opinion." "At no point did this Court state that plaintiff failed to address whether his injury arose out of and in the course of his employment. Rather, we found that the magistrate failed to address the issue. The additional proofs were allowed not to give plaintiff a second chance, but rather to give the magistrate a first chance to consider the issue and make findings thereon." The COA said there was little in the record to suggest the parties even disputed whether the injury arose from Mohney's employment, so it was "hardly surprising that the magistrate would have regarded the issue as not worthy of consideration, let alone explicitly addressing it, until the WCAC instructed him to do so." The COA panel said that Przybylo's real beef is with the WCAC's decision to remand to the magistrate to consider whether Mohney's injury arose from his employment. "However, that procedural issue was clearly within the authority of the original panel. Even if the WCAC had initially been wrong to remand the matter, permitting post-remand panels to upend its own conclusions would cause chaos. The WCAC is not its own appellate body.'' The COA took Przybylo to task for suggesting that Mohney was given an unfair opportunity to put additional evidence before the magistrate. Published: Mon, Feb 11, 2013

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