Chrysler Corp. v. Workers' Compensation Appeal Board , 174 Mich. App. 277 ( 1988 )

Per Curiam.

Plaintiff filed a complaint for superintending control, challenging the propriety of the Workers’ Compensation Appeal Board review of a delayed appeal from an order of the hearing referee approving plaintiff’s redemption agreement with James Ashton. We grant superintending control on the ground that the wcab lacked jurisdiction to entertain a delayed appeal from a redemption order.

Initially, we note that superintending control is premised upon the power of the court to compel a lower court or tribunal, including an administrative agency with judicial or quasi-judicial powers, to perform a clear legal duty. Beer v City of Fraser Civil Service Comm, 127 Mich App 239, 242-243; 338 NW2d 197 (1983). See also In re People v Burton, 429 Mich 133; 413 NW2d 413 (1987). Superintending control should not issue if the plaintiff has another plain, speedy, adequate remedy by way of direct appeal from the lower court action of which the plaintiff complains. Beer, p 243; Chrysler Corp v Dep’t of Civil Rights, 117 Mich App 95, 102; 323 NW2d 608 (1982). See also MCR 3.302(D)(2). Under the procedural posture in which this case is presented, we reject the wcab’s argument that plaintiffs appropriate remedy in lieu of superintending control is to adhere to its administrative remedies and then to appeal at such time that a final order is issued by the wcab. When an administrative agency makes an erroneous preliminary determination of its jurisdiction or authority, leaving the aggrieved party to appellate relief only after exhausting administrative proceedings, something less than a plain, speedy, and adequate remedy results. In East Jordan Iron Works v WCAB, 124 Mich App 324; 335 NW2d 23 (1983), lv den 418 Mich 948 (1984), this Court examined the adequacy of the plaintiffs right to appeal under similar circumstances:

The orderly administration of the judicial system may, on occasion, require a party to defend against a meritless action, but no such consideration supports requiring a party to participate in proceedings beyond the court’s or tribunal’s jurisdiction. The board’s order of April 17, 1981, was one which it had no jurisdiction to enter. Under the circumstances presented here, we cannot say that an appeal after further proceedings before the bureau would be an adequate remedy. [Id., p 332.]

Relief in the form of superintending control was granted. See also Chrysler Corp v Civil Rights Comm, 68 Mich App 283, 289; 242 NW2d 556 (1976).

In this case, one of plaintiffs contentions in support of superintending control is that the wcab exceeded its statutory authority by entertaining the delayed appeal. We conclude that superintending control is both appropriate under these facts and preferable to requiring plaintiff to defend further administrative proceedings before raising the contention by an appeal from a final order.¹ Because we conclude that this issue is dispositive, we need not address plaintiffs other substantive arguments in support of its complaint for superintending control.

When, as in this case, the parties agree to redeem workers’ compensation obligations by a lump sum settlement, the proposed redemption agreement must be submitted by hearing to a referee for approval. See MCL 418.835; MSA 17.237(835), MCL 418.836; MSA 17.237(836). The procedure for appeal from the order of the hearing referee is provided by § 837 of the Workmen’s Compensation Act of 1969:

The director may, or upon the request of any of the parties to the action shall, review the order of the hearing referee entered under this section. Unless review is ordered or requested within 15 days of the date the order of the hearing referee is mailed to the parties, the order shall be final. In the event of review and in accordance with such rules as the director may prescribe and after hearing, the director shall enter such order as he deems just and proper. Any such order of the director may be appealed to the board within 15 days after the order is mailed to the parties. [1969 PA 317, MCL 418.837(2); MSA 17.237(837X2).][²]

At the risk of pointing out the obvious, we note that no authority for a delayed appeal is provided by this section._

The wcab argues that authority to entertain a delayed appeal is to be found in § 851:

The hearing referee assigned to any hearing in accordance with the provisions of section 847 shall make such inquiries and investigations as he shall deem necessary. The hearing shall be held at the locality where the injury occurred and the order of the hearing referee shall be filed with the bureau. Unless a claim for review is filed by a party within 15 days, the order shall stand as the order of the bureau. For sufficient cause shown, the board may grant further time in which to claim such review. [1969 PA 317, MCL 418.851; MSA 17.237(851).][³]

Plaintiff argues that this section is inapplicable in the context of review of the referee’s approval or rejection of a redemption agreement. Since §851 refers to §847 [MCL 418.847; MSA 17.237(847)], the general statutory provision for hearings resolving disputed workers’ compensation claims, plaintiff argues that the § 851 appeal procedure is limited to substantive disputes over questions of law and fact governing the right to compensation under the act. We find ourselves in agreement with plaintiff’s position and conclude that the Legislature’s omission of a delayed appeal procedure for orders approving redemption agreements manifests an intention to accord a greater degree of finality to the parties’ contractual resolution of liability for work-related personal injuries. Because the Legislature has, by its enactment of § 837, provided the procedure for appeal of redemption orders with a clear and unambiguous degree of specificity, it would be wholly unwarranted for us to judicially impose the § 851 provision for delayed appeal onto the redemption proceedings;_

Our conclusion finds support in Roberts v Marquette General Hospital, 127 Mich App 301; 338 NW2d 393 (1983), lv den 418 Mich 968 (1984), where this Court upheld the wcab’s determination that the director lacked jurisdiction to entertain an appeal pursuant to § 837 on the basis of the director’s entry of an order granting review upon his own initiative after the expiration of the fifteen-day period. It would be anomalous for us to hold that the wcab may grant a delayed appeal upon the request of the parties even though under Roberts the director is unable to exercise his sua sponte statutory prerogative of redemption review on a delayed basis.

In Walker v United States Equipment Co, 94 Mich App 454; 290 NW2d 36 (1979), this Court held that the director has jurisdiction to entertain a delayed appeal from a redemption order when that appeal challenges the authority and jurisdiction of the referee to issue the order. Although we need not express our views on the holding in Roberts, we note the underlying necessary assumption — that the fifteen-day rule "precludes the board from examining the factual merits of the redemption order” when the appeal is untimely. Id., p 457.

Our decision is without prejudice to the claimant’s right to invoke the equitable jurisdiction of the circuit court with regard to the redemption agreement. See Solo v Chrysler Corp (On Reh), 408 Mich 345; 292 NW2d 438 (1980).

Order of superintending control granted.

1 Both this Court and the Supreme Court have previously denied plaintiffs applications for leave to appeal the wcab’s interlocutory order. Ashton v Chrysler Corp, Docket No. 83291; unpublished order released May 6, 1985), lv den 425 Mich 854 (1986).

2 Although MCL 418.837; MSA 17.237(837) was amended subsequent to the event salient to this appeal, see 1985 PA 103, the resultant statutory revisions would not alter our legal analysis of the issue presented here. In this opinion, all references to statutes are in the form in effect at the time of the occurrences underlying this appeal.

3 The last sentence of the quoted statute is now referenced as MCL 418.851a; MSA 17.237(851a).