20221117_C359389_44_359389D.Opn.Pdf ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ADAM MASSERANT, UNPUBLISHED
November 17, 2022
Appellant,
v No. 359389
Ingham Circuit Court
STATE EMPLOYEES’ RETIREMENT SYSTEM, LC No. 21-000436-AA
Appellee.
Before: HOOD, P.J., and JANSEN and K. F. KELLY, JJ.
JANSEN, J. (dissenting)
For the reasons that follow, I respectfully dissent. I would reverse the order denying
appellant’s application for disability retirement benefits and remand for the State Retirement Board
to consider all medical evidence because the interpretation of MCL 38.67a by the Board, the trial
court, and the majority deprives applicants of due process.
The government may not deprive an individual of life, liberty, or property without due
process of law under the Michigan and United States Constitutions. Const 1963, art 1, § 17; US
Const, Am XIV. “A threshold requirement to a . . . procedural due process claim is the plaintiff’s
showing of a liberty or property interest protected by the Constitution.” Mettler Walloon, LLC v
Melrose Twp, 281 Mich App 184, 209; 761 NW2d 293 (2008) (quotation marks and citations
omitted). “A protected property interest is present where an individual has a reasonable
expectation of entitlement deriving from existing rules or understandings that stem from an
independent source such as state law.” Id. (quotation marks and citations omitted).
Procedural due process serves as a limitation on governmental action and
requires a government to institute safeguards in proceedings that might result in a
deprivation of life, liberty, or property. Procedural due process generally requires
notice, an opportunity to be heard, before an impartial trier of fact, and a written,
although relatively informal, statement of findings. In other words, procedural due
process requires that a party be provided notice of the nature of the proceedings and
an opportunity to be heard by an impartial decision maker at a meaningful time and
in a meaningful manner. [Id. at 213-214 (citations omitted).]
-1-
Appellant’s reasonable expectation of entitlement to disability retirement benefits was
based on the relevant statute, MCL 38.67a(5), which provides:
(5) Except as otherwise provided in this section or section 33, a qualified
participant who becomes totally incapacitated for duty because of a personal injury
or disease that is not the natural and proximate result of the qualified participant’s
performance of duty may be retired if all of the following apply:
(a) Within 1 year after the qualified participant becomes totally
incapacitated or at a later date if the later date is approved by the retirement board,
the qualified participant, the qualified participant’s personal representative or
guardian, the qualified participant’s department head, or the state personnel director
files an application on behalf of the qualified participant with the retirement board.
(b) A medical advisor conducts a medical examination of the qualified
participant and certifies in writing that the qualified participant is mentally or
physically totally incapacitated for further performance of duty, that the
incapacitation is likely to be permanent, and that the qualified participant should be
retired.
(c) The qualified participant has been a state employee for at least 10 years.
There is no dispute that appellant met the requirements of subsections (5)(a) and (c).
However, two independent medical advisors certified that appellant was not permanently
incapacitated. The majority reasons that because appellant cannot meet the requirement in
subsection (5)(b), he has no protected property interest in receiving such benefits, and therefore,
does not address the merits of appellant’s procedural due process argument. I respectfully
disagree.
In Polania v State Employees’ Retirement Sys, 299 Mich App 322, 324, 332; 830 NW2d
773 (2013), the respondent Board appealed the trial court order reversing its decision to deny the
petitioner nonduty disability retirement benefits under a different statute, MCL 38.24, which
contains a substantially similar requirement for certification by an independent medical advisor as
MCL 38.67a(5)(b).1 This Court reversed the trial court order, and remanded for entry of an order
affirming the Board’s denial of benefits. Id. at 324. The Court reasoned:
The Board correctly understood that under the plain meaning of MCL
38.24(1)(b), Polania had to have such a certification before the Board could retire
1
MCL 38.24(1)(b) provides that one of the requirements for nonduty disability retirement benefits
is:
A medical advisor conducts a medical examination of the member and
certifies in writing that the member is mentally or physically totally incapacitated
for further performance of duty, that the incapacitation is likely to be permanent,
and that the member should be retired.
-2-
her. Because the record showed that both the medical advisors—one who evaluated
her mental health and one who evaluated her physical health—refused to certify
that Polania was totally and permanently disabled, the Board properly determined
that it did not have the authority to grant Polania’s request for retirement benefits
and, on that basis, denied her claim. The Board did not have to examine the
competing medical evidence to determine whether it should exercise its
discretion—under the facts of this case, it had no discretion to grant Polania’s
request for benefits. For these reasons, the trial court erred when it determined that
the Board’s interpretation of MCL 38.24(1)(b) was incorrect. [Id. at 333.]
I believe that the Polania decision was wrongly decided in this regard. In essence, the
statute at hand, MCL 38.67a(5)(b), like the statute in Polania, leaves the determination of whether
an applicant is entitled to retirement disability benefits to a witness, the independent medical
advisor, who, in fact, is hired by appellee. Moreover, although in this matter appellant produced
medical evidence from two chiropractors indicating that his degenerative arthritis precluded him
from performing his job duties as a park ranger, appellee, under the Polania interpretation, would
have no duty to consider this evidence where the independent medical advisors concluded that
appellant was not permanently incapacitated. In fact, appellee would be precluded from
considering this evidence, and denied any discretion to decide whether to retire the applicant. Id.No matter what evidence an applicant could produce, appellee would have no discretion to award
benefits where an independent medical advisor certified that the applicant was not permanently
incapacitated. This constitutes a violation of the applicant’s procedural due process because it
deprives the individual from an opportunity to be heard by an impartial decision maker in a
meaningful manner. Mettler Walloon, LLC, 281 Mich App at 214.
In Polania, when the petitioner appealed the denial of benefits to the trial court, the trial
court
rejected an interpretation of MCL 38.24 that gives the state’s medical advisor the
last word on whether a claimant can receive nonduty disability retirement benefits:
“It is also clear that Respondent’s [independent medical advisors] do not have the
first, last, and only word on whether or not an applicant qualifies for non-duty
disability retirement benefits.” The court came to that conclusion, in part, because
such an interpretation would “effectively eliminate this Court’s power to conduct a
judicial review of the Board’s decision pursuant to the Administrative Procedures
Act and Michigan’s Constitution.” [Polania, 299 Mich App at 327.]
On appeal, this Court stated:
Given the undisputed evidence that the medical advisors had not certified that
Polania was totally and permanently disabled, the trial court should have concluded
that the Board’s decision was supported by the record.
This is not to say that we are unsympathetic to the trial court’s concerns;
there may be powerful incentives—whether conscious or subconscious—for a
medical advisor in the Board’s employ to refuse to certify employees with a total
and permanent disability. And it seems inequitable that an employee who has
-3-
substantial evidence that he or she is totally and permanently disabled is
nevertheless precluded under MCL 38.24(1)(b) from seeking review of a medical
advisor’s refusal to certify his or her disability. This is especially true when, as
here, the employee’s evidence is founded on his or her long-time treating
physicians’ opinions and the Board’s decision is dictated by the opinion of a
medical advisor who has never examined the employee. But this Court—like the
Board itself—is not at liberty to ignore the Legislature’s policy choices simply
because we might find them to be unjust or unwise. [Id. at 334-335 (footnote
omitted).]
Thus, I would conclude that Polania was wrongly decided because this interpretation of
the relevant statutes deprives an applicant for retirement disability benefits due process, and order
the convening of a conflict panel under MCR 7.215(J)(3).
/s/ Kathleen Jansen
-4-