Richardson v. General Motors Corp. , 139 Mich. App. 727 ( 1984 )

139 Mich. App. 727 (1984) 363 N.W.2d 22

RICHARDSON
v.
GENERAL MOTORS CORPORATION

Docket No. 73673.

Michigan Court of Appeals.

Decided November 8, 1984.

Law Offices of Bernard M. Freid & Associates, P.C. (by Debra A. Freid), for plaintiff.

Braun, Kendrick, Finkbeiner, Schafer & Murphy (by E. Louis Ognisanti, Bruce L. Dalrymple, and Scott L. Strattard), for General Motors Corporation.

Before: DANHOF, C.J., and D.E. HOLBROOK, JR., and C.W. SIMON,^[*] JJ.

PER CURIAM.

Defendant appeals by leave granted from an order of the Workers' Compensation Appeal Board. The action arises from a workrelated injury to plaintiff where he lost the industrial use of his legs as a result of the accident and is considered totally and permanently disabled.

This dispute arose when defendant notified plaintiff in April of 1982 that his weekly compensation benefits were to be reduced under the newly enacted coordination provisions of MCL 418.354; MSA 17.237(354). Plaintiff disputed this reduction and his full benefits were ordered restored by a hearing referee in September of 1982; however, no penalties were assessed. Defendant filed for review in November of 1982 and filed a motion to stay the payments in December of 1982. In August the WCAB affirmed the decision that defendant's coordination of benefits was improper and that plaintiff was entitled to his full benefits. Additionally, the WCAB ordered defendant to pay penalties in the amount of $1,500 for the failure to pay full benefits before April 20, 1982, and $50 a day for each day in excess of 30 days that it failed to pay plaintiff his full amount owed.

On appeal, defendant acknowledges the improper coordination of benefits and is only concerned with the penalties imposed. Defendant alleges that the penalties were improper because there was an ongoing dispute that the multiple penalties are a constitutional violation and that the WCAB had no jurisdiction to decide and raise the applicability of the penalty provisions.

The penalties were assessed under MCL 418.801(2); MSA 17.237(801)(2), which provides that:

"(2) If weekly compensation benefits, accrued weekly benefits, medical bills, or travel allowance are not paid within 30 days after becoming due and payable in cases where there is not an ongoing dispute, $50.00 per day shall be added and paid to the worker for each day over 30 days in which the benefits, medical bills, or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection."

We agree with defendant's contention that the penalties were improper because there was an ongoing dispute. The WCAB is bound by this Court's decisions until a contrary result is reached by another panel of this Court or the Supreme Court takes other action. Hackett v Ferndale City Clerk, 1 Mich. App. 6; 133 NW2d 221 (1965).

This Court has repeatedly held that "[a]n award is to be considered in dispute while review or appeal is pending and during the time periods permitted for filing a claim for review or of appeal". Charpentier v Canteen Corp, 105 Mich. App. 700, 705; 307 NW2d 704 (1981), and DeKind v Gale Manufacturing Co, 125 Mich. App. 598, 608; 337 NW2d 252 (1983), lv den 418 Mich. 852 (1983). Our thorough review of the record reveals that there was an ongoing dispute for all time periods for which defendant was penalized.

Additionally, the WCAB made a qualitative determination of the merits of a defense for the purpose of assessing a penalty, which is clearly contrary to Michigan law. Couture v General Motors Corp, 125 Mich. App. 174; 335 NW2d 668 (1983), lv den 418 Mich. 884 (1983).

We find that the WCAB was clearly in error in assessing penalties against defendant because there was an ongoing dispute. Accordingly, we reverse the WCAB on the issue of penalties and defendant is not assessed any penalties.

Resolution of the foregoing issue being dispositive, defendant's remaining allegations of error are rendered moot.

Reversed. Costs to defendant.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.