Warren v. Motor Wheel Corp.

110 Mich. App. 731 (1981) 313 N.W.2d 286

WARREN
v.
MOTOR WHEEL CORPORATION.

Docket No. 50697.

Michigan Court of Appeals.

Decided April 28, 1981.

Sablich, Ryan, Rapaport, Bobay & Pollok, P.C., for petitioner James M. Warren.

Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell, of counsel), for respondent Motor Wheel Corporation.

Philip J. Prygoski, for intervening members of the Workers' Compensation Appeal Board.

Amici Curiae:

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eileen D. Zielesch and Ray W. Cardew, Jr., Assistants Attorney General, for the Attorney General.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Jonathan T. Kopit), for General Motors Corporation.

Before: M.J. KELLY, P.J., and ALLEN and C.L. HORN,^[*] JJ.

PER CURIAM.

The Workers' Compensation Appeal Board affirmed the decision of the hearing referee awarding James M. Warren partial disability benefits on the basis of a 1966 traumatic injury. The three member panel of the appeal board were all representatives of employee interests, as board members are defined in § 251 of the Worker's Disability Compensation Act, MCL 418.251; MSA 17.237(251).

Application for leave to appeal was granted on the question: Was Motor Wheel Corporation deprived of due process of law when a Workers' Compensation Appeal Board panel consisting of three members appointed as representatives of employee interests heard Motor Wheel's appeal of a referee's decision in Warren's favor?

A reading of the applicable statutes, §§ 251 and 261(2) of the Worker's Disability Compensation Act, MCL 418.251, 418.261(2); MSA 17.237(251), 17.237(261)(2), indicates that there is no prohibition against a composition of the appeal board such as occurred in this case.

Motor Wheel is entitled to a hearing before an unbiased and impartial decisionmaker as a matter of basic due process. Crampton v Dep't of State, 395 Mich. 347; 235 NW2d 352 (1975).

In Crampton, supra, 351, the Court adopted the rule set forth in Withrow v Larkin, 421 U.S. 35; 95 S. Ct. 1456; 43 L. Ed. 2d 712 (1975), to disqualify decisionmakers without a showing of actual bias "in situations where ``experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable'".

In examining the four Crampton situations in which the risk of bias may be too high, we find the following:

(1) Do the representatives of employee interests have a pecuniary interest in the outcome? There is none claimed by Motor Wheel.

(2) Have any of the said representatives been the target of personal abuse or criticism from Motor Wheel? There is none claimed by Motor Wheel.

(3) Have any of the said representatives been enmeshed in matters involving Motor Wheel? There is none claimed by Motor Wheel.

(4) Might any of the said representatives have prejudged the case because of prior participation as an accuser, investigator, factfinder or initial decisionmaker? The said representatives are not subject to this situation because they can only act as members of the appeal board by virtue of the provisions of the statute by which they were appointed.

Motor Wheel also cites Crampton, supra, for the claim that "identification and alignment" of the decisionmaker with the adversary is constitutionally impermissible. Such an argument in this case is based upon the designation of the members of the appeal board in the applicable statutes, supra. No actual bias is alleged. We do not find this designation, as such, to be unconstitutional.

Statutes are presumed to be constitutional, and we find these statutes to be constitutional.

The determination of the appeal board is affirmed. No costs, a question of the constitutionality of a statute being involved.

NOTES

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