*1
dissenting, MSA that MCL stated penalty upon imposition for each of a allows compensation payments to a or of weeks week plaintiff unpaid. not seek a did Because worker are week, sought of the referee’s affirmance but for each necessary award, she was original to decide whether it is not filing petition, filing original continue required, collecting penalty payments. The prerequisite to as a adequate provided notice. defendant (1988) 15; App reversed. Mich Pay Penalty. — Compensation — Benefits Failure to Workers’ may penalties added to an award of No more statutory interest where workers’ *3 weekly are benefits weekly or accrued benefits (MCL becoming payable days paid thirty due and not within 17.237[801][2]). 418.801[2];MSA Timothy (by Timothy Offices, P.C. J. Bott Law Bott), plaintiff. for (by Phillips Dixon, Geoff Smith, P.C.
Walton, & Smith), for the defendant. G.
Amici Curiae: Ducey, Chuhran, Benham, &
Conklin, Listman Berge), (by and David J. Thomas P. Chuhran P.C. Michigan Association. Self-Insurers’ for Linkner, Charles Granzotto, and Monica Mark Michigan Lawyers Associa- Trial P. Burbach for tion. 801(2) Disabil- of Workers’ J. Section
Levin, M-R Townsend v Opinion Court if provides weekly Act1 that Compensation ity or accrued benefits benefits days becoming within due paid thirty not are shall be per day and payable, $50 thirty each benefits day days for over worker $1,500.00 than paid, more "[n]ot pursuant to this subsec- may in total be added tion.” $1,500 may be added
We hold no more involved. for all the weeks
i working at M-R her back while injured Townsend Products, compensa- Inc. filed for workers’ She award of open and obtained $61 tion benefits Products, in- M-R neither apparently week. per as a qualified nor properly sured for self-insurer, to Townsend failed to benefits pay 1985.2 through middle of the fall of 1983 from pursuant filed Fifteen of delinquent payments. for the §801(2) deemed to been petitions3 properly have filed, for penalties, in each against M-R Products. The petition, awarded $1,500.4 The Court of reduced the award wcab 17.237(801X2). 418.801(2); MCL MSA experiencing apparently financial M-R Products was difficulties. during apparently also failed to M-R Products latter part December, 1982, A was filed in of 1982. April, and a was awarded $1,500 penalty appears incorporated been in a circuit to have This June, against judgment entered M-R Products court paid. which was petitions, properly filed for one week. The Of the fifteen one was periods ranging time weeks to six months. covered two others *4 filed, petitions Although M-R least fifteen Products had at hearing. day first two before the The received hearing copies adjourned provide with M-R Products respond. petitions and time to other 4 598; Co, citing Mfg App wcab, v Gale 125 Mich 337 DeKind 500 436 Mich 496 Opinion op the Court Appeals $22,500 reinstated award. 173 Mich (1988). 15, 16; App NW2d ii Co, DeKind v Gale Mfg App Mich 606; (1983), Appeals Court of held $1,500 that a worker may obtain an award of period each for which paid were not and for which the worker filed a 801(2).5 petition under §
The dissent concludes that a worker obtain may $1,500 for each week that benefits are delinquent or unpaid, and specifically declines to rule on "DeKind’s petition-filing requirement.”6
The dissent construes last sentence §801(2) providing that not more than added, total may be in isolation from the rest of that subsection.
Section provides: If weekly compensation beneSts or accrued beneñts are not paid days within 30 becoming payable, due and in cases where there is ongoing dispute, not an per day $50.00 shall be paid added and to the worker for day each over 30 days in which the paid. benefits are not Not more may total be added (1983), NW2d 252 petitions found separate that Townsend had failed to file period delinquency. for each accompanying See text n 5. DeKind, supra, p employer, self-insurer, 5 ln bankrupt a during period years failed payments The penalty. regular of about five to make benefit single to the penalty petition. worker. The worker filed a wcab, affirming referee, the decision of the awarded a The Court of affirmed. Court, responding argument §801(2) to the worker’s provides delinquent payment, for each held that the penalty provision applies to each in which benefits are not and for which the worker has "filed a for a on the nonpayment.” Id. 6Post, p 512. *5 501 M-R v Opinion op the Court 17.237(801)(2). 418.801(2); MSA this subsection. [MCL Emphasis added.][7] compensa- "weekly refers to both The subsection tion benefits” When paid weekly benefits.” "accrued compensation "weekly remain un- benefits” "weekly category they moved out of are weekly compensation bene- into "accrued benefits” weekly compensation Weekly and accrued fits.” subcategories Thus, of "benefits.” $50 are benefits day required per day "in for each to be added is paid” unpaid whether are not which the benefits for fits or both. weekly weekly or accrued bene- §801(2), providing that The last sentence may $1,500.00 added in total be "[n]ot more than unpaid pursuant subsection,” includes both to this unpaid weekly weekly accrued benefits 8 Construed in the context benefits.7 encompassed PA this subsection the enactment of 1985 Before benefits, weekly only weekly "medical or accrued but also not benefits amendment, bills, delinquent or the 1985 or travel allowance.” Before benefits, bills, unpaid triggered amendment eliminated or travel allowances all medical penalty provision limitation. The 1985 with a bills, or travel” from words "medical 801(2), provides for an additional and added which § nonpayment of medical bills or travel allowance: for paid are not within 30 If medical bills or travel allowance nonpayment
days after the carrier has received notice of
mail,
ongoing dispute,
in cases where there
no
certified
due,
less,
the bill
whichever is
shall be
$50.00 or the amount of
day
days
paid
for each
over 30
added and
which the medical bills
more
to the worker
paid.
or travel allowance are not
Not
may
added
to this
in total
subsection.
801(2),
provided
originally
PA
enacted
Section
as
benefíts,
beneñts,
weekly compensation
medical
accrued
"[i]f
becoming
bills,
days
paid
within 30
or travel allowance are
ongoing dispute,
payable
$50.00
is an
in cases where there
due and
per day
day
for each
over
be added and
to the worker
shall
bills,
compensation,
days
not
phasis
medical
or travel allowance
in which the
(Em
changed "compensation”
paid.”
to "benefits.”
hi §801(2), reading pay- if Under the dissent’s delayed year, ment of for a a worker *6 per week, $1,500 to of would be entitled an award annually, $78,000 to the addition benefits and statutory interest. adopt
The DeKind rationale dissent would the single $1,500 that a not deter em- would delaying payment ployers or insurers from of "[t]o The dissent further states that be- benefits. $1,500 lieve that a maximum deter the compensation of would failing majority employers from to say is naive, the least.”9 argues, similarly potential DeKind also and the dissent contends, awaiting that is an investment there employer
the or insurer who would delib- erately argu- payment withhold of benefits. that if an were to ment is withhold years it benefits for a number benefits and earn could invest more than "much .”10 investments . . . argument ignores percent that ten interest 801(6)11 payable §
is from the date each payments. payment In in is due on all late per case, benefits, week, stant provide compensation Townsend’s at $61 year. M-R a If benefits,” repeat compensation phrases "weekly Rather benefits,” weekly "compen- and "accrued sation”/“benefits” to the drafters used the shorter encompass both. 9Post, p 510. 10DeKind, supra, p 605. accompanying n 15 text. See M-R Products Townsend v Opinion of the Court benefits, $3,172, at year invested one interest, then, having in mind percent
twelve paid pursuant must be percent ten interest twenty years M-R 801(6), before it would be over Products netted
iv provision was added When pro- did not 1977, compensation act the workers’ however, of interest. In vide for the legal rate had held that interest at the this Court on judg- was percent per payable of five annum on a workers’ the circuit court ment entered decision, interest award.13 Since and insurers required by employers compensa- on workers’ percent per at five annum regard judgment to whether tion awards without a circuit sought from or entered had been court.14 §801(5) amended Legislature paid pur-
provide:
"When
referee,
board,
suant
to an award of a
court,
on the
shall be
or a
interest
per
annum from the date
paid at
rate
12%
*7
due, until
payment
each
was
paid.”15_
12 appears
payable under the workers’
It
the maximum benefit
week,
currently
per
per year. If that
$427
act is
differential,
percent
it
at the two
interest
would
sum were invested
$1,500.
years
over three
to net
take
13
Court held that
the circuit court was authorized to allow
This
(five
legal
percent)
judgment on a
when it enters a
rate
interest
(MCL
3,
413.13;
pursuant
part
13 of the act
award
to
§
act,
17.187,
present
subsequently
863
MCL
MSA
418.863;
reenacted as
17.237[863]).
v Doehler-Jarvis Div of Nat’l Lead
MSA
Wilson
(1960).
Co,
510; 100
226
358 Mich
14
Div,
Corp,
464;
Norge
Borg-Warner
116
See Drake v
367 Mich
Roberts,
13,
(1962);
22;
395 Mich
233 NW2d
NW2d 842
Solakis v
(1975).
17.237(801X5).
418.801(5);
Subsequently,
MSA
1981 PA
MCL
language
percent,
quoted
the interest rate was reduced to ten
and the
(6)
801.
The interest rate was increased from five Legislature percent to cent twelve because light decided, in of then current market interest percent encouraged rates, employers of five interest delay paying and insurers workers’ would, however, benefits. There have legislative been no cause for such concern if the truly $50/$l,500 limitations meant that required paid year payment, to be for late and, thus, no need increase the interest rate percent percent from five twelve forestall delay Legisla- Clearly, of benefits. ture did not understand that it "intended” that year paid payment. $78,000 a was to for late may We hold that no more than be added for all the weeks involved. Brickley
Riley, C.J., JJ., Griffin, con- J. Levin, curred with (dissenting). Defendant, M-R Prod- appeals
ucts, Inc., Appeals from a decision of the Court of Compensation which reversed a Workers’ Appeal penalties Board reduction in owed de- employer. portion fendant I affirm the would holding the Court of decision that MCL 17.237(801)(2)1 418.801(2); MSA of the Worker’s 17.237(801X2) 418.801(2); provides: MCL MSA weekly compensation If benefits or accrued paid days becoming payable, in are not cases where there is not an shall be added and days within 30 due and ongoing dispute, per day $50.00 day to the worker for each over 30 paid. in which the benefits are not Not more than may in total be added to this subsection. provision prior This was amended 1985 PA which deleted allowance, 801(3), and travel and created § reference medical bills imposition penalties for failure to those which allows for expenses. *8 v M-R Dissenting Opinion Cavanagh, J. Compensation imposition Disability Act allows the multiple penalties employer’s for an failure to pay weekly benefits.
i Plaintiff filed a claim for workers’ alleging 1979, in October that she had injured April lifting her back 1979 while boxes hearing employer. 1982, for her March a ref- granted plaintiff open eree an award. appealed
Defendant M-R Products to the wcab. appealed, seeking adjustment Plaintiff also appeal the amount of the award. While the pending, plaintiff pay defendant was ordered seventy percent weekly award, compen- § 862 of the act. Defendant tendered one covering February 3, sation through April July plaintiff 1982, 1982. In any notified the she had not received wcab subsequent payments, and the wcab dismissed appeal August 26, 1982, defendant’s on because of required payments. its failure make the Having plaintiff payments, received no further seeking 14, 1982, filed a on December a against April 28, award defendant. On hearing 1983, a referee ordered defendant penalties $1,500 in for defendant’s failure to com- ply 11,1982, with the March award benefits. appealed requested
Defendant dispute penalty payment. award On February 10, 1984, wcab affirmed penalty award.
Despite ruling, this defendant still failed to adjudicated payments. again make the sought penalties Plaintiff against nonpayment defen- filing copies dant, this time number of her 436 Mich Cavanagh, *9 copy.2 petition each different date on with a first petition stated: Each purpose the of re- petition
This
filed for
sole
the
upon
questing penalty payments
the failure
with
payment
in accordance
defendant
to make
Judge
Law
the decision of the Administrative
from the Bureau
dated 2/3/82 and mailed
[of
Compensation] on 3/11/82.
Worker’s
May 1985,
an answer to
defendant submitted
penalty petitions,
plaintiff’s multiple
a hear-
and
hearing
ing
result,
referee
a
the
was held. As
penalties
pay $22,500
to
in
defendant
to
ordered
plaintiff.3
appealed
set
which
to the
wcab,4
Defendant
plaintiff’s
aside all but one
there
that since
The wcab determined
awards.
parties
stipulations by
or trial
testi-
the
were no
periods
support
specific
mony
enumerated
carry
plaintiff
plaintiff’s petitions,
her
failed to
in
preponderance
proof by
of evidence.
a
burden of
Mfg
panel
v Gale
on DeKind
relied
The wcab
(1983),
App
lv
Co,
598; 337
252
125 Mich
(1983),
in De-
noted that
Mich 852
den 418
provision
Kind,
that the
the Court warned
injured
designed
workers,
as a windfall
was not
2
1984,
complaint
Court
in Manistee Circuit
Plaintiff also filed a
opinion
seeking
an
The
entered
from defendant.
court
plaintiff
as of
stating
judgment
defendant owed
9,1984.
June
petitions
According
plaintiff’s attorney,
not filed while the
lapse
court,
year
This time
and a half.
in the circuit
about
case was
14,
September
petitions
by
on
the bureau
in the
received
reflected
is
1984),
13,
16, 1984, August
April
(covering
period
from
20, 1984,
August
(covering
period
February
and on
to
1985).
January
opinion
filed
reflects a schedule of
Court of
The
$1,500 penalty assess
plaintiff
for each
the basis
which formed
(1988).
15;
App
4 1987 WCABO M-R v Opinion Dissenting pay- benefit prompt to ensure measure as a but DeKind’s pronounce- emphasized panel ments. ap- provision ment plied which "each filed has injured worker and for which
not nonpayment. on for a petition employer on put will filing of the seeking only the the worker notice that missed WCABO penalty.” but also payment, [1987 DeKind, App Mich 1263, 1264, citing Emphasis deleted.] of DeKind the intent According to wcab, *10 petitions penalty to file encourage plaintiffs was to the in which bene- periods weekly specific for the same file the merely "not paid, not fits were [to] specify any which did petition, xeroxed date, was as signatory the changed period only but it was The said panel case.”5 in the instant done in the ascertain, language the unable period defendant specific weekly which petitions, also found panel payment.6 to make failed by received bureau petitions that several day. the same time-stamped in "bundles” Thus, panel concluded: plaintiff penalty not file a case did the instant missed, instead
petition every time a was petition times. nonspecific several she filed one We, therefore, conclusion as did reach the same DeKind, Court; having only one plaintiff filed 5 1987 WCABO indicating plaintiff sought penalty in the Clauses provided in similar manner: Penalty covers the Bureau 10/10/83 Petition received through
payments mum The maxi- 9/5/83. overdue from 8/15/83 is due. 436 Mich Cavanagh, petition alleging improper payments or late only penalty. p 1265.] [Id., entitled to one Appeals focusing reversed, The Court of on §801(2) application whether erroneous under the DeKind the wcab’s analysis. Recognizing that, DeKind, in the defendant was ultimately responsible paying only one penalty, the Court nevertheless determined that applied "overly the wcab had DeKind in an nar- exalting fashion, row Mich form over substance.” 173 (1988). App plain- 15, 22; petition alleging tiff there had filed one late improper payments, plaintiff in or contrast peti- case, the instant who submitted some fifteen penalty payments. tions for purpose petition The Court stated that the requirement protect employers in the statute is to by providing them with notification em- ployee’s intent to seek a for each week compensation payment that the due is late. While provision applies to each paid, which the benefits are not trigger employee entitlement, needs to file put on notice that seeking particular worker is for that period.
Accordingly, the Court of reinstated the finding $22,500 award, referee’s that since defen- *11 payments dant had chosen to withhold after re- ceiving plaintiff’s petitions, plaintiff several of multiple penalties. entitled to collect the
ii key today issue before Court is whether 801(2) penalty § $1,500 allows a for each late weekly payment, imposes or a one-time maximum M-R Townsend v Products by despite compensa- penalty $1,500, the number of employer. Plaintiff tion missed argues penalty applies that to each responds payment; M-R defendant late that is the maximum that can be agree against plaintiff’s posi- it. I with the levied finding supported by statutory tion, guage, legislative it to be lan- practical
intent, and considera- tions. DeKind, the Court confronted 801(2)
interpretation § issue for the Reciting statute, first time. the Court found " ” that penalty, it did not refer 'once-in-a-lifetime’ weekly compensation to the but rather Furthermore, benefits that were due. Id. at reasoned, the Court defendant’s contention that the statute is limited to a maximum contra- Legislature’s encourage dicted the prompt intent payments by employers by enact- ing meaningful financial cost for failure to do so. compared A potential limit could be minuscule to the paying out cost of workers’ years. money months, benefits for or even employer other, saved could be invested self-profitable concluding ways, noted, the Court Legislature would not have wanted to violated, reward an ued to who has or contin- violate, the law. agree prong I with the DeKind Court on this imposition analysis: §
its tiple penalties. mul allows unquestionably
The statute refers "weekly[7] sup benefits,” which ports plaintiff’s contention that each week of non penalties. recognized: As the Court incurs plain language § 801 “Under the 801(1): "Compensation paid promptly See also shall be person directly to the entitled .... shall be Thereafter paid weekly (Emphasis supplied.) installments.” *12 436 Mich J. Dissenting Opinion
provision is ensure that is to person directly promptly entitled DeKind at thereto.” majority the maxi- nonetheless finds that
The penalties $1,500, which allowed is mum amount of applies unpaid weekly "accrued” to both being those benefits—accrued employer Therefore, no tendered. never which matter how past-due payments
many missed, all weeks have been lumped together as
become eligible benefits, one for "accrued” penalty award. again, interpretation, problem is with this
The paying apparent. employer benefits If an misses pay simply week, due it can either one sixty days concern itself with the end of and not at penalties paying thereafter, for or it can sit back rendering single years without bene- months or violating knowing fit, it that the most must $1,500. is an award order each week holding employ- majority’s today will allow compensation obliga- ers to circumvent worker’s alarming aggrieved workers with tions towards provide aggrieved an worker ease. The incentive prompt payments, noted in as with 801(1), virtually To believe that a is nonexistent. would deter ma- maximum failing pay compensa- jority employers say naive, least. tion is majority appears objectionable to find possibility were de- that a worker whose benefits might ultimately layed year entitled to one penalties my inter- of dollars under thousands 801(2). Assuming employer, pretation §of that the during year, disputed in an has not the claim this penal- (during imposition appeal which time the Charpentier Corp, precluded, v Canteen ties Mich [1981]), agree App 700, I 705; 307 M-R v Cavanagh, hefty penalty potentially accumulations considering large possible. However, that such a undoubtedly the fact reflects award obligation flagrantly its has violated *13 and dozens occa- to its worker on dozens periods spanning months, two at least sions for dispro- repercussion is not harsh or this financial portionate. pursu- majority points that, to the fact
The also §801(6), may levied at ten interest be ant percent
per year from the date each on an award paid. payment until it is This indicates both is due 1) M-R Products would such as that defendants retaining gain benefit little financial from amass required statutorily interest due to the 2) Legislature payment, the increased and ago years of concern that rate a few out interest employers payments. delay compensation This not majority, assessment, would states the interest per- Legislature had intended needed if the be payment. every $1,500 for late benefit mit policy disagree. purposes, functions, and I §801(6) provision of the interest concerns behind 801(2) separate penalty provision § and and distinct. generally past-due payments im is
Interest on employers, punishment posed, but not as a the use of has benefited because employee, money to be due determined Norge employee it. Drake v had to do without Borg-Warner Corp, 464, 468; 116 Div, 367 Mich 801(2) (1962). hand, § On the other designed that to ensure assessment is compensation. prompt aggrieved receive workers McAvoy Co, 401 Mich H B Sherman See v (" (1977) object of the 'The 455; 258 NW2d provide Compensation com Act is to Workmen’s arising suffering disability persons pensation 436 Mich employment. compensation, to from their effective, Such provided promptly. obviously must be So ”) provides.’ steep day the act per unpaid $50 sharp weekly benefit constitutes a sluggish employers stimulus to punctual or insurers to be timely payments. Although that a the DeKind Court held worker 801(2), may § more it collect under also noted a the worker must file limitation: with every the bureau a a week that Thus, the Court determined missed. applies penalty provision only to "each in which beneñts are not injured peti- and for which an worker has ñled a nonpayment.” tion for a on the Id. at (Emphasis supplied.)
Although agree, hold, I and would so aggrieved last sentence of ployee entitles an em- up delinquent to collect for each *14 unpaid weekly today speak benefit, or I do not to petition-filing propriety require- the of DeKind’s ment, and need not address that issue due to the procedural history of this case. plaintiff sought penalty pay-
Here, Townsend Appeals only ments in the wcab and Court of for petitions penalty the filed the she bureau. The by $22,500, referee’s award of reinstated the Court Appeals, by multiplying was arrived at each of plaintiff’s petitions by penalty fifteen petition amount. Plaintiff did not file a for each required her, week that defendant failed to by as petitions requested DeKind; all but one of the periods encompassing several weeks.8 week, Because she did not seek a for each sought only original but affirmance referee’s instance, petition plaintiff For the bureau received one from on 14, 1984, 16, 1984, September covering April overdue from 13,1984. through August v M-R Dissenting Opinion by Cavanagh, plain- award, it need not be decided here whether required, filing tiff initial was her petition, filing petitions prerequi- as a continue collecting penalty payments. Consequently, site I express opinion relating prong no second analysis. of the DeKind plaintiff
Nevertheless, the instant file since did multiple petitions, I will the issue consider penalties properly she whether the was awarded on petitions of the basis submitted. plaintiff’s petitions
The wcab found that specific insufficiently support the award of mul- tiple penalties. panel petitions deemed the fatally particular they specify deficient because failed to plaintiff
week was due Appeals, did receive it. Like the Court of I reject this rationale. panel plaintiff that reasoned entitled single
only award because she filed "one nonspecific petition times,” which, several in es- having sence, was the same as filed one petition. just opposite However, is true. The by order issued referee reveals plaintiff by were filed and received September May bureau 1983 to 1985. In reality, each in the recorded referee’s (and reproduced schedule Court opinion) being was noted as received the bureau longer days following in each case no than a few expiration thirty-day nonpenalty period9 daily penalty after which the commenced. $50 argues Defendant it did not have sufficient specific notice because in weeks were not delineated *15 plaintiff’s petitions. That contention is without plaintiff petitions Here, merit. filed successive beginning in 1983 to enforce the referee’s 1982 17.287(801)(2). 418.801(2); MCL MSA Mich Cavanagh, pay weekly requiring bene- defendant
decision pro- question that defendant There is no fits. years adequate during its of notice vided with dealing plaintiff, its knew both that with and late or not to her were all.10 forwarded at below noted:
As Court case, however, plaintiff has this [Townsend] complained payments and consistently late about its continuously defendant of missed has notified penalty. . . . her intent seek payments and Emphasis supplied.] App 22. [173Mich ample notice, more and This defendant had obligation its to this failure meet its continued generously employee described as scandal- can ous. foregoing analysis, I would
On basis imposition pen- of a allows the hold alty upon or each week compensation payments to a worker weeks unpaid, portion affirm that Court holding. Boyle JJ., Archer, with concurred J._ attorney], you The Court: Mr. Smith served [defendant’s any with .... Bureau knowledge my To the I have received Mr. Smith: best been with .... notices and I have served