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Bailey v. WCAC Oakwood Hospital and Medical Center11/6/2003
FOR PUBLICATION
Plaintiff appeals by leave granted from an order of the Worker 's Compensation Appellate Commission (WCAC) terminating an open award of benefits in favor of plaintiff because the defendant's workers compensation insurance carrier failed to notify the Second Injury Fund of its potential liability; consequently, neither the carrier nor the Fund were liable. Defendant Oakwood Hospital and Medical Center (hereinafter simply defendant) cross-appeals, challenging the magistrate's decision awarding benefits. The director of the Bureau of Workers' and Unemployment Compensation joins plaintiff in this appeal as an intervening appellant. We reverse the WCAC's order terminating benefits and remand the matter to the Commission to address defendant's challenge to the magistrate's finding of fact.
Plaintiff started working for defendant as a medical transcriptionist in 1989. When defendant hired plaintiff she was certified as vocationally handicapped because of a prior back injury. In late 1993, plaintiff began suffering pain in her hands and arms from bilateral carpal tunnel syndrome. She underwent surgery in December 1993 and January 1994 and returned to work in February 1994. Despite the surgery and physical therapy plaintiff's symptoms returned. She left work in September 1994.
Defendant paid worker 's compensation benefits to plaintiff until March of 1998. It stopped payments based on plaintiff's alleged work avoidance. Plaintiff filed her first application for a hearing in May 1998, claiming a bilateral upper extremity and neck disability. The parties stipulated to injury dates of October 6, 1993 and September 21, 1994.
At some point during the proceedings defendant discovered plaintiff's vocationally handicapped worker 's certificate. In November 1998 defendant filed a claim against the Second Injury Fund (the Fund) seeking reimbursement for benefits it paid plaintiff past the one-year period set by MCL 418.921. The Second Injury Fund moved to dismiss defendant's petition for failure to comply with the notice provisions set by MCL 418.925. The magistrate found that defendant had failed to timely notify the Fund of plaintiff's claims as required by §§925(1) and 931(1) of the Act and granted the Fund's motion to dismiss defendant's petition.
Defendant appealed the magistrate's dismissal of its claim against the Second Injury Fund to the WCAC, which reversed the magistrate and remanded the matter with the instruction that the magistrate join the Fund as a party. In his opinion after remand, the magistrate addressed defendant's argument that plaintiff's benefits should be terminated based on work avoidance and reconsidered whether the Second Injury Fund could be added as a party in light of this Court's recent decision in Robinson v GM Corp , 242 Mich App 331; 619 NW2d 411 (2000). The magistrate found that defendant had not met its burden of proving that plaintiff avoided work. The magistrate noted that it was not contested that defendant did not properly notify the Second Injury Fund as required by the Act. Citing Robinson , the magistrate found that dismissal of defendant's claim against the Fund was the appropriate sanction for failing to provide notice. The magistrate dismissed defendant's claim against the Fund and granted plaintiff an open award of benefits.
Defendant appealed the magistrate's decision to the WCAC, challenging the magistrate's dismissal of the Second Injury Fund and his finding that plaintiff had not avoided work. The Commission's final opinion addresses only the Fund's dismissal. The WCAC noted that under §921(1), the employer's liability for compensation is limited to benefits accruing during the 52 weeks after
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