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McComber v. McGuire Steel Erection Inc.5/31/2002
FOR PUBLICATION
Plaintiff appeals, by leave granted, an order of the Workers' Compensation Appellate Commission (WCAC) that reversed a magistrate's award of benefits. We reverse and remand.
I. Introduction
In this appeal, we are asked to review the WCAC's application of MCL 418.222, which requires, among other things, that an application for hearing or mediation contain information regarding any employment the claimant had subsequent to the date of the claimed injury . In the instant case, the WCAC concluded that plaintiff was prohibited from proceeding under the workers' compensation act because it found that plaintiff willfully failed to comply with the requirements of MCL 418.222. This case presents our first opportunity to analyze § 222 in the context of a plaintiff's alleged willful noncompliance.
The workers' compensation act does not provide for formal discovery. Welch, Workers' Compensation in Michigan: Law & Practice, § 20.16, p 268. To offset the absence of formal discovery procedures, the Legislature designed MCL 418.222.
MCL 418.222(3) provides:
The application for mediation or hearing shall be as prescribed by the bureau and shall contain factual information regarding the nature of the injury , the date of injury, the names and addresses of any witnesses except employees currently employed by the employer, the names and addresses of any doctors, hospitals, or other health care providers who treated the employee with regard to the personal injury , the name and address of the employer, the dates on which the employee was unable to work because of the personal injury, whether the employee had any other employment at the time of, or subsequent to, the date of the personal injury and the names and addresses of the employers, and any other information required by the bureau.
To ensure the cooperative exchange of relevant information, the statute provides a harsh penalty for "willful" noncompliance with the above process. MCL 418.222(6) states: "The willful failure of a party to comply with this section shall prohibit that party from proceeding under this act." The use of the word "shall" in subsection (6) is unambiguous, and indicates mandatory, rather than discretionary, action. Snyder v General Safety Corp (On Remand), 200 Mich App 332, 334; 504 NW2d 31 (1993). Therefore, the only available sanction for the "willful failure" to comply with MCL 418.222 is a prohibition against proceeding; a less drastic sanction is not available. Id.
The question presented in this appeal is whether plaintiff's failure to comply with the disclosure requirements of MCL 418.222(3) was "willful."
II. Facts
In April 1996, plaintiff was working for defendant when he was pinned by a crane. Plaintiff suffered injuries to his back and neck, and was off work for approximately twenty days. Plaintiff returned to work and was eventually working without restrictions. However, eight weeks after his return, plaintiff was laid off.
After his layoff, plaintiff worked briefly (three to four weeks) for US Steel in New York. However, plaintiff had to quit working because of the pain in his back and neck. Plaintiff's employment with US Steel ended in August 1996.
In September 1996, plaintiff filed an application for mediation or hearing, alleging back and neck disability as a result of the injuries he suffered in the April 1996 accident while working for defendant. Plaintiff's application did not reveal the fact that US Steel had employed him after his injury .
At the start of proceedings below, defendant moved to preclude plaintiff from proceeding, alleging that
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