Recent Cases - Michigan Supreme Court

. As of this writing, the Supreme Court still has pending before it Stokes v Chrysler LLC, f/k/a DaimlerChrysler Corp (SC Docket No. 132648). The case was orally argued on October 4, 2007. The point orally argued in Stokes was the parties’ burdens of proof in Sington disability cases. Recall that the Court of Appeals had largely dismantled the Workers’ Compensation Appellate Commission’s en banc decision in Stokes, but the Court of Appeals affirmed the result in the case – an open award of benefits at the maximum rate. Stokes v DaimlerChrysler Corp, 272 Mich App 571; 727 NW2d 637 (2006). For the time being, the Court of Appeals’ Stokes decision is the controlling rule of law.

Another case that had been orally argued before the Supreme Court and remains pending as of this writing is Gee v Arthur B. Myr Industries, Inc (SC Docket No. 133762). Gee was argued in January 2008. It is a factually complex case involving res judicata in an attendant care context.

More specifically, Mr. Gee had litigated a total and permanent disability claim in 2001. At the conclusion of the hearing, he requested attendant care benefits for his family providers. The Magistrate failed to address the nursing or attendant care portion of the claim. On appeal, the Workers’ Compensation Appellate Commission denied the attendant care claim on the basis that plaintiff had failed to introduce any evidence on the reasonable value of services performed. That appeal became final.

Plaintiff then filed a new application again requesting attendant care services. The defendant moved for dismissal on the basis of res judicata. The Magistrate denied the motion to dismiss. And, the Magistrate went on to determine plaintiff was entitled to 56 hours of attendant care services each week. Defendant appealed to the Appellate Commission and Court of Appeals without success. The Supreme Court’s oral argument related to whether the defendant is entitled to relief on the basis of res judicata.

Most recently, the Supreme Court has granted an oral argument on an application for leave to appeal in Brackett v Focus Hope (SC Docket No. 135375). The oral argument is scheduled for May 7, 2008.

The issue in the case is whether plaintiff’s claim is barred by the intentional and wilful misconduct provision, MCL 418.305. The facts are that plaintiff at the time of hire was advised that she had to attend Focus Hope’s annual Martin Luther King Day celebrations. After hire, plaintiff decided not to attend the celebration. Her supervisors confronted her about her decision and she claimed a psychiatric injury as a result. The question for oral argument is whether her psychiatric injury is by reason of her own intentional and wilful misconduct.

Finally, two other cases pending before the Supreme Court bear noting if for no other reason than the length of time they have been pending before the Supreme Court. One is Bessinger v Our Lady of Good Counsel (SC Docket No. 128870). The other is Diot v Department of Corrections (SC Docket No. 130702).

Bessinger presents the question of whether the claimant is entitled to only partial disability benefits after he ceased working at a post-injury lesser paying job. The Supreme Court had remanded the case while retaining jurisdiction on January 31, 2006. The Workers’ Compensation Appellate Commission issued its opinion on remand on October 25, 2006. The case then automatically returned to the Supreme Court where it still pends.

In Diot, the employer applied for leave to appeal on March 14, 2006, over two years ago. That application still pends, which is highly unusual. Mr. Diot was granted an open award of benefits upon being found disabled as a result of an inability to return to work at one place of employment for his employer, although he acknowledged the ability to do that type of work elsewhere.

It is conceivable that Bessinger and Diot are either being held in abeyance while the Supreme Court continues to consider Stokes. Or, perhaps they are being considered in conjunction with Stokes. We will of course keep everyone apprised of the developments.