Order Michigan Supreme Court
Lansing, Michigan
March 6, 2009 Marilyn Kelly,
Chief Justice
137718 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
RICHARD ALLEN MALONE, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 137718
COA: 285651
WCAC: 04-000392
AETNA INDUSTRIES, a/k/a AZ
AUTOMOTIVE CORPORATION,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the October 10, 2008
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
I would remand this case to the Court of Appeals for consideration as on leave
granted. In this case, the workers’ compensation magistrate determined that plaintiff had
suffered a partial disability, and both parties appealed. The Workers’ Compensation
Appellate Commission (WCAC) then remanded the matter to the magistrate for
additional findings, and a second opinion was issued and it reiterated that plaintiff was
only partially disabled. The WCAC majority then rejected this conclusion and
determined at one point that plaintiff was “totally disabled.” Yet, at another point, the
same majority contradictorily indicated that plaintiff was entitled to a benefit rate as if he
were totally disabled, “although partially disabled.” Defendant then unsuccessfully
sought leave to appeal in the Court of Appeals. I would remand this case to the Court of
Appeals for consideration as on leave granted with instructions to determine: (1) whether
the WCAC misapprehended its administrative appellate role in reviewing the decision of
the magistrate, Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 732 (2000); (2)
whether the WCAC opinion is inconsistent in its analysis; and (3) whether defendant is
entitled to relief where the WCAC improperly equated wage-earning capacity with wages
actually earned. MCL 418.361(1). The defendant, in my judgment, is entitled to a more
coherent legal process than that which it has thus far received.
2
CORRIGAN, J., joins the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 6, 2009 _________________________________________
0303 Clerk