Order Michigan Supreme Court
Lansing, Michigan
September 17, 2008 Clifford W. Taylor,
Chief Justice
136438 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
BRETTEN STONE , Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 136438
COA: 275684
WCAC: 05-000242
R.W. LAPINE, INC., and ACCIDENT FUND
INSURANCE COMPANY OF AMERICA,
Defendants-Appellants.
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On order of the Court, the application for leave to appeal the April 3, 2008
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and
we REINSTATE the order of the Board of Magistrates. The Court of Appeals erred by
approving the Workers’ Compensation Appellate Commission’s basis for modifying the
magistrate’s benefit award. The WCAC exceeded its authority by substituting its own
favorable view of the testimony of the plaintiff’s medical expert for the unfavorable
assessment provided by the magistrate without providing a weighing of the proofs and an
analysis as to why that expert’s credibility should be evaluated in a contrary manner. The
WCAC also erred by shifting the burden of proving work-related injury from the
plaintiff, where it belonged pursuant to MCL 418.851, to the defendants, by presuming
the plaintiff’s entitlement to benefits upon the mere rejection of some of the magistrate’s
numerous reasons for ruling in a contrary manner. In addition, the Court of Appeals
erred by holding that the average weekly wage must be calculated pursuant to MCL
418.371(3) in every instance where it can be determined using that subsection. The
average weekly wage calculation provisions reveal “the Legislature’s overriding desire to
have the basis for compensation reflect an accurate measure of wages.” Rowell v
Security Steel Processing Co, 445 Mich 347, 356-357 (1994). In this case, the magistrate
did not err in choosing to utilize MCL 418.371(6) to determine the plaintiff’s average
weekly wage.
KELLY, J., would deny leave to appeal.
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.
September 17, 2008 _________________________________________
0910 Clerk