Order Michigan Supreme Court
Lansing, Michigan
February 9, 2007 Clifford W. Taylor,
Chief Justice
132119 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
CRAIG S. BRAUN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
and
MARY FREE BED HOSPITAL,
Intervening Plaintiff,
v SC: 132119
COA: 260118
WCAC: 03-000058
SECURE PAK a/k/a SAME DAY DELIVERY
and AMERISURE INSURANCE COMPANY,
Defendants-Appellants.
_________________________________________/
On order of the Court, the application for leave to appeal the August 10, 2006
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MARKMAN, J., dissents and states as follows:
I respectfully dissent and would reverse the judgment of the Court of Appeals and
reinstate the decision of the Workers’ Compensation Appellate Commission (WCAC).
The WCAC reviews the magistrate’s decision under the “substantial evidence” standard,
while this Court reviews the WCAC’s determination under the “any evidence” standard.
Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701 (2000). “‘If it appears on
judicial appellate review that the WCAC carefully examined the record, was duly
cognizant of the deference to be given to the decision of the magistrate, did not
“misapprehend or grossly misapply” the substantial evidence standard, and gave an
adequate reason grounded in the record for reversing the magistrate, the judicial tendency
should be to deny leave to appeal . . . .’” Id. at 703 (citation omitted). Here, the WCAC
rejected the magistrate’s decision on the basis of its conclusion that the magistrate: (1)
failed to consider testimony by plaintiff’s coworker that after a driver clocks out at 6:00
p.m. he’s “done”; and (2) misinterpreted testimony by defendant’s dispatcher to mean
that “rarely would an employee receive a delivery run after 6:00 p.m.” when the
2
dispatcher actually testified that “it was rare for a delivery run to come in just prior to 6
p.m.” The WCAC, in my judgment, fairly reviewed the magistrate’s sparse opinion and
offered an “‘adequate reason grounded in the record for reversing the magistrate.’” Id.
Further, the conclusion reached by the WCAC majority is supported by competent
evidence in the record. Accordingly, under Mudel, the Court of Appeals should have
denied leave to appeal in this case. Just as this Court in its decisions overwhelmingly
defers to the WCAC, so must the Court of Appeals.
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.
February 9, 2007 _________________________________________
t0206 Clerk