Knox v. Right At Home Southeastern MI Inc. – 16.90

Knox v. Right At Home Southeastern MI Inc.
Digest No. 16.90

Section 421.29; Section 421.32a; Section 421.62; Section 421.33

Cite as: Knox v Right At Home Southeastern MI Inc, unpublished opinion of the Michigan Compensation Appellate Commission, issued July 29, 2016 (Docket No. 15-018792-247172W).

Appeal pending: No
Claimant: Teresa R. Knox
Employer: Right at Home Southeastern MI Inc.
Date of decision: July 29, 2016

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HOLDING: Under Section 421.32a, the Agency cannot reconsider a prior determination or redetermination more than one year from the date of mailing or personal service of the original determination on the disputed issue. All adjudications issued by the Agency that are contrary to this rule are void and must be set aside. All ALJ decisions made after the Agency improperly transferred over a case due to a violation of Section 421.32a are to be set aside as well.

FACTS: In February 2012, the Unemployment Insurance Agency (UIA) issued a Notice of Determination holding the claimant disqualified from receipt of unemployment insurance benefits under Section 421.29(1)(a). In June 2014, more than two years after the February 2012 Determination was issued, the Agency, on its own motion, reconsidered the Determination and issued a June 25, 2014 Redetermination. A March 2015 Redetermination held the claimant disqualified from receipt of unemployment insurance benefits under the voluntary leaving provisions of Section 421.29(1)(a) and held the claimant subject to restitution under Section 421.62(a). A November 2015 ALJ decision affirmed the March 2015 Redetermination. The claimant timely appealed to the Michigan Compensation Appellate Commission (MCAC) from the November 2015 ALJ decision.

DECISION: The November 2015 ALJ decision is set aside. The June 25, 2014 Redetermination and all subsequent Agency adjudications are set aside. The February 2012 Determination is a final ruling on this matter. Therefore Claimant is disqualified from receipt of benefits but Claimant is not subject to restitution.

RATIONALE:

Section 421.32a(2) provides that the Agency may, for good cause, reconsider a prior determination or redetermination after the 30 day period has expired, but that a reconsideration shall not be made unless the request is filed with the UIA, or reconsideration is initiated by the UIA with notice to the interested parties, within one year from the date of mailing or personal service of the original determination on the disputed issue.

The Michigan Supreme Court held in Roman Cleanser v Murphy, 386 Mich 698 (1972) that the doctrines of res judicata and collateral estoppel apply to an Agency ruling that has become “final” under Section 421.32a(2). As a result, the February 2012 Determination, which did not include any ruling on restitution under Section 421.62(a), is a final ruling. Therefore the June 25, 2014 Redetermination is void and must be set aside as the Agency had no legal authority to issue that ruling. All adjudications issued by the Agency after the June 25, 2014 Redetermination are void and must be set aside.

In addition, because the June 25, 2014 Redetermination was not in accordance with Section 421.32a, under Section 421.33 (“An appeal from a redetermination issued . . . in accordance with section 32a or a matter transferred for hearing and decision in accordance with section 32a shall be referred to the Michigan administrative hearing system for assignment to an administrative law judge”), the Agency was without authority to transfer the matter for hearing and assignment to an ALJ.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: 10/31/2017

 

Carter v. MLP MFG, Inc. – 16.75

Carter v. MLP MFG, Inc.
Digest No. 16.75

Section 421.38, Section 421.29

Cite as: Carter v MLP MFG, IncMuskegon Circuit Court, No. 02-41720-AE (February 18, 2003).
Appeal pending: No
Claimant: David Carter
Employer: MLP MFG, Inc.
Date of decision: February 18, 2003

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HOLDING: When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded).

FACTS: The administrative law judge issued an opinion dated July 20, 2001, which affirmed an agency determination denying the claimant unemployment benefits because of misconduct. The claimant’s agent appealed this opinion. The Board of Review affirmed the decision with an opinion dated November 9, 2001. On December 10, 2001, the claimant’s counsel filed his appearance and a timely request for a rehearing of the November 9, 2001 decision. The Board issued an order denying the application for rehearing on January 24, 2002. This January 24, 2002 order was not sent to the claimant’s attorney. Consequently, on April 29, 2002, the claimant’s attorney moved the Board to reopen the matter so that the claimant could file a timely appeal with the circuit court. In an order dated June 28, 2002, the Board denied the application for reopening, but acknowledged sending a copy of the January 24, 2002 order to the claimant and the claimant’s agent, but not the claimant’s attorney. On July 2, 2002, the claimant filed this appeal to the circuit court.

DECISION: The Board of Review erred in failing to send the claimant’s counsel a copy of the January 24, 2002 order.  When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded), which is to be read in a manner that does not produce an unjust result, even if the literal language of the rule suggests otherwise. Therefore the July 2, 2002 filing of this appeal was timely, and this Court will adjudicate the appeal on the merits. This Court finds that the ALJ’s decision was not contrary to law and therefore affirms the previous decision disqualifying the claimant for benefits.

RATIONALE: In construing administrative rules, courts apply principles of statutory construction. However, there is an exception “when a literal reading of the statutory language would produce an absurd and obviously unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” AG v LS Wood Preserving, Inc, 199 Mich App 149, 155 (1993). Reading Section 421.1101(1) literally (“A decision, notice, or order shall be served on each party and on the agent or attorney of record of each party . . .” (emphasis added)) would provide an unjust result in this case, as the purpose and policy of the rule is to provide notice. Thus the Board of Review needed to send the January 24, 2002 order to both the claimant’s agent and the claimant’s counsel, even though the rule uses the word “or.” Hence, the 30-day appeal period of Section 421.38(1) was tolled until the Board of Review issued its final order on June 28, 2002, and the July 2, 2002 filing of appeal was timely. Nevertheless, this Court finds that the ALJ’s decision was not contrary to law and was supported by competent, material, and substantial evidence on the whole record. The ALJ found the testimony of the cliamant’s supervisor to be credible. In doing so, he found that the claimant had engaged in three “no-call, no-show” absences which constitutes misconduct within the meaning of Section 421.29.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: 11/19/2017

Hurley Medical Center v. Thames – 16.77

Hurley Medical Center v. Thames
Digest No. 16.77

Section 421.38(1)

Cite as: Hurley Medical Center v Thames, unpublished opinion of the Genesee County Circuit Court, issued September 5, 2006 (Docket No. 06-84151-AE).

Appeal pending: No
Claimant: Kimberly Thames
Employer: Hurley Medical Center
Date of decision: September 5, 2006

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HOLDING: Under MCL 421.38(1), a reviewing court can only obtain jurisdiction over an appeal if the appeal is filed within 30 days of a lower court’s decision.

FACTS: On June 20, 2006, Appellant Hurley Medical Center filed an application for leave to appeal with the Genesee County Circuit Court. Appellee filed its answer on July 10, 2006. During their hearing, Appellee argued that Hurley’s appeal was filed outside the thirty day statutory appeal period required by MCL 421.38(1) and moved to dismiss Hurley’s leave to appeal. The Genesee County Circuit Court issued an order dismissing Hurley Medical Center’s application for leave to appeal on August 16, 2006. Hurley filed a motion to reconsider with the Court.

DECISION: The Court denied Hurley Medical Center’s motion for reconsideration because Hurley failed to show that the Court’s August 16, 2006 decision contained palpable error.

RATIONALE: MCL 421.38(1) requires a party to file an appeal within 30 days of a lower court’s decision. In Gunderson v Rose Hill Realty, 136 Mich App 559 (1984), the Michigan Court of Appeals held that MCL 421.38 is a jurisdictional statute. This means that a reviewing court can only obtain jurisdiction over an appeal if the appeal is filed within the 30 day period required by MCL 421.38(1).

The Genesee County Circuit Court denied Hurley’s application for leave on jurisdictional grounds on August 16, 2006 because the application for leave was filed beyond the thirty day period provided by MCL 421.38(1). In its motion for reconsideration, Hurley merely presented the same issues from its earlier application for leave and failed to demonstrate that the Court’s August 16, 2006 decision contained palpable error. For that reason, the Court denied Hurley’s motion for reconsideration.

Digest author: Sean Higgins, Michigan Law, Class of 2017
Digest updated: 10/31/2017

Barbee v. J.C. Penney – 16.73

Barbee v. J.C. Penney
Digest No. 16.73

Section 421.29(b), 421.33, 421.34, 421.38

Cite as: Barbee v JC Penney Corp, Inc, Unpublished Opinion of the Circuit Court for the County of Oakland, Issued January 26, 2006 (Docket No. 177083W).

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Appeal Pending: No
Claimant: Della M. Barbee
Employer: J.C. Penney Corporation, Inc.
Tribunal: Circuit Court for the County of Oakland
Date of Decision: January 26, 2006

HOLDING: The State of Michigan Employment Security Board of Review’s (“Board”) lacks jurisdiction to review untimely appeals.

FACTS: Claimant was employed by J.C. Penney as a Customer Service Associate until she was discharged for misconduct. Her alleged misconduct included obtaining fraudulent refunds, discount abuse, and unauthorized price adjustments. The Administrative Law Judge (“ALJ”) disqualified the claimant from benefits due to her misconduct under MCL 421.29(b).

Claimant appealed the ALJ’s decision to the State of Michigan Employment Security Board of Review (“Board”). The deadline to appeal was September 24, 2004, but claimant did not file her appeal until October 6, 2004. Pursuant to MCL 421.33, the Board dismissed the late appeal due to lack of jurisdiction.

Claimant did not seek rehearing or to reopen the case with the Board for good cause but instead, appealed to the Circuit Court (“Court”) for de novo review of the Board’s (1) arbitrary Appeal deadline and (2) the underlying determination in finding the Plaintiff guilty of misconduct.

DECISION: The Board’s deadlines cannot be challenged as arbitrary because they were set by the legislature and codified as MCL 421.33(2) and MCL 421.34. Additionally, the Circuit Court cannot de novo review claimant’s underlying determination because she appealed the Board’s decision. Finally, the Board’s order dismissing claimant’s appeal for lack of jurisdiction was proper.

RATIONALE: The Circuit Court ruled that the appeal deadlines were not arbitrary because they were established by the legislature through MCL 421.33(2) and MCL 421.34.

The Court also denied claimant’s appeal for de novo review of her underlying determination as guilty of misconduct. The Court noted that a claimant can appeal a referee’s (ALJ’s) decision to the Circuit Court directly under MCL 421.38(2). However, because the claimant appealed the Board’s decision and said decision did not include a review of claimant’s determination as guilty of misconduct, the Circuit Court lacks authority to de novo review the claimant’s guilty determination.

The Circuit Court reviewed the whole record to determine if claimant’s appeal was untimely. Pursuant to MCL 421.38(1), the standard for finding an appeal untimely is support by competent, material, and substantial evidence. After finding that the appeal was untimely under the standard, the Court affirmed the Board’s decision dismissing claimant’s untimely appeal for lack of jurisdiction under MCL 421.33.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Zuber v Ameritech Publishing, Inc – 16.72

Zuber v Ameritech Publishing, Inc
Digest no. 16.72

Section 32a(2)

Cite as: Zuber v Ameritech Publishing Inc, unpublished opinion of the Michigan Employment Security Board of Review, issued January 29, 2004 (Docket No.  2002 BR 171048 (B2003-09495).

Appeal pending: No
Claimant: Kathy L. Zuber
Employer: Ameritech Publishing, Inc.
Docket no.: B2003-09495-171048
Date of decision: January 29, 2004

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BOARD OF REVIEW HOLDING: A protest or appeal is timely if received before midnight of the deadline date.

FACTS: The determination was issued May 6, 2003. Employer faxed its appeal June 5, 2003 at 4:04 p.m. Central time. The Agency issued a redetermination August 27, 2003. Employer appealed the redetermination by fax on September 26, 2003 at 4:13 p.m. Central time. The Agency stamped employer’s appeal as received on September 29, 2003; there was also a stamp indicating the fax was received September 26.

DECISION: The Agency timely received both the employer’s protest of the determination and the employer’s appeal of the redetermination.

RATIONALE: Claimant asserted the protests were untimely because they were submitted after the close of business. Section 32a states in relevant part that a protest of a determination or an appeal of a redetermination must be filed with the Agency “within 30 days after the mailing or personal service.” The Act does not define the word “day.” Rule 105(2) of the Rules of Practice states: “The calendar day on which compliance is required shall be included in the computation of time.” Webster’s Ninth New Collegiate Dictionary, defines “day” in relevant part: “the mean solar day of 24 hours beginning at mean midnight.” We find the word should be given its ordinary meaning.

If the particular protest or appeal is in fact received on or before the date due, then the protest or appeal will be treated as timely. However, the Board is not mandating the Board or Agency to keep fax machines on 24 hours. Parties assume the risks associated with their choice of media. A party attempting a last minute appeal may find the fax number busy or turned off. Attempt does not equal receipt.

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Lewis v Oakwood Healthcare Corp – 16.68

Lewis v Oakwood Healthcare Corp
Digest no. 16.68

Section 38

Cite as: Lewis v Oakwood Healthcare Corp, unpublished opinion of the Wayne Circuit Court, issued April 29, 2003 (Docket No. 02-243366-AE).

Appeal pending: No
Claimant: Donna M. Lewis
Employer: Oakwood Healthcare Corporation
Docket no.: B2002-10089-RO1-165903W
Date of decision: April 29, 2003

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CIRCUIT COURT HOLDING: An appeal to circuit court must be filed within 30 days of the mailing date of the Board’s decision or order. Attempts to re-litigate an issue from an earlier appeal are barred under the doctrine of res judicata.

FACTS: Claimant appealed a November 15, 2002 Board decision to circuit court. The Board decision held claimant owed restitution under Section 62(a) of the MES Act. The claimant previously appealed the Board’s June 2, 2000 decision holding her disqualified under Section 29(1)(a) to circuit court, and the court affirmed the Board in an order issued March 2, 2001. The claimant did not file a further appeal from that Section 29(1)(a) decision.

DECISION: The Board’s November 15, 2002 decision is affirmed.

RATIONALE: The claimant’s circuit court brief attempted to re-litigate the issue of her disqualification under Section 29(1)(a) and did not address the issue of restitution. The court lacked jurisdiction over the Section 29(1)(a) issue since the claimant had not filed her appeal within 30 days of the mailing date of the decision on that issue pursuant to Section 38(1). The court further noted that claimant’s appeal was barred by the doctrine of res judicata since the issues were identical to her appeal to that court in 2000 and ruled on by the court in an order issued March 2, 2001. Res judicata applies where 1) the former suit was decided on the merits, 2) the issues in the second action were or could have been resolved in the former one, and 3) both actions involve the same parties. In Michigan res judicata is applied broadly. See Energy Reserves v Consumers Power Co, 221 Mich App 210 (1997)Pierson Sand and Gravel, Inc v Keeler Brass Co, 460 Mich 372 (1999)Sewell v Clean Cut Mgmt, Inc, 463 Mich 569 (2001)Dart v Dart, 460 Mich 573 (1999).

Digest Author: Board of Review
Digest Updated:
11/04