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140723 - Ferdon v Sterling Performance, Inc.

Mary A. Ferdon,
 
Ronald D. Glotta
 
Plaintiff-Appellant,
 
v
(Appeal from Ct of Appeals)
 
 
(Workers’ Comp Appellate Comm)
 
Sterling Performance, Inc. and West American Insurance Company,
 
Gerald M. Marcinkoski
 
Defendants-Appellees.
 

Summary

​After a magistrate denied Mary Ferdon’s claim for worker’s compensation benefits, Ferdon appealed that decision to the Workers’ Compensation Appellate Commission. In order to pursue her appeal, Ferdon was obligated to file a copy of “the transcript of the hearing” within 60 days, pursuant to MCL 418.861a(5). Subsection (5) provides that, “[f]or sufficient cause shown, the commission may grant further time in which to file a transcript.” There were two hearings on the record before the magistrate: the first on May 7, 2008, the original date set for trial, where an adjournment was entered to allow the parties more time to try and reach a settlement, and the second on June 3, 2008, when the full-fledged trial took place. Ferdon ordered and paid for both transcripts. The May 7 transcript was seven pages long; the June 3 transcript was 194 pages long.

 

The WCAC received the June 3 transcript within the 60-day filing period, but not the May 7 transcript. When Ferdon did not make a timely request for an extension to file the May 7 transcript, the WCAC sent her a 14-day show cause order, explaining that “because [Ferdon] has failed to timely file a complete transcript for all proceedings or a timely request for an extension of time, the Commissioner believes that [Ferdon] is required to show cause why the claim for review should not be dismissed.” In response to this order, Ferdon’s attorney submitted an affidavit signed by Ferdon, stating that she had ordered, paid for, and received both transcripts. The affidavit acknowledged that the May 7 transcript was “the missing transcript,” asserted that the May 7 transcript “contains no substantive information,” and that “the defendants . . . were not unduly harmed by the omission of the May 7, 2008 transcript.” Ferdon also provided a copy of the May 7 transcript. The WCAC, in a split vote, concluded that this claim of good cause was not persuasive and dismissed Ferdon’s appeal. The WCAC majority advised, “Appellant is obligated to submit all transcripts on a timely basis, not just those that counsel deems ‘relevant’.” The dissenter concluded that “[d]ismissal is too harsh a remedy for appellant’s transgression.”
 
Ferdon moved for reinstatement of her appeal, but the WCAC denied the motion for reconsideration. Ferdon sought review in the Court of Appeals, but that court denied leave to appeal for lack of merit in the grounds presented. Ferdon appeals.