Michigan Court of Appeals; Docket No.134531; Unpublished
Judges Holbrook, Jr., Fitzgerald, and D. A. Roberson; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Work Loss Benefits: Calculation of Benefits [§3107(1)(b)]
Wage Loss for Temporarily Unemployed Persons / Qualifications [§3107a]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Bona Fide Factual Uncertainty / Statutory Construction Defense [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals affirmed the trial court's finding that Auto Club had correctly calculated plaintiffs wage loss benefits under §3107(1) by considering only those amounts that plaintiff earned for seasonal work eight or nine months of the year, and by considering the amount plaintiff received in unemployment benefits for the balance of the year. The Court of Appeals also affirmed the trial court's award of attorney fees under §3148(1) for unreasonable delay in payment of plaintiff s wage loss benefits where benefits had initially been discontinued due to an independent medical examination, but thereafter were reinstated after the defendant's independent medical examiner conceded that plaintiffs condition was possibly aggravated by the automobile accident.
With regard to the wage loss issue, the Court of Appeals did not accept plaintiffs apparent contention that §3107a, the provision governing payment of work loss to injured persons temporarily unemployed, applied to the circumstances of this case. In this case, plaintiff was a seasonal construction worker who worked eight or nine months of the year and received unemployment benefits the balance of the year. Auto Club contended that his wage loss should be calculated based upon a per diem amount in relation to the months of the year that he worked, and a separate lower amount based upon the unemployment benefits that he received during the non-working months. The trial court adopted this methodology, and the Court of Appeals affirmed. The Court of Appeals held that there was no need to look at the provisions of §3107a, since plaintiff was employed at the time of the accident and entitled to work loss benefits pursuant to §3107(1). However, plaintiffs work loss benefits are limited to the loss of income which he would have earned. Therefore, the court held plaintiff not entitled to year-around payments for full-time work because he did not work the full year.
On cross-appeal, Auto Club appealed the trial court award of attorney fees for delay in paying plaintiffs work loss benefits. Plaintiffs work loss benefits were discontinued on February 15,1989, after an independent medical examination requested by Auto Club. The examiner diagnosed a developmental problem of spondylosis which he felt was unrelated to the accident. However, at his deposition on December 11, 1989, the examiner testified that although plaintiff suffered from a developmental problem, it was possible the condition was aggravated by the automobile accident. Two weeks thereafter, Auto Club issued a check for the amount past due since the cutoff. The Court of Appeals affirmed the trial court determination that it was unreasonable for defendant to withhold wage and medical benefits based solely upon the report of the independent medical examiner. The Court of Appeals held that it would have been reasonable for defendant to gather consensus from plaintiffs physicians or other physicians regarding the decision to terminate plaintiff's benefits. It was the independent medical examiner's own admission ten months later that plaintiffs condition could have been aggravated by the accident Therefore, the trial court could properly conclude that no bona fide factual uncertainty was demonstrated and that the delay in making the payments was unreasonable.
