Michigan Court of Appeals; Docket No. 102452; Published
Judges Gribbs, Holbrook, Jr., and Reilly; Unanimous; Per Curiam
Official Michigan Reporter Citation: 180 Mich App 447; Link to Opinion 
STATUTORY INDEXING:
Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]
State Workers Compensation Benefits [§3109(1)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Presumption of Unreasonableness [§3148]
Conduct Establishing Unreasonable Delay or Denial [§3148]
TOPICAL INDEXING:
Workers Disability Compensation Act (MCL 418.1, et seq.)
CASE SUMMARY:
In this unanimous, published per curiam Opinion, the Court of Appeals held that the defendant insurance company was not entitled to a setoff of "future" workers' compensation benefits pursuant to §3109(1).
Plaintiff claimed no-fault benefits for work loss after he was injured while using his employer's motor vehicle. A jury verdict in the 36th District Court awarded $46,625 in benefits. On appeal to the circuit court, the circuit judge reduced this award by the amount of workers' compensation benefits already paid to the plaintiff at the time of trial. However, the insurance company claimed that it was also entitled to a setoff for future workers' compensation benefits which were the subject of a pending appeal before the Workers' Compensation Appeal Board.
The Court of Appeals held that the circuit court did not err by ordering a setoff of only those benefits already paid.
Reduction of future benefits pending on appeal would be speculative at this point, and a setoff cannot be made until the amount of workers' compensation benefits is finally determined. Joiner v Michigan Mutual Ins Co, 161 Mich App 285 (1987).
In upholding the trial court's award of attorney fees for unreasonable delay or refusal of payment pursuant to §3148(1), the Court of Appeals held that the defendant had offered no explanation to the trial court for the delay in payment of work loss benefits. The plaintiff was injured on July 29, 1981. The plaintiff testified that the defendant refused to provide him with an application for no-fault benefits until he complained to the state insurance bureau. Plaintiff submitted his application for no-fault benefits in May 1982, and received a check dated June 2, 1982 for benefits from July through November 1981. On July 7, 1982, the defendant's doctor examined plaintiff, and based upon the doctor's report, plaintiff’s benefits were terminated. Plaintiff thereafter received two checks covering his work loss through July 7, 1982.
In upholding the award of attorney fees, the court held that a rebuttable presumption of undue delay arises when benefits are not paid within 30 days after the insurer receives reasonable proof of loss. Butt v Detroit Auto Inter-Insurance Exchange, 129 Mich App 211 (1983). Here, defendants offered no explanation to the trial court for the delay in payment for plaintiff’s work loss between November 1981 and July 7,1982, although they did not dispute plaintiff’s entitlement to those benefits. Nor did defendants contest below plaintiff’s allegation that they refused to provide plaintiff with an application for benefits until May 1982.
The Court of Appeals also upheld the trial court's decision assessing interest pursuant to §3142(3) for overdue payments.
