Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  December 9, 2011                                                                Robert P. Young, Jr.,
                                                                                            Chief Justice

  141858                                                                          Michael F. Cavanagh
                                                                                        Marilyn Kelly
                                                                                  Stephen J. Markman
                                                                                  Diane M. Hathaway
  TORME C. FINDLEY,                                                                   Mary Beth Kelly
            Plaintiff-Appellee,                                                       Brian K. Zahra,
                                                                                                 Justices
  v                                                     SC: 141858
                                                        COA: 291402
  DAIMLERCHRYSLER CORPORATION,                          WCAC: 08-000112
  n/k/a CHRYSLER GROUP L.L.C.,
             Defendant-Appellant.
  _________________________________________/

         On October 4, 2011, the Court heard oral argument on the application for leave to
  appeal the August 24, 2010 judgment of the Court of Appeals. On order of the Court, the
  application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal,
  we REVERSE the judgment of the Court of Appeals, and we REINSTATE the March 12,
  2009 order of the Workers’ Compensation Appellate Commission (WCAC). The Court
  of Appeals erred in concluding that Aquilina v General Motors Corp, 403 Mich 206
  (1978), remained valid after the 1985 amendments to the Worker’s Compensation
  Disability Act, MCL 418.101 et seq.

         In contrast with the statutory mechanism in place at the time Aquilina was
  decided, the WCAC is now required to treat as conclusive the factual findings of the
  magistrate where those findings are “supported by competent, material, and substantial
  evidence on the whole record.” MCL 418.861a(3). Because the WCAC must now give
  deference to the magistrate’s factual determinations, and may no longer engage in de
  novo fact finding, a WCAC decision does not require a “true majority” “decision based
  on stated facts.” Aquilina, 403 Mich at 214.

        CAVANAGH, J. (dissenting).

         I respectfully dissent from the majority’s decision to reverse the judgment of the
  Court of Appeals. Plaintiff was allegedly injured at work and subsequently filed a
  worker’s compensation claim, which was denied by the magistrate. The Workers’
  Compensation Appellate Commission (WCAC) later affirmed in a split decision, where
  one commissioner issued the lead opinion, the second commissioner concurred only in
  the lead opinion’s result, and the third commissioner dissented. Plaintiff appealed and
                                                                                                               2

the Court of Appeals, relying on MCL 418.274(8) and Aquilina v General Motors Corp,
403 Mich 206 (1978), vacated and remanded for issuance of a “true majority” decision.
Findley v DaimlerChrysler Corp, 289 Mich App 483 (2010).

        In my view, the Court of Appeals did not clearly err in applying Aquilina under
the facts of this case. In Aquilina, the Court held that where two members of the
predecessor to the WCAC concurred only in the result of what was designated as the
“controlling opinion,” the opinion was not a “majority decision” as required by the
Worker’s Disability Compensation Act of 1969. Aquilina, 403 Mich at 212. Notably, in
rendering its holding, Aquilina focused on the review responsibilities of appellate courts,
see id. at 213-214, explaining that appellate courts “cannot discharge [their] reviewing
responsibilities unless a true majority reaches a decision based on stated facts,” and
specifically noting that “[a] decision is not properly reviewable when some of the
majority concur only in the result and do not state the facts upon which that result is
based.” Id. at 214. 1 Although the 1985 legislative amendments brought reforms to the
Worker’s Disability Compensation Act, as the Court of Appeals recognized, the review
function of appellate courts remains the same. See, e.g., Holden v Ford Motor Co, 439
Mich 257, 262 (1992). And, even after the legislative amendments, this Court has
generally recognized the importance of a “carefully constructed opinion by the WCAC”
in facilitating appellate review. Id. at 268-269. Thus, under the facts of this case, I do
not believe that the Court of Appeals clearly erred in applying Aquilina where, as in
Aquilina, a commissioner in the majority did not issue a separate opinion but, instead,
concurred only in the result reached by the lead opinion. Accordingly, I would deny
leave to appeal.

      MARILYN KELLY, J., joins the statement of CAVANAGH, J.

       HATHAWAY J. (dissenting).

       I dissent from the majority’s decision in this matter. Leave to appeal was not
granted in this case. Having reviewed the limited briefing and having heard limited oral
argument, I would grant leave to appeal because I believe that the Court would benefit
from plenary review of the issues before rendering a decision.

1
 In order to assist appellate courts in “effectively discharging their responsibilities,”
Aquilina further encouraged concurring board members to articulate whether they agree
with the legal standards and rationale applied in reaching the decision. Aquilina, 403
Mich at 214.



                         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.
                         December 9, 2011                    _________________________________________
       t1130                                                                 Clerk
