Section 33
APPEALS, Appeal to court from remand order, Final order, Interlocutory appeal, Superintending control
CITE AS: Radke v ESC, 37 Mich App 104 (1971)
Appeal pending: No
Claimant: Herman Radke
Employer: Nelson Mill Company
Docket No: B68 3396 37329
COURT OF APPEALS HOLDING: Where an employer fails to appear at either the Referee hearing or the Appeal Board hearing, but the Appeal Board remands the matter for the employer's testimony, the remand order is not a final order, but it is a clear abuse of discretion which entitles the claimant to " ... circuit court review under the power of superintending control."
FACTS: A Commission redetermination held the claimant disqualified under the labor dispute provision of the Act. The employer made no appearance at the Referee hearing. The Referee reversed the redetermination, and an Appeal Board hearing was scheduled at the employer's request. The claimant and his attorney attended; the employer did not. The Appeal Board remanded the matter for the employer's testimony. On appeal by the claimant, a circuit court reversed the remand order.
DECISION: The claimant is " ... entitled to circuit court review under the power of superintending control."
RATIONALE: "Upon inspection, we find that the Genesee County Circuit Court could not properly entertain an appeal pursuant to MCLA 421.38; MSA 17.540. But, even if the Appeal Board's remand order is not a final order appealable under statute, we may view an appeal to circuit court as an application for an order of superintending control."
"We hold that upon this factual situation, there was a clear abuse of discretion by the MESC Appeal Board and, consequently, claimant was entitled to circuit court review under the power of superintending control. For us to rule otherwise would be an endorsement that the MESC Appeal Board has the right to place multiple stumbling blocks in front of a claimant in order to recover benefits but excuse the most extravagant and indefensible neglect of the entire proceedings by an employer."
11/90
NA