In Bowden v. Gannaway, No. 319047
, the Court of Appeals held that, when applying for non-duty disability retirement benefits, an employee must present a certified writing that the employee is totally and permanently disabled; even if that employee filed for benefits before the decision in Polania v. State Employees’ Retirement System
, 299 Mich. App. 322 (Mich. Ct. App. 2013). Therefore, the Court of Appeals affirmed the trial court’s order granting summary disposition to defendant Gannaway because Gannaway’s failure to file an appeal with the Office of Retirement Services (ORS) in a timely manner was not the proximate cause of Bowden’s losing appeal for disability benefits.
From 1980 to 2007, plaintiff Janell Bowden cleaned and prepared motor vehicles for the State of Michigan. In 2008, after a series of spinal surgeries, Bowden filed for non-duty disability retirement benefits. Several independent physicians stated that Bowden was disabled, but the physician designated by the state concluded that she was not totally and permanently disabled. ORS subsequently denied Bowden’s application for benefits and informed her that she had sixty days to appeal. Bowden then hired defendant Charles Gannaway to represent her on appeal; however, Gannaway filed after the deadline. Bowden sued Gannaway for legal malpractice.
Gannaway argued that, under Polania
, even if the appeal had been filed in a timely manner, Bowden would not have prevailed on the underlying claim because no medical advisor certified in writing that Bowden was totally and permanently disabled. Bowden asserted that Polania
did not apply retroactively because she filed in 2008 before the opinion was released and instead, her case is governed by Gordon v. City of Bloomfield Hills,
207 Mich. App. 231 (Mich. Ct. App. 1994), which held that courts may review all evidence on the record, including non-certified statements.
The Court of Appeals rejected Bowden’s argument that Polania
does not apply. The court reasoned that Polania
merely clarified Gordon
in holding that, even when looking at all the evidence, the statute requires an applicant to submit a certified medical writing that the former employee is totally and permanently disabled. Because it is undisputed that Bowden’s physicians did not proffer a certified writing, Bowden would not have prevailed on appeal even if Gannaway timely filed. Therefore, the Court of Appeals affirmed the trial court’s judgment.