At Bleakley Cypher , we believe we have an obligation to highlight the most recent and hottest topics involving Michigan Workers' Compensation and Employment Law. We know the high level of sophistication of our clients and the need to stay up to date on case law that impacts the daily work load. For that reason, we summarize important decisions that impact the Michigan Workers' Compensation Defense practice. We explain the significance of the case holding and provide practical advice.
Hathaway elected to Supreme Court - shift in balance of power?
Diane Marie Hathaway, formerly a Wayne County Circuit Court Judge, has been sworn in as a Justice with the Michigan Supreme Court after defeating sitting Chief Justice Clifford Taylor in the November 2008 election. The election, during which the Democratic nominee criticized Taylor as "against everything Michigan stands for, except insurance companies," and "the sleeping judge," marked the first time a challenger has defeated a sitting Chief Justice in Michigan history.
Justice Hathaway, 54, threatens to upset the ideological balance of the Court. She joins two other Democrats - Justices Michael Cavanaugh and Marilyn Kelly. The Democrats remain outnumbered by Republican-nominated Justices Maura Corrigan, Stephen Markman, Elizabeth Weaver and Robert Young Jr. However, Justice Weaver is noted for being highly critical of her Republican colleagues, calling them "the majority of four," and has increasingly split from them in key rulings. Justice Weaver could become a swing vote, potentially upsetting a Court that in recent years has handed down some of the most conservative and employer-friendly workers' compensation decisions in its history.
Mt. Clemens Agency to close
Jack Nolish, Director of the Michigan Workers' Compensation Agency, announced on Friday, January 16 that the Agency will be closing its Mt. Clemens Hearing Office due to fiscal concerns. The closing is due to take effect on or about June 1, 2009. Once closed, those cases previously heard in Mt. Clemens would be rerouted to already existing offices: Macomb County cases would move to Detroit, Sanilac County to Saginaw, and St. Clair County to Flint, though this arrangement is only tentative for now.
Sitting Mt. Clemens Magistrates Logan and Wolock will expected to remain until appointments are made for the current vacancies there, at which time Magistrate Wolock will be reassigned to Pontiac and Magistrate Logan and one of the appointees to Detroit. Magistrate Wolock's is expected to add balance to a heavily pro-plaintiff office, while Logan's move to Detroit will mesh with the already fairly-balanced collection of magistrates there.
Lofton and Stokes to radically alter disability and wage loss inquiry
A recent Michigan Supreme Court Order is set to revolutionize determinations of wage loss in workers' compensation cases. Following on the heels of Stokes v. Chrysler (June 2008), the Court remanded Lofton v. Autozone (October 2008) to the WCAC; directing a reduction in the plaintiff's weekly rate of compensation based on "what the plaintiff remains capable of earning."
The implications of this order, taken together with the framework established by Stokes, are truly staggering. It implies that where a plaintiff is found to be disabled but the limitation of wage earning capacity is only partial, the defendant now stands to get credit for wages the plaintiff could have earned after his injury, rather than what he actually earned. In other words, the magistrate must compute wage loss benefits based upon what the plaintiff remains capable of earning, despite his injury.
Under these decisions, the plaintiff now has the burden of establishing: 1) His/her work qualifications, training and work experience; 2) The universe of jobs potentially available to him/her; and 3) An inability to perform any of the jobs potentially available even if they pay less than pre-injury wages. In addition, employer/defendants now have the right to have the plaintiff evaluated by a vocational expert (face to face) to determine the qualifications, training, physical restrictions, and whether there are actual jobs available. Employers may also receive offsets for actual jobs that exist for the plaintiff, even if the offered pay is less than the maximum level.
Employers and insurers are encouraged to make a close review of all claims and cases, including those currently being voluntarily paid or closed cases being paid pursuant to an Agency Order, as these new requirements may result in a reduction of payments.
New ADA amendments
New changes in the definition of "disability" under the Americans with Disabilities Act have gone into effect as of January 1, 2009. The new regulations broaden the scope of protection for employees by affirming that a disability must affect a major life activity, but vastly expanding "major life activity" to include tasks like sleeping, eating, walking, reading, and communicating. The new law will also cover episodic conditions and conditions in remission so long as they substantially limit a major life activity. Mitigating factors, such as control of a condition with medication or a medical device, will no longer be considered.
The amended Act now applies to employers with 15 or more employees, which now includes part-time and temporary workers for at least 20 weeks in the current or previous year.
Amended act
Senate Bill No. 1596 took effect on January 13, 2009, amending Section 418.845 of the Michigan Workers' Disability Compensation Act. The relevant section, which governs jurisdiction over cases arising outside Michigan, came to prominence in 2007 with the Supreme Court's decision in Karaczewesk v. Farm & Stein Company. In that case, the Court determined that the Act confers jurisdiction over out-of-state injuries where: 1) the employee was a resident of Michigan when the injury occurred, and 2) the contract of hire was made in Michigan. The Court made it clear that both of the above elements had to be met in order for the Act to provide jurisdiction.
The amendment, signed by Governor Granholm on January 12, now provides for jurisdiction where only one of these elements is met. This expansion of the Act's coverage creates extensive new protection for Michigan employers. Whereas an out-of-state injury prior to the amendment which met only one of the above criteria would have exposed the employer to a potentially costly tort suit, these injuries will now be dealt with under the much more reasonable workers' compensation system.
Former Chief Justice Taylor to speak at seminar
Former Michigan Supreme Court Chief Justice Clifford Taylor will be the special guest keynote speaker at the Bleakley, Cypher, Parent, Warren & Quinn workers' compensation seminar on March 20, 2009 in Grand Rapids. Mr. Justice Taylor, who joined the Court in 1997 by appointment from then-Governor Engler, was instrumental in delineating some of the most progressive and employer-friendly workers' compensation caselaw in recent memory. He is expected to give a frank and studied analysis of the Court's decision-making process, its most recent landmark cases, and the direction of future Michigan workers' compensation law.
To keep up to date contact our attorneys to learn more at 866-677-9243.
