AGGRAVATION

Simonds v Delphi Automotive Systems, Inc., 2004 ACO #61 (4/6/04); 18 MIWCLR 56.  The plaintiff in this case had sustained a work-related back injury and underwent surgery.  While recovering from surgery, the plaintiff was driving an automobile when he turned his buttocks and felt an increase in symptoms following that incident.  The issue was whether the claimant’s aggravating injury when he turned while driving his automobile was an independent intervening cause thereby ending any period of disability.  The Commission found that the claimant’s driving incident was compensable because it was a direct and natural result of the primary injury.  In particular, it was in very close proximity to the claimant’s original work-related injury and subsequent back surgery.  The Commission did acknowledge that a distinct new non-occupational injury creating a new disability might not be compensable if it is an independent intervening cause; however, the facts in this particular case did not act as an independent or intervening cause. 

Wilt v Ford Motor Company, 2004 ACO #167 (6/25/04); 18 MIWCLR 165.  The plaintiff in this case suffered a work-related right ankle injury and disability.  The plaintiff also suffered a right shoulder injury when he fell using his crutches, which were necessitated by his work-related right ankle injury.  The Commission found that the claimant’s injury to his right shoulder was a direct and natural consequence of his original work injury to his ankle and therefore compensable.  If there is a direct and causal between a work injury and a second injury, the second injury will be compensable. 

ARISING IN AND OUT OF THE COURSE OF EMPLOYMENT

Martin v Mutual of Detroit Insurance Company, 2004 ACO #331 (4/19/04); 18 MIWCLR 71.  The plaintiff in this case worked for an insurance company as a debit route insurance sales person.  The plaintiff’s regular work involved travel for client to client on a regular schedule to collect premiums.  At the time of his injury, he had arrived at the destination of a customer and was exiting his vehicle on the street in order to collect a premium from his customer when he slipped on the ice injuring his back.  The Appellate Commission explained that the claimant’s job activities required him to travel as an integral part of his job duties, therefore circumstances involved in traveling and the ordinary hazards of travel would be considered work related hazards under the circumstances.  Accordingly, when the claimant slipped while exiting his car at the location of a customer, his injury was considered to arise in and out of the course of his employment.

Willhit v Rem Trucking, LLC, 2004 ACO #218 (8/5/04); 18 MIWCLR 216.  In this particular case, the claimant was a truck driver who suffered an injury when he slipped on accumulated snow while retrieving personal items from the inside of his truck on his day off.  The injury did not occur during working hours, nor “coming or going a reasonable time before or after” working hours.  The Commission found that the evidence supported that plaintiff’s actions to retrieve his personal items were occasioned by his employment.  The Commission found this a close case, but reasoned that the employer received a benefit by the plaintiff’s retrieval of personal property for the holiday season because he would facilitate the protection of the truck from potential thieves.  Specifically, the evidence in the case did support that the truck had been broken into before and plaintiff’s property stolen.  In summary, the Commission focused their inquiry on whether claimant’s injury occurred in the performance of an activity that benefited the employer.  That is not the only factor for determining whether an injury arose in and out of the course of employment, but is often central to the issue.

James v Autolab Diagnostics, 2004 ACO #245 (8/20/04); 18 MIWCLR 244.  The plaintiff in this case was injured in an automobile accident while traveling to a work-related seminar.  The evidence produced at the time trial indicated that the employer paid for or furnished transportation and that the injury occurred during working hours.  Also, there was a specific benefit to the employer and there was excessive exposure to traffic risks.  The Commission explained that in determining whether seminar-related travel is compensable, the fact finder must look at whether the employee’s participation in the seminar had such a “connection with the employment” as to render the injury compensable as an incident of employment.  Two important factors to consider are: 1) whether the employer directly benefited from the employee’s attendance; and 2) whether attendance was compulsory or at least definitely urged or expected as opposed to merely encouraged.  In this particular case, the Commission found that the plaintiff’s injury did arise in and out of the course of employment because the employer directly benefited from the employee’s attendance at the seminar.  Although the claimant’s attendance was not compulsory or definitely urged, the Commission found the injury still to be compensable as the fact based analysis to determine the compensability of seminar travel does not require satisfaction of both prongs or factors noted above.

Bowman v R.L. Coolsaet Construction Company, 2004 ACO #270 (9/20/04); 18 MIWCLR 269.  The Appellate Commission found that a journeyman pipe fitters injury in a vehicular accident while traveling from his temporary work site to his temporary residence did not arise in and out of the course of employment.  The general rule for injuries sustained while going to and from work are not in the course of employment and, as a result, do not arise of the employment.  The employer did not pay for the meals and lodging.  After leaving a particular job site, the employee’s time was his own.  Although he was injured while traveling to his temporary residence, the employment imposed no constraints on him until he was required to return to work the next day.  The Commission refused to apply the “traveling employee” doctrine whereby traveling employees on a business trip are considered to be continuously within the scope of their employment during their trip except when a distinct departure for a personal errand can be shown.  The Commission explained that the “traveling employee” doctrine is a too broad a doctrine to apply and that the general rule was more applicable.  The factors to consider are: 1) whether the employer paid for or furnished the employee transportation; 2) whether the injury occurred during or between business hours; 3) whether the employment derived a special benefit from the employee’s activities; and 4) whether the employment subjected the employee to excessive exposure to traffic risks. 

ATTORNEYS FEES

Ironside v Dana Corp., 2004 ACO #66 (4/13/04); 18 MIWCLR 61.  The Magistrate in this case awarded attorney fees for certain unpaid medical expenses.  The Commission affirmed the award of attorney fees and explained that the Magistrate has the authority to award attorney fees pursuant to Section 315.  The Commission explained that an award of attorney fees is a matter of discretion on the part of the Magistrate.  Commissioner Leslie, in a concurring opinion, took issue with what he believed was a clearly erroneous course of interpretation of the attorney fee provision set forth in Section 315.  Commissioner Leslie urged reconsideration of the issue by the Court of Appeals with the Michigan Supreme Court and further explained in a well-written legal analysis that the legislature imposed an attorney fee on those who receive the benefit of recovery, not the employer. 

Donoho v Walmart Stores, 2004 ACO #142 (6/8/04); 18 MIWCLR 140.  The plaintiff in this case filed an application seeking penalties and attorney fees based upon unpaid medical benefits, that were not timely paid pursuant to a Magistrate’s previous order.  The Magistrate awarded a $1,500.00 penalty and a 30% attorney fee pursuant to Section 315 of the Act.  The Commission once again affirmed the Magistrate’s authority to award of attorney fees pursuant to Section 315. 

AVERAGE WEEKLY WAGE

Wethy v General Motors Corp., Supreme Court Order #124682 (2/27/04); 18 MIWCLR 6.  The Supreme Court in this case denied leave to appeal thereby affirming the Michigan Court of Appeals’ decision, that hold Section 418.371(6), only applies to calculation of average weekly wage under “special circumstances” only applies to situations where an employee has not yet worked 39 weeks at the place of employment where he was injured. 

Petsch v Convention and Show Services, 2004 ACO #191 (7/14/04); 18 MIWCLR 189.  The Commission again explained that absent special circumstances, Section 371(6) will not be used to calculate an employee’s average weekly wage.  In a case where there are no special circumstances and an employee works less than 39 weeks, then Section 371(3) is applicable.  Subsection 3 provides that the average weekly waged shall be based upon the total wages earned by the employee divided by the total of number of weeks actually worked. 

COORDINATION

Weirauch v Alstrom Construction Company, Inc ., 2004 ACO #193 (7/16/04); 18 MIWCLR 191.  The Commission explained that the mere eligibility to receive unreduced pension benefits does not allow for coordination.  Accordingly, in order to coordinate pension benefits, an employee must actually receive the benefits. 

DISABILITY (SINGTON)

Acosta v CEI Roofing, Inc., 2004 ACO #252 (9/8/04); 18 MIWCLR 251.  The Workers’ Compensation Appellate Commission discussed the ability of an employee to perform post injury employment within one’s qualifications and training.  The Commission explained that the ability to perform post injury jobs that are “real jobs in the real world” that are at or above a injured employee’s maximum earning capacity will result in the failure to establish a compensable disability pursuant to Sington. 

Brecht v MacDonald Molding, Inc., 2004 ACO #85 (4/23/04); 18 MIWCLR 83.  The procedural history in this case is lengthy.  Ultimately, the Appellate Commission remanded this matter for a third time for further Sington analysis.  Specifically, although a determination had already been that there were no regular jobs available in the marketplace at the plaintiff’s maximum level of wages within their qualifications and training, the claimant must still meet the requirements of Section 361 of the Act.  Namely, the claimant must provide either an inability to perform (or obtain because such jobs are not reasonably available) all jobs within his or her qualifications and training that pay lesser wages establishing a prima facia wage loss.  Residual earning capacity is an important element of the Sington analysis. 

Clish v Peerless, 2004 ACO #17 (3/11/04); 18 MIWCLR 11.  The plaintiff in this case suffered a work-related injury and worked under restriction until he was laid off.  The defendant argued that an award of benefits was not justified because the plaintiff continued to work in his regular job despite restrictions until the plant closed.  The Appellate Commission affirmed the Magistrate’s open award because post injury, the claimant’s injury prevented him from working overtime.  Thus, a loss of overtime due to a work-related injury represents a loss of maximum wage earning capacity and a direct link between a work-related injury and the reduced wages.  Even a slight reduction in earning capacity or wage loss, will constitute a compensable disability.  

Floyd v Detroit Diesel Corp., 2004 ACO #223 (8/12/04); 18 MIWCLR 221.  With respect to the disability analysis required pursuant to Sington, the Appellate Commission again reiterated that if there is proof of a viable real job which the claimant is capable of performing, then he will not meet the “threshold” definition of disability.  The claimant in Floyd was incapable of performing all jobs within his qualifications and training that paid at or above his maximum earning capacity, therefore disabled. 

Riley v Bay Logistics, Inc., 2004 ACO #27 (3/16/04); 18 MIWCLR 21.  In this case, the Workers’ Compensation Appellate Commission further enumerated the specific requirements of Sington, and the parties’ respective burden of proof.  Specifically, in order to establish a compensable disability, the plaintiff must establish the following:  1) the universe of jobs for which he or she is qualified and trained and how much they pay; 2) establishment of a work-related physical or mental impairment, which does not permit him or her to perform jobs within his/her qualifications and training causing him/her to lose wages; and 3) establishment that he or she is either unable to perform (or obtained because such jobs were not reasonably available) all jobs within his or her qualifications and training that pays maximum wage.  If the above three factors are met, then a prima facia case of disability will be established, and the burden will shift to the defendant to bring forth proofs of real jobs, in the real world, within the claimant’s qualifications and training that are both reasonably available, and within his or her physical capacity to perform. 

Sington v Chrysler Corp., (following remand) 2004 ACO #220; 18 MIWCLR 218.  The Appellate Commission explained that the plaintiff failed to establish a disability pursuant to Sington because there existed numerous jobs within the plaintiff’s qualifications and training that were readily available and within his medical restrictions.  As such, the availability of regular jobs, available within the marketplace within an employee’s qualifications, training, experience and restrictions, preclude the finding of a compensable disability. 

Taylor v Crown, 2004 ACO #344 (3/5/04); 18 MIWCLR 3.  The plaintiff in this case suffered a serious injury two days before his retirement became effective.  He was originally awarded benefits; however, the Court of Appeals vacated and remanded the matter to the Appellate Commission for reconsideration of the disability termination in light of Sington.  The Commission then remanded the matter to the Magistrate and ordered that the Magistrate should consider whether the plaintiff suffered a wage loss given that he sustained his injury just two days prior to his scheduled retirement date.  Presumably, if it is determined that the claimant did not suffer a wage loss, because of his planned retirement, then he is not entitled to wage loss benefits.  Conversely, if the retirement had no bearing on his wage loss, then benefits would be due and owing.  Disability determinations involve both the issue of wage earning capacity as well as wage loss, and both must be work related to be compensable.

Voss v Amsted Industries, Inc., 2004 ACO #35 (3/23/04); 18 MIWCLR 29.  The plaintiff in this case suffered a work-related injury, but returned to work in a regular job at an equal hourly rate.  Plaintiff’s injury did however suffer wage loss because he was no longer capable of obtaining overtime.  The Commission explained that the focus is not on the hourly rate, but the compensation as a whole.  Accordingly, the claimant did establish a compensable disability because he was no longer able to work overtime. 

Warren v LeeLanau Sands Casino, 2004 ACO #173 (6/28/04); 18 MIWCLR 171.   The plaintiff in this case was a casino server who suffered a left shoulder injury which required medical restrictions.  Despite the medical restrictions, the claimant returned to her regular work post injury and she was ultimately terminated while performing her regular job.  The Appellate Commission explained that although the claimant was under medical restrictions, she was performing her work, without modification, and therefore she was not disabled.  Because she was not disabled and performing her regular work at the time she was terminated, no wage loss benefits were due and owing. 

DUAL EMPLOYMENT

Herndon v Oakwood Healthcare, Inc., 2004 ACO #72; 18 MIWCLR 69.  Under the specific facts presented, the Appellate Commission affirmed the Magistrate’s finding of dual employment.  The Commission agreed that although the claimant did not engage in “active” dual employment, he was holding two jobs at the date of injury based upon the working history and was considered to be engaged in dual employment, although the hours and times of the second employment were nonspecific. 

EXCLUSIVE REMEDY

Craft v City of Detroit, ____ Mich App ____ (4/29/04); 18 MIWCLR 63.  The plaintiff in this case filed an intentional tort claim alleging that she had been violently attacked and assaulted by a coworker.  She alleged that the employer was liable under the doctrine of respondeat superior.  In an unpublished decision, the Michigan Court of Appeals found that the trial court had no jurisdiction to decide whether the act was an intentional tort.  The court also found that the plaintiff failed to invoke the intentional tort exception to the exclusive remedy provision set forth in the Workers’ Disability Compensation Act.  Specifically, the plaintiff failed to plead any fact that would give rise to an inference that the employer either had knowledge of the actions or the employer intended to injure the plaintiff.  Even accepting the plaintiff’s allegations that she was assaulted, it would not give rise to even an inference that the employer had knowledge of the actions or that the employer intended to injure the plaintiff and therefore her claim failed to meet the requirement of the intentional tort exceptions to the exclusive remedy.

HERNIA

Barcewski v Yellow Freight System, Inc., 2004 ACO #64 (4/9/04); 18 MIWCLR 59.  The Workers’ Compensation Appellate Commission found that when a hernia results from a single-event trauma, it is governed under the requirements of a compensable hernia under Chapter 3, not Chapter 4.  Accordingly, the requirements under Chapter 4 that require a hernia be recent in origin and promptly reported are not applicable when a hernia is the result of a single-event trauma. 

IDIOPATHIC

Dunn v Kurdziel Industries, 2004 ACO #229 (8/16/04); 18MIWCLR 227.  The plaintiff in this case suffered an aggravation of a pre-existing right knee condition when she stepped off an 18 inch grate.  The Magistrate analyzed the testimony and found that the grate was used because of the debris from core manufacturing, an integral part of the claimant’s job and therefore work increased the risk of injury.  The Commission affirmed. Accordingly, because the claimant’s injury resulted from an integral part of the employer’s operation, and because it increased the risk of injury, it was not an idiopathic injury.

INJURY (RAKESTRAW)

Hale v Borgess Medical Center, 2004 ACO #266 (9/10/04); 18 MIWCLR 265.  In this case, the Workers’ Compensation Appellate Commission further addressed the issue of what constitutes a medically distinguishable condition needed to satisfy the Rakestraw requirement for pre-existing conditions.  The Commission espoused that pain alone is not conclusive evidence of a medically distinguishable injury, however an injury producing continuing pain or pain that is different from an employee’s pre-injury condition will constitute a medically distinguishable condition.  Further, if an injury produces continuing pain such that it causes impaired performance of pre-injury activities, that can also constitute a medially distinguishable injury.

Holden v Rock Tenn Corp., 2004 ACO #209 (8/3/04); 18 MIWCLR 207.  In this particular case, the plaintiff alleged a shoulder injury after being pinned against the wall by a fork lift.  The evidence revealed that the claimant’s new symptoms occurring immediately after his alleged injury were compatible with his pre-existing condition; however, because the symptoms occurred immediately after the dramatic work event, the Commission explained that it would support equivocal medical testimony that the work-related injury was the cause of a pathological change.  To summarize, lay testimony of new symptoms following a work-related injury combined with equivocal medical testimony may constitute a new “medically distinguishable injury” pursuant to Rakestraw.

Jarman v Simplicity Pattern Company, 2004 ACO #276 (9/23/04); 18 MIWCLR 275.  The Appellate Commission found that the plaintiff failed to prove a medically distinguishable condition, where the evidence revealed plaintiff’s increase of pain resulted from the natural progression of her pain related an ancient injury and the aging process.  Although the plaintiff alleged an increase of pain due to her light duty activities through her last date of work, the plaintiff failed to establish that the increase in pain was attributable to those injuries.

Krastes v Haseley Construction Company, Inc., 2004 ACO #119 (5/19/04); 18 MIWCLR 117.  The plaintiff in this case sustained a work-related injury subsequently engaged in work with post-injury employers.  Although the evidence supported an transient increase in symptoms as a result of her post-injury work with different employers, the Commission explained that a mere temporary aggravation of symptoms is not sufficient to shift liability to the last employer.  The Commission pointed out that there was no medical testimony to support the claimant’s post-injury work made the actual condition worse.  Accordingly, a temporary aggravation of symptoms will not constitute a new medically distinguishable injury without a distinct permanent change to the existing condition.

Lapham v Engineered Plastic Components, Inc., 2004 ACO #394 (12/14/04); 18 MIWCLR ___.  In this case, the Commission again examined the circumstances required to establish a medically distinguishable injury pursuant to Rakestraw.  Pain alone is not conclusive evidence of a medically distinguishable condition.  Further, an employee sustains a new date of injury when it is shown that the employee has sustained a permanent worsening of the disability due to the subsequent injury or work activity.  Where evidence is produced that pain or symptoms are equally attributable to the progression of a pre-existing injury or work-related injury, then the plaintiff has not established a medically distinguishable injury.  In other words, an employee sustains a new compensable personal injury when the employee proves a permanent decrease in the ability to perform work within the employee’s qualifications and training.  This case further clarifies the Appellate Commission’s holding in Hale. 

MENTAL DISABILITY

Dow v General Motors Corp., 2004 ACO #373 (6/18/04); 18 MIWCLR 155.  The Commission enumerated the standard set forth in the case of Robertson v Daimler Chrysler Corp., 465 Mich 732 (2002), for requirements to establish a mental disability.  The plaintiff must demonstrate: 1) that there has been an actual employment event leading to his disability, that is, that the event in question occurred in connection with employment and actually took place; and 2) that the claimant’s perception of such actual employment event was not unfounded, that is, that such perception or apprehension was grounded in fact or reality, not in the delusion or imagination of an impaired mind (an objective or reasonable person standard is to be used). 

Wolf v General Motors Corp., ____ Mich App ____ (5/11/04); 18 MIWCLR 76.  In this case, the Court of Appeals further enumerated the Standard of Review to the issue of whether an employee suffered a mental disability.  Specifically, the Court of Appeals explained that under Robertson v Daimler Chrysler Corp., the Magistrate must examine the plaintiff’s perception of actual events under an objective standard based on reality.  In other words, the plaintiff must be credible regarding the occurrence of events and reaction to those events. 

MISCONDUCT

Kast v Yukon Manufacturing, 2004 ACO #30 (3/19/04); 18 MIWCLR 24.  The plaintiff in this case injured her finger in a machine press.  While performing subsequent light-duty work, the plaintiff was terminated for a positive drug test.  The Commission remanded the matter to the Magistrate for numerous issues.  With respect to the issue of the claimant’s misconduct and positive drug test, the Commission remanded for a determination as to whether her termination constituted a constructive refusal of reasonable employment.  Under certain circumstances, misconduct of an employee will constitute a constructive refusal of reasonable employment, thereby resulting in a suspension of wage loss benefits. 

Marcinak v Norcote, Inc., 2004 ACO #40 (8/19/04); 18 MIWCLR 239.  The plaintiff in this case tested positive for marijuana use at the time of his injury.  The Magistrate found and the Commission affirmed that the plaintiff’s injury was occasioned by his willful misconduct and drug use.  The Commission explained that when an employee’s injury is caused by their own intentional and willful misconduct, then compensation is not available under the provisions of the Workers’ Compensation Act.

Charlton v Delphi Automotive Systems Corp., 2004 ACO #144 (6/10/04); 18 MIWCLR 142.  The plaintiff in this case suffered a back injury and disability arising out of an altercation with his supervisor related to a request to be seen by the company medical facility because of back pain related to work.  The Appellate Commission found that the plaintiff’s back injury and disability was compensable because plaintiff’s back condition was directly traceable to a work-related altercation, therefore meeting the requirement of arising in and out of the course of employment. 

OUT-OF-STATE INJURY

Karaczewski v Farbman Stein & Company, 2004 ACO #133 (5/26/04); 18 MIWCLR 131.  The Workers’ Compensation Appellate Commission found that the Michigan Workers’ Compensation Bureau had jurisdiction for any injury, no matter where it occurs, when an employer hires an employee under Michigan law by entering into a contract in Michigan.

REASONABLE EMPLOYMENT

Goff v Tendercare Green View, 2004 ACO #89 (4/28/04); 18 MIWCLR 87.  The Magistrate in this case granted the plaintiff an open award with suspended benefits because plaintiff unreasonably refused to perform reasonable employment.  Specifically, the plaintiff resigned her employment and discontinued performance of reasonable employment for “personal reasons.”  The testimony at trial established that the claimant did not continue with reasonable employment due to marital difficulties.  As such, the Appellate Commission found that plaintiff’s benefits were properly denied.  It was beyond plaintiff’s resignation for marital difficulties.  Accordingly, refusal to perform reasonable employment for an entirely personal reason may constitute an unreasonable refusal of employment.

REDEMPTION

Grose v Thomas Fabrication, Inc., 2005 ACO #91 (4/29/04); 18 MIWCLR 89.  The Workers’ Compensation Appellate Commission held that in order to have a redemption set aside, the party requesting a set-aside must show “good cause.”  The plaintiff in this case alleged that his back pain had gotten worse and that he had also experienced bladder incontinence following the redemption hearing; however, the deputy director found that the plaintiff failed to show his back condition had significantly changed subsequent to the redemption hearing.  The Commission found that the director had correctly conducted an independent analysis of the facts and that the redemption was just and proper.  In other words, “good cause” or a significant change in condition subsequent to the redemption hearing is required to set-aside a redemption. 

SEVENTY PERCENT PROVISIONS

Sims v Detroit Board of Education, 2004 ACO #46; 18MIWCLR 40.  In this case, the Magistrate granted the plaintiff an open award which was appealed and ultimately reversed by the Appellate Commission.  However, the defendant continued to pay plaintiff’s 70% benefits well after the Commission’s decision reversing the award of benefits.  The defendant then made claim for reimbursement pursuant to MCL 418.833(2).  The Magistrate granted reimbursement at the rate of $1.00 per month, payable at six month intervals.  The Commission struck the Magistrate’s payment schedule and ordered full reimbursement for a period of one year prior to the date of filing the claim for reimbursement.  The Commission was remiss to do so given the lack of culpability by the plaintiff, but did find reimbursement of overpayment to be mandated by the statute once the defendants properly sought reimbursement. 

SIGNIFICANT CONTRIBUITION

Drost v Lexalite International Corp., 2004 ACO #214 (3/11/04); 18 MIWCLR 13.  The plaintiff in this case suffered from arthritis caused by a congenital defect in his knees.  The Magistrate originally found that the claimant failed to establish that this condition was significantly aggravated by his work activity pursuant to Section 301(2).  The Commission reversed the Magistrate’s finding of no work-related personal injury and remanded the matter for proper application of the ordinary causal relationship standard set forth in Section 301(1).  The Commission explained that congenital conditions per se are not governed by Section 301(2) and require only the ordinary aggravation standard. 

 
SOCIAL AND RECREATIONAL

Turner v Monday Staffing, ____ Mich App ____ (2/24/04); 18 MIWCLR 1.  The plaintiff in this case was injured while playing basketball during a lunch break.  The Magistrate initially found that the claimant was entitled to benefits, however the Appellate Commission reversed and denied benefits based upon the premise that plaintiff’s activity at the moment of his injury was a social and recreational activity and therefore not covered pursuant to MCL 418.301(3).  In a per curiam opinion, the Michigan Court of Appeals affirmed the Appellate Commission’s denial of benefits and agreed that the evidence supported that the major purpose of the basketball game, plaintiff’s activity at the moment of injury, was social and recreational.

Ruthruff v Tower Holding Corp., ____ Mich App ____ (3/18/04); 18 MIWCLR 48.  The plaintiff in this case injured his back while reaching for his lunch pail, in the employer’s parking lot at the start of his shift.  Specifically, while picking up his lunch pail, he twisted back towards the open door and feft a snap in his back.  The Magistrate’s initial denial of benefits was affirmed by the Appellate Commission, finding that the claimant’s injury did not arise in and out of the course of employment.  The Court of Appeals found that the Commission had erred by failing to apply the statutory presumption of MCL 418.301(3).  In particular, the presumption provides: that an employee is in the course of employment while he is on the premises where the work is to be performed, and in within a reasonable time before and after his or her working hours, is presumed to be in the course of his or her employment.  The Court of Appeals then went on to analyze the doctrine of idiopathic injuries and injuries predominantly personal to the employee.  Ultimately, the Court of Appeals remanded the matter to determine the exact nature of the risk involved.  For example, the bringing of a lunch pail to work may not entirely be a personal activity, but is often a necessary feature of the employment.  Contrary, sometimes the consumption of food, will be entirely personal in nature.  Accordingly, the exact nature of the risk involved is important to the issue of compensability.

THIRD-PARTY RECOVERY

Harken v General Motors Corp., ____ Mich App ____ (4/15/04); 18 MIWCLR 62.  The plaintiff in this case alleged that his employer discriminated against him for exercising his rights under the Workers’ Disability Compensation Act.  Plaintiff also filed a negligence claim against General Motors.  In an unpublished opinion, the Court of Appeals held that plaintiff’s negligence claim against General Motors was a third-party action authorized under MCL 418.827, which requires the employee to reimburse the employer or carrier with damages recovered from the third-party suit.

WAGE EARNING CAPACITY (NEW)

Sohn v U.S. Air Inc., 2004 ACO #63 (4/6/04); 18 MIWCLR 58.  The Commission explained that before engaging in an analysis of whether a new wage earning capacity has been established, the fact finder must first perform a disability analysis under Sington.  Only when a disability has been established will the reasonable employment provisions provided in Section 301(5) apply with respect to the issue of new wage earning capacity.  The Commission further explained that the touchtone of wage earning capacity is marketability of skills in the light of work performed after the injury, and the legitimate interferences which can be drawn from the performance of such work in the context of plaintiff’s transferable skills, remaining physical ability, and the reasonable availability of gainful employment.  In other words, whether the employee has performed regular work within the ordinary conditions of permanency.  In this particular case, the plaintiff did work more than 250 weeks post injury, however, the Commission found that the claimant rebutted a presumption of a new wage earning capacity, because she was incapable post injury of performing any “regular” work with earmarkings of permanency or availability in the ordinary marketplace.  The concept of establishing a new wage earning capacity is very similar to the disability analysis required pursuant to Sington and “make work” is not pertinent to the analysis, no matter how long it is performed.