ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

Jamison v. ABZ Steel Fabrication, LLC, 2005 ACO #6 (1/13/05)

The Commission in this matter affirmed the Magistrate’s decision that, although an employee ran several work-related errands, had a flat tire repaired, ate lunch, and began another errand, the injuries she sustained in an automobile accident occurred in the course of her employment.  The facts showed that the Plaintiff undertook the errands because she was already leaving to have lunch with friends. The Defendants argued that the major purpose of the trip was social and recreational and therefore not compensable under MCL 418.301(3). The Commission found that although the Plaintiff was going to have lunch with friends, she was also bestowing a benefit upon her employer.

Magistrate: Zettel

Appellate Commission: Reamon, Glaser, Will

Keywords: arising out of and in the course of; sec. 301; social and recreational; employer benefit

Ruthruff v. Tower Automotive Inc., 2005 ACO #75 (3/17/05)

In this case, the Commission ruled that the Plaintiff’s back injury while twisting to pick up his lunch pail and exit his vehicle in the Defendant’s parking lot was compensable. The Commission noted that the employer required the employee to remain in the workplace during lunch, the short duration for lunch provided and the limited alternative of a vending machine as the equivalent of a requirement that the Plaintiff bring his lunch to work. In reversing the Magistrate, the Commission found that the focus is on the work environment, not on the Plaintiff’s actions and motives in bringing a lunch to work.

Magistrate: Grit

Appellate Commissioners: Glaser, Will, Reamon

Keywords: Arising out of and in the course of employment; lunch; parking lot; personal; work environment

James v. Autolab Diagnostics, Order, Michigan Supreme Court (2/24/06)

On Defendant’s application, the Michigan Supreme Court, in lieu of granting leave to appeal, reversed the WCAC’s opinion.

The Plaintiff in this case was injured in an automobile accident while traveling to a work-related seminar.  The WCAC stated that the evidence produced at the time of trial indicated that the employer paid for or furnished transportation and that the injury occurred during working hours.  The Commission found that there was a specific benefit to the employer and 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 factors noted above.

In reversing the above opinion, the Michigan Supreme Court Order stated that the undisputed facts showed that the Plaintiff’s attendance at the seminar was not an incident of his employment. Therefore, the court continued, the Plaintiff is not entitled to benefits because his injury on the trip to the seminar did not arise out of and in the course of his employment. The court remanded to the Court of Appeals for consideration to apply Camburn v Northwest School Dist (after remand), 459 Mich 471 (1999).

Keywords: travel; business trip; Sec. 301; arising out of and in the course of; Camburn

CHANGE IN CONDITION

Dakroub v. American Axle & Manufacturing of Michigan, 2005 ACO #76 (3/17/05)

In this case, the Plaintiff appealed the Magistrate’s decision granting the Defendant’s petition to stop benefits.  The Magistrate reviewed video surveillance that showed the claimant performing activities allegedly out of his capabilities.  The Plaintiff argued that the Magistrate initially found a rotator cuff injury and his medical provider testified that the claimant stiff suffered from it.  Therefore, the Plaintiff argued, the Defendant did not meet its burden of showing a change in condition. The Commission found that the Defendant does not have to show that the Plaintiff is fully recovered, but that the condition had improved enough so that the Plaintiff is no longer physically unable to work.

Magistrate: Guyton

Appellate Commissioners: Kent, Glaser, Will

Keywords: Surveillance, change in condition, restrictions

CHIROPRACTIC TREATMENT

Steinhauer v. Wal-Mart Associates, Inc., 2005 ACO #190 (8/24/05)

The Commission affirmed the Magistrate’s denial of reimbursement for chiropractic treatment. The Magistrate found that the Plaintiff failed to connect her foot pathology to chiropractic treatment. Of significance was that she was receiving chiropractic care for her back prior to her injury and the treatment did not change afterwards. Furthermore, the testimony of the claimant’s treating physician indicated that his decision to recommend continued chiropractic care was based primarily on the claimant’s request.

Magistrate: Brennan

Appellate Commissioners: Will, Ries, Przybylo

Keywords: chiropractic treatment

DISABILITY, SINGTON, AND WAGE EARNING CAPACITY

Stewart v. Vanmile Inc., 2004 ACO #402. (12/15/04)

In this liberal Sington decision, the Commission remanded the case to the Magistrate for a Sington review, regardless of the fact that the Plaintiff did not meet his burden of proof regarding wages earned on prior jobs.  Although the Magistrate denied the Plaintiff’s claim because he did not meet the Sington standard, the Commission stated that, looking at the Plaintiff’s testimony as a whole, if the Magistrate finds the claimant credible and the Commission thinks the claimant could be disabled under Sington, the Commission may remand for further testimony.  This, in essence, allows the Plaintiff a second chance.

Magistrate: Jarvis

Appellate Commissioners: Will, Leslie, & Reamon

Keywords: Sington, wage earning capacity, burden of proof, remand.

Kean v. Colasanti Corp., 2004 ACO #409. (12/16/04)

The Commission affirmed the Magistrate’s open award despite the fact that there was testimony on the record that the claimant earned wages after his employment with the Defendant that were at a higher rate than the Plaintiff’s established maximum earnings, albeit temporary.  The Commission determined that temporary earnings even at a higher rate than Plaintiff’s maximum earning or work that is lighter than Plaintiff’s work at the time of injury does not refute such disability.

Magistrate: Sloss

Appellate Commissioners: Will, Glaser, Reamon

Keywords: Sington, wage earning capacity, remand

Lee v. General Motors Corp., 2005 ACO #44 (2/22/05)

The Commission affirmed the Magistrate’s denial of Plaintiff’s carpal tunnel syndrome claim allegedly caused by hand-intensive factory work. Plaintiff established a work-related condition, but did not establish disability pursuant to Sington. Nor did the Commission error in not considering the Plaintiff’s subsequent work. Non-occupational injuries also limited the claimant. The claimant was placed in regular jobs until the non-occupational injuries ended her employment. Finally, the Commission found that the Magistrate did not error in considering the Plaintiff’s disability retirement when he denied benefits.  The Magistrate placed her disability retirement as a factor in her motivation and ultimately to her credibility.

Magistrate: Grattan

Appellate Commissioners: Glaser, Reamon, Kent

Keywords: Sington, disability retirement; non-occupational injuries

Sage v. Brighton Interior System, 2005 ACO #52 (2/23/05)

In this Sington case, the Commission affirmed the Magistrate’s determination that computer training required to perform a desk clerk job did not qualify as de minimis training.  The Defendants argued that this training did not take the job out of the claimant’s pre-injury qualifications and training.  The Commission held that a job that requires computer training or someone who has no such experience is not within her qualifications and training pursuant to Sington.

Magistrate: Smith

Appellate Commissioners: Glaser, Kent, Will

Keywords: Qualifications and training: Sington

Yonan v. City of Flint, 2005 ACO #166 (7/19/05)

In this appeal by the Plaintiff, a Commission majority appears to be away from Sington and back toward Haske.  Here, the Commission affirms the Magistrate’s determination that the claimant was disabled because of Post Traumatic Stress Disorder. However, the Commission turned the closed award into an open award on the basis that the claimant was still disabled. The Commission found that the Plaintiff has only had one job, that being as a police officer. Therefore, because that was his only job, it was also the job in which he had maximum wage earning capacity.  Furthermore, he will remain disabled until it is shown that he can return to that work. Commissioner Kent noted in his dissent, he felt that the claimant is no longer disabled. The Plaintiff’s qualifications and training include his educational and mental abilities. Based on the claimant’s undergraduate degree and mental ability, Commissioner Kent felt that the claimant could obtain employment should he desire to do so.

Magistrate: Day

Appellate Commissioners: Glaser, Will; Kent dissenting

Keywords: Sington; qualifications and training; disability; wage earning capacity

Curtiss v. Menard, Inc., 2005 ACO #185 (8/16/05)

The Appellate Commission affirmed the Magistrate’s decision that the award of attorney’s fees is discretionary and not required when a Defendant is required to reimburse for medical expenses paid. Furthermore, attorney’s fees in this case were properly denied because the Plaintiff never requested an award of attorney’s fees. Additionally, the Commission affirmed the Magistrate’s denial of the Plaintiff’s claim that he established a compensable disability after the day he returned to work with restrictions. The claimant was earning less, but this was due to economic conditions and not his restrictions. Finally, the Commission affirmed the Magistrate’s determination that the claimant failed to establish a compensable disability after his last day worked. The Magistrate found that the claimant suffered wage loss because he was justifiably terminated by the Defendant for violating company policy.  The Commission also decided not to disturb the finding that, although the claimant was terminated within 100 weeks of returning to work, the Magistrate intentionally found that the claimant was not performing favored work at the time he was discharged.

Magistrate: Quist

Appellate Commissioners: Will, Glaser, Kent

Keywords: attorneys’ fees; 100 week rule; termination; favored work

Hall v. Bay Regional Medical Center, 2005 ACO #186 (8/6/05)

A majority of the Commission affirmed a closed award and found that, pursuant to Sington, it is not necessary that the employer offer the former job to the Plaintiff. The focus is on job availability in the ordinary job market.  Here, the Magistrate found that jobs at her former employer, that she could perform, still existed. The Commission did not reverse as error the fact that the Magistrate did not require that the job be offered to the claimant.  Here, the Magistrate found that as of the date of the trial the Plaintiff could perform some of her former jobs with the Defendant. In making this decision, the Magistrate relied on two medical experts’ testimony, the Magistrate’s first hand observations of the Plaintiff at trial, and how the Plaintiff was viewed on surveillance footage.

Magistrate: Ambrose

Appellate Commissioners: Kent, Przybylo; Will dissenting

Keywords: Sington; job availability; job offer

Knoblett v. Sam’s Club, 2005 ACO #208 (9/9/05)

In this appeal by Defendants, the Appellate Commission reversed the Magistrate’s open award on the basis that the Plaintiff did not provide any proofs, pursuant to Sington, as to employment providing maximum earnings, qualifications, education and training. There was no evidence establishing that employment providing maximum earnings commensurate with Plaintiff’s qualifications and training was not reasonably available to her.  The Appellate Commission stated that it would prefer to remand back to the Magistrate for further testimony, but the Sington decision was decided almost a year before this matter appeared before the Magistrate. Therefore, it was clearly established that the Plaintiff bore the burden of proof to establish all the elements of her case.

Magistrate: Grattan

Appellate Commissioners: Will, Ries, Przybylo

Keywords: Sington, burden of proof, qualifications and training

Campbell v. General Motors, 268 Mich App 468 (10/20/05)

This appeal involves the retiree presumption of MCL 418.373. The court held that the WCAC erred in not applying the presumption in determining whether the Plaintiff was entitled to disability benefits. Section 373 provides an employee who terminates active employment and receives non-disability pension or retirement benefits paid by or on behalf of an employer from whom weekly benefits under the WDCA are sought is presumed not to have a loss of earnings or earning capacity as a result of a compensable injury or disease.  The claimant had shoulder pain in 1995, but worked unrestricted until his plant closed in 1999.  He was placed in a job bank rather than being laid off and remained there until August 2000 when he took a regular non-disability retirement. He subsequently sought workers’ compensation benefits for knee and shoulder injuries. The Court of Appeals stated that although the nature of his work changed, i.e. job bank, he remained an active employee.

Keywords: Sec. 373; retiree presumption; disability benefits

Stewart v. Banchero Cement Company, Inc., 2005 ACO #258 (11/15/05)

In this Sington case, the commissioners were once again at odds. The lead opinion drafted by Commissioner Przybylo touched on the issue of economic downturns, stating that if they cause limitations in wage earning capacity, it fails to demonstrate liability. If that is the case, the claimant must prove that they have been rejected because of disability and not because of a lack of work available. Before the Commission can make a determination based on whether the limitation of his earning capacity was the result of his injury, the Magistrate needed to make findings concerning the claimant’s qualifications and training and whether he could perform any job with an earning capacity equal to the earning capacity he enjoyed as a concrete finisher.

Commissioner Glaser dissented, stating that the Magistrate’s Sington analysis was acceptable to find that the claimant was unable to perform the only work he had engaged in for over twenty years prior to his injury.

Magistrate: Cope

Appellate Commissioners: Przybylo, Kent; Glaser dissenting

Keywords: Sington; economic downturns; limitation of earning capacity

Stokes v. DaimlerChrysler Corp., 2006 ACO #24 (1/26/06)

An en banc panel of the Appellate Commission essentially reduced the threshold at which a claimant can satisfy his or her burden of proving disability and wage loss. Furthermore, with few exceptions, the Act does not permit pretrial discovery. 

After reviewing the Act and the legislative intent behind it, a majority of the Commission found that if the legislature did not give the Magistrate authority to order pretrial discovery, the Magistrate could not compel any party to provide it.  Therefore, in this case, the Magistrate correctly denied the Defendant’s motion to compel the Plaintiff to meet with its vocational expert before trial.

Concerning disability, the Commission majority agreed that a claimant’s liability to do “a” job does not mean the claimant is disabled if the claimant can still work and earn wages in other jobs suitable to his qualifications and training that pay his maximum wage earning capacity. However, qualifications and training only includes jobs that claimant has actually performed, not something he may be able to perform. Furthermore, the only jobs that matter in the decision are jobs that the claimant performed earning as much, or more, than what he earned at the time of his injury.

Concerning wage loss, the majority held that once the claimant proved he was disabled and had a wage loss, he did not have to prove the wage loss was due to the work related injury.

The majority has, in effect, ignored the Michigan Supreme Court’s opinion in Sington that in order to prove disability, the Plaintiff must prove by a preponderance of the evidence the inability to perform all jobs within the employee’s qualifications, training, and experience at that pay maximum wages.

Magistrate: Rabaut

Appellate Commissioners: Ries, Glaser, Will; Kent & Przybylo dissenting separately

Keywords: Haske; Sington; disability; qualifications and training; wage loss; burdens of proof; disability; maximum wage earning capacity; pretrial discovery; vocational experts

“EMPLOYEE” UNDER THE ACT

Reed v. Yackell, 473 Mich 520 (7/28/05)

This Michigan Supreme Court decision addresses whether the claimant was an employee, and thus barred from bringing a tort action against his employer under the exclusive remedy provision of the Act, or whether he was an independent contractor.  By way of history, Mr. Reed was employed by Mr. Food until he was fired for performance issues. However, Mr. Hadley, an employee in charge of meat deliveries who was given the authority to hire others, actually hired Reed to help on several occasions on a per diem basis. On one of the days Reed was assisting with deliveries, Defendant Yackell ran a red light, striking a cargo van driven by Mr. Hadley and owned by Mr. Food.  Reed suffered a closed head injury.  Reed filed a complaint in circuit court alleging negligence. The Defendants argued the suit was barred because he was in employee, and therefore must be handled under the WDCA.

MCL 418.161 deals with the definition of an employee. The Supreme Court said that a claimant who satisfies section 161(1)(l), describing an employee as “every person in the service of another, and contract of hire, express or implied, . . .” is an employee and not an independent contractor, unless the employee falls under section 161(1)(n).  This subsection states that if the employee 1) maintains a separate business and 2) holds himself out to render service to the public, in respect to the duties performed in the employer’s trade or business, he is an independent contractor.

The court found that the per diem rate satisfied the “contract of hire” requirement under section 161(1)(l). Furthermore, he did not meet the standard of an independent contractor under 161(1)(n) because, even though Mr. Reed had a separate business as a painter, he did not hold himself out to render service doing the service he provided to Mr. Food.  Therefore, Mr. Reed was found to be an employee covered under the WDCA and his tort action against his employer was barred by the exclusive remedy provision of the WDCA.

Keywords: sec. 161; exclusive remedy provision; independent contractor; employee

MacArthur v. Ramsey Havenwyck, Inc., unpublished per curiam opinion, Michigan Court of Appeals (10/25/05)

In this unpublished opinion, the Court of Appeals affirmed the trial court’s order granting Defendant’s motion for summary disposition. The Plaintiff was earning her master’s degree in psychology and was required to complete an internship. After normal working hours at Defendant hospital, the Plaintiff would counsel two patients at a residential unit across from the hospital. The claimant was assaulted during a session. The Plaintiff did not complete her internship and did not file a workers’ compensation claim.  Three years later, the claimant filed a negligence action. The trial court held that the Plaintiff was an employee subject to the exclusive remedy provision of the WDCA.  Relying on Betts, the court stated that a contract for hire for purposes of the WDCA may be established where there is an exchange of services for training or college credits toward graduation. Therefore, the internship qualified as a contract for hire. The court found that this was different than the Hoste “gratuitous worker” scenario because there the claimant was rendering assistance for the purpose of furthering his own interest. However, the internship relationship was one of mutual benefit because Defendant accepted Plaintiff’s counseling services for which it normally would have made payment for performance.

Keywords: exclusive remedy; contract for hire; employee under the act

Hool v. William A. Kibbe & Assoc., Inc., unpublished per curiam opinion, Michigan Court of Appeals (11/22/05)

Defendant Eagle was working as a contract supervisor at GM under a contact between GM and Defendant Kibbe requiring Kibbe to provide GM with contract supervisors. Eagle stated that except for sending in his hours, after executing the contract, he had no contact with Kibbe.  In January 2001, GM employed Hool at its casting plant. Eagle was acting in his capacity as a contract supervisor, filling in for  Hool’s regular supervisor, when he directed Hool and his co-workers to perform a job. In the process, Hool was killed.  Eagle argued that because GM assigned all of his work, Eagle was an employee at the time of the accident and Hool’s co-employee, thus entitling him to protection under the exclusive remedy provision of the Act. Using the economic realities test, the court held that the trial court properly concluded Defendant GM employed Defendant Eagle, and granted Eagle summary disposition in the negligence case against him. They held that he was an employee because GM controlled his day-to-day activities, paid his wages, had the right to hire, fire and discipline him, he performed duties integral to GM’s business and contributed to the accomplishment of a common goal. The relationship between Kibbe and GM was sufficient to establish a common objective or business effort between the parties.

Keywords: economic realities test; employee; exclusive remedy provision

INJURY (RAKESTRAW)

Davis v. General Motors Corp., 2004 ACO #410 (12/21/04)

In this Rakestraw case, the Commission affirmed the Magistrate’s decision that the Plaintiff suffered a disabling injury on the job. Although the claimant had a pre-existing injury, the Magistrate never mentioned Rakestraw. She apparently chose to view it as a new injury and not an aggravation of an old one. The Commission found that the medical evidence could support a new pathological injury; however, the medical testimony was so different for each medical provider, other findings may have been supported also. They concluded in stating that the evidence supported the Magistrate’s finding that a new injury occurred. However, if an appellate court were to analyze this as an aggravation case, there was evidence of a pathological change meeting Rakestraw’s requirement of a medically distinguishable condition.

Magistrate: Smith

Appellate Commissioners: Kent, Reamon, Leslie

Keywords: Rakestraw, new injury, aggravation.

Williams v. Saginaw School District, 2005 ACO #253 (11/8/05)

In this Rakestraw case, all three commissioners drafted a separate opinion. The Defendant appeals the Magistrate’s decision alleging that the Rakestraw analysis was faulty.  Commissioner Przybylo would remand based on the fact that the claimant suffers from at least two preexisting conditions that could produce pain. The Magistrate failed to evaluate the Plaintiff’s preexisting conditions, arthritis and disc abnormality. Both of those conditions could produce pain. The pain, even increased pain, does not constitute an injury according to Rakestraw. He concluded that work must cause a change in the condition, or cause a different condition, to satisfy the injury requirement.

Commissioner Glaser agreed with Przybylo on the need for remand, but disagreed with the position that pain, even increased pain, cannot establish a personal injury under Rakestraw. She stated that pain alone is not conclusive evidence. However, an injury producing continuing pain, subjectively dissimilar from his pre-injury condition, and causing impaired performance of pre-injury activities can constitute an “independent contribution” to the “final condition”, thus resulting in a “medically distinguishable condition.”  The Magistrate must distinguish whether the current pain is subjectively dissimilar from his pre-injury condition.

Commissioner Kent concurred with Commissioner Przybylo, agreeing that pain, in and of itself, cannot be the end all “medically distinguishable condition” the Rakestraw court envisioned.  He attempted to clarify the Rakestraw opinion, stating that the court made it clear that pain, in and of itself, is a symptom and not a work injury. However, the court did not hold that a pathological change in condition was required. Instead, it used “medically distinguishable,” a term foreign to the WDCA. The commissioner concluded that although pain alone cannot constitute a medically distinguishable condition, within certain limitations it could be a factor supporting expert testimony that a medically distinguishable condition had occurred.

Magistrate: Reinhardt

Appellate Commissioners: Przybylo, Glaser, Kent

Keywords: Rakestraw; medically distinguishable condition; pain

Keelean v. State of Michigan, Dept. of Corrections, 2005 ACO #288 (12/21/05)

The Defendants appealed this matter claiming the Magistrate improperly applied the Rakestraw decision.  Medical evidence shows Plaintiff suffers from degenerative disc disease. The Appellate Commission majority held that the Magistrate correctly stated that Rakestraw does not require Plaintiff to produce objectively verifiable change in pathology. However, Rakestraw does mandate that Plaintiff prove more than a connection between work and the pain when Plaintiff suffers from a preexisting condition that can produce pain; the Plaintiff must show a medically distinguishable source for the pain. Pathological changes in the preexisting condition constitute one medically distinguishable change that satisfies the Rakestraw standard. Proof that work caused  a different pain-producing condition would satisfy the Rakestraw standard, as long as the proofs satisfy the additional Rakestraw requirement that the different pain-producing condition is more likely to cause pain than the preexisting condition. The pain cannot be equally attributable to the preexisting condition and the different pain-producing condition caused by work. The Appellate Commission reversed the Magistrate and denied the Plaintiff’s benefits stating that the Plaintiff’s medical expert’s testimony did not establish a work injury because he failed to provide testimony that work caused any of the underlying conditions that produced the nerve impingement.

Had the Rakestraw standard been met, the majority stated that the claimant still would have failed to satisfy the significant manner standard.  Defendant’s medical expert testified that the degenerative disc disease constituted a condition of the aging process. Plaintiff’s expert offered no opinion.  The Magistrate failed to address that issue. Therefore, the majority accepted Defendant’s expert’s testimony because there was no conflicting evidence.

Magistrate: Quist

Appellate Commissioners: Przybylo, Kent; Will dissenting

Keywords: Rakestraw; degenerative disc disease; preexisting condition; medically distinguishable condition; significant manner test

INTENTIONAL TORT EXCEPTION

Palmer v. Wesley International, Inc., unpublished per curiam opinion, Michigan Court of Appeals (11/8/05)

In this unpublished opinion, the Court of Appeals affirmed the district court’s granting of summary disposition to the Defendant. The Plaintiff in this matter is a decedent-employee’s wife. The court found that the WDCA barred this negligence action under the exclusive remedy provision of MCL 418.131.  On appeal, the Plaintiff argued that there was sufficient facts to establish her claim fell under the intentional tort exception to the exclusive remedy provision. The court concluded, based on prior precedent, that MIOSHA violations by themselves do not prove that a supervisory employee had actual knowledge of the danger of certain injury.  Further, the employer’s promulgation of safety procedures does not support an inference that it had actual knowledge that injury was certain to occur. Finally, while reckless disregard for the health, safety, and welfare of employees may be gross negligence, it is insufficient to satisfy the intentional tort exception of the WDCA.

Keywords: negligence; exclusive remedy; Sec. 131; MIOSHA; actual knowledge; intentional tort exception.

MENTAL DISABILITY

Miller v. General Motors Corp., 2005 ACO #59 (3/3/05)

The Commission affirmed an open award to a Plaintiff who suffered a mental disability following a stressful disciplinary meeting with a supervisor on the claimant’s last day of employment.  The Plaintiff allegedly dangled a noose-like object in front of the coworker.  The defense raised the claim of intentional and willful misconduct, but it was denied in part because it was established that the Plaintiff and the co-worker were friends. The Defendants also argued that pursuant to Robertson v. DaimlerChrysler Corp, the actual employment event was not reasonably perceived by the Plaintiff, enough to cause mental disability. The Commission rejected this on the basis that this event happened on the claimant’s last day of work and the treating psychiatrist testified that the disciplinary meeting was directly related to the disability.

Magistrate: Ambrose

Appellate Commissioners: Will, Kent, Reamon

Keywords: mental disability, intentional and willful misconduct; Robertson; reasonable perception.

MISCONDUCT

Jones v. Wolverine Machine Products Co., 2005 ACO #172 (7/27/05)

In this case, the Defendants appealed the Magistrates award of benefits to the Plaintiff after he smashed his finger, on the basis that the Magistrate improperly discounted the results from a drug test showing marijuana in the claimant’s system at the time of the injury. The Commission affirmed the Magistrate’s award on the basis that the Magistrate properly applied a “preponderance of the evidence standard” in rejecting evidence that the drug test proved the Plaintiff’s marijuana consumption caused the finger injury.  The Commission determined that the test needed a professional’s explanation, such as a toxicologist, to link the marijuana level in the test to the Plaintiff’s conduct that caused his injury. Although there was testimony taken at the time of trial that the company had a uniformly enforced drug and alcohol policy in place for 7 to 8 years for safety reasons, misconduct for violating the drug policy was not found by the Magistrate. Nor was there evidence on the record that the employer ever terminated the employee for this violation; they simply did not ask him to return.

Magistrate: Paige

Appellate Commissioners: Przybylo, Will, Glaser

Keywords: misconduct; drug use; standards of evidence

OFFSETS ON WAGES EARNED

Williams v. Leidal & Hart Mason Contractors, Inc., 2005 ACO #32 (2/3/05)

The Commission in this case affirmed the Magistrate’s closed award; however it modified the award to reflect both the one-year back rule of MCL 418.833(1) and the limitation of benefits due to incarceration found in MCL 418.361(1).  Despite Plaintiff’s arguments to the contrary, the Commission accepted the Defendant’s argument that the limitation of benefits due to incarceration applies regardless of whether or not the claimant would have been physically disabled from employment had he or she not been incarcerated. It is the incarceration that is the cause of the wage loss, not any medical disability.

Magistrate: Zettel

Appellate Commissioners: Will, Kent, Reamon

Keywords: Sec. 361(1); incarceration; limitation of benefits; wage loss

Kuntz v. USF Holland, Inc., 2005 ACO #96 (4/6/05)

The Magistrate granted the Plaintiff, a truck driver, a closed award for a right knee injury.  The Defendant appealed, stating that the Plaintiff should not receive wage loss benefits for a portion of the closed period because he had a restricted license due to a DUI conviction and the company’s policy barring employment during that time.  The Plaintiff was allowed to carry a regular load during the time, but not a hazardous load. The Commission found that because the Plaintiff was found to be barred from all employment within his qualifications and training during the closed period, the commission of the crime did not bar his entitlement to benefits.

Magistrate: Paige

Appellate Commissioners: Reamon, Will, Glaser

Keywords: Sec. 361(1); commission of a crime; company policy, qualifications and training, benefits

Ross v. Modern Mirror & Glass Co., 268 Mich App 588 (11/1/05)

In this case, Plaintiff had been receiving wage loss benefits since 1991. At some point in the 1990’s, the claimant began receiving disability pension benefits retroactive to May 1992.  The Defendants began reducing Plaintiff’s wage benefits in 2002, taking into account the disability pension benefits. The Defendants then filed a claim for recoupment of overpayments for the complete time he had been receiving the disability benefits.  In this published opinion, the Michigan Court of Appeals affirmed the WCAC’s order concluding that under MCL 418.833(2), Defendants could only recoup the amount of benefits overpaid to Plaintiff in the year prior to filing their recoupment action. 

Keywords: one-year back rule; recoupment; sec. 833(2); disability pension benefits

OUT-OF-STATE INJURY

Karaczewski v. Farbman Stein & Company, unpublished per curiam opinion, Michigan Court of Appeals (10/18/05)

On Defendant’s appeal from the Appellate Commission’s affirmation of the Magistrate’s opinion, Farbman Stein argued that for Michigan’s Workers Compensation Agency to have jurisdiction over a claim, the plain language of MCL 418.845 require the injured worker be 1) a Michigan resident at the time of the injury and 2) the contract of hire be made in Michigan.  The defense argued that although the contract was made in Michigan, at the time of the injury the claimant was a Florida resident. The Court of Appeals stated that because the contract for hire was in Michigan, and the Defendant Farbman Stein was a resident employer, Michigan had jurisdiction over the Plaintiff’s petition for benefits. Therefore, Michigan’s Workers’ Compensation Agency has jurisdiction over out-of-state injuries without regard to the employee’s residence if the contract of employment was entered into in Michigan with a resident employer.

Keywords: jurisdiction; residency; contract of hire; sec. 845

PROCEDURE

Brown v. DaimlerChrysler Corp., 2004 ACO #400 (12/15/04)

The Commission reversed a penalty assessed for the employer’s failure to pay medical benefits.  There are certain situations in which penalties may be assessed, regardless of whether or not the medical bills were sent to the employer/insurance carrier via certified mail as required by MCL 418.801(3). For example, the hand delivering of certain bills to the human resource department coupled with a previous agreement on the record to pay specific bills will be ruled sufficient. However, in the present matter, there was absolutely no evidence in the record that the bills were actually ever submitted to the Defendant.

Magistrate: Wierzbicki

Appellate Commission: Glaser, Leslie, Kent

Keywords: Sec. 801(3), penalty, certified mail, medical bills

Branch v. Speedway Towing & Services, 2005 ACO #3 (1/7/05)

After an appeal by the Plaintiff, the Commission affirmed the Magistrate’s decision denying weekly benefits.  The Plaintiff argued that the Magistrate erred by not finding that the Defendant employer violated sec. 222 of the Act by not supplying wage records. The Commission stated that for a sec. 222 violation, the occurrence of the violation must be supported by competent evidence and willful. Here, the Magistrate found that the employer did not willfully fail to comply with the subpoenas for wage records, he never received them. When he did finally receive them, he made a good faith effort to comply with them by presenting all the records at the time of trial.

Magistrate: Quist

Appellate Commissioners: Glaser, Kent, Will

Keywords: Subpoena, failure to comply, Sec. 222, violation.

Saldana v. Deckerville Wire Inc., 2005 ACO #14 (1/21/05)

Commission found that the Magistrate did not abuse his discretion by proceeding to trial without the Plaintiff or her counsel. The Magistrate’s decision was supported by a procedural history that showed the current petition being the fifth filing of the Plaintiff’s claim, the previous filings having been either dismissed for lack of progress or withdrawn by the Plaintiff’s counsel on the threat of being dismissed. The Plaintiff’s counsel was warned that if a petition was refiled, it would be tried on the first trial date.

Magistrate: Sloss

Appellate Commissioners: Reamon, Glaser, Kent

Keywords: abuse of discretion; dismissal

Celletti v. Fiat Auto USA, Inc., unpublished per curiam opinion, Michigan Court of Appeals (2/17/05)

In this case, the Plaintiff appealed a decision by the Appellate Commission reversing the Magistrate’s award for medical benefits for a low back surgery on the ground that the claim was barred by res judicata. The Court of Appeals reversed and remanded on the grounds that the Defendants failed to plead the defense of res judicata and stated that their defense was to litigate the relationship of Plaintiff’s injury to the automobile accident, the defense of res judicata is waived.

Keywords: res judicata; defense

Schemansky v. U.S. Manufacturing Corp., 2005 ACO #68 (3/9/05)

Here, the Commission found that although the Magistrate did not address the Defendant’s Section 222 motion regarding the Plaintiff’s failure to identify subsequent employment, it was a harmless error because there was no evidence the Plaintiff did it intentionally. The Commission also found that the Magistrate committed legal error by failing to consider the objection to those entries of a doctor’s records that had not been previously provided to the Defendant.  Even though the Commission agreed that the documents should not have been admitted, this too was harmless error. Finally, the court found that even thought the claimant did perform personal work outside of his restrictions, there was no medical evidence that this work resulted in further injury to his back.

Magistrate: Cope

Appellate Commissioners: Glaser, Will, Kent

Keywords: Section 222; harmless error; aggravation; subsequent employment

Spiller v. United Airlines, Inc., unpublished per curiam opinion, Michigan Court of Appeals (8/9/05)

The Michigan Court of Appeals reversed the Appellate Commission’s finding that the Plaintiff’s second petition for a neck injury was barred by the doctrine of res judicata because the alleged injury fell under the “same transaction” requirement.  While the claimant had a prior petition pending for her hand and arm, the claimant alleged to have herniated a disk four months prior to the record closing in the first petition.  However, she alleged that her injury did not become disabling until almost a month after the record was closed, therefore requiring the second petition. The Court of Appeals stated that the Michigan Supreme Court has held that the “broad” form of res judicata applies in workers’ compensation cases, meaning not only are second actions barred if the same questions were actually litigated in the first proceeding, but so are claims arising out of the same transaction where the Plaintiff could have brought the action, but did not. The court found that the second petition was not barred by res judicata, even in its broad form, because the claimant’s neck injury rests on a different set of facts than the hand and arm claim.

Keywords: res judicata; same transaction

Tew v. Hillsdale Tool & Manufacturing Company, 268 Mich App 399 (10/13/05)

The Court of Appeals affirmed the WCAC’s decision to award only one $1,500 penalty under MCL 418.801(3) for multiple late payments of medical expenses.  The Plaintiff argued that, under the statute, they were entitled to a separate $1,500 penalty for each late payment made by the insurance company, not one penalty for all of the medical bills. Looking at the Legislature’s intent, the court decided to follow precedent and find that, had the Legislature wanted to enable a claimant to receive a $1,500 penalty for each late bill, they would have expressly made that clear in the statute.

Keywords: penalty; sec. 801; medical bills

REASONABLE EMPLOYMENT

Golding v. Alternative Living Services, Inc., 2005 ACO #7 (1/13/05)

The Commission affirmed the Magistrate’s finding that the Defendant’s post-injury job offer was not a bona fide offer of reasonable employment. Evidence on the record showed that the post-injury job was actually the claimant’s pre-injury job that was already proven to be outside of the Plaintiff’s restrictions.  Furthermore, the Commission made specific mention that the actual letter in question offering the job was a form letter that did not specifically spell out the Plaintiff’s work duties, nor was there a description of the job attached to the letter, although the letter said such description was attached.

Magistrate: Day

Appellate Commissioners: Will, Kent, Glaser

Keywords: Bona fide offer; letter; reasonable employment

Wright v. Wal-Mart Stores, Inc., 2005 ACO #127 (5/25/05)

In this reasonable employment case, the Magistrate found that the claimant returned to employment doing regular work, not reasonable employment. He eventually left employment on April 13, 2001, after working less than 100 weeks because of an intervening vascular disease. The Magistrate provided the claimant with a closed award between April 13, 2001 and December 4, 2001. The Defendant argued that pursuant to Sington, the claimant was not disabled on April 13, 2001, because he was performing a regular job, full time, for eight hours a day at the same wage he was earning prior to his injury. Therefore, when the claimant left work due to a non-work-related disability, he was not entitled to benefits. In other words, section 301(5) does not come into play. The Commission affirmed the decision on the grounds that the record showed that the job the claimant did was in fact reasonable employment allowing lighter duty than the regular job.  Had this job been an ordinary job in the market in which an employer would hire someone to do in the ordinary job market even in light of “a minor limitation” which did not amount to a disability, it would have fallen under the Sington courts definition of employment with “de-minimis” limitation and not qualified as “reasonable employment.”

Magistrate: Frankland

Appellate Commissioners: Will, Kent, Glaser

Keywords: Sington, reasonable employment, regular work, Sec 301(5); 100 weeks; “de minimis” limitations.

Parks v. Qualex, Inc., 2005 ACO #199 (8/31/05)

This is a consolidated appeal involving a petition to stop benefits and a subsequent petition to suspend benefits.  The Commission affirmed the Magistrate’s denial of the petition to stop, holding that in this case, even though the claimant was found disabled under the old Haske standard, whether the claimant is disabled pursuant to Sington is res judicata because the issue of disability has already been determined. The finding of disability cannot be reversed absent a showing of recovery or change in circumstance.

The Commission rejected the Defendant’s argument that the Plaintiff’s failure to follow through with job leads was a form of unreasonable refusal to perform reasonable employment.  The Commission held that a job lead is not the same as a job offer.

The Commission also found that the Plaintiff’s decision to work less than the full amount of hours offered does not constitute an unreasonable refusal under MCL 418.301(5)(a).  Partial acceptance is not a refusal. The Commission stated that the Defendant’s liability is the same no matter how many hours the Plaintiff chooses to work. However, Section 361(1) provides that Defendants may use the entire amount that the Plaintiff would have been able to earn to calculate her partial benefits.

Magistrate: Brennan

Appellate Commissioners: Glaser, Kent, Will

Keywords: Petition to stop; petition to suspend; Sington; res judicata; unreasonable refusal of reasonable employment; Sec. 301(5)(a);  Sec. 361(1); calculation of partial benefits

RETALIATION

Harper v. AutoAlliance International, Inc., 392 F. 3d 195 (6th Cir., Michigan, Dec. 16, 2004)

As this case relates to workers’ compensation, the U.S. Court of Appeals determined that the action did not “arise under the workmen’s compensation laws” of Michigan within the meaning of the federal removal statute provision governing nonremovable actions, even though retaliatory discharge claim invoked Michigan Workers’ Disability Compensation Act. The Plaintiff in this matter was purportedly discharged for violating company work rules for theft and brought a state court retaliatory action against his employer and others.  The action was moved to federal court because he also sued under Title VII.  The employee filed an amended complaint deleting the Title VII claim, and asked to get it removed back to state court because there were no longer federal issues at hand. The Eastern District Court of Michigan denied that motion and granted the Defendant’s summary judgment. It was further found that the federal court did not deny the state court its right to hear the state claims after the federal charge was removed. This means that if an employee sues for retaliation and it gets moved to federal courts, it may stay and be decided in the federal courts.

Keywords: retaliation; federal jurisdiction

Killingbeck v. Flotation Docking, Inc. , Order, Michigan Supreme Court (12/28/05)

In this worker’s compensation retaliation case, the Defendant’s application for leave to appeal the May 26, 2005, unpublished opinion by the Michigan Court of Appeals, was considered. The Supreme Court reversed the Court of Appeals, holding that the Circuit Court properly granted summary disposition to the Defendant, where the Plaintiff failed to provide any direct evidence of retaliation in violation of MCL 418.301(11).

The Court of Appeals found that because the Plaintiff presented “direct evidence” of discrimination, Defendant’s assertion of a nondiscriminatory reason was insufficient to avoid trial. When there is circumstantial or indirect evidence of discrimination, the Plaintiff must present a rebuttable prima facie case based on proofs from which a factfinder can infer that the Plaintiff as subjected to unlawful discrimination. If said proofs exist, the burden shifts to the Defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If this happens, the burden shifts back to the Plaintiff to show that the Defendant’s reasons were not the true reasons, but a mere pretext for discrimination. The Court of Appeals held that when the Plaintiff provides direct evidence of unlawful discrimination, the burden shifting approach does not apply. Therefore, a Defendant cannot avoid trial by articulating a nondiscriminatory reason for the decision. Rather, the evidence must be submitted to a factfinder to for a determination as to whether the Plaintiff’s claims are true. Apparently, the direct evidence of unlawful discrimination were “stray remarks” made by the Plaintiff’s supervisor in relation to the claimant’s termination.

In reversing the Court of Appeals, the Supreme Court found that the Plaintiff’s ambiguous question asked of Defendant’s supervisory employee could at most be deemed a reference to Defendant’s letter advising Plaintiff that there was no position available for him at that time, should his doctor release him from work. Therefore, the alleged “stray remarks” did not qualify as direct evidence of unlawful discrimination. Nothing in that letter revealed an improper discriminatory motive, and the letter was in fact neither a termination letter, nor an adverse employment action.

Keywords: retaliation; direct evidence; burden shifting; stray remarks; unlawful discrimination

Kosmal v. SBC Ameritech Michigan, unpublished per curiam opinion, Michigan Court of Appeals (10/6/05)

In this retaliation claim, the Michigan Court of Appeals found that the employer did not retaliate against the employee for filing a Workers’ Compensation claim. The Plaintiff argued that it was enough that her employer knew about her claim and determined that her injuries were permanent. The court found that the employer then met its burden by showing a non-retaliatory reason for discharging the Plaintiff.  The claimant was unable to work full-time hours after she turned down a position that required less hours.  After a number of warnings, the claimant was eventually discharged under the attendance policy. The Plaintiff did not present any evidence to rebut her employer’s reasoning for her termination and show it was merely an excuse to hide its retaliatory motives.  The court also noted that there was a two year period between the time the claimant filed her workers’ compensation claim and was eventually discharged.

Keywords: retaliation; burden of proof

Hephner v. M&S Manufacturing Company, unpublished per curiam opinion, Michigan Court of Appeals (12/13/05)

In this Workers’ Compensation retaliation claim, the Plaintiff appeals the trial court’s granting Defendant summary disposition. The court stated that the Plaintiff failed to set forth any evidence of a causal connection between his filing a workers’ compensation claim and his termination.  Plaintiff argued that he was fired in retaliation because he was terminated after being on medical leave for 12 months and that the Defendant’s policy of terminating all employees after 12 months of continuous leave was a pretext for firing seriously injured workers. The court found Plaintiff presented no evidence his workers’ compensation claim played a role in the termination decision. It was undisputed Defendant never objected to his claim or tried to interfere with this leave. Furthermore, the Plaintiff’s assertion that the neutrally applied termination policy was a pretext was “wholly unsubstantiated.”

Keywords: retaliation

SIGNIFICANT CONTRIBUTION

Boudreaux v. Southfield Public S