WORKERS’ COMPENSATION ALERT

TO: Our Clients and Friends

FROM: Bleakley, Cypher, Parent, Warren & Quinn, P.C.

RE: Update on Recent Decisions and Stokes’ Decision

DATE: September 7, 2006

In our continuing effort to provide the best legal services available with respect to Workers’ Compensation matters in the State of Michigan, we here at Bleakley, Cypher, Parent, Warren & Quinn, would like to provide you with an update of several cases which have been decided by the Michigan Supreme Court and Michigan Court of Appeals which constitute changes in the law. Also, please allow us to keep you apprised as to several new developments within the Workers’ Compensation Agency, Board of Magistrates.

STOKES V DAIMLER CHRYSLER CORPORATION
AND THE DEFINITION OF DISABILITY

As all of you are most likely aware, the hotly contested case of Stokes v Daimler Chrysler Corporation, and the Appellate Commission’s controversial decision in that case was appealed all the way to the Michigan Supreme Court, and by Order dated June 2, 2006, the Supreme Court stayed the Appellate Commission’s decision in Stokes and remanded the matter to the Court of Appeals. Further, the Supreme Court ordered the Court of Appeals to issue a decision by October 1, 2006.

The Court of Appeals immediately scheduled oral arguments to be heard on August 8, 2006.
Our law firm filed an amicus curie brief on behalf of Alticor and all employers in the State of Michigan; thus, we were present at the time of the oral arguments.

The panel of judges assigned to the Stokes’ case are; Henry William Saad, Kathleen Jansen, and Helene White. Henry Saad is considered a conservative judge, with Helene White and Kathleen Jansen considered more liberal.
There was intense focus at the time of oral argument, as to what should constitute the definition of qualifications, training, and experience. Specifically, the judges questioned counsel on whether qualifications, training, and experience should consider just past job experiences and training or whether transferable skills should also be included in the analysis.

Obviously, employers feel not only that past job experience should be included in any relevant disability inquiry, but all transferable skills the employee may have. Employees on the other hand, would prefer to focus only on the jobs they have performed in the past and would avoid any type of disability analysis involving transferable skills.
While it is difficult to predict the outcome, the questions posed by Henry Saad, in our opinion, lead us to believe that he is a proponent of considering past job experiences and transferable skills.

Helene White and Kathleen Jansen were much more difficult to read, although it was evident from their questioning that both judges were cognizant of the issues presented and the significance of each.

It is almost certain that the Court of Appeals will address the definition of disability set forth by the Supreme Court in the case of Sington v Daimler Chrysler Corporation in the year 2002, as well as further articulate that standard. We do expect that they will specifically decide whether transferable skills are included in the disability inquiry.
With respect to discovery, little time was spent questioning the parties, and it is our opinion that the court will find discovery is available to the parties in limited circumstances in the workers’ compensation arena. Although we suspect they will conclude that the use of a vocational expert is also permissible, little insight was offered based upon their questioning as to exactly what information an employee might be required to disclose regarding qualifications, training, and experience, prior to trial.

At this point, all briefs have been submitted and oral arguments have taken place. The judges will now contemplate all the above and issue a decision.

As noted above, the Supreme Court has mandated that the Court of Appeals issue a decision by October 1, 2006.
The law firm of Bleakley, Cypher, Parent, Warren, & Quinn will continue to keep you apprised of all developments.

DECISIONS OF INTEREST

There have been several interesting cases which have introduced new legal standards into the workers’ compensation arena in Michigan, and below please find a summary of same. As always, please feel free to contact any of the attorneys at Bleakley, Cypher, Parent, Warren, & Quinn if you have questions regarding any of these decisions or would like further information regarding same.

Traveling Employee Doctrine

The Michigan Court of Appeals in the case of Bowman v R.L. Coolsaet Construction Company (decided on August 8, 2006) adopted “the traveling employee” doctrine and confirmed the viability of the doctrine in Michigan. In so doing the court has held that employee’s work that entails travel away from the employers’ premises is within the scope of their employment during the trip, and that employees that are injured during the course of a business trip can therefore recover workers’ compensation benefits, except when the distinct departure on a personal errand is shown. Presumably, this includes not only business trips which are to last one to several days, but business trips or jobs which may require an employee to be away from home for weeks or months on end. (As was the case with Bowman, who actually arranged for temporary living arrangements given the length of his stay).

Death Cases and Proximate Cause

In the case of Paige v City of Sterling Heights, (decided July 31, 2006), the Michigan Supreme Court determined that in order to obtain death benefits under the Workers’ Disability Compensation Act, the injury must be the “proximate cause” of the employee’s death. By proximate cause, the court explained that it must be “the one most immediate, efficient, and direct cause of the injury or damage.” The Supreme Court specifically explained that prior decisions, which held that “a proximate cause” may constitute merely a substantial factor in causing the event, was not appropriate for purposes of analysis of proximate cause under the Workers’ Disability Compensation Act.

Death Benefits and Dependency

In the case of Paige v City of Sterling Heights, (decided July 31, 2006), the Michigan Supreme Court explained that to determine whether a person is a dependent of a deceased employee, and the extent of any dependency, you must look at the circumstances at the time of the work related injury – not at the time of death. That being said, if in fact a dependent child is under the age of 16 at the time of the employee’s death, he is entitled to a conclusive presumption of whole dependency. If the child is not under the age of 16 at the time of the employee’s death, then the child’s dependency is determined based upon his status as of the date of injury, as is the case with all other dependents not under the age of 16 at the date of death.

MAGISTRATE’S OPINIONS NOW AVAILABLE ONLINE

All Opinions by the Workers’ Compensation Magistrates are now available dated back to January 1, 2006, and can be viewed on the Workers’ Compensation Agency website: www.michigan.gov/wca and a link to the Opinions is listed under “Quick Links” on the page. The listing of Opinions is updated monthly and does not included Orders without Opinions.

There are several search options and you may search on any one of the following fields: Plaintiff, Defendant, Magistrate, or Date.

GRAMS v DAVE’S AUTO VALUE

With the political climate leaning toward the left and the recent appointment of several liberal magistrates, many of you are probably wondering if cases can be won at trial. The answer to that question is yes.

As an example of a magistrate’s decision that is currently available on the Workers’ Compensation Agency website, and an example of a victory for employers, please refer to the Grams v Dave’s Auto and Farm Bureau General Insurance Company decision decided on July 14, 2006. In that case, the employer disputed the plaintiff’s alleged injury based upon information that the claimant had suffered a non-work related injury. The employer also sought recoupment of any and all benefits inappropriately paid based upon plaintiff’s original claim of injury.

The law firm of Bleakley, Cypher, Parent, Warren, & Quinn represented the defendants in that case, and we are pleased to inform you that where there is evidence of a non-work related injury, those cases can be won. The magistrate determined that the plaintiff failed to establish a work-related injury based upon evidence that the claimant in fact injured himself while lifting his grandchild, not lifting at work.

Furthermore, of importance, the magistrate in that case granted defendants’ request for recoupment of all benefits inappropriately paid. In other words, the employer was entitled to recoup all monies paid to the plaintiff in the form of wage loss benefits and medical benefits, that they had paid based upon the plaintiff’s failure to establish a work-related injury.

If you have any questions regarding any of the above cases and/or information, please do not hesitate to contact any of the attorneys at Bleakley, Cypher, Parent, Warren, & Quinn.