TO:                 Our Clients and Friends

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

RE:                 Update on Recent Court Decisions Involving Seasonal Workers, Jurisdiction, and the Definition of Personal Injury (Rakestraw)

            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 recently been decided by the Michigan Supreme Court and the Michigan Court of Appeals.  Two of the cases constitute changes in the law, and one, dealing with Rakestraw, as will be explained below, provides a much needed clarification regarding the definition of personal injury and the “medically distinguishable” standard.

Michigan Court of Appeals Tackles
Off-Season Wage Loss Entitlement as it Pertains to
Seasonal Workers

Raybon v DP Fox Football Holdings, LLC, Grand Rapids Rampage

            In the very interesting case of Raybon v DP Fox Football Holdings, the Court of Appeals in an unpublished decision, (decided July 17, 2007) tackled the issue of whether a football player injured during the playing season was entitled to wage loss benefits in the football off-season, when the football player would not otherwise have been earning wages in the off-season.

            The central issue presented in the case of Raybon is whether a seasonal worker’s entitlement to wage loss benefits ends when the work “season” ends.  The employer (who was represented by Bleakley, Cypher, Parent, Warren & Quinn) argued that the seasonal football player should not be entitled to wage loss benefits during the off-season when he would not have otherwise earned wages in the off-season.

            The Court of Appeals agreed with the employer’s position and specifically enumerated the rule of law that even if an employee establishes an injury and disability he must further prove a wage loss related to the injury.  In other words, just because the Plaintiff suffers an injury and is disabled for the remainder of the football season he is not necessarily entitled to wage loss benefits during the off-season, when he would not have otherwise earned wages.  The case was remanded to determine whether the employee’s lost wages in the off-season are related to his work injury, or rather the end of the football-playing season.

            This decision represents a significant win for employers, in that the Court has found that employers should not be responsible for payment of wage loss benefits during off-season employment, when an employee would not have otherwise worked.

            While Raybon dealt specifically with a seasonal minor league football player, the impact of this case could certainly be far reaching and should arguably be applied to all seasonal workers, be they school teachers, lifeguards, restaurant workers in resort towns, etc.  The rule of law espoused in the decision of Raybon arguably stands for the proposition that no seasonal employee should receive wage loss benefits in the off-season, when the absence of wage loss is related to season ending employment versus a work related disability.

            The Court of Appeals decision in Raybon is unpublished and therefore not binding precedent upon all lower courts, however it is instructive as to how this issue will be dealt with by the trial Magistrates and Appellate Commission in the future.  We are also seeking to have this a published decision.

            We urge you to contact at us at Bleakley, Cypher, Parent, Warren & Quinn if you have a case that involves a seasonal worker, as the case of Raybon may impact that employee’s entitlement to benefits.  Obviously every factual scenario differs, and we are always available to discuss the circumstances of any case and that application of ever changing case law in Michigan.

Karaczewski v Farbman Stein & Co. and the Issue of Michigan Jurisdiction

            The Michigan Workers’ Compensation Act confers jurisdiction on the Workers’ Compensation Agency for out-of-state injuries where (1) the employee was a resident of Michigan when the injury occurs and (2) the contract of hire of was made in Michigan.

            Despite the clarity of the Michigan Workers’ Compensation Act in Section 418.845 the Courts have struggled with the issue of jurisdiction as it applies to out-of-state injuries.  In large part, the Courts have historically conferred jurisdiction upon out-of-state injury cases where there was a contract of hire in Michigan, ignoring the requirement that the employee be the resident of Michigan at the time of injury.

            That being said, the Michigan Supreme Court in Karaczewski, clarified that both requirements must be met before the Workers’ Compensation Agency has jurisdiction over an out-of-state injury.  In other words, jurisdiction in Michigan is only present when the employee was a resident at the time of injury and a contract of hire was made in Michigan.

            Thus, in future cases with out-of-state injuries a bright line test now exists and the Supreme Court explained that both requirements must be met before Michigan jurisdiction exists as the legislature intended.

Supreme Court Clarifies Rakestraw and
“Medically Distinguishable” Injury Standard

            As all of you are most likely aware, the case of Rakestraw v General Dynamics Land Systems, Inc. 469 Mich 220 (2003) has been hotly contested.  You recall that the Supreme Court in Rakestraw specifically enumerated the legal standard that an employee who suffers from a non-work related pre-existing condition must show that his work has caused an injury that is “medically distinguishable” from the progression of the underlying pre-existing condition.

            Much of the controversy, following the Supreme Court’s decision in Rakestraw, surrounded the term of “medically distinguishable” and what was necessary to demonstrate a medically distinguishable change in the underlying condition.

            While most employers took the position that a change in pathology was necessary, most Plaintiffs argued that a change in the quality, quantity or severity of symptoms would constitute a medically distinguishable change and thus a personal injury.

            The Appellate Commission has issued a number of decisions since the Supreme Court decided Rakestraw and have been interpreted by most to provide that a personal injury can be established by showing a change in the nature of symptoms be it quantity, quality or severity.

            Thus, the Appellate Commission decisions following Rakestraw seemingly ignored the Supreme Court’s edict in Rakestraw, that symptoms alone are not enough to establish a personal injury under the Act, and the quality and quantity of same does not change the fact that it is still a symptom.

            The Supreme Court has now provided much needed clarification on the issue with its Order in the case of Fahr v General Motors Corporation, Docket #133500 (decided June 22, 2007).  The Supreme Court has specifically indicated that the Appellate Commission had misinterpreted the Rakestraw decision, when the Commission asserted that Rakestraw did not require a “pathological change in a pre-existing condition” in order for a Plaintiff to establish a work related personal injury has occurred.

            The Supreme Court specifically enumerated in the Fahr decision that in order to establish a personal injury or “medically distinguishable” in an underlying condition, a Claimant must show that the pathology of the condition has changed.  The Supreme Court goes on to clarify that although a medical expert need not use the verbiage “change in pathology” there must be record evidence from which a legitimate inference may be drawn that the Plaintiff’s underlying condition has pathologically changed as the result of the work event or activity.

            The Supreme Court’s Order in Fahr now makes it clear that a Plaintiff must show a change in pathology by way of record evidence such that a Magistrate can legitimately infer that the Plaintiff’s condition was pathologically changed as the result of a work injury.  In other words, the focus is now on pathology and not the severity or quality of a person’s symptoms.

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

JJH/clw