2012 Case Law Update

BCPWQ Seminar

March 16, 2012

CAUSATION

Conditions of the aging process

Hilliard v. General Motors Corp., 2011 ACO #57. In this case, the plaintiff was a long-standing General Motors employee who alleged that his work activities, including heavy lifting and repetitive climbing and bending, caused him back and neck injuries. The plaintiff also lived on and maintained a farm. It was accepted that the plaintiff had degenerative disc disease in his spine. Each party deposed its own medical expert. Both experts agreed that the plaintiff’s degenerative disc disease was related, at least in part, to the aging process, but they disagreed on the effect that work activities had on the degenerative pathology. Ultimately, the magistrate concluded that the plaintiff’s employment aggravated the condition in a “significant manner,” under MCL 418.301(2). The defendant argued that the evidence did not support such a finding. The Commission disagreed, and affirmed the Magistrate’s finding. It specifically noted that it is ultimately the magistrate, not the medical experts, who must look at the evidence in “conditions of the aging process” cases and determine whether employment contributed in a significant manner. In doing so, the Magistrate must balance work factors and non-work factors to assess their relative effect. In dicta, the Commission also highlighted the difference between aggravation of a pre-existing condition cases under Section 301(1) and contribution in a “significant manner” to a condition of the aging process under Section 301(2). Given the heightened standard of Section 301(2), evidence to satisfy the former will not always be sufficient to satisfy the latter.

Last employer

Oldham v. Woodruff Contracting, 2011 ACO #83. The Plaintiff here suffered a non-work related low back injury in 2002, and underwent surgery to treat that in 2004. The plaintiff was then able to return to his former employment performing iron work. He was laid off, and then began performing similar iron work at a second employer. After three months there, the plaintiff reported new low back pain, which necessitated a second surgery that addressed the disc levels above and below the prior surgery. The medical testimony established that the brief employment for the second employer did not independently cause a verifiable change in pathology, but that the entirety of the plaintiff’s employment since the initial surgery contributed to the changes that necessitated the second surgery. The Magistrate granted an open award against the second employer, despite the plaintiff’s brief employment there. The Commission affirmed. Although the law requires proof of a pathological change of a pre-existing condition, the Commission noted that when an employee suffers a pathological change caused over the course of multiple employments involving similar work, then the last employer in time is responsible for the injury, despite no evidence showing a distinct change during that employment.

Nichols v. Howmet Corp., 2011 ACO #37. At trial, the Magistrate in this case found that the plaintiff suffered a cervical injury while working in 1989 and 1993, but that he forfeited his right to indemnity benefits because he refused to return to light duty work. The plaintiff then began working for a second employer, and the Magistrate found that the plaintiff injured his low back there in 1998 and granted him an open award. The Magistrate did not address any potential neck aggravation in the second opinion, but did note that the plaintiff ended his previous work refusal and reinstated benefits. On appeal, the first employer argued that the successive injury doctrine absolved it of any liability, because the Magistrate found that the plaintiff suffered another injury at the second employer. The Commission disagreed, stating that the doctrine does not operate to put all liability on the subsequent employer when an employee suffers distinct injuries to two different body parts at two different employers. When that is the case, the original employer remains liable for its injury until the period of disability for that injury ends.

Medically distinguishable condition/pathologic aggravation

Dewaele v. William Beaumont Hospital, 2011 ACO #33. In Dewaele, the plaintiff claimed that she suffered a work-related neck injury in 2002, despite the existence of a cervical disc protrusion in 2000. The Magistrate relied on the testimony of the treating surgeon in granting the plaintiff an open award of benefits. The Commission reversed, finding that the surgeon never viewed the films or report of the 2000 MRI. As such, his testimony was insufficient to support the necessary finding that the plaintiff suffered a medically distinguishable condition as a result of the claimed 2002 work injury, because no testimony of a comparative nature was provided. In dicta, the Commission did note that precise testimony regarding “change in pathology” is not necessary, but there must be some testimony to support a finding that the pre-existing condition changed due to a work injury.

Ford v. Securitas Security Services, 2011 ACO #109. The plaintiff here suffered injuries to her neck, low back, knee, and shoulder as a result of a non-work motor vehicle accident in 2001. She then fell down stairs at work in December 2007, and claimed work-related injuries to the same body parts. Both of plaintiff’s medical treaters testified that the claimed fall was the cause of her problems, but on cross examination both doctors conceded that they had no knowledge or records of the plaintiff’s treatment prior to December 2007. As a result, the Magistrate discounted their testimony and denied benefits. On appeal, the Commission affirmed the Magistrate’s finding and handling of the testimony on the grounds that the treaters lacked adequate medical histories and failed to demonstrate a full knowledge of plaintiff’s pre-existing condition.

Golokovskiy v. Communications Supply Corp., 2011 ACO #50. The plaintiff in this case had pre-existing degenerative back disease when he claimed he injured his back at work while lifting a cable. The plaintiff presented medical testimony in which the doctors described the contribution of work to the degenerative disc disease. The Magistrate merely relied on the doctor’s opinions in concluding that the plaintiff suffered a compensable work-related injury. The Commission remanded on the grounds that the Magistrate’s analysis was insufficient under Rakestraw. Specifically, it noted that a Magistrate cannot simply substitute medical testimony for legal analysis. Instead, he/she is required to perform some detailed legal analysis and identify the medically distinguishable condition. According to the Commission, a medical conclusion that work contributed to the injury does not satisfy the legal analysis required.

Scala v. Aztec Manufacturing Co., 2011 ACO #19. In this case, the plaintiff claimed a work-related low back injury. The medical evidence revealed that he had degenerative disc disease, as well as a disc protrusion at L4-L5. The medical testimony established that the plaintiff’s degenerative disc disease pre-existed the claimed work injury. As such, the plaintiff had to prove that work caused a medically distinguishable condition. The Magistrate found that the plaintiff established this through his medical expert, who testified that the sudden onset of symptoms during certain work activities suggested that the work activity was related to the plaintiff’s back injury and need for surgery. The Commission reversed on the grounds that the testimony did not meet the standard under Rakestraw to establish a link between injury and employment. Notably, the Commission reiterated that a plaintiff must differentiate between onset of symptoms related to pre-existing pathology, which is not compensable, and pathologic aggravation of the condition, which is compensable.

Stewart v. General Motors Corp., 2011 ACO #59. The Commission handled a case similar to Dewaele in Stewert. Here, the Plaintiff had a torn right labrum and right rotator cuff, which he claimed was caused by heavy lifting at work. The plaintiff’s surgeon testified that the plaintiff’s work caused these injuries and need for surgery, and the Magistrate relied on this testimony to find that the plaintiff suffered a work-related injury. The defendant appealed on the grounds that the plaintiff had pre-existing shoulder pathology, and the Magistrate failed to find a compensable aggravation of that injury. The Commission agreed with the defendant, finding that the Magistrate ignored all of the plaintiff’s prior history of symptoms and pathology. The Commission also highlighted the deficiencies in the surgeon’s testimony. Most importantly, the Commission stated that pre-existing condition analysis requires that medical experts consider the plaintiff’s prior history, beyond simple acknowledgement that the plaintiff had historical symptoms. While experts do not need every single detail, they must have enough detail to be able to discern between natural progression of a non-work injury and an aggravation of a non-work injury that is caused by work.

Woods v. Eaton Corp., 2011 ACO #94. The Plaintiff here had a low back injury in 1990, which necessitated work restrictions until 2005. At that time, plaintiff began unrestricted employment. After two months of unrestricted work, the plaintiff claimed that he suffered a low back injury while lifting at work in December 2005. The Magistrate found that the plaintiff suffered a compensable low back injury in December 2005. In doing so, the Magistrate noted that pain, standing alone, does not meet the plaintiff’s burden to prove a medically distinguishable condition. However, the magistrate found that other factors regarding the pain, including increased pain and pain in a new location immediately following the claimed event, was enough to show a medically distinguishable condition. The Commission disagreed and reversed, reiterating that the law requires evidence of a pathological change, which cannot be established through evidence of worsening symptoms alone.

Psychological

Perkowski v. Chrysler Group, LLC, 2011 ACO #31. In this case, the plaintiff alleged psychological injury as a result of constant harassment and verbal abuse by her supervisors. The evidence established that the plaintiff had several non-work stressors, including diabetes and the recent death of her mother and mother-in-law. The Magistrate compared work and non-work stressors, and denied benefits after concluding that the plaintiff’s work did not contribute in a significant manner to her alleged psychological injury. The Commission noted several errors in the Magistrate’s analysis, including her analysis of several non-work stressors that developed after the plaintiff’s last day of work, and remanded to the Magistrate for further analysis. The Commission directed the Magistrate on remand to again compare work stressors with the appropriate non-work stressors, and cautioned that in doing so, employment does not need to be the most significant contributor to a mental disability. Instead, it is sufficient if work is a significant contributor among multiple significant contributors.

Repetitive work

Billeter v. General Motors Corp., 2011 ACO #42. In this case, the plaintiff began working for General Motors in 1977, and performed various jobs there through 2008, including on the assembly line, in rod hanging, as a conveyor attendant loader, in installation, and in quality control. He alleged that repetitive work caused him injuries to his back, upper extremities, and hearing. The Magistrate denied all three claims after finding that plaintiff’s medical expert did not understand the plaintiff’s various job activities, including the type and frequency of gripping, grasping, bending, and lifting. After appeal by the plaintiff, the Commission affirmed the Magistrate’s decision, stating that it was appropriate for the Magistrate to discredit the plaintiff’s expert on the grounds that the expert was unaware that the plaintiff did not lift or grip or grasp repetitively. Specifically, testimony that the plaintiff used his hands repetitively was not sufficient to establish that he necessarily gripped or grasped repetitively.

CHANGE IN CONDITION

Nill v. Borders Group, Inc., Michigan Court of Appeals (unpublished, December 20, 2011). The parties in this case stipulated that the plaintiff sustained a work-related injury in January 2002. At trial, the magistrate found that the injury did not cause any disability beyond August 2003, based on a medical expert’s opinion that the plaintiff could return to unrestricted work at that time. The plaintiff then filed an application in June 2007 alleging a “change in condition” that caused further disability. The defendant argued, and magistrate agreed, that the new application was precluded because the plaintiff’s claim for disability was previously litigated. The Court of Appeals reversed, and allowed the plaintiff to pursue her theory that her condition had changed, causing her disability. The Court noted that a compensation determination adjudicates a plaintiff’s condition at the time the determination is made, and cannot serve as an adjudication of the plaintiff’s future condition. As such, a prior determination does not preclude a subsequent determination regarding a changed condition.

COORDINATION

Pension

Fenner v. Convention & Show Services, Inc., 2011 ACO #2. The plaintiff in this case alleged a January 2008 neck injury. In April 2008, he was approved for a monthly pension. This pension was handled by the Carpenter’s Pension Trust Fund of Detroit. At trial, the Magistrate denied defendant’s request to coordinate the plaintiffs weekly workers’ compensation benefits with his disability pension pursuant to MCL 418.354(1)(d). When contested, the burden of establishing entitlement to pension coordination falls on the defendant. To meet the burden, it must be shown that: 1) the plaintiff receives a pension, 2) the pension is paid from a plan or program established or maintained by the same employer, 3) the compensation benefits subject to coordination are payable under Section 351, 361, or 835 of the Act, and 4) the plaintiff did not contribute to the pension. Here, the Commission upheld the Magistrate’s coordination denial. While defendant met requirements 1, 3, and 4, there was no evidence that this specific employer established or maintained the pension plan. Instead, the testimony established that the plaintiff received a pension from the Carpenters’ Fund, without further testimony that the employer paid into this fund. Although the employer likely did contribute to the fund that paid the pension, there was no evidence establishing that fact.

Fletcher v. Alstom Power, Inc., 2011 ACO #48. Like Fenner, the primary issue in Fletcher was whether the defendant met its four-prong burden to establish that it was entitled to coordinate workers’ compensation benefits with pension benefits under Section 354. The plaintiff was a boilermaker and pipefitter who began receiving pension payments from a fund. At trial, the fund administrator testified that “each employer” makes contribution to the pension fund. The Magistrate relied on this testimony to find that the defendant did not establish that the plaintiff’s pension was established or maintained by the employer. Because the testimony did not specifically address the defendant employer’s contribution, it was held to be insufficient. The Commission affirmed the Magistrate’s determination.

Reidenbach v. City of Kalamazoo, 2011 ACO #114. The parties in this case stipulated that the plaintiff was eligible for a pension that may be subject to coordination under Section 354. Prior to trial, the defendant coordinated weekly benefits with 82% of the plaintiff’s weekly pension on the grounds that the employer funded 82% of the pension. The main issue at trial, therefore, was the percentage of plaintiff’s pension that was subject to coordination. Under the terms of the pension, employees contributed toward the plan. As a result, the plaintiff began contributing upon hire in 1992. Under Section 354(1)(e), the coordination percentage is calculated by taking the ratio of the employer’s contributions to the total contributions to the plan. The Magistrate calculated the ratio by comparing the employer’s contributions to total contributions only since the plaintiff’s employment since 1992. The Commission reversed and held that the plain language of the statute demands that when determining the percentage of a pension subject to coordination, a Magistrate must compare the employer’s contributions for all years of the plan with total contributions for all years. It is error to look at contributions only during the period of an employee’s employment.

Unemployment

Bryce v. Chrysler Group, LLC, 2011 ACO #46. After suffering multiple work injuries and going off work multiple times, the plaintiff in this case was laid off in October 2007. She began receiving unemployment benefits chargeable to the employer, as well as federal supplemental benefits. The defendant requested, and the Magistrate allowed, that it be able to reduce the plaintiff’s workers’ compensation benefits by the amount of her unemployment and supplemental benefits. The plaintiff appealed this reduction, and the Commission affirmed on the grounds that the WDCA does not allow the plaintiff to receive benefits while off work that, in the aggregate, would provide her with more wage replacement than had she been working. Such a policy would give the plaintiff an incentive to remain off work.

DISABILITY

“Universe of jobs”

Binkley v. Alstom Power Inc, 25 MIWCLR 24 (Court of Appeals, March 8, 2011). This case involved a plaintiff with a ninth grade education who worked only one job (boilermaker) his entire life. He claimed that a work-related low back injury caused him ongoing disability. At trial, the Magistrate noted that the plaintiff did not present vocational testimony, but found that “common sense” says that the plaintiff’s limited education and experience means that his sole maximum earning job is that of a boilermaker. Based on this, the Magistrate found that the plaintiff established his universe of jobs. The Commission reversed. In doing so, it noted that Stokes does not require a formal vocational evaluation or transferable skills analysis, but it does require something more than common sense to serve as a plaintiff’s evidence of the universe of jobs he/she is qualified and trained to perform that pay his/her maximum wages (Step 2 of Stokes). For example, the Commission noted that while a back injury may prevent a boilermaker from returning to that job, it is speculative to find that the particular skills learned by a boilermaker would not translate to other jobs, such as a trade school teacher or salesman. Common sense is insufficient to support a finding that these jobs do not exist, and a plaintiff must instead present evidence to reasonably assess his/her employment opportunities. The Court of Appeals upheld the Commission’s reversal.

Burch v. EAS, 2011 ACO #45. The plaintiff in this case was a high school graduate with past employment as a telemarketer, bus driver, and machine technician. He alleged a work-related knee injury. At trial, the plaintiff did not present testimony from a vocational expert. The Magistrate concluded that the plaintiff did not meet his Stokes burden, finding that a plaintiff who does not present testimony from a vocational expert must show that he/she performed a good faith job seeking effort, or show that he/she is so severely disabled that he/she cannot practically seek work. The plaintiff appealed and argued that the Magistrate denied benefits simply because the plaintiff did not have a vocational expert. The Commission, however, affirmed the Magistrate’s findings. In doing so, it reiterated that Stokes does not require a plaintiff to hire a vocational expert, but the plaintiff must alternatively present some reasonable means to assess employment opportunities to which qualifications and training might translate. Ultimately, it is up to the Magistrate to decide whether the plaintiff’s own testimony meets this requirement, and the Magistrate here decided against the plaintiff.

Civils v. State of Michigan/Dep’t of Informatin & Tech., 2011 ACO 323. The plaintiff here had an associate’s degree, bachelor’s degree, and master’s degree. She spent much of her employment career working as an information support technician and information system supervisor. She never held an employment position that utilized her master’s degree. The plaintiff testified that she was injured in January 2006 and did not return to work after August 2006, although she looked for work. The Magistrate found the plaintiff disabled under Stokes. On appeal, the Commission found that the plaintiff did not establish the universe of jobs suitable to her qualifications and training, and thus reversed. Of note, the Commission indicated that the plaintiff’s master’s degree was a significant component to consider in identifying the jobs she was able to perform, regardless of whether she ever performed jobs using the degree. Moreover, the plaintiff’s job search efforts, according to the Commission, are irrelevant until the plaintiff first establishes all of the jobs she is qualified to perform, because job search efforts should focus on all of those job opportunities.

Doty v. General Motors Corp, 2011 ACO #108. The plaintiff in this case attempted to meet her burden of establishing disability under Stokes by showing her job search and inability to secure a job. The Magistrate concluded that the diligent job search satisfied her burden. On appeal, the Commission remanded and directed the Magistrate to follow the law developed by Stokes, which first demands that he identify all work suitable to the plaintiff’s qualifications and training. The Commission further reasoned that a job search, and its potential diligence, is irrelevant without first knowing the extent of suitable jobs that a plaintiff is qualified for and should be searching for.

Fournier v. Servicemaster Residential, 2011 ACO #62. This case involved a plaintiff who alleged a work-related shoulder injury, which developed into RSD and caused her further injury to her leg. As a result, she testified that she was limited to one arm, sit-down work. The Magistrate found the plaintiff disabled under Stokes. In analyzing Stokes’ second requirement that the plaintiff establish all jobs that she is qualified and trained to perform, the Magistrate noted, among other things, that the plaintiff could use only her non-dominant hand. The Magistrate then concluded that none of the jobs identified by the defendant’s vocational expert were within the plaintiff’s abilities. The defendant argued that the Magistrate improperly applied Stokes, and the Commission agreed and remanded. In doing so, the Commission once again clarified that Step 2 of Stokes asks a plaintiff to establish what jobs are suitable to his/her qualifications and training that pay maximum wages. Only after the universe of jobs is established does a Magistrate then consider the impact of a work injury. Therefore, the Magistrate here committed reversible error when she included the plaintiff’s physical capabilities in her Step 2 analysis.

Glave v. Battle Creek School District, 2011 ACO #18. In this case, the Magistrate found at trial that the plaintiff had established disability under Stokes. On appeal, the Commission found that the Magistrate’s Stokes analysis was deficient, and remanded for additional analysis. Specifically, the Commission noted that the Magistrate’s analysis regarding the universe of jobs the plaintiff could perform was limited to a vague reference to “entry level positions” only. The Commission demanded that the Magistrate explicitly identify the jobs that the plaintiff’s transferable skills allowed him to perform.

Holmes v. ET 4, Inc., 2011 ACO #9. The plaintiff here was an individual with a high school education and an employment history as a general laborer, including work in construction, maintenance, janitorial, crane operation, and on assembly lines. He alleged a work-related injury and corresponding disability under Stokes. The Magistrate found that the plaintiff put his resume online, and looked and applied for work. The Magistrate then found that the plaintiff met step 2 of Stokes by showing that he was not capable of performing work, as evidenced by the plaintiff’s failed attempts at finding work. The Commission reversed and remanded the Magistrate’s disability finding on the grounds that he misapplied Step 2. Specifically, the Magistrate erred by considering the plaintiff’s job search efforts and ability to perform jobs as part of his analysis. Instead, Step 2 is isolated to establishing the range of jobs suitable to the plaintiff’s qualifications and training, independent of the plaintiff’s ability to perform same.

Inman v. Productiong Engineering, Inc., 2011 ACO #88. The plaintiff here alleged work-related neck and upper extremity injuries. The plaintiff’s employment history was limited exclusively to machine operation. Based on the testimony of all medical witnesses, the plaintiff needed work restrictions. The Magistrate fond the plaintiff disabled under Stokes because all of the plaintiff’s employment has involved the operation of machinery and demanded lifting, bending, and twisting. On appeal, the Commission held that the Magistrate’s Stokes analysis was faulty, and that the plaintiff’s Stokes proofs were deficient. Again, the Commission noted that the Magistrate failed entirely to identify the jobs the plaintiff was qualified and trained to perform. Moreover, the language used by the Magistrate indicated that even the partial Step 2 analysis that the Magistrate did engage in was faulty for referencing only the jobs that the plaintiff previously performed. As Stokes clearly states, a Magistrate must analyze, and a plaintiff must establish, the broad array of alternative jobs, in addition to the jobs previously performed at the time of injury. Proof that the plaintiff simply cannot perform the work he had performed previously does not establish disability.

Paschal v. City of Lansing, 2011 ACO #8. The plaintiff here alleged that her employment for the Lansing Police Department caused her a disabling psychiatric disorder. Historically, the plaintiff had a criminal justice degree from Michigan State University. The Magistrate found that the plaintiff’s own testimony failed to establish what jobs that degree made her qualified for, and therefore found that she did not meet her burden of disability under Stokes. The Commission affirmed, agreeing that after the plaintiff disclosed her training, including her degree from MSU, she failed to demonstrate what work was suitable given that degree. Further, the plaintiff only testified to her past work, which does not meet Stokes’ requirement of identifying all work suitable to her qualifications and training, even if the plaintiff has never performed such work.

Pitts v. Morton Salt Co., 2011 ACO #52. The plaintiff in this case alleged that repetitive work as a janitor, bagger, power house operator, and block press operator caused her wrist and shoulder injuries. The plaintiff also had prior employment as a cashier. At trial, defendant elicited testimony from its vocational expert, but the plaintiff did not. The Magistrate found that the plaintiff established disability under Stokes. The defendant challenged, and the Commission found that the Magistrate’s analysis was riddled with errors, most notably that the record established the plaintiff’s work history, but did not demonstrate the universe of jobs suitable for the plaintiff given that history. The Commission again noted that the plaintiff must offer proofs regarding the types of employment she can perform that she has not performed in the past. As a result, the Commission reversed the Magistrate’s finding of disability.

Ramey v. General Motors Corp., 2011 ACO #58. Here, the plaintiff alleged that repetitive work caused bilateral knee and right shoulder injuries. At trial, the plaintiff testified that he served as a medic in the U.S. Army from 1969-71. He then spent 35 years as a GM employee. The Magistrate found the plaintiff disabled under Stokes, noting that the plaintiff was employed as an assembler for the last 35 years, and that he has no education, licenses, diploma, certificates, or accreditations. On appeal, the Commission reversed the disability finding, reasoning that the Magistrate completely dismissed the plaintiff’s training as a medic because it happened in the 1960s and 70s. According to the Commission, Stokes does not allow for such a dismissal, and actually mandated recognition of all skills as they relate to the universe of jobs suitable to those skills.

Stornello v. State of Michigan, 2011 ACO #115. This case involved a plaintiff who developed CRPS in her left foot, which she claimed was aggravated by her work activities. At trial, the plaintiff testified to her past employment and education, but offered no lay person or vocational expert testimony regarding other jobs that her employment/education may have qualified her to perform. She further testified that her most recent job paid more than her past employment. The Magistrate found the plaintiff disabled under Stokes. The Commission reversed, stating that plaintiff’s introduction of past work and education is insufficient to demonstrate the jobs suitable to her qualifications and training. At the least, Stokes requires proof of additional work that plaintiff could perform at the same pay.

EXCLUSIVE REMEDY

Brown v. Cassens Transport Co., 24 MIWCLR 186 (September 27, 2010). In this case, the claim was initiated by a group of employees who claimed work-related injuries while working for the defendant. The defendant denied workers’ compensation benefits in each cased based on independent medical evaluations. As a result, the plaintiffs alleged that they were fraudulently denied workers’ compensation benefits in violation of the Racketeer Influenced and Corrupt Organization (RICO) Act due to a combined scheme among the employer, insurance carrier, and evaluating doctors. The U.S. District Court dismissed the claim based on the “exclusive remedy” provision of the Workers’ Disability Compensation Act. Under that provision, employees seeking to recover benefits, or to argue that they were improperly denied benefits, must utilize the WDCA’s administrative process. As such, this provision precludes a claim under the RICO Act. Even without such preclusion, the district court indicated that a claim under the RICO Act would fail because the RICO Act allows recovery for injuries to business and properly, but not for personal injuries.

MEDICAL TREATMENT

Attorney’s fees on

Rocha v. Sackett Ranch, Inc., 2011 ACO #110. The plaintiff here suffered partial amputation of her left arm after it was caught in a machine at work. Initially, the plaintiff tried several different prosthetics, which she was not satisfied with. Therefore, her treating physician gave her a prescription for an i-LIMB device. The plaintiff entered into a contract with a medical supply company to purchase an i-LIMB, although the contract did not obligate the company to provide the i-LIMB until payment was made. At trial, the plaintiff requested that the Magistrate order the defendant to pay for the i-LIMB device as reasonable and necessary medical treatment. The plaintiff’s attorney also requested an attorney fee on the cost of the device. The Magistrate awarded the device, but denied the request for an attorney fee on the grounds that the expense of the prosthetic was not yet “incurred,” and attorney fees are not permitted on future treatment. Even with the contract signed by the plaintiff regarding purchase of the device, the Commission held that this does not classify the i-LIMB as an “incurred” cost, because the contract imposed no obligation on either party.

Chiropractic treatment

Jozlin v. Ford Motor Co., 2011 ACO #123. The plaintiff in this case alleged a work-related low back injury. At trial, the plaintiff sought, among other things, a determination by the Magistrate that he is entitled to chiropractic treatment for his low back. The Magistrate found that the plaintiff suffered a work-related injury, but found that the requested chiropractic treatment was not reasonable and necessary treatment for that injury. The Magistrate pointed to the testimony of the plaintiff’s treating chiropractor, who conceded that the plaintiff had not gotten better during seven years of chiropractic treatment. In addition, two defense witnesses testified that the chiropractic treatment would have no effect on the plaintiff. The Commission affirmed the Magistrate’s determination, noting that a magistrate has allowable discretion in reviewing the record and making determinations as to whether requested treatment is reasonable and necessary.

Medical Marijuana

Todor v. Northland Farms, LLC, 2011 ACO #119. In this case, the plaintiff alleged a work-related left shoulder injury. The plaintiff was approved for medical marijuana prior to trial, and therefore requested a determination from the Magistrate that he was entitled to reimbursement for costs associated with his use of medical marijuana as reasonable and necessary treatment for his shoulder. The Magistrate held that the defendant was not obligated to reimburse such costs, and the Commission agreed, because both the WDCA and Michigan Medical Marijuana Act disallow it. Specifically, the section of the WDCA that governs medical reimbursement excludes reimbursement for any treatment or service that was not subject to state license or registration before January 1, 1998. The MMMA was enacted after this date. Further, the MMMA explicitly states that it does not obligate any insurance carrier to pay for the costs of medical marijuana use.

Reasonable and Necessary

Hanson-Bayerl v. Menominee Acquisition Corp., 2011 ACO #78. Here, the plaintiff suffered a work-related left arm injury that necessitated a prosthetic device. Her first prosthetic device was insufficient, so she requested a more expensive i-LIMB device. The Magistrate granted the plaintiff the requested device. On appeal, the Commission remanded to the Magistrate for a more complete analysis regarding the reasonableness and necessity of the i-LIMB device. Because the plaintiff already received an initial prosthetic device, the Commission held that the Magistrate must decide whether the second, more expensive prosthetic device was reasonable and necessary. In assessing the reasonableness, the Commission directed the Magistrate to provide some type of cost-benefit analysis.

Shattuck v. Aramark Campus, Inc., 2011 ACO #25. The plaintiff in this case suffered a specific event right foot and ankle injury while working, which developed into complex regional pain syndrome in the right lower extremity. The plaintiff’s treating physician recommended a spinal cord stimulator, while defendant’s expert testified that his experience with spinal cord stimulators was not positive, and he would recommend a standard restoration process before proceeding with a stimulator. Based on this testimony, the magistrate did not order the defendant to pay for the stimulator without the plaintiff first engaging in the process discussed by the defense expert. On appeal, the Commission reversed the Magistrate’s determination. The Commission stated that a Magistrate’s job is to determine whether a requested treatment is reasonable and necessary to cure and relieve the effects of an injury. This determination does not allow the Magistrate to prioritize the reasonableness and necessity of various possible treatments. According to the Commission, a Magistrate cannot deny treatment that testimony establishes as reasonable and necessary on the grounds that there is another reasonable and necessary treatment alternative.

Terrill v. Raytheon Constructors, Inc., 2011 ACO #103. In this case, the plaintiff alleged that he suffered a neck injury at work. The Magistrate found that a work injury did occur, and ordered the defendant to pay for reasonable and necessary medical treatment. After the plaintiff began undergoing physical and massage therapy on his neck and other areas, the defendant sought a determination that it was not responsible to pay for such treatment. The Magistrate again held that the defendant was responsible for massage therapy related to the neck, head, and shoulders. On appeal, the Commission held that the Magistrate was required to make a more specific determination as to what therapy was chargeable to the defendant, in light of the fact that the plaintiff was undergoing massage and physical therapy for both the work-related neck, head, and shoulder areas, as well as the non-work back, legs, and glutes. The Commission then engaged in its own fact finding, and found that since the plaintiff testified that 40% of each treatment was directed at the anatomical areas deemed compensable, the defendant was obligated to reimburse plaintiff 40% of the total costs of the therapy.

Refusal of

Zaclli v. Best Textile Services, 2011 ACO #17. The plaintiff in this case claimed a work-related left thumb injury and corresponding disability. She underwent two procedures to partially amputate the thumb. Her surgeon recommended a third surgery, which he felt would minimize the chance of recurrent pain and maximize the potential to avoid permanent disability. The plaintiff did not undergo this surgery, which defendant argued was an unreasonable refusal of medical treatment that barred the payment of benefits. In handling this issue, the Commission first established that the burden is on the defendant to show that a refusal is unreasonable. In doing so, a defendant must prove two things: 1) that the procedure carries no danger to life, health, or of extraordinary suffering; and 2) that the operation offers a reasonable prospect of restoration or relief. In this specific case, there was testimony from IME doctors that the surgery would not be beneficial, so the defendant could not meet its burden of showing that plaintiff’s refusal was unreasonable.

REMAND PROCEDURES

Seger v. Petco Supplies, Inc., 2011 ACO #111. At the initial trial in this matter, the Magistrate found that the plaintiff’s alleged carpel tunnel syndrome was not related to his employment with the defendant, but found that the crush injuries to the plaintiff’s fingers were work-related. The Magistrate also found that the defendant refuted plaintiff’s claim of disability by presenting at least six jobs reasonably available to the plaintiff within her qualifications and training that she was physically able to perform. By not pursuing these jobs, the Magistrate found that the plaintiff removed herself from the workforce. On appeal, the Commission remanded for further analysis regarding disability pursuant to Stokes, which was not decided at the time of the Magistrate’s original decision. On remand, the case was assigned to a different Magistrate, who re-opened proofs and found that the plaintiff was disabled under Stokes. In doing so, the Magistrate on remand made her own findings that the six jobs identified by the previous Magistrate were not actually within the plaintiff’s physical capabilities. The defendant challenged this disability determination as an improper reversal of the previous Magistrate’s finding. The Commission agreed, stating that it had previously provided a majority opinion after the first Magistrate’s opinion that affirmed that Magistrate’s fact finding, but merely remanded for disability analysis using those findings. The subsequent Magistrate, therefore, only had authority to make additional findings consistent with the already found facts, and lacked authority to alter previously affirmed factual findings.

RETALIATORY DISCHARGE

Graham v. Access Business Group, LLC, 25 MIWCLR 117 (U.S. District Court, August 25, 2011). The plaintiff here was terminated from her employment in April 2010 for showing a pornographic video to a co-employee. Following the termination, she filed a lawsuit that alleged, among other things, that she was terminated for filing a workers’ compensation claim in 2007. The District Court dismissed plaintiff’s claim after it found that she could not establish a rebuttable presumption of retaliation. To do so, an employee must show that: 1) he/she invoked workers’ compensation rights; 2) he/she suffered adverse employment action; and 3) there is a connection between the invocation of rights and the adverse action. Most notably, the plaintiff did not establish that she filed a workers’ compensation claim in 2007, or that the parties who terminated her were aware that she engaged in any activity under the WDCA. At most, she could only establish that she made her employer orally aware that she hurt herself at work. Based on these facts, the retaliation claim was found to be faulty, because without showing that the employer knew that she invoked her workers’ compensation rights, the plaintiff could not show that the employer reacted adversely as a result. Without such knowledge, the plaintiff does not meet her burden of showing retaliation.

Vise v. Graphic Packaging, 25 MIWCLR 77 (U.S. District Court, June 20, 2011). The plaintiff filed an Application for workers’ compensation benefits on November 20, 2009, that alleged that she injured her right knee at work as of July 31, 2009. She continued working and did not inform her employer of the Application. The employer received notice of the Application on January 29, 2010. That same day, it suspended the plaintiff for multiple disciplinary violations, including attendance issues, failure to report her injury in a timely manner, and falsifying records (the plaintiff previously applied for STD benefits and claimed the injury happened at home). She was terminated the following week. As a result, the plaintiff claimed that she was discharged in retaliation for filing a workers’ compensation claim. Plaintiff’s claim was dismissed. According to the court, the plaintiff met her burden of establishing a rebuttable presumption of retaliation, but the employer was able to rebut this presumption by showing that the plaintiff’s successive rules violations were a legitimate, nondiscriminatory reason for the termination. Finally, the plaintiff was unable to show that the legitimate reason presented by the employer was simply a pretext to hide unlawful retaliation. Specifically, the court noted that temporal proximity between the receipt of her Application and termination was not sufficient to establish pretext, because it was the receipt of the Application itself that alerted the employer to the rules violations that resulted in her termination.

Wansitler v. Hurley Medical Center, 25 MIWCLR 116 (U.S. District Court, August 11, 2011). The plaintiff in this case began working as a public safety officer for the defendant in August 2002. In June 2008, he injured his knee during an altercation with a patient at work. The plaintiff eventually returned to restricted employment, and claimed that he received hostile treatment from his supervisors related to his submission of a workers’ compensation Application. Ultimately, the plaintiff was terminated in January 2009 for five absences, and for recording conversations at work in violation of company policy. The defendant moved to dismiss the plaintiff’s claim on summary judgment. The court denied this motion. In doing go, the court stated that although the defendant’s point to the absences and recorded conversations as nondiscriminatory reasons for termination, there is evidence to suggest that such reasons were merely a pretext for retaliation. Specifically, of the five absences, the plaintiff was given paid time off for two days, and was not scheduled to work the other two. The one remaining absence was insufficient to warrant termination. In addition, testimony established that the plaintiff did not actually record any conversations, and, assuming he had, termination for such an offense was unheard of.

SANCTIONS

Diamond v. Premier Manufacturing Support Services, Inc., (WCAC Order, December 22, 2011). This matter involved an unrepresented plaintiff who filed, over the course of several years, eight separate Applications alleging the same injuries and issues. Three trials were held over that period of time, and plaintiff’s claims were twice barred under the theory that they had already been litigated. Therefore, the defendant asked the Commission to sanction the plaintiff under the provision of the Act that gives the Commission discretionary authority to take disciplinary action where it finds that a claim or proceeding was brought vexatiously or without merit. Here, the Commission found that the plaintiff’s pattern of re-litigation exceeded anything that could be considered a reasonable belief that a meritorious claim still existed. As such, the Commission ordered the plaintiff to pay a $1,000 sanction, and precluded him from proceeding any further as a plaintiff until the money was paid.

WAGE LOSS

Refusal

Brackenrich v. Sun Chemical Corp., 2011 ACO #106. The plaintiff here alleged disabling headaches that precluded her from working. The defendant, however, offered the plaintiff several favored work positions, which the plaintiff did not accept. The defendant asked the Magistrate to suspend wage loss benefits as of November 2008, which represented the first return to work refusal, on the grounds that any wage loss after that point was due to a voluntary removal from work. The Magistrate suspended benefits in conformity with the defendant’s request, and the plaintiff appealed. On appeal, the Commission found that the Magistrate did not properly determine whether the job offer was a bona fide offer of reasonable employment, and, if so, whether the plaintiff’s refusal was reasonable. The Commission remanded for this analysis, and specifically noted that findings in favor of defendant on this issue should operate to reduce the plaintiff’s ongoing wage loss by the amount of foregone wages offered in the return to work.

Retirement

Harris v. General Motors Corp., 24 MIWCLR 172 (Court of Appeals, December 2, 2010). In Harris, the plaintiff was a long-standing assembly line worker who signed a special attrition plan in June 2006, which stated that she would retire no later than January 1, 2007. She then suffered a back and left side injury at work on July 25, 2006, and never returned to work. The defendant argued that the plaintiff’s wage loss was not related to the work injury because she agreed to retire before the injury. The Magistrate and Commission rejected the argument, finding that the retirement agreement was specific to that employer, and did not preclude the plaintiff from returning to work elsewhere, if not for the work injury. The Court of Appeals reversed, and found that the plaintiff’s wage loss was not connected to her work injury. Instead, it found that the plaintiff would have suffered a wage loss after the date of retirement, even absent an injury. It is the plaintiff’s burden to establish work-related wage loss. Therefore, to refute her retirement and validate the Magistrate’s and Commission’s reasoning, the plaintiff was required to present evidence that she intended to re-enter the workforce elsewhere after her retirement. Because she did not do so, she did not establish that her wage loss was due to her injury, instead of her retirement.

Stiven v. General Motors Corp., 24 MIWCLR 174 (Court of Appeals, December 16, 2010). Just several weeks after Harris, the Court of Appeals decided a similar case where a General Motors employee signed a special attrition plan in July 2006 that announced her plan to retire in January 2007, and then suffered a work injury in November 2006. Again, the Magistrate and Commission granted the plaintiff an open award of benefits and rejected the defendant’s argument that the wage loss was not causally connected to the work injury. And again, the Court of Appeals reversed and remanded for further proceedings to inquire as to whether the plaintiff intended to permanently retire from active employment, or retire from GM only. If the former, the plaintiff would not be entitled to wage loss benefits, because such wage loss would be attributable to the retirement, not injury. If the latter, the plaintiff may establish wage loss by showing that the work injury prevents her from obtaining future employment.

Williamson v. General Motors,. LLC, 2011 ACO #38. Like the above cases, this case involved a General Motors employee who signed a special attrition plan in September 2006 agreeing to retire in January 2007, and then suffered a work injury in October 2006. At trial, the defendant raised the issue that the plaintiff’s wage loss after January 2007 was not attributable to the work injury, but instead to the planned retirement. The Magistrate concluded that the special attrition agreement did not bar a workers’ compensation claim, and thus granted the plaintiff an open award of benefits. The Commission concluded that the matter needed to be remanded to the Magistrate for further analysis as to whether the plaintiff’s wage loss is attributable to his work injury, with the focus on the plaintiff’s intent in retirement.

Seasonal

Coleman v. Michigan Paving & Materials Co., 24 MIWCLR 173 (Court of Appeals, December 14, 2010). In this case, the plaintiff was a seasonal road construction employee who suffered a back injury at work in July 2010. He returned to employment but was unable to perform all duties due to his injury. He was then terminated for economic reasons in November 2010. The Magistrate granted the plaintiff an open award of benefits, and the Commission affirmed. The Court of Appeals, however, agreed with the defendant that the plaintiff was not entitled to year-round benefits because any wage loss in the seasonal layoff months was not due to the work injury, but instead to the seasonal nature of the plaintiff’s work. Regardless of the injury, the plaintiff would not have worked for the defendant during the months when defendant doesn’t perform road construction, and the plaintiff did not present evidence that he would have worked elsewhere during that time.