Raybon v D.P. Fox Football Holdings, LLC, Court of Appeals No. 268634 (July 17, 2007, unpublished)
The Plaintiff alleged that he suffered from work-related plantar fasciitis, was in need of medical treatment and was disabled, for a finite period of time. He also suffered a minor MCL sprain that limited his ability to play football and required medical treatment. The Plaintiff was granted benefits for two closed periods.

The Defendant argued that was unfair to extend benefits beyond the normal arena football season. The magistrate held that the Plaintiff should not be treated any differently than other Michigan seasonal workers, be they school teachers, life guards, restaurant workers in resort towns, etc.

The magistrate, citing Branch v Flint Board of Education, 1991 ACO 140; Dube v Industrial Maintenance Services, Inc., 1999 ACO 480, advised that a seasonal worker’s entitlement to wage loss benefits extends through the period of disability.

The WCAC affirmed the magistrate’s opinion and indicated that Gasparick was controlling in that a seasonal worker, who sustains a work-related injury in season, is entitled to weekly disability benefits during off-season periods or even year-round.

The Defendants appealed to the Court of Appeals. In an unpublished opinion, the Court of Appeals held that the Plaintiff’s loss of wages must be attributable to his work-related injuries rather than to the end of the football season and that he cannot receive wage loss benefits for time in the off-season when he would not be otherwise earning wages.

Therefore, if a seasonal employee is employed elsewhere during the off-season, and the work-related injury during the in-season disables that employee from performing work in the off-season, that employee is entitled to weekly wage loss benefits. Conversely, if an employee is not typically employed during the off-season, the employee would not be entitled to weekly wage loss benefits during the off-season season.

Publication was requested by the Defendant in this case and was denied.

Supplemental Opinion of January 20, 2009
This matter was remanded to the Workers’ Compensation Appellate Commission by Order of the Michigan Court of Appeals, dated July 17, 2007.

Pursuant to the Court Order: the Court of Appeals reversed the Workers’ Compensation Appellate Commission’s Order affirming the closed awards of benefits in part and remanded the case to the Magistrate to determine what portion of the plaintiff’s lost wages and the closed awards, if any, was caused by the end of the football playing season rather than by plaintiff’s disability. The Court instructed that the Magistrate should then adjust the closed award of benefits accordingly. The Court of Appeals did not retain jurisdiction.

The Workers’ Compensation Appellate Commission remanded this case to the Magistrate for further action pursuant to the Supreme Court’s decision in Stokes, issued June 12, 2008. The parties were allowed to reopen the record to present proofs, contemplated by the Court’s decision. The Workers’ Compensation Appellate Commission retained jurisdiction.

This matter was retried and Magistrate Barnes issued her Supplemental Opinion on January 20, 2009.

Magistrate Barnes found that Mr. Raybon’s closed period awards must be modified. Instead of the closed periods lasting from July 28, 2002, through February 13, 2003, and from April 13, 2003, through August 13, 2003, the Magistrate awarded closed period benefits from July 28, 2002, through August 31, 2002, and from April 13, 2003, through June 30, 2003.

The Magistrate found that the adjusted closed period awards were required, given Mr. Raybon’s seasonal employment with no intention of engaging in employment once his contracts expired and his lack of an anticipation to earn wages once the contract terminated. She advised that if he had a history of engaging in temporary employment in between his football contracts, and he was unable to engage in that employment due to his work related injuries, she believes that Mr. Raybon would have been entitled to ongoing wage loss benefits.

The Magistrate further advised that the modified closed period awards affected only the wage loss benefits. Medical benefits were awarded pursuant to the original closed period awards issued by Magistrate Grit. The ending dates for Magistrate Grit’s closed period awards reflected the dates of the full release issued by the treating physicians. The Magistrate found that those awards were appropriate as medical benefits are intended to last the length of the injuries.

The Plaintiff has now appealed this Decision to the Workers’ Compensation Appellate Commission. We will be following up with responsive briefs.