Case Law Update

BCPWQ Seminar

2025

CAUSATION

Significant Manner

Adilovic v Monroe LLC (2024 ACO #8)

WDCAC – Appeal from Magistrate Timmons

Plaintiff lifted 15-20 empty totes, which he stated weighed 15-20 pounds total and experienced left lower back pain that ran down his left leg to his toes. Plaintiff treated and was ultimately released to light duty work, but he became dissatisfied with the doctor and allegedly told Defendant’s HR coordinator “people should not mess with me, as I am a dangerous man.”

After Plaintiff told other employees he was being unfairly treated, and he threatened to quit if he was not given a supervisory position he applied for, Plaintiff was discharged.

Ultimately, Magistrate Timmons denied Plaintiff’s claim in its entirety by finding the medical expert testimony did not demonstrate an aggravation of plaintiff’s pre-existing degenerative condition in a significant manner.

On appeal, Plaintiff argued (1) he sustained a trauma separate and distinct from his pre-existing degenerative disc disease, which would not be subject to the “significant manner” standard; (2) if the “significant manner” standard applied, the magistrate erred in his application of the test from Martin v City of Pontiac School District, and (3) he was not terminated for just cause or through fault of his own.

Responding to Plaintiff’s first argument, the WDCAC reversed and remanded the matter to the Board of Magistrates for findings as to whether Plaintiff established medically distinguishable pathology, and if so, the nature of that pathology. The WDCAC noted trying to argue that a new specific traumatic work injury was superimposed on a pre-existing degenerative condition tried to incorrectly avoid the significant matter test, which covered conditions of the aging process. However, Magistrate Timmons should have first made legally sufficient findings regarding whether the plaintiff suffered an injury that resulted in medically distinguishable pathology before applying the significant manner test.

Responding to Plaintiff’s second argument, the WDCAC found substantial, material, and competent evidence existed in the record from two doctors’ testimony, which supported plaintiff’s L5 radiculopathy arose from his degenerative arthritis. However, Magistrate Timmons applied the now-discredited test from Martin v City of Pontiac School District, which did not apply the significant manner analysis based upon the totality of the circumstances. Consequently, the WDCAC clarified compensation is permissible if employment contributes to, aggravates, or accelerates an injury in a significant manner, not the most significant manner. On this issue, the WDCAC remanded the matter to the Board of Magistrates to further weigh the evidence.

Responding to Plaintiff’s third argument, the WDCAC noted if a magistrate finds a plaintiff sustained a compensable personal injury, the analysis must move to the impact of any job terminations thereafter. Magistrate Timmons found plaintiff was an “at will” employee who was discharged for insubordination. The WDCAC held this finding was inadequate, as the Act does not reference at-will employment.

Instead, there must first be a finding that plaintiff was engaged in reasonable employment when terminated. Reasonable employment is work within the employee’s capacity to perform that poses no clear and proximate threat to the employee’s health and safety and is within a reasonable distance from the employee’s residence. The employee’s capacity to perform shall not be limited to jobs in work suitable to his or her qualifications and training. Afterward, the circumstances of the termination should be evaluated to ascertain whether an employee loses their job through no fault of their own. If yes, and the employee is still disabled, the employee can receive compensation under the Act.

Since Magistrate Timmons did not conduct the above analysis, the issue was remanded for further analysis. In total, the WDCAC remanded the case for further analysis in all three of plaintiff’s arguments, as well as for analysis regarding whether plaintiff was totally or partially disabled, had a post-injury wage earning capacity, sought work that was reasonably available to him, and made a good faith job.

Takeaway: The significant manner test requires that any alleged occupational factors must be considered together with the totality of claimant’s health circumstances to analyze whether the claimed injury was significantly caused by work-related events.

DISABILITY

Full versus Partial

Browder v Endeavor Airlines (2024 ACO #3)

WDCAC – Appeal from Magistrate Colombo

Plaintiff was granted an open award of benefits. Defendants appealed on multiple grounds, including whether Plaintiff sustained a personal injury and whether she was disabled as a result of same. Plaintiff filed a cross-appeal challenging the average weekly wage utilized by the magistrate.

At trial, Plaintiff testified that she was a flight attendant and that she was attempting to help a passenger fit his bag in the overhead bin when it became stuck. She pulled on the bag, which caused it to come loose and fall on her. Thereafter, she went to a clinic and was diagnosed with shoulder and thoracic strain.

Plaintiff was referred to an orthopedic surgeon and later a pain medicine specialist. The pain medicine specialist was deposed; he stated he would defer to the orthopedist, who was not deposed, regarding causation and restrictions. He further stated that he essentially just treated Plaintiff’s symptoms, but he did not believe she could return to her prior job in an unrestricted fashion.

Defendants obtained an IME. The IME physician was deposed and testified that Plaintiff had chronic left shoulder pain with rotator cuff strain and AC joint arthritis. He further testified that the work injury caused rotator cuff strain, which was a medically distinguishable condition; however he noted that some of her ongoing limitations were due to nonwork-related AC joint arthritis.

Both parties obtained vocational evaluations. Plaintiff’s vocational expert testified that Plaintiff retained an ability to perform entry level unskilled or semi-skilled work which would earn $8.50 to $10.00 per hour. Defendant’s vocational expert found multiple positions that earned Plaintiff’s maximum wages, however it was noted that the geographic search area was expanded from 30 miles to 50 miles from Plaintiff’s home due to the remote location. Plaintiff also put forth evidence that at the time of injury she had a second job at Home Depot, which she continued to work for two months after injury.

Personal Injury

In her opinion, the magistrate wrote, “I find plaintiff has established, by a preponderance of the evidence, that she sustained a work-related injury to her left upper extremity and left shoulder on November 20, 2013 when she forcibly removed a suitcase caught in the overhead bin.”

The Commission found that although the testimony of the pain medicine specialist was insufficient to support the magistrate’s findings, the testimony of the IME physician did support the finding of a medically distinguishable change in pathology. Moreover, the Commission rejected Defendant’s argument that the magistrate erred in finding injury to Plaintiff’s entire left upper extremity and shoulder, despite testimony that only discussed injury to the left shoulder; Plaintiff’s shoulder problems also limit her ability to use her left arm and therefore the error was not material.

Disability

With respect to wage loss, the magistrate wrote, “In testimony pertaining to her employment history, plaintiff testified that her job with defendant was the highest paying job considering all her previous jobs. She was earning over $30.00 an hour at defendant; efforts to find employment within her restrictions were unsuccessful, and wages were far below her wages at defendant. Plaintiff has established total disability . . . job searched did not reveal any reasonable employment options available to avoid a decline in plaintiff’s wages.”

The magistrate also found Defendant’s vocational expert testimony to be inadequate, vague, and unpersuasive; accordingly the Commission only considered testimony from Plaintiff and Plaintiff’s vocational expert. Based on this, the Commission upheld the magistrate’s initial finding of disability. However, the magistrate failed to perform a complete analysis in order to support the finding of total disability. No analysis was provided by the magistrate regarding whether lesser-paying jobs were reasonably available to Plaintiff. As such, the Commission remanded the matter so the remainder of the disability analysis could be performed.

Average Weekly Wage

Plaintiff argued that the magistrate erred by disregarding her earnings from a second job at Home Depot. The Commission agreed. MCL 418.371(2) states that a claimant’s average weekly wage includes wages earned from all employment. Since Plaintiff was working at Home Depot at the time of injury, those earnings must be included.

It is Defendant’s obligation to add the Dual Employment Fund as a party if they wish to seek reimbursement. Accordingly, the Commission held that Defendants could not reduce Plaintiff’s benefits, nor could they seek reimbursement for increased wage loss benefits from the Fund because the Fund was not added as a party prior to trial. The matter was remanded for further findings regarding average weekly wage.

Takeaway: (1) A testifying doctor’s deference to another undeposed doctor’s conclusions cannot support a finding of medically distinguishable pathology by a Magistrate; both would need to be deposed. (2) When determining whether a Plaintiff is fully or partially disabled, a Magistrate must consider whether lesser-paying jobs were reasonably available to Plaintiff. (3) A Plaintiff’s average weekly wage includes wages from all employment, but a Defendant must add the Dual Employment Fund as a party if they want to seek reimbursement.

Dunn v. General Motors Co. (e-Journal #81682)

Court of Appeals – Appeal from WDCAC

Plaintiff worked in the finance and auditing department beginning in 1976. In 2003 she began to have pain, numbness, and tingling in her hands. In June 2005 she was recorded as having carpal tunnel syndrome due to her work; her last day of work was in November 2005. Thereafter, Plaintiff received workers’ compensation benefits of $689 weekly and certain benefits under Defendant’s pension program.

In 2014 Defendants obtained an IME which opined Plaintiff’s work activities did not cause or exacerbate her carpal tunnel syndrome, and that she could return to work if she limited repetitive gripping and use of vibratory tools. Thereafter, Defendants obtained a vocational assessment that identified several jobs that Plaintiff was qualified to hold and physically able to perform. Accordingly, weekly benefits were reduced to $262.20 weekly. Defendants also sent Plaintiff a letter indicating that they were seeking to recoup an overpayment of over $100,000, which represented weekly wage loss and pension benefits.

Plaintiff then filed an Application for Mediation or Hearing. At trial, Defendant’s medical and vocational reporting was submitted as evidence. Plaintiff’s treating physician testified that the carpal tunnel syndrome was caused or worsened by her employment. He further stated she could return to work with limits on repetitive gripping, grasping, and use of tools that vibrate.

Plaintiff introduced part of Defendant’s pension program information as an exhibit which read in pertinent part:

An employee who has 10 or more years of eligibility service may be retired prior to age 65 for total and permanent disability. An employee shall be deemed to be totally and permanently disabled only if such employee makes application for total and permanent disability retirement on a form approved by General Motors and (i) the employee is not engaged in employment or occupation for remuneration or profit, and (ii) on the basis of medical evidence satisfactory to General Motors the employee is found to be wholly and permanently prevented from engaging in regular employment or occupation for remuneration or profit as a result of bodily injury or disease, either occupational or non-occupational in cause . . .

Based on this, Plaintiff argued that Defendant’s conceded she was totally and permanently disabled, thus the admission was dispositive for the purposes of workers’ compensation benefits.

The magistrate found that Plaintiff suffered from bilateral carpal tunnel syndrome which was caused or worsened by her employment. The magistrate also found that Plaintiff was partially disabled, as she retained a post-injury wage earning capacity. He disagreed with Plaintiff’s contention that the pension language was dispositive, as it was only one piece of evidence that could be rebutted.

Plaintiff appealed to the WDCAC, who affirmed the magistrate’s findings. Plaintiff then appealed to the court of appeals. The court held that the pension language was not dispositive of whether Plaintiff was disabled within the meaning of the Workers’ Disability Compensation Act, this is because “whether an employee is disabled, either partially or totally, for purposes of the WDCA, is determined by whether the claimant demonstrates disability by presenting evidence relevant to his or her medical condition and the relevant vocational opportunities available, not by whether the employer declares the claimant to be disabled or not disabled.”

Takeaway: Whether a Plaintiff is disabled, partially or totally, within the meaning of the Workers’ Disability Compensation Act is evaluated via the vocational opportunities available to them and evidence of their medical condition. Employment documents with definitions of disability do not supersede the Act itself.

BENEFITS

Reasonable and Necessary Medical Expenses

Lau v New World Building Corporation (2024 ACO #6)

WDCAC – Appeal from Magistrate Grunewald

Plaintiff sustained cognitive and physical impairments from a work injury, and Defendants were ordered to pay medical expenses related to the injury that were “reasonable and necessary.”

Plaintiff’s doctor later prescribed him a NuStep exercise machine, and plaintiff sought $4,074.64 of reimbursement from the defendants. When Defendants refused to reimburse plaintiff, he requested a Rule 5 hearing before the Workers’ Compensation Director to ascertain the Defendants’ compliance with paying all “reasonable and necessary” medical expenses.

The Director then convened virtual conferences where no record was made, various documents and briefs were received from the parties, and no formal testimony was presented. Thereafter, Defendants were ordered to pay for the NuStep machine, and defendants appealed.

Magistrate Grunewald reversed the Director’s order because the Director was without jurisdiction to make such a finding. There was no way for the court to determine what was discussed during the hearing, what might have been agreed to by the parties, or what additional medical records might have been sought to determine the reasonableness and necessity of the NuStep machine.

The WDCAC ultimately held defendants could permissibly challenge a single expense as not being “reasonable and necessary,” but the authority to resolve such factual disputes existed with the magistrate and not with the Director. Magistrate Grunewald’s order reversing the Director’s order for lack of jurisdiction was therefore affirmed.

Takeaway: Defendants can challenge whether a medical expense is reasonable and necessary. However, a magistrate holds the authority to ultimately decide such factual disputes.

Daniels v Flat Rock Community Schools (2024 ACO #7)

WDCAC – Appeal from Magistrate Grunewald

Defendants were ordered to pay all of plaintiff’s reasonable and necessary medical expenses after Plaintiff was run over by a school bus, causing an above-the-knee amputation of her bilateral lower extremities. At issue became the reasonableness and necessity of Plaintiff’s proposed home modifications, and both parties submitted a home modification plan.

Magistrate Grunewald ultimately agreed home modifications were necessary to make Plaintiff more independent and less dependent on attendant care services. However, Magistrate Grunewald found Defendants’ modification proposal to be the most reasonable plan because Plaintiff’s proposal for modifications cost three times the value of the home itself, included unreasonable items like a garage, and included items with uncertain prices. In total, Defendants’ proposal cost 75% less than Plaintiff’s proposal, but Magistrate Grunewald did not actually order Defendants to perform said modifications.

Magistrates must file a concise written opinion stating their reasoning for any order, which includes any findings of fact and conclusions of law. On appeal, findings of fact made by a magistrate are conclusive upon the WDCAC if supported by competent, material, and substantial evidence on the whole record.

Here, Magistrate Grunewald’s written opinion referenced no case law and only contained 3 paragraphs of factual analysis. That analysis did not reference Plaintiff’s testimony, nor the introduced reports or testimony of several experts regarding the reasonableness and necessity of the competing home modification proposals, including builders, physicians, and occupational therapists.

Given the above, the WDCAC first held there was no means of reviewing Magistrate Grunewald’s factual findings to determine whether they were supported by competent, material, and substantial evidence.

Second, the WDCAC held Magistrate Grunewald used the wrong legal standard when considering whether the home modifications were reasonable and necessary.

A determination as to whether a medical expense is reasonable and necessary must begin with the controlling statute, which dictates that a permissible medical item is one recognized by the laws of the state as legal, necessary to cure, and which relieves the injured from the effects of their injury.

Plaintiff had a right to home modifications necessary to permit her a reasonable degree of independence that would relieve her from the effects of her injury. Magistrate Grunewald focused on the cost of the modifications compared to the size and value of Plaintiff’s home. Plaintiff had no less of a right to the independence she enjoyed prior to her workplace injury than would someone who owned a larger or more expensive home before being injured. While the cost of the modifications may be considered in determining what is reasonable, the statute does not permit the analysis to focus on the value or size of the home being modified.

Consequently, the case was remanded to the Board of Magistrates for further consideration regarding the above issues.

Takeaway: Reasonable and necessary medical expenses can encompass a wide variety of items, including home modifications. It is permissible to argue the price of home modifications is unreasonable, but it is invalid to argue such an expense is unreasonable only because the modification costs more than the home itself. Such would disadvantage injured plaintiffs with small/modest homes.

Vocational Rehabilitation

Wood v Magnesium Products of America (2024 ACO #10)

WDCAC – Appeal from Magistrate Della Santina

On August 19, 2001, a heavy piece of machinery fell on Plaintiff, amputating his left leg above the knee and breaking his left arm. Afterward, plaintiff ambulated with crutches and a manual wheelchair, but did not use a prosthesis due to pain.

Two to three months after his injury, Plaintiff returned to work for defendant in an office role, but loud noises were causing him to experience anxiety, so defendant transferred him to its maintenance department where he did bench work, rebuilt hydraulic cylinders, and used hand tools. Plaintiff eventually stopped this work after he reported exhaustion, that he could not tolerate sitting on his stump for long periods of time, and he was feeling phantom pains. Plaintiff did not find other employment.

Thereafter, Defendant hired vocational counselors who encouraged plaintiff to earn his GED, but he never passed the fifth test. Plaintiff sought no further tutoring help, never retook the test, and never obtained a GED. Afterward, workers’ compensation benefits were stopped because of Plaintiff’s failure to cooperate with vocational rehabilitation.

Magistrate Della Santina issued plaintiff an open award, and Defendant was liable for all treatment for Plaintiff’s left leg, left arm, shoulders, depression, and psychological conditions. In his ruling, Magistrate Della Santina found Plaintiff suffered a “significant traumatic injury” at work, medical care and treatment for depression and panic attacks were the result of the work injuries, Plaintiff’s failure to fully participate in vocational rehabilitation activities was the result of his mental issues, and Plaintiff’s limited education and physical and mental conditions rendered him unable to make an appropriate effort for an acceptable job search.

On appeal, Defendant first argued that Magistrate Della Santina erred when he rejected their argument that they were not liable for wage loss benefits because Plaintiff unreasonably refused to cooperate with attempts at vocational rehabilitation (obtaining a GED).

Ultimately, the Director has authority to initially address vocational rehabilitation issues. If vocational rehabilitation services are not voluntarily offered, the Director may refer an employee to an agency-approved facility for a vocational evaluation. After, the Director may order any of the evaluation’s recommended training, services, or treatment, at the expense of the employer. If there is an unjustifiable refusal to accept rehabilitation, the Director can order a reduction in the plaintiff’s weekly compensation. Magistrates do not have the authority to initially decide these vocational rehabilitation issues.

Given the above, the WDCAC held if Defendant wished to assert Plaintiff’s purported non-cooperation with vocational rehabilitation as a defense, it was its burden to petition the Director. Magistrate Della Santina’s findings and order concerning the issue of whether Plaintiff failed to cooperate with vocational rehabilitation efforts were thereby reversed due to a lack of jurisdiction.

Second, Defendant argued on appeal that Magistrate Della Santina erred in finding Plaintiff suffered from mental conditions, which prevented him from conducting a good faith job search, without opinion evidence from a mental health professional.

The WDCAC found the record supported work-related physical findings that provided reasonable support for concluding Plaintiff’s physical limitations made him unable to make an appropriate job search. Specifically, there were vocational expert reports that Plaintiff first needed to manage his pain without cognition-interfering medication, and being wheelchair bound created issues in navigating job sites. Further, there was material, competent, and substantial evidence that being on crutches resulted in degenerative overuse syndrome of Plaintiff’s bilateral shoulders.

The WDCAC finally found competent, material, and substantial evidence in the record that Plaintiff’s depression and anxiety likewise prevented his participation in job search efforts when considering the traumatic nature of plaintiff’s work injury, and the years of observations by Dr. Andary who was experienced in treating amputees. While Defendant put forward conflicting testimony regarding Plaintiff’s mental status, Magistrate Della Santina’s assessment that Dr. Andary was more credible was not unreasonable, and the WDCAC was compelled to defer to that choice.

In sum, the WDCAC ultimately affirmed Magistrate Della Santina’s order, except for the portion concerning vocational rehabilitation issues raised by defendant as a defense due to jurisdictional authority issues.

Takeaway: Plaintiffs seeking to establish that they are entitled to vocational rehabilitation services, or Defendants seeking to leverage a plaintiff’s non-cooperation with vocational rehabilitation as a defense, must petition the Director (instead of a magistrate) to decide such an issue.

Old Age Wage Benefit Reduction

Grohman v Grohman Electric Company (2024 ACO #2)

WDCAC – Appeal from Magistrate Ognisanti

Plaintiff was awarded total and permanent disability benefits due to the loss of industrial use of his legs. Pursuant to that Order, Defendants paid benefits at a rate of $789 for multiple years, until Plaintiff turned 65. Following that, Defendants began reducing Plaintiff’s weekly benefits by 5% pursuant to Section 357(1) of the WDCA. Plaintiff argued that the reduction in rate was improper.

The Appellate Commission opined that Defendants were entitled to apply Section 357 in order to reduce Plaintiff’s rate once he turned 65. Section 357(1) states as follows:

When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following his or her sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his or her seventy-fifth birthday the weekly payments shall have been reduced by 50%; after which there shall not be a further reduction for the duration of the employee’s life. Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act.

Based on the plain and unambiguous language, the Appellate Commission opined that Defendants were entitled to apply Section 357 in order to reduce Plaintiff’s rate once he turned 65.

Takeaway: A Defendant may reduce a Plaintiff’s weekly benefits by 5% once they turn 65 years old, until the benefits have been reduced to 50%. Sustaining a total and permanent disability, as opposed to a temporary one, does not change that process.

REASONABLE EMPLOYMENT

Hages v Sandvik, Inc. (2024 ACO #4)

WDCAC – Appeal from Magistrate Ognisanti

Plaintiff alleged bilateral carpal tunnel injuries from repetitive use at work, as well as chronic left hand pain, anxiety/depression, and difficulty sleeping. At trial Plaintiff testified that he had been employed by Defendants for over 18 years and at the time of injury was a maintenance supervisor. He reported that on the date of injury he was using a putty knife to chip calcium deposits off a machine for seven straight hours, after which he noticed his left hand was enormously swollen.

He sought treatment the following day and was given light duty restrictions before ultimately being removed from work. He was diagnosed with carpal tunnel syndrome and underwent surgery a few months after injury. He was then diagnosed with CRPS, which led to desensitization treatment. Plaintiff did not improve. He began treating with a psychologist who diagnosed depression, in combination with a lifetime history of subclinical anxiety.

A Defense IME was performed. The doctor diagnosed CRPS of the left hand, which developed after carpal tunnel release for work-related carpal tunnel syndrome. Restrictions precluding any use of Plaintiff’s left arm and significantly limited use of the right arm were endorsed.

After this, Plaintiff was offered part-time work by Defendants as a security guard. Plaintiff discussed the position with his psychologist; Plaintiff stated he had increased levels of insomnia, headaches, and pain which he attributed to his anticipation of returning to work. Based on this, the psychologist opined Plaintiff could not safely perform the job. Plaintiff did report to the position two nights, however he did not stay for his shift due to experiencing panic attacks.

At trial, the magistrate found that Plaintiff’s carpal tunnel syndrome, CRPS and mental/emotional conditions were caused by his employment activities. The magistrate further found that Plaintiff was disabled, but wage loss was not owed after the date that Defendant’s offered Plaintiff a job. Finally, Defendants were liable for medical treatment related to the alleged injury, except for treatment rendered by a limited license psychologist because it was not reasonable.

Mental Injury

Defendants appealed the finding that the mental/emotional conditions were related, contending that the occupational injury did not contribute to the mental condition in a significant manner. The Appellate Commission disagreed. Utilizing the Cramer test, the standard is that a Plaintiff must demonstrate the condition was “significantly caused of aggravated by employment considering the totality of all occupational factors and health circumstances and nonoccupational factors.” In coming to his conclusion regarding mental disability, the magistrate relied upon testimony from Defendant’s psychologist that there was no documented pre-injury history of somatic symptoms or panic disorder.

Full vs Partial Disability

Defendants also argued that the magistrate erred by not performing a complete disability analysis, as full wage loss benefits were awarded. The Appellate Commission agreed that the magistrate’s opinion was incomplete. Plaintiff had made an initial showing of disability, but further findings were not made regarding his wage earning capacity prior to the employment offer by Defendants. Testimony was offered by Plaintiff and Defendants regarding vocational ability, but it was not analyzed by the magistrate to determine if Plaintiff was fully or partially disabled. This issue was remanded for further findings.

Reasonable Employment / Refusal of Work

Plaintiff appealed the magistrate’s finding that he refused a bona fide offer of reasonable employment without good and reasonable cause, which ended his eligibility for wage loss benefits. The Act defines “reasonable employment” as “work that is within the employee’s capacity to perform that poses no clear and proximate threat to that employee’s health and safety, and that is within a reasonable distance from that employee’s residence. The employee’s capacity to perform shall not be limited to jobs in work suitable to his or her qualifications and training.” The Appellate Commission held that the analysis requires a determination of whether Plaintiff (1) received a bona fide offer, (2) of reasonable employment, and if so (3) whether Plaintiff refused that offer without good and reasonable cause, (4) such that his benefits must be suspended during the period of refusal.

Bona Fide Offer

“Bona fide” is defined as “made in good faith; without fraud or deceit; sincere, genuine.” Plaintiff argued that Defendant’s job offer of a security guard position was not bona fide because it was not sufficiently specific in describing the duties that Plaintiff was to perform. The Commission disagreed, as the letter identified the specific job (security guard), specific rate of pay, as well as specific time and location. Plaintiff also argued that the offer was not bona fide because it was a manufactured job at an inflated wage, designed only to eliminate his entitlement to wage loss benefits. However, no factual or legal support was provided to support this claim. Finally, Plaintiff claimed that the offer was not bona fide because it was four-hour shifts that began late at night and ended in the early morning. He contended that the hours were suspect, as he had never previously worked such hours and in fact had refused to work night-time hours before. The Commission held that the hours were not unreasonable because they allowed Plaintiff to work at a time that less was demanded of security guards because fewer workers were on site. Ultimately, the offer of employment made was bona fide.

Reasonable Employment

Whether the position offered was “reasonable employment” depends first upon whether the position is “work that is within the employee’s capacity to perform.” MCL 418.301(11). The magistrate found that the job was “reasonable employment” because it was within the restrictions outlined by providers, and there was insufficient evidence that the job posed any clear and proximate threat to Plaintiff’s health and safety; Plaintiff’s fears for his safety were based on unfounded perceptions.

The Commission held that the analysis was flawed. First, it ignored Plaintiff’s mental/emotional condition, which the magistrate found to be work-related. Testimony from Plaintiff confirmed that he attempted to perform the security guard position, but had significant reactions including severe panic attacks on both nights he reported for the job. The Commission remanded for further findings as to whether Plaintiff offered sufficient, credible evidence that his pain, fears, and anxiety were so severe that he was incapable of performing the offered job.

Refusal of Offer – Good / Reasonable Cause

Plaintiff argued that he had “good and reasonable cause” to leave the offered position. The Commission remanded the issue for further findings, in conjunction with the determination of reasonable employment. The magistrate must determine whether Plaintiff’s panic attacks represented good and reasonable cause. Further, even if the magistrate finds that the panic attacks were not the result of an employment-related condition, Plaintiff could be excused from reasonable employment if they prevent him from performing the job.

Suspension of Benefits

No time was identified for the suspension of benefits by the magistrate. Plaintiff argued that the order must be clarified to determine what period, if any, he refused reasonable employment. Accordingly, it must be determined what the relevant time period is. The Commission noted that a complete stoppage of benefits is only appropriate when there is recovery from a work-related disability.

Takeaway: A plaintiff’s wage loss benefits may be suspended if the Plaintiff (1) received a bona fide offer, (2) of reasonable employment, and (3) the Plaintiff refused that offer without good and reasonable cause, (4) such that his benefits must be suspended during the period of refusal. However, refusing reasonable employment only leads to the benefits being suspended for the period of refusal, not completely stopped.

Wagonschutz v General Motors, LLC (2024 ACO #9)

WDCAC – Appeal from Magistrate Housefield

In January of 2016, Plaintiff was moving a trailer at his home when he injured his back. Plaintiff later underwent an L5-S1 fusion with foraminotomy and inner body fusion with a cage on September 2, 2016, and a left L5-S1 foraminotomy and partial discectomy on May 26, 2017.

Afterward, Plaintiff ultimately returned to work without restrictions. However, on February 1, 2018, Plaintiff was coming out of his office at work when he slipped on water, fell down three or four stairs, and landed on his tailbone and back. Testing revealed loosening of the S1 screw, and a non-union at the L5-S1 level.

On May 1, 2018, Plaintiff had surgery to correct the above, but his drop foot returned, and his surgeon stated he would not get any better and would need sedentary restrictions. As a result, Plaintiff thereafter claimed he had to turn his powder-coating business over to his father.

Plaintiff was granted an open award of benefits, and defendant was ordered to pay “reasonable and necessary” medical expenses from treatment for the low back and lower extremities, as well as any psychological treatment, including medications. Defendant thereafter appealed, arguing (1) the magistrate erred in awarding medical expenses for psychological conditions never alleged, and (2) the magistrate erred in not considering plaintiff’s purported post-injury work regarding causation and disability.

Regarding defendant’s first argument, the WDCAC held since Plaintiff did not amend his application to claim a psychological injury, no award could be granted on that basis. Even though a discussion took place between the parties regarding the admissibility of medical records with a psychological component, Defendant could still reasonably claim both surprise and prejudice since all depositions had already been completed and addressed only Plaintiff’s claimed back issues.

Regarding Defendant’s second causation argument, the WDCAC noted that Magistrate Housefield’s causation analysis was sparse, but the correct statutory standard was nonetheless properly applied, regardless of whether the statute was cited.

A personal injury in Michigan is compensable if work causes, contributes to, or aggravates pathology in a manner to create pathology that is medically distinguishable from any pathology that existed prior to the injury. Magistrate Housefield ultimately chose to credit the testimony of plaintiff’s surgeon, and plaintiff’s IME doctor, finding a non-union was not present before the work fall. The WDCAC held this finding was supported by competent, material, and substantial evidence and would not be disturbed on appeal.

Finally, Defendant further argued Magistrate Housefield erred in not resolving a testimonial conflict as to Plaintiff’s post-injury engagement in his powder-coating business. Plaintiff originally testified he turned the business over to his father after his work injury, but a vocational consultant reported that Plaintiff told him he was still working in the powder-coating business. Defendant contended Magistrate Housefield did not reconcile this conflicting testimony, and therefore did not consider it in his deliberations as to whether Plaintiff was “totally disabled.”

The WDCAC agreed with Defendant and remanded the case for further consideration. On remand, the magistrate was to determine whether Plaintiff may have continued working with the powder coating business after his work injury and determine whether that work demonstrated a post-injury wage earning capacity.

Takeaway: Defendants are not responsible for injuries not pled on the Plaintiff’s Application. Moreover, if there is a discrepancy of material fact in the testimony at trial, the magistrate must resolve same in their opinion.

TERMINATION / RETALITORY DISCHARGE

Yusef v. Durham Sch. Servs., Inc. (e-Journal #81330)

Court of Appeals – Appeal from Circuit Court

Plaintiff claimed that he suffered injury to his low back when he hit a bump while working as a bus driver in October 2018. He was thereafter placed on medical leave and remained off work. His doctor provided a work note that allowed him to return to work on January 8, 2019 with restrictions of no lifting. Plaintiff alleges that he was constructively discharged the following day when his supervisor told him he had to be 100% healthy, without any restrictions in order to return to work.

Plaintiff received another note that stated he could return to work in March 2019 without restrictions. However, he did not. Defendants obtained an IME in December 2019 at which time it was declared again that Plaintiff could return to work without restrictions. Despite this, Plaintiff did not return to work. He was terminated in March 2020 for job abandonment.

Plaintiff sued for retaliatory discharge. On appeal, the court rejected his argument that defendants retaliated against him for exercising his rights under the WDCA. It noted that plaintiff focused on what he believed “he was entitled to under the WDCA, rather than focusing on whether he was terminated in retaliation for making those claims.” The court rejected his argument that he would have returned to work if a light duty position was offered, as there was not evidence that he was in need of restrictions for months prior to termination. Plaintiff failed to put forth evidence that his termination was motivated by retaliation, rather than a legitimate, nondiscriminatory reason.

Takeaway: A plaintiff may be terminated if legitimate, nondiscriminatory grounds exist for the termination. As illustrated above, one of said grounds could be a prolonged refusal to return to work after being released to full-duty work. This will not give rise to a retaliatory discharge lawsuit.

Ziots v. Promedica Employment Servs., LLC (e-Jounal #81519)

Court of Appeals – Appeal from Circuit Court

Plaintiff injured her back while working as a CNA. She was sent to an offsite facility for medical care, at which time a drug test and breathalyzer were administered. Plaintiff failed the breathalyzer twice; she immediately protested the results and claimed the machine was faulty. Plaintiff’s medical treatment was paid for by Defendants. Pursuant to company policy, Plaintiff met with HR during her next shift (three days after injury). She was asked to sign a “last chance agreement” which required her to participate in an EAP; she instead advised that she was resigning.

Plaintiff argued that she had “established a prima facie case of retaliation under the WDCA, and that defendant could not have held an honest belief that the two alcohol tests administered by [the clinic] accurately indicated that she had alcohol in her system.” Plaintiff argued causation based on “the timing of her protected activity and the adverse actions defendant took against her three days later. However, as the trial court correctly noted, even though the decision to offer the last-chance agreement was close in time to plaintiff’s work-related injury, it was also temporally proximate to plaintiff’s positive alcohol test results, which was defendant’s legitimate reason for offering” her the agreement.

The court held that plaintiff failed “to show any causal connection between her seeking medical benefits for her work-related injury and defendant presenting her with the” agreement. There was no evidence suggesting that defendant’s human resources manager or human resources administrator “expressed any displeasure toward plaintiff for reporting her work-related injury, or that any potential claim by plaintiff for workers’ compensation benefits was considered as of the time she was offered the” agreement. Thus, “there was no genuine issue of material fact that plaintiff failed to demonstrate any causal link between her seeking benefits for a work-related injury and defendant offering” her the agreement.

The court found that “all the evidence indicated that defendant offered plaintiff the last-chance agreement after receiving reports that [she] had failed two alcohol tests during working hours.” Plaintiff asserted “that because she had established a prima facie case of retaliation, the burden shifted to defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action.” The court concluded that she “established no prima facie case of retaliation because she did not show a causal connection between seeking medical benefits for her workplace injury and the presentation of the last-chance agreement. However, even if such a connection had been established, the evidence supports the proposition that defendant had an honest belief regarding plaintiff’s test results from” the clinic.

Takeaway: For a retaliation claim, a plaintiff must establish a causal connection between seeking medical benefits from a workplace injury and an adverse employment action; close-in-time events is not enough alone to prove such a connection.

RES JUDICATA

WDCAC – Appeals from Director Nolish and Magistrate Smith

Plaintiff and Defendant entered into a redemption in 2003 which settled claims related to several specific injury dates and “all dates of employment” for $81,610.00. During the hearing Plaintiff, who proceeded pro se, confirmed he understood his rights and that he wished for the redemption to be entered. After the 15-day appeal period, Defendant issued payment.

Plaintiff then filed multiple Applications from 2003-2016 seeking to relitigate his injuries. Each Application was dismissed, given the finality of the 2003 redemption. Plaintiff appealed the 2016 dismissal; Defendant requested that sanctions be imposed against Plaintiff due to vexatious appeal. The Commission upheld the dismissal but declined to impose sanctions. It was noted that if Plaintiff again attempted to utilize the workers’ compensation adjudicative system to relitigate the claim, sanctions would be likely imposed.

Undeterred, Plaintiff filed another Application in 2020. Defendant filed a motion to dismiss, which was granted. Plaintiff again appealed to the Commission, who upheld the dismissal. In 2023, Plaintiff filed a request for a compliance hearing and a request for a hearing to seek review of the redemption order. The Agency Director dismissed both requests. He noted that “[t]here is no allegation made that there has not been compliance with the provisions of that [redemption] Order.” Plaintiff filed a claim for review of the Director’s order, claiming that there was noncompliance or fraud by Defendant.

During review, the Commission noted that once a redemption order is entered by a magistrate, a party may only seek review of that order from the Director within 15 days, after which the order is final. Failure to file a timely appeal forecloses a Plaintiff’s right to ever challenge the propriety of a redemption. Moreover, as a prerequisite to filing an appeal from a redemption order, a plaintiff is obligated to return the proceeds of the redemption—in the case at hand Plaintiff had made no such effort.

Finally, the Commission found that Plaintiff’s appeal was vexatious, as there was no reasonable basis for belief that there was a meritorious issue to be determined. Plaintiff’s appeal was merely an attempt to re-argue matters that had previously been definitively and repeatedly concluded in a manner with which Plaintiff did not agree. He was assessed costs in the amount of $2,500.00.

Takeaway: A plaintiff who wishes to appeal an entered redemption order must do so within 15 days and return the redemption proceeds. If no such action is taken, future attempts to relitigate the same issue may be classified as a vexatious appeal, subject to sanctions.

Torres-Hicks v O D L Incorporated (2024 ACO #11)

WDCAC – Appeal from Magistrate Slater

Plaintiff initially established ongoing disability from CRPS due to a March 27, 2003 injury to her left upper extremity and was granted an open award of benefits. Defendants later filed an application for mediation or hearing alleging that Plaintiff no longer suffered from residuals from her prior work-related injury.

Magistrate Quist found Plaintiff had recovered from her work-related CRPS as of February 7, 2008, the date of an examination by Dr. Stanley Sczecienski. Defendants were ultimately permitted to recoup wage loss benefits paid after Plaintiff’s recovery date, as well as medical expenses.

Plaintiff filed a new application for mediation or hearing on February 20, 2020, alleging CRPS to her left extremity that traveled to the right extremity with a March 3, 2003, date of injury. Plaintiff also claimed the psychological overlay of the condition had begun, and she had “brain spasms” which left her in shock for five or six days, unable to sleep, eat, or drink.

Defendant subsequently filed a motion to dismiss that was granted, arguing Plaintiff’s claim was barred by res judicata. Magistrate Slater held (1) Plaintiff’s claim was barred by res judicata, given Magistrate Quist’s previous finding that she had recovered in 2008, (2) the psychological overlay claim could have been brought during prior proceedings and was also barred, (3) Plaintiff had not proven she continued to suffer from CRPS or psychological overlay related to her 2003 work injury, and (4) that he (Magistrate Slater) lacked the authority to revisit Magistrate Quist’s prior orders.

The doctrine of res judicata provides that once final resolution has been rendered on a particular issue, neither party may file a new lawsuit over the same issue. In Michigan, res judicata bars not only the claims actually litigated, but also those which could have been litigated.

On appeal, the WDCAC held res judicata did not prevent defendant from filing a petition to stop Plaintiff’s benefits based upon a claim that her condition had changed, even though its appeal of the original award was still pending. Further, the WDCAC held Dr. Sczecienski’s IME that triggered the petition was permissible under MCL 418.385, and Plaintiff’s attorney not objecting to the IME was not legal malpractice.

Additionally, the WDCAC agreed Plaintiff’s case would be barred under res judicata. Issues regarding CRPS in Plaintiff’s bilateral upper extremities were already actually resolved, and any psychological overlay claims were intrinsically tied to the conditions Magistrate Quist found Plaintiff to have fully recovered from. Any psychological overlay claims could have, with reasonable diligence, been alleged during prior proceedings, but they were not (as evidenced by medical records prior to Magistrate Quist’s order). The same was true for Plaintiff’s attempts to relitigate defendant’s right to recoup benefits paid pursuant to the original award, as ordered by Magistrate Quist.

Even if res judicata had not barred Plaintiff’s claims, the WDCAC agreed with Magistrate Slater’s conclusion that Plaintiff had not proven she experienced either CRPS or the related psychological overlay due to medical records, the Plaintiff’s presentation during the hearing, and surveillance videos. That finding was supported by competent, material, and substantial evidence, and was therefore binding on appeal.

Takeaway: Res judicata does not bar a Defendant’s petition to stop benefits based upon the Plaintiff’s changed conditions, but it does bar a Plaintiff’s attempt to relitigate any claims that were or reasonably could have been brought in the initial proceeding.