The Michigan Court of Appeals, in an unpublished decision, Djelaj v RGIS Inventory Specialists (Case Nos. 29290, 29291, October 13, 2011), affirmed the holding of the Workers’ Compensation Appellate Commission (WCAC), affirming the magistrate, and concluding that the employee’s receipt of no-fault benefits from her personal insurance carrier tolled the time for filing a claim under the two year claim statute. The employee was injured in a motor vehicle accident, which was also found to have arisen out of the scope and course of her employment. The employee applied for and received automobile no-fault benefits, including a wage replacement benefit, from her personal insurance carrier. She did not make a claim for workers’ disability compensation benefits for more than three years after her last day of work. The two-year claim provision of the statute provides as follows: A proceeding for compensation for an injury under this act shall not be maintained unless a claim for compensation for the injury, which claim may be either oral or in writing, has been made to the employer or a written claim has been made to the bureau . . . within 2 years after the occurrence of the injury. . . If an employee claims benefits for a work injury and is thereafter compensated for the disability by worker’s compensation or benefits other than worker’s compensation . . . the period of time within which a claim shall be made for benefits under this act shall be extended by the time during which the benefits are paid . . .. MCL 418.381(1) The defendant employer and insurer argued that the employee’s claim for workers’ compensation benefits was untimely under the two year claim provision, above. Citing Colbert v Conybeare Law Office, 239 Mich App 608, 618, 609, NW2d 208 (2000), the court noted that it had specifically rejected the argument that “benefits other than workers’ compensation benefits” must be from the employer. In that case, the court held that the plaintiff’s workers’ compensation claim was timely filed because the plaintiff’s receipt of social security benefits tolled the limitations period in §381(1). Thus, the Court of Appeals affirmed the WCAC and magistrate in finding that the employee’s receipt of personal no fault benefits tolled the two-year statute for filing a claim and, therefore, her claim was timely. If you have any questions about this decision or would like to discuss it further, please contact us at your convenience. Please share this case summary with others who may be interested in it. Thank you. Leonard M. Hickey & John B. Combs 11/03/11
PARTIAL WAGE LOSS BASED UPON VOCATIONAL EXPERT TESTIMONY The Michigan Supreme Court recently issued Orders in three cases, regarding a determination of partial wage loss based upon a vocational expert evaluation and opinion. The cases are Harder v Castle Bluff Apartments 489 Mich ____ ____ (Docket #142616, Order entered 06/03/11), Umphrey v General Motors Corporation Docket #142694, Order entered 06/29/11), and Vrooman v Ford Motor Company, Docket #142824, Order entered 06/29/11. The Orders seem to suggest that, if it is determined, based upon a vocational experts evaluation and testimony, that an employee is only partially disabled, then a calculation of wage loss benefits must be made pursuant to MCL 418.361(1), and the employee’s benefit award should be modified accordingly. These Orders seem to indicate that the Supreme Court will allow an employer to establish an employee’s residual wage earning capacity, without an actual job offer being made to the employee. If you have any questions or would like to discuss these Orders further, please contact us at your convenience. Please share this email with anyone else who may be interested in it.
CREATION OF NEW MICHIGAN COMPENSATION APPELLATE COMMISSION By Executive Order 2011-6, Governor Rick Snyder created the Michigan Compensation Appellate Commission (MCAC). All authority, duties, functions and responsibilities of the Workers’ Compensation Appellate Commission (WCAC) and the Michigan Employment Security Board of Review have been transferred to the MCAC. The MCAC will be under the supervision of the Executive Director of the Michigan Administrative Hearing System, Michael Zimmer. The MCAC will consist of 9 commissioners, appointed by the governor with the advice and consent of the senate. The governor shall designate a member of the commission as its chairperson. Matters to be heard by the MCAC will be assigned to 3 member panels. Upon request of 6 members of the Commission, the matter may be brought before the entire MCAC for a full review. Additionally, matters of first impression must be reviewed and decided by the entire Commission. Commissioners are appointed for 4 year terms. Of the 9 members initially appointed, 3 members are appointed for a term expiring July 31, 2013, 3 members are appointed for a term expiring July 31, 2014, and 3 members are appointed for a term expiring July 31, 2015. When deciding workers’ disability compensation appeals, the Commission is bound by the statutory provisions and administrative rules applying to the hearing of appeals by the former Workers’ Compensation Appellate Commission. It is anticipated that the governor will appoint commissioners who have only workers’ disability compensation experience and commissioners who have only unemployment insurance experience. Therefore, it is possible that a 3 member panel hearing a workers’ disability compensation matter may consist of 3 commissioners without a working knowledge of workers’ compensation law. Hopefully, however, all panels formulated to hear workers’ compensation appeals will have at least one member knowledgeable in workers’ compensation law. Leonard M. Hickey and John B. Combs Hickey Combs PLC 3358 Eagle Run Drive NE Grand Rapids, MI 49525-7055 Direct Dial: 616/364-2555 Facsimile: 616/364-2551 Cellular: 616/550-1661 E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it. Website: hickeycombs.com NOTICE: This is a privileged and confidential communication. If you have received it in error or are not the intended recipient, please delete it and destroy all copies. Thank you. 05-18-11
In Harris v General Motors Corp, (Unpublished, Case No. 291779, 12-2-10), the Michigan Court of Appeals held that Ms. Harris (plaintiff) had failed to establish her burden to prove that her wage loss after her retirement from General Motors (defendant) was causally connected to her previous work injury. Plaintiff was 61 years old when, on 6/23/06, she signed a special attrition plan (SAP). In the SAP, she agreed that, in return for a cash payment of $35,000, she would retire from defendant no later than 1/1/07. Plaintiff was injured at work when she tripped and fell over a fax machine on 7/25/06. She injured her back and left side. She commenced sick leave on 7/31/06 and, on 8/31/06, her family doctor took her off work. She never returned to work. Following trial, the magistrate granted an open award of benefits. The award was affirmed by the Workers' Compensation Appellate Commission (WCAC). The Court of Appeals reversed the WCAC and denied benefits. It noted that there was no evidence that plaintiff intended to seek work with another employer after she retired. It held that plaintiff needed to prove that, absent her injury, she would have re-entered the workforce after she retired in order to show a causal connection between her injury and wage loss and to establish her entitlement to benefits. To review the full text of the decision, double click on the following link: http://www.michbar.org/opinions/appeals/2010/120210/47502.pdf. 12/22/10
In an unpublished Opinion, Coleman v Michigan Paving & Materials Co (Docket #294737, 12/14/10), the Michigan Court of Appeals recently held that plaintiff-employee was not entitled to year-round benefits because any wage loss in the seasonal layoff months was not causally linked to his disability. Plaintiff began working for the defendant-employer in 1993, performing various road construction operations. The work was seasonal, generally lasting from mid-April to mid-November each year. Plaintiff did not work during the seasonal layoff periods or “off seasons”. Plaintiff injured his back at work in July of 2000. He was off work for three weeks. When he returned, plaintiff was unable to perform the full range of his duties. He was limited to driving the rollers. Plaintiff worked another six years for the defendant. Defendant terminated plaintiff’s employment on November 18, 2006, citing economic reasons. Following trial of plaintiff’s workers’ compensation case, the magistrate awarded plaintiff year-round wage loss benefits for his back injury. The Workers’ Compensation Appellate Commission affirmed the award. Defendant argued that plaintiff was not entitled to year-round benefits because any wage loss in the seasonal layoff months was not causally linked to his disability. The Court of Appeals agreed and reversed that portion of the prior decisions, awarding year-round benefits. The Court of Appeals relied upon a previous, published, decision of the Court of Appeals, Romero v Burt Moeke Hardwoods, Inc, 280 Mich App 1, 8-9; 760 NW2d 586 (2008). The Court of Appeals acknowledged that plaintiff’s status as a seasonal employee did not disentitle him from benefits during the seasonal layoff months. However, it also noted that plaintiff still must show that he suffered wage loss that was causally linked to his work related injury. In finding that plaintiff failed to show that he suffered wage loss during the customary layoff months that was causally linked to his work related injury, the Court held that there was no record evidence to suggest that plaintiff’s wage loss in the “off season” was attributable to any factor other than the seasonal layoff. Regardless of his injury, plaintiff would not have been working for defendant in the months when defendant did not perform road construction operations. Plaintiff offered no evidence that he would have been working elsewhere during that time. Plaintiff had a history of not working during the seasonal layoff months. The Court held that, because plaintiff offered no evidence of a causal link between his work-related injury and wage loss in the seasonal layoff months as required by Romero, defendant-employer was entitled to a reduction in its liability for wage loss benefits during that period. 01/03/11
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