The Michigan Supreme Court, in a 4-1-2 decision in Karaczewski v Farbman Stein & Co., (Case No. 129825, May 23, 2007), overruled Boyd v W G Wade Shows, 443 Mich 515; 505 NW2d 544 (1993), in holding that ""a Florida resident who was injured in a Florida workplace accident may [not] recover workers' compensation benefits in Michigan merely because he was hired in Michigan.” The majority opinion was written by Justice Corrigan. The four member majority applied the ruling retroactively. Justice Weaver concurred in overruling Wade, but dissented on applying the ruling retroactively. Justices Kelly and Cavanaugh dissented. This decision gives relief to Michigan employers with out-of-state employees whose only connection with Michigan was the contract of hire. 5-24-07
The Michigan Supreme Court (MSC), in an Order, dated April 4, 2007, by a 5-2 majority, reversed the decision of the Michigan Court of Appeals (COA), awarding benefits to the plaintiff employee in the case of Hileman v Trailer Equipment, Inc, (No. 132850, April 4, 2007). The MSC cited its prior decision in Rakestraw v General Dynamics Land Systems, 469 Mich 220, 231 (2003). The MSC held that, where plaintiff's surgery was occasioned solely by a non-occupational injury, and even though plaintiff's disabling symptoms were worsened by work activity, the magistrate correctly found that work-relationship was not proven after the date of surgery, and affirmed the magistrate's closed award of benefits. This order suggests that the MSC may not agree with appellate decisions interpreting Rakestraw, which hold that, where employees have pre-existing injuries or medical conditions, mere changes in symptoms from work-related injuries or exposures are sufficient to meet plaintiff’s burden of proving a “medically distinguishable condition” to be awarded workers’ compensation benefits. The details of the Hileman case are summarized below. Plaintiff began working for defendant Trailer Equipment in November 2000. On July 4, 2001, plaintiff fell from an all terrain vehicle (ATV), in a non-occupational incident, struck his head and fractured his odontoid. He was treated and placed in a halo to immobilize his neck for several months before being released to return to work. Plaintiff testified that he was feeling fine. In January 2002, defendant transferred plaintiff to a ""switcher job"" where plaintiff used a semi tractor to move 30 to 50 trailers per day. Plaintiff testified that these activities ""jarred"" his neck and he developed neck pain and numbness in his right arm within a couple weeks. In March 2002, plaintiff sought medical treatment and was placed on restricted work. Plaintiff's neck symptoms increased, and he was taken off work on March 25, 2002. He subsequently applied for worker's compensation benefits. Plaintiff's treating physical medicine and rehabilitation specialist testified that plaintiff's complaints of neck pain stemmed from the change in his work activities in January 2002 and that the source of plaintiff's pain was ""mechanical neck pain from cervical spondylosis."" An independent medical examiner testified that plaintiff's pathology related to the non-occupational ATV injury, the odontoid fracture. The independent examiner testified that surgical fusion of the odontoid fracture was totally independent of the presence or intensity of symptoms. Plaintiff underwent fusion surgery to stabilize the site of the odontoid fracture on January 9, 2003. His worker's compensation trial occurred in February 2003. Plaintiff was still wearing a cervical collar, and complained of ongoing right arm pain and loss of some feeling in his right leg and arm since the surgery. The magistrate granted plaintiff a closed award of benefits from his last day of work to the trial date. However, the magistrate held that plaintiff had failed to establish that the need for the fusion surgery was related to his work activities. The magistrate found that the need for surgery was instead ""solely related to"" the non-occupational ATV injury and, therefore, that any symptoms that plaintiff experienced as a result of the surgery were not work related. The Workers' Compensation Appellate Commission (WCAC) affirmed the magistrate's finding of a work-related injury as a result of the job duties as a switcher. However, the WCAC reversed the magistrate on closing off the period of disability and instead found that plaintiff's work-related disability continued. The WCAC reasoned that there was no testimony distinguishing between the symptoms (and disability) plaintiff suffered before and after the fusion surgery. The COA, in an unpublished decision, (No. 265641, 11/21/06), affirmed the WCAC. The MSC reversed the COA. It held that the COA erred in affirming the decision of the WCAC by equating the plaintiff's testimony about his continuing symptoms with evidence of an ongoing work-related disability. The MSC noted that the magistrate found, and the WCAC agreed, that the plaintiff's surgery was solely occasioned by a non-occupational condition, and that plaintiff's disabling symptoms, although worsened by work activity, were the result of that non-occupational condition. The MSC found that the magistrate correctly held that the work-relationship was not proven by the plaintiff after the date of the surgery, and the WCAC erred as a matter of law in holding otherwise. Rakestraw v General Dynamics Land Systems, Inc, 469 Mich 220,231 (2003). 04-20-07
In a recent published decision, Simpson v Borbolla Construction & Concrete Supply, Inc. (Case No. 264106, January 25, 2007), the Michigan Court of Appeals departed from prior Workers’ Compensation Appellate Commission (WCAC) Decisions and held that Rakestraw v Gen Dynamics Land Sys, Inc, 469 Mich 220; 666 NW2d 199 (2003), does not apply to a situation where the pre-existing medical condition is work related. Mr. Simpson was an iron worker. In 1979, he suffered a work related fracture of the lunate bone of his left wrist. The fracture went untreated and his left wrist progressively worsened. Mr. Simpson worked for Borbolla for one day on October 23, 2000. His job involved inserting reinforcing rods into concrete, and required him to, among other things, carry heavy bundles of rods. Mr. Simpson testified that the work bothered his left wrist, but that he was able to finish the one-day job. Mr. Simpson did not work after that. Medical experts testified that Mr. Simpson suffered from necrosis (death of tissue) of the left wrist lunate bone due to the work related fracture in 1979. One expert testified that continuing use of the wrist after the fracture increased the rate of bone deterioration to the point the condition precluded Mr. Simpson from performing most tasks of an iron worker. In Rakestraw, the Michigan Supreme Court held that, where an employee has a pre-existing condition which she/he claims was injured or aggravated by a subsequent work related injury, the employee must prove that the new injury or condition is “medically distinguishable” from the pre-existing condition in order for it to be compensable. In Simpson, the magistrate and WCAC held that the employee had proven a “medically distinguishable” injury as a result of the one day of work with Borbolla. The Court of Appeals affirmed the decision of the WCAC, but for a different reason. It held that the facts in Mr. Simpson’s case were distinguishable from the facts in Rakestraw in that, in Rakestraw, the pre-existing condition was not due to a work related injury. In Mr. Simpson’s case, the prior injury was work related. Therefore, the Court held that Rakestraw’s requirement that the employee prove a “medically distinguishable” injury did not apply in Simpson. The Court of Appeals in Simpson observed, “[t]he significance of the pre-existing condition in Rakestraw was not so much that it was pre-existing, but rather that it was not work-related.” (Simpson, Slip Opinion at 5). Thus, it appears that, in cases where the employee claims a re-injury or aggravation of a pre-existing injury or condition, if the pre-existing injury or condition was work related (with the current employer or a different employer), Rakestraw does not apply and the employee does not need to prove a new, “medically distinguishable”, injury or condition. In some cases, Simpson may make it easier for employees to prove work related injuries or conditions. 1-29-07
A previous update reported the Court of Appeals' re adoption of the ""traveling employee"" doctrine in the case of Bowman v R L Coolsaet Construction Co (please see discussion under the heading “ESTABLISHMENT OF ‘TRAVELING EMPLOYEE’ DOCTRINE”, below). The employer applied for leave to appeal to the Michigan Supreme Court, seeking to overturn the Court of Appeals decision that the employee's injuries were compensable. In an order, dated 12/29/06, the Michigan Supreme Court, in lieu of granting leave to appeal, reversed the Court of Appeals decision. The Court held as follows: ""The Court of Appeals erred by adopting the 'traveling employee' doctrine under the circumstances of this case. Here, the employee was traveling from his worksite to his home for the time being at the time of his injury. The general rule, that injuries sustained by an employee while going to or coming from work are not compensable, is applicable even when an employee's residence is temporary because of a particular job assignment."" The Court remanded the case to the Court of Appeals to address the remaining arguments of the intervening plaintiff, Auto Club Insurance Associates. In summary, the Michigan Supreme Court held that, on the specific facts of this case, the ""traveling employee"" doctrine was improperly adopted by the Court of Appeals. That suggests that the Supreme Court may not object to adoption of the doctrine in a future case, if it is done within the proper factual context. 1-15-07
January 26, 2007 Granholm Makes Appointments, Reappointments to Worker's Compensation Board of Magistrates LANSING - Governor Jennifer M. Granholm today announced the following appointments and reappointments to the Worker's Compensation Board of Magistrates: William A. Baillargeon of Saugatuck. Mr. Baillargeon served as a senior trial specialist with the Law Offices of Paula J. Martin prior to his appointment to the board for a term which expires January 26, 2011. He succeeds John M. Wierzbicki whose term has expired. David B. Merwin of Muskegon. Mr. Merwin served as counsel to Williams, Hughes & Cook PLLC law firm prior to his appointment to the board for a term which expires January 26, 2011. He succeeds Paul H. Reinhardt whose term has expired. Christopher P. Ambrose of East Lansing, reappointed for a term expiring January 26, 2011. Jennifer L. Crawford of Twin Lake, reappointed for a term expiring January 26, 2011. Lee A. Decker of Brighton, reappointed for a term expiring January 26, 2011. Murray A. Gorchow of West Bloomfield, reappointed for a term expiring January 26, 2011. Valencia L. Jarvis of Southfield, reappointed for a term expiring January 26, 2011. Rosemary K. Wolock of Royal Oak, reappointed for a term expiring January 26, 2011. The Worker's Compensation Board of Magistrates functions within the Department of Labor and Economic Growth. Magistrates are responsible for conducting hearings in disputes that arise under the Worker's Disability Compensation Act of 1969 and hear cases related to worker's compensation claims. These appointments and reappointments are subject to Section 6 of Article V of the Michigan State Constitution of 1963. They stand confirmed unless disapproved by the Michigan Senate within 60 days.
In a recent decision, the Michigan Court of Appeals established the “traveling employee” doctrine as an exception to the general rule that injuries sustained by an employee while traveling to or from work are not compensable. Bowman v R.L. Coolsaet Construction Company, ____Mich App _____; _______ NW2d _______ (2006). Mr. Bowman was a journeyman pipefitter. He was assigned to work at a job located 200 miles from his home. Because of the distance, he arranged for temporary living arrangements in his trailer at a KOA Campground near the worksite. On one day, heavy rains forced work at the jobsite to cease early. As Mr. Bowman was driving his truck back to his trailer at the campground, he ran a stop sign and struck another vehicle. As a result, he sustained serious injuries, rendering him a paraplegic. The magistrate denied benefits on the basis that, under MCL 418.301(3), injuries sustained while going to or coming from work are not compensable. In a 2-1 decision, the Workers’ Compensation Appellate Commission affirmed the magistrate’s decision, declining to hold that Mr. Bowman was entitled to recover benefits under the “traveling employee” doctrine. The Court of Appeals reversed the magistrate and the Appellate Commission, adopting the “traveling employee” doctrine as an exception to the general rule that injuries sustained while going to or coming from work are not compensable. The Court of Appeals had previously adopted the “traveling employee” doctrine in the case of Eversman v Concrete Cutting & Breaking, 224 Mich App 221; 568 NW2nd 387 (1997), rev’d 463 Mich 86 (2000). However, the Michigan Supreme Court reversed the Court of Appeals’ decision on other grounds. The Court of Appeals re-adopted the “traveling employee” doctrine in the Bowman case. The “traveling employee” doctrine provides that employees who are traveling on a business trip are considered to be continuously within the scope of their employment for the duration of the business trip, except when a distinct departure on a personal errand is shown or when engaged in an activity, the major purpose of which is social or recreational (MCL 418.301 (3)).
COURT OF APPEALS AFFIRMS AWARD OF BENEFITS IN STOKES v DAIMLERCHRYSLER, BUT CLARIFIES THE LAW (10-26-06) In a 2-1 decision, the Court of Appeals, on remand from the Supreme Court, affirmed the Workers’ Compensation Appellate Commission’s majority result, affirming the magistrate’s grant of an open award of benefits. However, the Court of Appeals disagreed with and reversed several of the holdings of the WCAC majority. 1. The Court of Appeals held that the WCAC erred in limiting the definition of work “suitable to [the employee’s] qualifications and training” to actual jobs which plaintiff had performed in the past (i.e., the equivalent of the employee’s “resume”). In quoting Sington v Chrysler Corp, 467 Mich 144, 159; 648 NW2d 624 (2002), the Court held that “a finding of disability requires a determination that there is a limitation in an employee’s “overall, or in other words, maximum, wage earning capacity in all jobs suitable to an injured employee’s qualifications and training.” (Emphasis added.) The Court found that Sington “takes a broad view of an injured employee’s ‘qualifications and training,’ which is not limited to the jobs on the employee’s resume, but, rather, includes any jobs the injured employee could actually perform upon hiring.” Slip opinion at 10. 2. However, the Court held that, where an employee presents proofs which consist of the equivalent of the employee’s resume, and evidence of a work-related injury causing the disability, an employee makes a prima facie case of disability, unless the employer shows that, contrary to the employee’s proofs, there are real jobs, within the employee’s qualifications and training that pay the maximum wage. Slip opinion at 10-11. 3. The Court held that the WCAC erred to the extent that it held as a matter of law a transferable skills analysis is irrelevant in evaluating the employee’s qualifications and training. The Court stated that “[a] transferable skills analysis may yield credible testimony that there is actual employment that the employee’s qualifications and training makes the employee capable of performing upon hiring, although the employee has never performed it before. Slip opinion at 11. 4. However, the Court also held that “Sington did not intend to make a transferable skills analysis, (or non-transferable skills analysis), a necessary part of the employee’s proofs.” Slip opinion at 11. 5. The Court held that it was error for the WCAC to conclude that the magistrate had no authority to order the employee to provide discovery to the employer in this case. Relying on Bogetta v Burroughs Corp, 368 Mich 600; 118 NW2d 980 (1962), the Court held that the statute gives magistrates limited power to grant discovery “necessary to a proper inquiry into the facts.” “It does not automatically follow that [an employer] is entitled to have its vocational expert interview plaintiff. What form of discovery is necessary to enable [an employer] to investigate an employee’s qualifications and training and prepare a proper defense under Sington is a matter for the magistrate’s discretion.” Slip opinion at 13. “While an interview will no doubt be appropriate in some cases, in the instant case, [the employer] had sufficient information in the form of prior testimony, a long-term work history with [the employer], and considerable medical information, to narrow the focus of the additional information so that it could be sought by interrogatory if necessary before trial, or obtained at trial . . ..” Slip opinion at 14-15.