The state average weekly wage for 2007 has been determined to be $803.17.  The 2007 maximum weekly benefit is based on 90% of the state average weekly wage and is, therefore, $723.00.

2007 RATE TABLE BOOK

The 2007 weekly compensation rate table book is available as a "".pdf"" document at the following link:  www.michigan.gov/documents/wca/wca_2007_Rate_Book_181097_7.pdf.  To our knowledge, the 2007 rate calculation program is not yet available for download.

1982-2007 MAXIMUM RATE CHART

*Discontinued fringe benefits may not be used to raise the weekly benefits above this amount. Attorney fees may not be based on a benefit rate higher than this amount.

In an unpublished Court of Appeals decision, Beus v Broad, Vogt & Conant, Inc., (case #258995, 8/3/06), the Court of Appeals, in a 2-1 decision, denied benefits to an employee who was injured and killed in a car accident while transporting his family to their new home in Mexico. Plaintiff, a resident of Michigan, was hired by the Broad group to fill a position in Mexico. The Broad group agreed to pay for certain relocation expenses incurred by Mr. Beus and his family. After accepting the job offer, Mr. Beus left his family in Michigan and moved to Mexico. Once his children finished the school year, the family’s home in Michigan was sold and Mr. Beus’ wife and four children temporarily relocated to plaintiff’s parent’s home in Arizona. On a later date, Mr. Beus flew from Mexico to Arizona. He met with a potential client and performed other business related activities. The next day, Mr. Beus and his family drove from Arizona to Mexico. They stayed overnight at a motel in Mexico on the way to their home in a different city in Mexico. The following morning, Mr. Beus’ vehicle was involved in an accident. Mr. Beus sustained injuries, from which he later died. The magistrate denied benefits on the basis that the major purpose of relocating plaintiff’s family to Mexico was social or recreational under MCL 418.301(3). On appeal, the Workers’ Compensation Appellate Commission reversed, finding that Mr. Beus was on a “business trip”. The Appellate Commission noted that Mr. Beus had returned to Arizona for two business related purposes: (1) making a sales call on a potential client; and (2) traveling, at his employer’s expense, to his Mexico residence with his family. Therefore, the Appellate Commission concluded that Mr. Beus’ injuries and death arose out of and in the course of his employment and awarded benefits. The Court of Appeals reversed the Appellate Commission’s decision and reinstated the magistrate’s denial of benefits. The Court of Appeals agreed with the magistrate that the “major purpose” of the activity in which Mr. Beus was engaged at the time of the injury had shifted from a business purpose to a social or recreational purpose.

In it’s recent decision in Paige v City of Sterling Heights, the Michigan Supreme Court overruled its prior decision in Haggerman v Gencorp Automotive, regarding its interpretation of the phrase “the proximate cause” in the statutory provision regarding the compensability of an employee’s death when it occurs sometime after the occupational injury. In the Paige case, the employee was employed as a firefighter. He suffered a heart attack while performing firefighting duties on the job. However, he survived the heart attack, but was medically limited from returning to work as a firefighter. A magistrate granted an open award of benefits. The employee lived another nine years. He sustained a second heart attack and died five months later in his sleep. The employee’s minor child filed a claim for workers’ compensation death dependency benefits pursuant to MCL 418.375(2), which provides that, if the work related injury was “the proximate cause” of the death, death dependency benefits are payable to surviving dependents. The case was eventually tried, and the magistrate awarded death dependency benefits to the surviving child. The Appellate Commission affirmed the magistrate’s decision. It relied upon the definition of “the proximate cause” in the Haggerman case. In Haggerman, the Supreme Court had construed the phrase “the proximate cause” to mean “a substantial factor” in causing the event. The employer appealed to the Court of Appeals. The Court of Appeals declined to review the case. The Michigan Supreme Court agreed to review the case. The Court overruled its construction of the phrase “the proximate cause” in the Haggerman case, and adopted its construction of the phrase from a case it had more recently decided, construing the same phrase in the Governmental Tort Liability Act, Robinson v Detroit. In Robinson, the Court had construed the phrase “the proximate cause” more narrowly to mean “the one most immediate, efficient, and direct cause”. Accordingly, the Supreme Court vacated the decision of the Appellate Commission and remanded the case for reconsideration. In summary, the Court’s ruling in Paige will hold surviving dependents of employees who die sometime after a work related injury to a more stringent causation standard in order to recover workers’ compensation death dependency benefits. Employee’s dependents will have to prove that the work injury was “the one most immediate, efficient, and direct cause” of death in order to receive benefits.

Are They Employers or Volunteers for Purposes of Workers' Compensation? Many employers utilize the services of job interns. During the school year and during semester breaks, many students seek and obtain interning opportunities. Some of the internships are occupation-specific and provide students with an introduction to jobs in which they may eventually seek employment. Other internships are not occupation-specific and merely provide students (usually high school students) with experience in the working world. From an employer’s perspective, offering internships provides exposure to future hire candidates, no or low cost workers, and the opportunity to provide a public service. Some interns are paid by the employer for their efforts. Others are unpaid and view the experience as an opportunity to enhance future opportunities for employment in their chosen field. In deciding whether to offer an internship, one question an employer might ask is: what is my legal responsibility to the intern if he or she is injured in the course of his or her internship? Is she or he an employee or a volunteer for purposes of workers’ compensation? The Michigan Workers’ Disability Compensation Act (WDCA) offers some, but not complete guidance on the question. MCL 418.111 states that “every employee . . . shall be subject to the provisions of this act.” MCL 418.161(1) defines “employee” in two different subsections. In subsection (l), the statute defines ""employee"" as, “[e]very person in the service of another, under any contract of hire, express or implied”. Subsection (n) provides that an “employee” includes: [e]very person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, if the person in relation to the service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this act. The above-cited provisions of the WDCA require that a person be an “employee” in order for the employer to be liable to pay workers’ compensation benefits for an on-the-job injury or health condition. The statute seems to exclude volunteers and gratuitous employees from coverage under the workers’ compensation law. The Michigan Supreme Court has addressed the question of whether a member of a ski patrol, who was providing ski patrol services to a ski resort on a weekend, was an employee for purposes of workers’ compensation when he was injured. In Hoste v Shanty Creek Management, Inc., 459 Mich 561; 592 NW2d 360 (1999), the Supreme Court held that a member of the National Ski Patrol was not an employee under the WDCA and, therefore, was not entitled to workers’ compensation for injuries he sustained while performing ski patrol duties. Shanty Creek did not pay Mr. Hoste wages for the ski patrol services that he provided. However, in return for the ski patrol services, the resort provided Mr. Hoste with free lift tickets, family skiing privileges, complimentary hot beverages, and meal and merchandise discounts. Mr. Hoste never claimed any of the benefits as wages on his income tax returns. The Supreme Court found that there was no contract of hire between Shanty Creek and Mr. Hoste and, therefore, he was not an employee for purposes of workers’ compensation. The Court found that he was a “gratuitous worker,” assisting another with a view toward furthering his own interests. In Coleman v Western Mich. Univ., 125 Mich App 35; 336 NW2d 224 (1983), the Michigan Court of Appeals found that a student athlete was not an employee of the University for purposes of workers’ compensation. The Workers’ Compensation Appellate Commission has addressed the question of whether a person injured while performing community service as a part of a criminal sentence is an employee of the governmental entity for which the service is being performed. In Kempher v 14A Dist. Ct., 1992 Mich ACO #197 (1992), the Appellate Commission held that the person performing community service was not an employee and, consequently, was not entitled to workers’ compensation benefits for an injury sustained while performing community service. In a more recent case, Simmons v Branch County, 2005 Mich ACO #50 (2005), Mr. Simmons was incarcerated in the Branch County Jail. He qualified to become a trustee by virtue of demonstrating outstanding behavior while in jail and by being a minimum security risk. He voluntarily elected to become a trustee. As a trustee, Mr. Simmons performed work activities. For each month of work, he was given 3 days off his sentence. While performing work activities, he sustained an injury to his eye. He applied for workers’ compensation benefits. Mr. Simmons argued that, although he did not receive monetary pay, he received “real, palpable and substantial consideration” for the work duties that he performed in being accorded a reduction in his sentence in exchange for the work that he performed. In a unanimous decision, the 3-member panel of the Appellate Commission denied workers’ compensation benefits, finding that Mr. Simmons was not an employee of Branch County and that no contract of hire existed between Mr. Simmons and the County. In citing a prior decision, Yearling v Allegan County, 2004 Mich ACO #189 (2004), the Appellate Commission noted that “[i]t is not mere service to the public entity which controls, but the performance of such service under an employment contract . . ..” The Appellate Commission noted that the relationship between a prisoner and the jail is a “custodial one.” A recent unpublished decision of the Michigan Court of Appeals, MacArthur v Ramsey Havenwyck, Inc. (Michigan Court of Appeals case # 262600, 2005), addressed the question of whether an unpaid intern was entitled to workers’ compensation benefits for an injury sustained during the course of her internship. Unpublished decisions of the Court of Appeals are not accorded precedential status. However, they provide guidance on how one panel of three Court of Appeals Judges views an issue. Ms. MacArthur was an employee of the hospital owned by defendant, Ramsey Havenwyck, Inc., and was working toward a Masters Degree in psychology. In order to receive the Masters Degree, she had to complete an internship. She was given permission to complete an internship with the hospital’s Impulse Control Unit. After normal working hours at the hospital, Ms. MacArthur counseled two young men at the residential unit located across the street from the hospital. Later, she alleged that one of the young men had assaulted her. Ms. MacArthur did not file a claim for workers’ compensation benefits. Rather, she filed a lawsuit against the hospital, alleging negligence. The hospital sought to have the case dismissed on the basis that Ms. MacArthur was an employee, subject to the Exclusive Remedy Provision of the WDCA. MCL 418.131(1) provides that: The right of recovery of benefits as provided in [the WDCA] shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The Court of Appeals held that Ms. MacArthur’s internship qualified as a contract for hire for purposes of the WDCA. In relying upon Betts v Ann Arbor Public Schools, 403 Mich 507, 513, 515; 271 NW2d 498 (1978), the Court of Appeals held that, “[a] contract for hire for purposes of the WDCA may be established where there is an exchange of services for training or college credits toward graduation.” The Court of Appeals distinguished the Supreme Court’s decision in Hoste by noting that “the internship relationship was one of mutual benefit because [the hospital] accepted [Ms. MacArthur’s] counseling services for which it normally would have made payment for performance.” It is important to note that, oftentimes, the question of whether someone is an employee for purposes of workers’ compensation arises not because the employee has filed a workers’ compensation claim, but because they have filed a personal injury lawsuit against the employee and the employer is seeking to establish that the person was an employee in order to gain the protection of the Exclusive Remedy Provision of the WDCA. These cases suggest that employers who utilize interns should consider whether they are employees or volunteers. If they are employees, the employer must have workers’ compensation coverage for them. If they are volunteers, employers are not protected by the Exclusive Remedy Provision of the WDCA and should have liability insurance coverage. Factors which tend to establish an employment relationship with an intern include a contract for hire, and pay or other compensation for the intern’s services. Factors which tend to establish that an intern is a volunteer include the absence of a contract for hire, the absence of pay or other compensation, and the intern’s work as a gratuitous worker, assisting the employer with a view toward furthering the intern’s own interests. The opinions contained in this article do not constitute legal advice. If you have a question regarding the legal status of an intern or other volunteer, please consult with a qualified workers’ compensation lawyer. BIOGRAPHICAL INFORMATION Len Hickey is a partner in the Grand Rapids law firm of Hickey Combs PLC, which specializes in providing legal counsel and defense to employers, insurers, and claims administrators in workers’ disability compensation matters. Mr. Hickey can be contacted at 616/364-2555, This email address is being protected from spambots. You need JavaScript enabled to view it., and at 3358 Eagle Run Drive, N.E., Suite 100, Grand Rapids, MI 49525-7055.

In the unpublished Michigan Court of Appeals decision in Hephner v M&S Manufacturing (12-13-05), the Court affirmed the trial court's grant of summary disposition on the employee's lawsuit against the employer. The employee sought damages for allegedly being fired in retaliation for filing a workers' compensation claim. The employee had been terminated pursuant to the employer's neutral policy of automatically terminating all employees after 12 months of continuous medical leave, as provided in the employer's employee handbook. The employee claimed that the policy was a pretext for firing seriously injured workers. The Court found that the employee had failed to provide any evidence of a causal connection between his filing for workers' compensation benefits and his termination. The Court also found that there was no evidence that the filing of the workers' compensation claim played a role in the employer's decision to terminate the employee's employment. The employee also argued that a ""do not hire"" note placed in his personnel file when he was terminated constituted retaliation for filing a workers' compensation claim. The Court found that the employee had failed to present any evidence showing a causal connection between the ""do not rehire"" note and the workers' compensation claim. Also, because the empoyee had not yet been released to work and in fact never asked to be rehired, the Court held that no injury had yet occurred and the claim was not ripe for review. SUMMARY: Neutral employment policies, if applied uniformly without exceptions, will not be held to be workers' compensation retaliation. 12-13-05