In Conley v Suburban Mobility Authority for Regional Transportation, 2005 ACO# 84, the Workers’ Compensation Appellate Commission held that, before a third-party medical bill payor could obtain reimbursement in workers’ compensation from the employer, it had to prove that the employer had received notice of the employee’s intent to treat with the provider pursuant to MCL 418.315(1). Blue Cross Blue Shield had paid medical bills on behalf of plaintiff. It filed an Application for Mediation or Hearing, Form C, requesting reimbursement from the employer for medical bills that it had paid. Plaintiff had not given proper notice to the employer of the intent to treat with the providers whose bills Blue Cross Blue Shield had paid. Therefore, the employer had not had an opportunity to object to the treatment under §315(1). The employer was not even apprised of plaintiff’s treatment until after the fact. The Appellate Commission held that Blue Cross Blue Shield was not entitled to reimbursement.
The Michigan Court of Appeals, in Tew v Hillside Tool & Manufacturing Company, ___ Mich App ___ (2005), on remand from the Michigan Supreme Court, upheld the decision of the magistrate and the Workers’ Compensation Appellate Commission to award only one $1,500.00 late payment penalty for multiple late payments of medical expenses. Plaintiff had multiple bills from multiple health care providers for treatment regarding multiple parts of his body. He sought a $1,500.00 penalty for the late payment of each bill. The Court of Appeals’ Decision was consistent with a previous Michigan Supreme Court case, Townsend v M-R Products, Inc., 436 Mich 496; 461 NW2d 696 (1990). 10/17/05
In a recent Workers’ Compensation Appellate Commission decision, Beattie v Wells Aluminum Corp, 2005 ACO #157, the Workers’ Compensation Appellate Commission provided guidance on when an employer/insurer may be responsible to pay an attorney fee on unpaid medical expenses. The Appellate Commission held that the Magistrate retains the discretionary power to make an award of attorney fees where the employer/insurer wrongly withheld payment of “reasonable and necessary” medical benefits and treatment. The Appellate Commission relied upon a prior Court of Appeals decision, Boyce v Grand Rapids Asphalt Paving, 117 Mich. App 546 (1982), which stated that, “where the employer or its insurance carrier is guilty of a breach of the statutory duty to provide medical care or to pay for medical care in a timely fashion, than the employer or its carrier, and not the employee, should bear the burden of the attorney fees.” Thus, the plaintiff/employee must prove that the medical expenses were reasonable and necessary, that the employer had appropriate notice that they were due, and that the employer was guilty of a breach of its duty to provide or pay for medical care in a timely fashion in order for plaintiff’s attorney to recover attorney fees on unpaid medical bills. 07/15/05
Goodwill Job Held to Be Reasonable Employment, Not Vocational Rehabilitation Magistrate Donna Grit (assigned to the Grand Rapids hearing site) recently issued a decision, Adams v Spartan Stores, wherein she held that a job at Goodwill Industries was ""reasonable employment"" (light duty work), not vocational rehabilitation. Spartan Stores initally accomodated the employee's restrictions and brought him back to work in light duty (""reasonable employment"") for approximately eight months. After that, Spartan no longer had light duty work available for the employee. Because the employee's restrictions were permanent, the union contract prohibited him from staying in the light duty job. The employee was unable to find work elsewhere. Spartan assigned the employee to work at Goodwill Industries. Magistrate Grit observed that, although one of the things that Goodwill Industries does is provide vocational rehabilitation services, in this case it did not. In this case, Goodwill, for a fee (paid by the employer) placed the injured employee in a job that fit the employee's restrictions. Magistrate Grit held that the job at Goodwill was ""reasonable employment"", not vocational rehabilitation. APPLICATION: Magistrate Grit's decision provides employers who are unable to provide light duty work to their injured workers with the option to arrange for light duty work through Goodwill or a similar agency. The employee has a legal obligation to accept a ""bona fide offer of reasonable employment"". Because such a job is not vocational rehabilitation, the employee's non-cooperation with the job or refusal to perform it need not be litigated in the cumbersome vocational rehabilitation hearing process. Rather, the employer may merely discontinue paying wage loss benefits (unless the employer is under a prior order to pay) and file a notice of dispute. Please note, however, that Magistrate Grit's decision is not precedential and it may be subject to review on appeal. Before taking any action on this new case, we recommend that you confer with qualifed workers' compensation defense counsel. 2/18/05
In a 5-2 decision, the Michigan Supreme Court, in the case of Nastal v Henderson & Associates Investigations, Inc. (12505) held that surveillance by licensed private investigators, that contributed to the goal of obtaining information as permitted by the Private Detective License Act, is “conduct that serves a legitimate purpose and, therefore, does not violate the Michigan Civil Stalking Statute”, MCL 600.2954. The subject of the surveillance had filed a personal injury lawsuit arising out of a motor vehicle accident. The insurer for the defendant in the personal injury action retained a licensed private investigations firm, Henderson & Associates Investigations, Inc., requesting a background check, activities check, and surveillance of the plaintiff. Even though the first effort at surveillance was discovered by the plaintiff, additional surveillance was conducted. The Supreme Court held that, notwithstanding the fact that surveillance continued after plaintiff had discovered it, plaintiff failed to establish a genuine issue of material fact that the conduct of the private investigators ever ceased serving “a legitimate purpose”, exempting it from the stalking statute. Thus, the Supreme Court ruled that the Circuit Court should enter summary disposition in favor of the defendant private investigators, dismissing the lawsuit against them.
In Rakestraw v General Dynamics Land Systems, Inc., 469 Mich 220 (2003), the Michigan Supreme Court addressed the question of whether a symptomatic aggravation of a preexisting condition constituted an “injury” for purposes of workers’ compensation. The Court held that, in order for a symptomatic aggravation of a preexisting condition to be compensable, the employee must prove that a “medically distinguishable” injury resulted from the employment activity or exposure. The Michigan Workers’ Compensation Appellate Commission, in Hale v Borgess Medical Center, 2004 ACO #266, utilized a Michigan Supreme Court decision that had been decided three years before Rakestraw, Connaway v Welded Construction Company, 462 Mich 691 (2000), to provide “some insight into what the Court considered to be evidence of ‘aggravation’ as opposed to a ‘recurrence’ of a preexisting condition”. Hale, p.6. The Appellate Commission found Connaway instructive in interpreting the term “medically distinguishable” condition. The Appellate Commission observed as follows: Pain alone is not conclusive evidence. However, an injury producing continuing pain, subjectively dissimilar from her pre-injury condition, and causing impaired performance of pre-injury activities can constitute an “independent contribution” to the “final condition”, thus resulting in a “medically distinguishable” condition. This new standard for determining what is “medically distinguishable” appears to rely entirely upon the employee’s subjective report of whether his or her pain is different than it was prior to the work-related injury (or activity) and upon the employee’s personal and subjective assessment of whether his or her performance of pre-injury activities has been impaired by the work injury (or activities). The Appellate Commission’s interpretation of Rakestraw seems to neutralize the requirement that the employee show a “medically distinguishable” injury or condition.
In late November 2004, the Medicaid statute was amended by house bill 5414. The bill imposes a requirement on employees who are receiving or who have received Medicaid assistance to provide notice to the Department of Social Services when filing a workers’ disability compensation claim. The notice requirement applies to the employee and to his or her legal counsel. The statute provides that the Department of Social Services or the Medicaid contracted health plan may file a legal action against the employee or his or her legal counsel, or both, to recover medical expenses paid by Medicaid. The amendment also provides that the Attorney General shall recover any cost or attorney fees associated with a recovery from the employee, legal counsel, or both. Interestingly, the amendment provides that the Department of Social Services has “first priority against the proceeds of the net recovery”. That “first priority” seems to conflict with Friend of the Court and Medicare priorities. The amendment provides that, if the employee recovers less against the proceeds of the net recovery than the medical expenses paid by Medicaid, the Department of Social Services (or Medicaid contracted health plan) and the employee shall share equally in the proceeds of the net recovery.