HERNIAS The Workers' Compensation Appellate Commission recently decided a new case regarding occupational hernias. The case is Barcewski v Yellow Freight System, Inc., 2004 ACO #64. The issue in the case was whether the Magistrate erred in awarding benefits for a hernia where there was a 53-day gap between the onset of the hernia and the employee reporting it to his supervisor. Although the Magistrate decided the case, awarding benefits, pursuant to the hernia provision in the occupational disease chapter of the act, MCL 418.401(2)(b), the Appellate Commission affirmed the award of benefits, but did so under the single event injury provision of the act, Chapter 3, MCL 418.301(1). In essence, the Appellate Commission held that, where a hernia results from a specific event of injury (as opposed to repetitive trauma or exposure), it is compensable under Chapter 3 and the timeliness and notice requirements of Chapter 4 (MCL 418.401(2)(b)) do not apply. The Appellate Commission held that, where an employee sustains a specific event hernia under Chapter 3, the employee need not comply with the Chapter 4 requirement that a hernia be recent in origin and promptly reported. This decision seems to largely neutralize the statutory recency and notice requirements by providing an alternate way to recover for a hernia under Chapter 3.

As you may recall, the Michigan Court of Appeals, in Sanchez v Eagle Alloy Inc, and Vazquez v Eagle Alloy Inc, held that, once it was discovered that the employees were undocumented, illegal aliens, they were no longer entitled to weekly wage loss benefits. The Court reasoned that, by working without proper legal authorization, the employees were committing a crime under a federal law, The Immigration Reform and Control Act (IRCA), and were, therefore, barred from receiving wage loss benefits under MCL 418.361(1). MCL 418.361(1) provides that ""an employer shall not be liable for compensation . . . for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime. On November 7, 2003, the Michigan Supreme Court granted leave to appeal to review the decision of the court of appeals. The Supreme Court received and considered the parties' briefs and heard their oral arguments. Then, somewhat surprisingly, the Supreme Court issued an order on July 23, 2004, vacating their prior grant of leave to appeal (in other words, deciding not to decide the case). The Court's reason was that ""the Court is no longer persuaded the questions presented should be reviewed by this Court."" The legal effect of the Supreme Court's order is to leave the opinion of the Court Appeals as the binding precedent on the illegal alien issue.

LOSS OF OVERTIME DUE TO INJURY IS COMPENSABLE In Voss v Amsted Industries, Inc, 2004 ACO #35, the Workers' Compensation Appellate Commission held that, where plaintiff's inability to perform overtime work was not due to a general reduction in overtime for all employees, but due to injury-related restrictions, the employee was entitled to receive weekly partial wage loss benefits to compensate him for the loss of overtime. The case suggests, however, that if the lack of overtime resulted from a general reduction in overtime for all similarly situated employees, an argument may exist under Sington that the loss of overtime is not compensable because the wage loss would not be due to the injury. The Appellate Commission would distinguish the previous Court of Appeals decision in Kurz v Michigan Wheel Corporation, 236 Mich App 508 (1999), on the basis that it was decided under the now discredited Haske definition of disability. 03/29/04

In an unpublished decision, dated 02/24/04, Turner v Monday Staffing, the Michigan Court of Appeals recently interpreted the social or recreational exclusion contained in MCL 418.301(3). The employee injured himself during his lunchbreak. He had been playing basketball and injured himself when he turned to check the clock to confirm the time to see whether he could continue playing basketball. The Magistrate granted a closed award of benefits. The Workers' Compensation Appellate Commission reversed the Magistrate, denying benefits. The Court of Appeals affirmed the Workers' Compensation Appellate Commission, holding that it properly concluded that the major purpose of the basketball game, the employee's activity at the moment of injury, was social or recreational and therefore, plaintiff was not entitled to workers' compensation benefits. 03/04/04

After the employee parked his vehicle in the employer's parking lot, he opened the vehicle's door, put one leg out of the door, placed his foot on the ground, and turned to the right to pick up his ""dinner pail"". As he twisted back towards the open door, he felt a snap in his back. Pain immediately ran down his left leg and up his back. Later, an MRI showed a disc herniation and disc bulging in his low back. The Magistrate denied benefits, finding that the circumstances of the employee's employment neither caused nor aggravated an injury nor increased the risk of injury. The Magistrate also held that the case did not fall within the ""going to and coming from work"" presumption of compensability in MCL 418.301(3). The Workers' Compensation Appellate Commission affirmed the Magistrate's denial of benefits. In Ruthruff v Tower Holding Corporation, _____ Mich App _____; ______NW2d_____ (March 18, 2004), the Michigan Court of Appeals reversed the Appellate Commission and remanded the case to the Magistrate for further fact finding. The Court of Appeals held that the Appellate Commission incorrectly applied the law in declining to apply the statutory presumption that an injury is compensable when it occurs when the employee is coming to or going from work. The Court of Appeals remanded the case to the Magistrate, directing the Magistrate to reopen the record and obtain evidence ""regarding the need of plaintiff to bring a lunch to work"". If the employee was not required to bring a lunch, then the risk was of a personal nature and the employee's injury was not compensable. However, if the employee was required to bring a lunch, there could be a sufficient employment cause of the risk which caused the employee's injury.