An unpublished opinion of the Michigan Court of Appeals, Coleman v HDS Services, (docket #298468, 4/19/12) recently affirmed the Workers’ Compensation Appellate Commission’s affirmance of a magistrate’s award of benefits to Ms. Coleman (the plaintiff). The employer had sought a determination that plaintiff’s claim should be denied because her injury resulted from her intentional and willful misconduct. The intentional and willful misconduct provision of the statute can be found at MCL 418.305.

Plaintiff was employed as a hostess/supervisor at an assisted living facility. On April 17, 2007, during a conflict with another employee, plaintiff fell and was injured. There was evidence that plaintiff had been yelling and swearing before she was injured. Subsequently, the co-employee with whom she was having the conflict put his body up against plaintiff’s body and touched her forehead with the tip of his index finger. Plaintiff backed away and, as she did so, she fell backward over a cart, injuring herself.

At the trial level, the magistrate determined that evidence that plaintiff had been yelling and swearing before she was injured was not causally related to her injury. The magistrate explained: 

Even if I were to find that yelling and swearing were intentional and willful misconduct under the Act, I do not find that plaintiff’s injury occurred ‘by reason of’ her behavior, bur rather that it occurred by virtue of [the co-employee’s] actions in pressing against her. I find as fact that the [co-employee’s] actions were not causally related to any intentional or willful misconduct of plaintiff, but rather that they were volitional on his part.

The Appellate Commission held that the magistrate’s analysis was legally sound and supported by the magistrate’s factual findings. The Court of Appeals did not discern legal error in the analysis of the Appellate Commission.

The Court of Appeals held as follows:

Even if plaintiff yelled or swore earlier in the confrontation, that alleged conduct did not directly and predictably flow into her injuries for falling over a cart. The [Appellate Commission] and the magistrate recognized and applied the correct legal standard for analyzing misconduct under Daniel [v Dep’t of Corrections, 468 Mich 34, 40; 658 NW2d 144 (2003)] and Brackett [v Focus Hope, Inc., 482 Mich 269; 753 NW2d 207 (2008)], but determined that the requisite causal connection was not factually present. There was no legal error in the analysis.

In summary, the Court of Appeals seems to require that alleged misconduct must “directly and predictably flow into” the employee’s injuries in order for the intentional and willful misconduct to be a bar to receipt of wage loss benefits.

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04/20/12

Amendments to Michigan Workers’ Compensation Statute Become Law Michigan House Bill 5002, as amended and passed by the Senate on December 7, 2011, was signed into law by Governor Rick Snyder on December 19, 2011. The law was given immediate effect by the legislature during passage. The amendments are not retroactive and will apply only to claims arising from injury dates occurring on and after December 19, 2011. The amendments are favorable to employers and insurers. Important case law regarding causation, disability and residual wage earning capacity (Rakestraw, Fahr, Stokes, Lofton, and Harder) were made into statutory law, preventing future courts from changing the law by overruling those cases (MCL 418.301(1) and (4)). Some of the additional important changes in the statute include the following: - “Degenerative arthritis” was specifically identified as a condition of “the aging process”, subjecting it to the “significant manner” proof standard (MCL 418.301(2)); - In mental disability claims, employees must prove that their perception of the actual events of employment leading to their mental disability were “reasonably grounded in fact or reality” (MCL 418.301(2)); - If an employee is terminated from employment for fault while working in favored work, the employee is barred from receiving wage loss benefits (MCL 418.301(9)(a); - Employees now have an affirmative duty to seek reasonable employment or have their wage loss benefits reduced by wages that could have been earned in work available to them (MCL 418.301(4)(d)); - Coordination of employer-funded retirement benefits the employee becomes eligible to receive at normal retirement age is now permitted, whether or not the employee elects to receive the benefits at that time (MCL 418.364(1)(d)); - The Trammel decision (holding that a total knee joint replacement surgery constituted a specific loss) was essentially reversed, now requiring that the effect of a medical procedure, implant or joint replacement must be considered in determining a specific loss (MCL 418.361(2)); - The 10% interest on accrued benefits was eliminated and replaced with a tie to prevailing interest rates (MCL 418.801 (6)); - The employer’s ability to control the employee’s post injury medical treatment was increased from 10 days to 28 days (MCL 418.315(1)); and - Mediation was eliminated (Formerly MCL 418.223). These changes and others will be discussed and analyzed at our firm’s workshop on January 20, 2012. They may provide additional bases for disputing benefits. The following is a link to the full text of the enacted statutory amendments: http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2011-PA-0266.pdf 01/03/12

The Michigan Supreme Court, in an Order, dated March 21, 2012, in the case of Morgan vs. General Motors, LLC (Supreme Court Docket No. 143949), reversed the judgment of the Court of Appeals and reinstated the decision of the Workers’ Compensation Appellate Commission (WCAC). The court held that, contrary to the determination of the Court of Appeals, the WCAC did not err as a matter of law in finding that the plaintiff could not recover benefits on the basis of an injury date that he did not allege in his application. The plaintiff alleged only one injury date, in 2005. The WCAC found as fact, and the records supported, that the defendant could not have possibly have known it was being called upon to defend a 1999 injury date that was not alleged.

The Supreme Court’s Order should be distinguished from other cases where the defendant had knowledge of and defended a potential injury date that had not been formally alleged.

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04/02/12

“Inflammation” Held Not To Be A New Injury Under Rakestraw The Michigan Compensation Appellate Commission, in the case of Slovan v HCR-Manor Care Inc, 2011 ACO #134, recently held that the Magistrate erred when she found that “inflammation” was a new injury, a medically distinguishable pathologic change in the plaintiff/employee’s spine condition. The Magistrate held that plaintiff suffered a pathological change to her cervical spine, based upon the testimony of plaintiff’s attorney’s examining doctor that (1) two disc protrusions in the cervical spine were most likely the cause of plaintiff’s cervical pain, (2) plaintiff’s injury of April 4, 2006, aggravated the condition of plaintiff’s cervical spine, and (3) the nature of the aggravation was inflammation. The Commission found no support of the Magistrate’s findings in the whole trial record. Therefore, the Appellate Commission remanded the case to the Board of Magistrates to determine whether the record otherwise supported the finding of “an injury that is medically distinguishable from the preexisting non-work related condition”. Plaintiff’s attorney’s medical expert testified that inflammation can lead to nerve root irritation which is the pathological change. However, both plaintiff’s and defendant’s medical experts testified that MRI’s do not necessarily demonstrate nerve root irritation and that the only positive means of doing so is an EMG procedure, which plaintiff refused because of her fear of needles. Application: In workers’ compensation claims or cases involving an unsupported conclusion that “inflammation” was the pathological change that resulted to a preexisting condition from a work injury, there may be a basis for disputing the claim under this case and Rakestraw v General Dynamics Land Systems, Inc., 469 Mich 220 (2003). 1-31-12