STOKES v CHRYSLER - PROOF OF DISABILITY - DECIDED BY MICHIGAN SUPREME COURT

STOKES v CHRYSLER - PROOF OF DISABILITY - DECIDED BY MICHIGAN SUPREME COURT

The Michigan Supreme Court released its decision in Stokes v Chrysler LLC on June 12, 2008 (Case No. 132648). In a 4-3 decision, the court reversed the decision of the Court of Appeals (Stokes v Daimler Chrysler Corp., 272 Mich App 571 (2006)). The Court of Appeals had held that, once an employee had proved inability, due to a work related injury and impairment, to perform jobs the employee had previously performed, the employee had satisfied his burden to prove a baseline case of compensability and the burden then shifted to the employer to show that the employee was not disabled by proving that there were other jobs suitable to the employee’s training and qualifications which paid the maximum wages that the employee had previously earned.

The Supreme Court held that an employee must show more than a mere inability to perform a previous job in order to shift the burden of proof to the employer. The Court held that the employee must prove that he is disabled from all jobs he is qualified to perform within the same salary or pay range as his maximum earning capacity at the time of injury. The employer would then have the opportunity to prove the existence of jobs paying the employee’s maximum wage within his qualifications and training, and prove that the employee is not disabled.

The Court also required the employee to disclose all of his education, experience, skills, training and qualifications, whether or not relevant to the job the claimant was performing at the time of the injury. The Court, in overruling the Court of Appeals, held that the employer has the right to “discovery” regarding the employee’s transferable skills. The Court held that an employer had the right to retain a vocational expert to interview the employee and perform a transferable skills analysis.

In summary, the Court clarified what the employee has to prove, and what information the employer has access to, in determining whether an employee is disabled within the meaning of the Court’s prior decision in Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002). It is important to remember that an employee only needs to prove inability to perform jobs within his or her maximum salary or pay range.STOKES v CHRYSLER - PROOF OF DISABILITY - DECIDED BY MICHIGAN SUPREME COURT

The Michigan Supreme Court released its decision in Stokes v Chrysler LLC on June 12, 2008 (Case No. 132648). In a 4-3 decision, the court reversed the decision of the Court of Appeals (Stokes v Daimler Chrysler Corp., 272 Mich App 571 (2006)). The Court of Appeals had held that, once an employee had proved inability, due to a work related injury and impairment, to perform jobs the employee had previously performed, the employee had satisfied his burden to prove a baseline case of compensability and the burden then shifted to the employer to show that the employee was not disabled by proving that there were other jobs suitable to the employee’s training and qualifications which paid the maximum wages that the employee had previously earned.

The Supreme Court held that an employee must show more than a mere inability to perform a previous job in order to shift the burden of proof to the employer. The Court held that the employee must prove that he is disabled from all jobs he is qualified to perform within the same salary or pay range as his maximum earning capacity at the time of injury. The employer would then have the opportunity to prove the existence of jobs paying the employee’s maximum wage within his qualifications and training, and prove that the employee is not disabled.

The Court also required the employee to disclose all of his education, experience, skills, training and qualifications, whether or not relevant to the job the claimant was performing at the time of the injury. The Court, in overruling the Court of Appeals, held that the employer has the right to “discovery” regarding the employee’s transferable skills. The Court held that an employer had the right to retain a vocational expert to interview the employee and perform a transferable skills analysis.

In summary, the Court clarified what the employee has to prove, and what information the employer has access to, in determining whether an employee is disabled within the meaning of the Court’s prior decision in Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002). It is important to remember that an employee only needs to prove inability to perform jobs within his or her maximum salary or pay range.

NEW BILL PROTECTS ILLEGAL ALLIENS' RIGHT TO WORKERS' COMPENSATION

NEW BILL PROTECTS ILLEGAL ALIENS’ RIGHT TO WORKERS’ COMPENSATION

On December 11, 2007, majority floor leader, Steve Tobocman (D-Detroit) and Senator Hansen Clarke (D-Detroit) introduced legislation apparently intended to nullify the Court of Appeals’ decision in Sanchez v Eagle Alloy, Inc., 254 Mich App 651, 658 NW2d 510, appeal granted, 469 Mich 955, 671 NW2d 874 (2003), vacated, application denied, 471 Mich 851, 684 NW2d 342 (2004)

The bill proposes to amend §361 of the Workers’ Disability Compensation Act (MCL 418.361), adding the following language at the end of subsection (1):

"As used in this subsection, “commission of a crime” does not include an alien’s working without employment authorization or an alien’s use of false documents to obtain employment or to seek work."

In Sanchez, the Michigan Court of Appeals held that, once it was discovered that the employee was an undocumented, illegal alien, and the employer could no longer employ him, he was no longer entitled to weekly wage loss benefits. The Court reasoned that, by working without proper legal authorization, the employee was committing a crime under a federal law, the Immigration Reform and Control Act (IRCA), and was, therefore, barred from receiving wage loss benefits under MCL 418.361(1). Although initially granting leave to appeal the decision of the Court of Appeals, the Michigan Supreme Court later vacated the grant of leave to appeal, leaving the opinion of the Court of Appeals as the binding precedent on the illegal alien issue.

The press release issued by the sponsoring legislators seems to include a misunderstanding that “all workers in Michigan . . . pay into the workers’ compensation fund” and have their wages taxed to provide workers’ compensation coverage. There is no state operated workers’ compensation fund in Michigan. Workers’ compensation coverage in Michigan is funded by employers, not employees.

We shall follow the progress of this bill and keep you apprised of any significant developments.

1-4-08

SEASONAL EMPLOYEES - No benefits payable in the off season?

PATHOLOGICAL CHANGE - MICHIGAN SUPREME COURT REFINES ITS PRIOR HOLDING IN RAKESTRAW

Pathological Change - Michigan Supreme Court Refines Its Prior Holding in Rakestraw

The Michigan Supreme Court (MSC) recently issued an order in the case of Fahr v General Motors Corp. (Case No. 133500, June 22, 2007), holding that the Workers' Compensation Appellate Commission (WCAC) had misinterpreted the MSC's decision in Rakestraw v General Dynamics Land Systems, Inc., 469 Mich 220 (2003).

In Rakestraw, the MSC had held that, in order for a worker to recover workers' compensation benefits for a pre-existing condition, the worker must show that the work caused an injury that is "medically distinguishable" from the progression of the underlying pre-existing condition.

In its decision in Fahr, the WCAC asserted that Rakestraw does not require a "pathological change" in a pre-existing condition in order for a plaintiff to establish that a work-related personal injury has occurred. The MSC held that the WCAC had misinterpreted Rakestraw. The MSC held that a "medically distinguishable" injury cannot be proved "by merely showing a worsening of symptoms."

The MSC offered some guidelines on proving a pathological change in the underlying pre-existing condition. The court stated that, "[a]lthough a medical expert need not use the phrase 'change in pathology,' there must be record evidence from which a legitimate inference may be drawn that the plaintiff's underlying condition has pathologically changed as a result of a work event or work activity in order to meet the legal test for a personal injury under MCL 418.301(1) and Rakestraw.

SIGNIFICANCE

This decision seems to reverse a line of WCAC cases which had been viewed as diluting the original intent of Rakestraw by only requiring a worker to show a change in symptoms, not pathology, in order to prove a new work injury. In Rakestraw, the MSC had used the phrase "medically distinguishable". This order clarifies that the court meant a "pathological change", not just a symptomatic change, in condition for a pre-existing condition to be compensable.

6/27/07

Michigan S. Ct. Limits Ability of Out-of-State Workers to Collect Benefits From Michigan Employers

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

OBESITY INCREASES WORKERS' COMPENSATION COSTS

In a recent study by the Duke University Medical Center, it was "found that obese workers filed twice the number of workers' compensation claims, had seven times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than did nonobese workers."

To review the Duke University article and obtain further details, please double-click on this link:

www.dukemednews.org/news/article.php?id=10044

4-26-07

Symptomatic Aggravation Revisited by Michigan Supreme Court

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

RAKESTRAW DOES NOT APPLY TO PRIOR WORK RELATED INJURIES

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

2007 MAGISTRATE APPOINTMENTS

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.

TRAVELING EMPLOYEE DOCTRINE – REVERSED BY MICHIGAN SUPREME COURT ON 12/29/06

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

2007 MAXIMUM COMPENSATION RATE

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.

STOKES v DAIMLERCHRYSLER

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.

ESTABLISHMENT OF “TRAVELING EMPLOYEE” DOCTRINE

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)).

INJURY TO EMPLOYEE WHILE RELOCATING FAMILY

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.

MORE STRINGENT CAUSATION REQUIREMENT IN REMOTE DEATH CASES

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.

JOB INTERNS

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, lhickey@hickeycombs.com, and at 3358 Eagle Run Drive, N.E., Suite 100, Grand Rapids, MI 49525-7055.

WORKERS' COMPENSATION RETALIATION CLAIM DISMISSED

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

2006 AVERAGE WEEKLY WAGE AND RATE CHART

The 2006 Michigan State Average Weekly Wage is $784.31. The Michigan maximum weekly compensation rate for 2006 is $706.00 (up $17 from last year's max rate of $689.00).

The Michigan rate chart, updated to include 2006 information is attached.

Year/ State Average Weekly Wage (SAWW)/ 90% of SAWW (Maximum Benefit)/ 2/3 of SAWW*/ 50% of SAWW (Minimum Benefit for Death Cases)/ "25% of SAWW

(Minimum Benefit for

Specific Loss and P&T)"

2006 $790.54 $712.00 $527.03 $395.27 $197.64

2005 $765.12 $689.00 $510.08 $382.56 $191.28

2004 $744.49 $671.00 $496.33 $372.25 $186.12

2003 $724.96 $653.00 $483.31 $362.48 $181.24

2002 $715.11 $644.00 $476.74 $357.56 $178.78

2001 $714.46 $644.00 $476.31 $357.23 $178.62

2000 $678.23 $611.00 $452.15 $339.12 $169.56

1999 $644.06 $580.00 $429.37 $322.03 $161.02

1998 $614.10 $553.00 $409.40 $307.05 $153.53

1997 $591.18 $533.00 $394.12 $295.59 $147.80

1996 $581.39 $524.00 $387.59 $290.70 $145.35

1995 $554.22 $499.00 $369.48 $277.11 $138.56

1994 $527.29 $475.00 $351.53 $263.65 $131.82

1993 $506.80 $457.00 $337.87 $253.40 $126.70

1992 $489.01 $441.00 $326.01 $244.51 $122.25

1991 $477.40 $430.00 $318.27 $238.70 $119.35

1990 $474.22 $427.00 $316.15 $237.11 $118.56

1989 $454.15 $409.00 $302.77 $227.08 $113.54

1988 $440.77 $397.00 $293.85 $220.39 $110.19

1987 $433.91 $391.00 $289.27 $216.96 $108.48

1986 $414.70 $374.00 $276.47 $207.35 $103.68

1985 $397.48 $358.00 $264.99 $198.74 $99.37

1984 $370.65 $334.00 $247.10 $185.33 $92.66

1983 $358.89 $324.00 $239.26 $179.45 $89.72

1982 $340.45 $307.00 $226.97 $170.23 $85.11

*Discontinued fringe benefits may not be used to raise the weekly benefit above this amount.

*Attorney fees may not be based on a benefit rate higher than this amount.

WORKERS' COMPENSATION BENEFITS NOT PAYABLE TO RETIRED EMPLOYEE

In Campbell v General Motors Corporation, ___ Mich App ___ (2005), the Michigan Court of Appeals held that a retired employee was not entitled to workers’ compensation wage loss benefits under MCL 418.373 (the “retiree provision”).

The employee started working for General Motors in 1964. He began to experience shoulder pain in 1995. He treated at the plant clinic, but continued working, without restrictions, until the plant closed on October 4, 1999. Rather than being laid off, the employee was placed in General Motors’ “jobs bank,” which was created pursuant to a union demand during contract negotiations to avoid layoffs. While in the jobs bank, the employee was required to report to a specific location to await placement in an available job involving manual labor. The employee received full pay and benefits during his time in the jobs bank, although he did not perform any work and the employees in the jobs bank would play cards or watch television. If a job became available, the employee was obligated to accept it. The employee took a regular, non-disability, retirement on August 1, 2000. Prior to that time, he was not placed into a job through the jobs bank.

Shortly after taking his retirement, the employee filed an Application for Hearing, seeking workers’ compensation benefits due to shoulder and knee injuries.

§373 of the Workers’ Disability Compensation Act (MCL 418.373) provides that an employee who terminates active employment and receives a non-disability pension or retirement benefits paid by or on behalf of an employer from whom weekly wage loss benefits are sought, is presumed not to have a loss of earnings or earning capacity as the result of a compensable injury or disease.

The question in the Campbell case was whether the employee had retired from “active employment”. The Court of Appeals characterized plaintiff’s assignment to the jobs bank as “active employment” even though the nature of plaintiff’s work had changed. Therefore, the court reversed the Magistrate’s award of benefits, and remanded the case for application of the §373 retiree presumption.

MULTIPLE LATE PAYMENT PENALTIES DENIED

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

REIMBURSEMENT OF MEDICAL BILLS TO THIRD-PARTY PAYORS

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.

ARE EMPLOYERS/INSURERS LIABLE TO PAY ATTORNEY FEES ON UNPAID MEDICAL BILLS?

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

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

SURVEILLANCE DOES NOT VIOLATE STALKING STATUTE

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.

MEDICAID REIMBURSEMENT

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.

RAKESTRAW INTERPRETED: COMPENSABILITY OF SYMPTOMATIC AGGRAVATION

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.

ILLEGAL ALIEN CASES UPDATE: The Michigan Supreme Court's 07/23/04 Order

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.

HERNIAS

HERNIAS

The Workers' Compensation Appellate Co