Case Law Update

BCPWQ Seminar

2018

CAUSATION

“Arising Out Of and In The Course Of”

Special Missions

Smith v. MMI Inc., (Board of Magistrates, May 12, 2017)
The plaintiff was a math teacher for a Detroit area high school. He sustained multiple injuries, including a traumatic brain injury, in a motor vehicle accident on October 31, 2013. The plaintiff alleged that the accident arose out of and in the course of his employment, but he could not testify as to the purpose behind his outing on the date of the accident due to his TBI. The plaintiff’s mother testified that the school’s principal told her that she had sent the plaintiff out to buy candy. The defendant argued that there was no evidence that the accident arose out of and in the course of his employment. The school’s principal testified that she did not send the plaintiff out on the errand, nor was there any evidence that anyone had given him written permission for the errand. She also specifically denied that the conversation between herself and the plaintiff’s mother occurred.
The Magistrate held that the plaintiff sustained his burden of proof in showing a relationship between his work duties and the injury. In general, travel to and from work is non-compensable, but injuries can become compensable under certain circumstances, as outlined in Stark v L.E. Myers Company. The four factors outlined in Stark are: 1) whether the employer paid for or furnished the transportation; 2) whether the injury occurred during working hours; 3) whether the employer derived a special benefit from the employee’s activities; or 4) whether the employment subjected the employee to excessive exposure to traffic risks. The Magistrate found that the plaintiff was sent on a special mission by the party he considered his “boss,” that the employer derived a benefit of good will of students and employees, and that the plaintiff had no personal gain or benefit that would be derived from the mission.

Work Travel

Smith v. Chrysler Group LLC, (ACO, October 26, 2017)
The plaintiff was employed as a manufacturing quality assurance system manager and monitored auditors while on location at the plants he visited. He testified that at the time of his motor vehicle accident, he was en route to a Chrysler plant in Detroit from his regular workstation at Chrysler Headquarters in Auburn Hills. The Magistrate found that the plaintiff’s injuries occurred “in the course of” his employment based on all four Stark factors. Additionally, the Magistrate found that the plaintiff’s injuries “arose out of” his employment. The Magistrate awarded medical benefits and an open award of wage loss benefits for injuries arising out of the motor vehicle accident.
In reviewing the evidence of record the Magistrate used to reach his findings regarding the four Stark factors, the Commission agreed with the Magistrate’s conclusions regarding the first factor, but did not find competent, material and substantial support for the remaining three factors. The Commission first noted that the plaintiff traveled so regularly and frequently between headquarters and this specific plant that the employer would not process mileage reimbursement requests until the plaintiff accumulated at least $100 in mileage. This led the Commission to conclude that to the plaintiff, the plant was a “regular yet alternate worksite” not a “special mission or endeavor.” The Commission also noted that the primary mission of the plaintiff’s employment was not the travel to and from the worksite, but rather the monitoring of audits; the commute was an “incidental necessity to his employment.” The Commission also found that the morning commute on the date of the accident exposed all commuters, including the plaintiff, to the same risks and did not find any excessive risk exposure to the plaintiff. Therefore, the Commission held that the evidence did not support the Magistrate’s findings that the plaintiff’s injuries occurred “in the course of” his employment.
Additionally, the Magistrate found that the plaintiff’s injury “arose out of” his employment because of testimony that the plaintiff was always “on the clock” and that he would periodically take calls while not at work. The Commission found that the plaintiff only indicated that he was not required to take phone calls, but would do so “as a courtesy” if his employer called. The Commission held that this evidence alone did not support a causal connection between the work and the injury. Ultimately, the Commission reversed the Magistrate’s decision in favor of the defendant.

Hamady v. Shermeta Adams & Von Allmen P.C., (Board of Magistrates, October 23, 2017)
In Shermeta, the plaintiff was an attorney who sustained injuries to her foot and ankle when she was struck by a vehicle while crossing a street. The plaintiff and her auto insurer alleged that the injury should be compensable under the Act because the plaintiff was walking to the courthouse where she was scheduled to attend a hearing.
The Magistrate held that the plaintiff failed to sustain her burden of proof in showing that the injury arose out of and in the course of employment. Generally, injuries that happen to and an employee while going to and from work are not compensable, unless the plaintiff can prove that the totality of the circumstances, as analyzed under the four Stark factors, provide a sufficient nexus between the injury and the employment. The plaintiff met the first two Stark factors by showing that her employer reimbursed her mileage and that the injury occurred during working hours. However, the Magistrate found that the evidence did not show the plaintiff’s employer received a special benefit. The plaintiff testified that there was nothing peculiar about her going to court on the date of the injury. The Magistrate also found that the plaintiff was not subjected to any excessive exposure to traffic risks. The plaintiff was not exposed to any hazard that would not have been encountered by any other pedestrian on the date of injury.

Employer Premises

Erickson v. Associated Community Services, (Board of Magistrates, April 14, 2017)
The plaintiff alleged that a slip and fall caused disabling left leg and ankle injuries. The plaintiff was required to work one Saturday per month, but she would occasionally work in a different division on the other Saturdays to earn extra money. On the day of the incident, she was not scheduled to work, but reported to her employer’s office to see if there was work for her to do. She then fell in the parking lot as she was walking to her vehicle. The defendant denied the plaintiff’s claim for benefits, asserting that the injury did not arise out of and in the course of her employment.
According to the Act, an employee is presumed to be in the course of employment if the employee is going to or from work, while on the premises and within a reasonable period before and after working hours. In determining what is the employer’s “premises,” case law has limited the scope to property owned, leased or maintained by the employer. Tthe recent case of Mahoney v American International Group held that parking lots which the direct employer did not own, lease or maintain would not be considered the employer’s premises. The defendant-employer occupied only a portion of the building, while other tenants leased other spaces within the building. According to the lease, the landlord was responsible for maintenance of the common areas, including the walkways and parking lot. The defendant-employer was only responsible for the confines of the office space which it occupied. Based on this evidence, the Magistrate concluded that once the plaintiff left the office proper, she was no longer on the “premises” of her employer. Therefore, the Magistrate denied the plaintiff’s claim for medical and wage loss benefits in its entirety.

Dillon v. Edward W. Sparrow Hospital Association a/k/a East Lansing Athletic Club, (ACO, August 22, 2017)
In Dillon, the plaintiff was a personal trainer employed by the defendant. She alleged a back injury arising out of and in the course of her employment from a slip and fall down a flight of stairs. At the time of her slip and fall, the evidence showed that she was taking her children to on-site daycare and tennis lessons before starting her work day. The daycare and tennis lessons were provided by the defendant for the plaintiff at a subsidized rate, which the defendant was responsible for paying.
The Magistrate held that the plaintiff’s injury did not arise out of and in the course of her employment. Instead, the activities that the plaintiff was engaged in at the time of her injury were preparations which allowed her to go to work, rather than her actual work activities. The evidence supported overcoming the presumption that an employee going to or from work while on the employer’s premises within a reasonable time before or after working to be in the course of his or her employment. The Magistrate also found that the plaintiff failed to establish a causal connection between her injury and her employment, mostly based on the plaintiff’s own testimony that she was engaged in a personal activity at the time of her fall. The Magistrate rejected any special benefit to the employer based on her activities at the time of the injury. The Commission affirmed the Magistrate’s findings that the plaintiff was not engaged in the course of her employment and that the injury did not arise from her employment.

Personal Risk

Davis v. HCR Manor Care Inc., (ACO, December 15, 2017)
In Davis, the plaintiff sustained injuries when he fell on a grassy embankment while walking from the parking area to his workplace. On remand from a 2014 MCAC opinion and order, the Magistrate held that the plaintiff had sustained his burden in proving that the fall arose out of and in the course of employment.
First, the Commission held the Magistrate’s finding that the fall had occurred “in the course of employment,” was supported by competent, material and substantial evidence on the whole record. In order to show that an accident occurs “in the course of employment,” the plaintiff must prove that his fall occurred on the employer’s premises within a reasonable time before working hours. In this case, unrebutted evidence showed that the fall occurred within a reasonable time before his shift was to begin. Further, the Commission found that testimony regarding the defendant’s instructions to its contractor to install wooden steps or a walkway over the grassy mound area was evidence that the area was part of the defendant’s premises because it had authority to maintain the grassy area.
Secondly, the Commission held that the Magistrate’s findings that the fall arose “out of” his employment was supported by competent, material and substantial evidence on the whole record. In order to show that an accident arose “out of” employment, the plaintiff must show a causal nexus between the work-related event and the disabling injury. The defendant argued that the plaintiff’s choice to walk down a grassy slow was a “personal risk” that broke the causal nexus. However, the Commission did not find that the plaintiff’s choice was a “personal risk” because the employment situation, the slipperiness and lack of a developed walkway, went beyond a normal risk of everyday life. Further, there was no evidence to show that the plaintiff was engaged in personal activity or purpose that would break the causal nexus.
Causal Relationship

Degenerative Conditions

Handley v. County of Genesee, (Board of Magistrates, September 13, 2016)
The plaintiff was employed as a mobile meal driver; he would deliver meals to county residents in his personal vehicle and be reimbursed for mileage. He alleged a neck injury when he was bitten by a dog during the course of his employment on April 29, 2009. He continued working for the defendant, but testified that he had continued neck pain and treatment. In September 2010, the defendant informed plaintiff and other drivers that they would soon be required to use the County’s vehicles, rather than their personal vehicles, to deliver meals. In January 2011, the plaintiff went off work due to neck pain, which he alleged had been causing an interference in his sleep. He later presented an off-work slip authored by his primary care physician. The defendant disputed the plaintiff’s claimed entitlement to ongoing wage loss benefits on the basis that the plaintiff’s current disabling impairments were not caused by his work incident.
Ultimately, the Magistrate held that the plaintiff did prove a compensable injury resulting from his original injury date of April 29, 2009. However, the Magistrate did not find evidence of a last day of work injury relating to his discontinuing work for defendant in January 2011. The Magistrate noted that the medical records from the date of the dog bite did not contain any evidence of neck pain and he did not report neck pain until several days later. There was also a gap of almost a year and a half regarding any complaints or treatment for neck pain. The Magistrate also found the timing of the plaintiff’s disability to be suspicious because he had vehemently complained about and disagreed with the County’s change to using County vehicles to make deliveries. He went off work right around the time this change was going to be implemented. Therefore, the Magistrate denied all claims of medical and wage loss.

Hurd v. Nexteer Automotive Corp,
In Hurd, the plaintiff alleged injuries to both shoulders and a cardiac condition. His original work-related injury to the left shoulder allegedly was the result of a slip and fall on October 25, 2012. He underwent two surgeries to the left shoulder that the defendant accepted and paid. The defendant disputed claims for ongoing benefits after a third surgery on March 27, 2014, based on the plaintiff’s longstanding history of treatment to his left shoulder associated with his activity playing fast pitch softball.
The Magistrate held that the plaintiff sustained his burden of proof in establishing a work-related left shoulder condition through the date of dispute. The Magistrate found that a six-year gap from the date of the last treatment non-work-related treatment to the alleged work injury was sufficient to show that the left shoulder injury arose from the work incident. Additionally, the Magistrate held that the plaintiff did not sustain his burden of proof in establishing a work-related left shoulder condition after the third surgery. This was based on the lack of evidence showing that a new rotator cuff tear could have been caused by his restricted work activities. Therefore, the Magistrate awarded benefits for the left shoulder through the date of dispute, which had already been paid by the defendant.
The plaintiff further alleged an aggravation to the right shoulder while he was performing a job with only his right shoulder while on restrictions for his left shoulder in March 2015. The allegation of a cardiac injury arose from a heart attack the plaintiff suffered while undergoing the third surgery on his left shoulder for the work injury. The Magistrate held that the plaintiff did not sustain his burden of proof in establishing a connection to his job duties to these conditions. The Magistrate did not find the plaintiff’s testimony credible that his restricted job duties could have caused or aggravated a chronic partial rotator cuff tear. Regarding the cardiac injury, the defendant produced evidence of a longstanding cardiac condition which resulted in extensive medical treatment prior to his work for the defendant. Therefore, the Magistrate denied all medical and wage loss benefits pertaining to these conditions.

Occupational Exposure

Webb-Eaton v. Carepoint Resources Inc., (Board of Magistrates, October 24, 2016)
The plaintiff alleged a severe allergic reaction to latex balloons in her workplace that resulted in disability. The plaintiff testified that she had a latex allergy for 20 years, but successfully managed it. She had also informed her supervisor of her allergy on her first day of work. One Friday morning, the plaintiff arrived at work and saw latex balloons had been brought in for a celebration. After expressing her concerns, her supervisor told her that she could work from home. The plaintiff refused to work the following Monday because the balloons were still in the work place. She did return to work the next day after the balloons had been removed. Shortly thereafter, she began to feel sick and when she attempted to leave, she lost control of her bladder. She was transported to the hospital and admitted for several days. She testified that the exposure aggravated and accelerated numerous pre-existing medical conditions and that she was unable to return to any work.
The Magistrate held that the plaintiff failed to sustain her burden of proof that she sustained in injury that arose out of her employment. The medical records from the hospital where the plaintiff treated on the date of the injury indicated that there was no evidence to suggest a latex allergy reaction and a connection to the plaintiff’s symptoms. The defense’s medical expert further testified that anaphylactic shock did not have the ability to cause a change in pathology because once the symptoms resolved, the party would return baseline; an anaphylactic shock episode would not cause aggravation or acceleration of pre-existing conditions. Therefore, the Magistrate denied the plaintiff’s claim for medical and wage loss benefits.

Mental Injury

Graham v. State of Michigan Department of Corrections, (Board of Magistrates, January 25, 2017)
In Graham, the plaintiff was a corrections officer at a prison and alleged a work-related psychiatric injury arising out of an inmate’s suicide. The Act indicates that for mental injuries to be compensable, the injury must arise out of actual events of employment and the employee’s perception of the actual event must be reasonably grounded in fact or reality. Further, mental disabilities are only compensable if contributed to, aggravated, or accelerated by the employment in a significant manner. The significant manner test requires the factfinder to consider four factors: 1) the number of occupational and non-occupational contributors; 2) the relative amount of contribution of each contributor; 3) the duration of each contributor; and 4) the extent of the permanent effect that resulted from each contributor.
The Magistrate held that the plaintiff did not sustain his burden of proof in establishing that his mental injuries arose out of and in the course of his employment. The Magistrate acknowledged that it was undisputed that an inmate committed suicide in her prison cell at the time the plaintiff was working and that the plaintiff responded to the call from the officer who discovered the inmate. However, the Magistrate did not find credible evidence to support that the plaintiff’s perception or apprehension of the employment event was grounded in fact or reality. Despite the plaintiff’s lengthy testimony regarding interactions with the decedent and his supposed knowledge of personal details of her life, the Magistrate noted that none of the medical evidence, depositions, or reports indicated that the plaintiff knew the decedent or any details of her personal life. There were also inconsistencies regarding the plaintiff’s role in efforts to revive the inmate.
The Magistrate also held that the plaintiff did not sustain his burden of proof in showing that his mental disability was contributed to, aggravated, or accelerated by the employment in a significant manner. In reaching this finding, the Magistrate pointed to the non-work factors that could have contributed to his mental disability, including alcohol abuse and financial, family, and marital stress. The Magistrate also noted that the plaintiff claimed work stress in 2010, but non-work factors were evident long before the work incident. Based on the four-factor test, the Magistrate failed to find evidence of significant contribution, aggravation or acceleration by the employment to the plaintiff’s psychiatric illness. Therefore, the plaintiff’s claim for benefits was denied.

Milligan-Hammon v. Allied Cash Advance Michigan LLC, (Board of Magistrates, April 4, 2017)
The plaintiff alleged disabling injuries to her neck, left shoulder and low back resulting from a robbery of June 1, 2012, and a disabling psychiatric injury resulting from a robbery of August 24, 2013. The defendant disputed entitlement to medical and wage benefits for both events.
Regarding the 2012 event, the Magistrate held that the plaintiff failed to sustain her burden of proof in establishing orthopedic injuries. First, the Magistrate noted that there were inconsistencies in the plaintiff’s testimony from other accounts of the incident. The plaintiff testified that she was struck with a gun on the side of the head and fell to the floor. Testimony from another employee present at the time of the robbery and the police report indicated that the other employee, not the plaintiff, was struck in the head with a gun. Secondly, the evidence did not support that the plaintiff sustained any orthopedic injuries as a result of this incident. The only documented physical injury immediately following this incident was a cut to her knee. The plaintiff did not report any pain symptoms relative to her neck, left shoulder, or back until months after the incident. Further, medical records noted pain complaints in her neck and back prior to the work event, including a cervical MRI showing degenerative changes two months prior to her start date with the employer. Regarding the left shoulder, the records showed evidence of an intervening event in December 2015 that the Magistrate considered to be the “more likely cause” of the plaintiff’s left shoulder condition. Therefore, her claim for medical and wage loss benefits was ultimately denied.
Regarding the 2013 event, the Magistrate held that the plaintiff did sustain her burden of proof in establishing a compensable psychiatric injury and disability. The plaintiff testified that she was alone at the time of the robbery, the robber held a gun to her head and threatened to kill her if she did not comply with his instructions. The Magistrate found that the plaintiff’s testimony was unrebutted, credible and supported by the police report of this incident. The Magistrate also found that it was reasonable for the plaintiff to feel apprehension by a gun pointed at her head. The defendant argued that other non-employment factors also significantly contributed to her mental disability. However, the Magistrate held that these factors were not life-threatening and “pale in significance” to the events of the robbery. In regard to ongoing disability, the defendant’s psychiatric medical expert testified that the plaintiff would be capable of returning to gainful employment, even with her diagnosis of PTSD. This contrasted with the plaintiff’s treating psychiatrist, who testified that the plaintiff was and continued to be “absolutely unemployable.” Ultimately, the Magistrate accepted the defendant expert’s opinion over that of the treater’s based on insufficient support for the treater’s conclusions and inconsistencies between his records and his testimony. Therefore, the Magistrate held that the plaintiff was entitled to weekly benefits through the date of the expert’s finding of a capability to return to gainful employment.

Proximate Cause

Intervening Event

Bailey v. City of Detroit, (Board of Magistrates, November 6, 2017)
In this litigation, the plaintiff alleged multiple specific injury events in 2005 to 2007 and a last day of work of February 18, 2008. He was diagnosed with herniated discs at L4-5 and L5-S1 with left-sided radiculopathy which required surgery to relieve. He attributed the onset of the low back symptoms and the need for treatment were related to the multiple dates alleged in his petition. The defendant argued that the plaintiff’s low back symptoms and treatment were the result of a non-occupational accident in which he fell off his sister’s porch on May 7, 2007.
The Magistrate held that the plaintiff failed to meet his burden of proof in showing that symptoms and treatment related to his low back after May 7, 2007, were related to his employment duties. The Magistrate analyzed the evidence under the Rakestraw standard, which requires evidence that the plaintiff’s work duties produced a medically distinguishable condition from his pre-existing non-work condition. The evidence showed that the plaintiff did not have any pre-existing issues regarding his low back based on a pre-employment physical examination in 2000. An April 2007, MRI did show some disc pathology in the lower back. However, after the May 7, 2007, non-occupational fall, the evidence showed a worsening of the plaintiff’s condition. An MRI performed after the fall showed an advancement of the pathology and the plaintiff’s treating physician only recommended surgical intervention after the fall. Therefore, the Magistrate denied the plaintiff reimbursement for any medical bills or treatment after May 7, 2007.

Residual Wage Earning Capacity

Smith v. SDI Exterior Systems LLC, (ACO, October 26, 2017)
The plaintiff sustained severe injuries to his right leg after falling 30 feet onto a hard surface. His injuries included an open right tibia fracture, L2 burst fracture and incomplete spinal cord injury. In an effort to reduce their exposure for wage loss, the defendant mandated that the plaintiff participate in a protected job that the defendant subsidized and established for the plaintiff to perform in his home. The plaintiff later discontinued this position, indicating that his physical and emotional injuries made the continuation of his job duties with this program untenable. At trial, the Magistrate granted an open award of wage loss benefits and additional findings related to reasonable and necessary medical care. The defendant challenged the Magistrate’s finding of total disability and lack of wage earning capacity, arguing that the Magistrate erred in failing to complete the necessary analysis by considering the plaintiff’s potential ability to perform lesser-paying jobs.
The Commission found that there was competent, material and sufficient evidence on the record to support the Magistrate’s finding of factors that prevent the plaintiff from participating in the ordinary aspects of the workforce. First, the Commission noted that the plaintiff had not returned to full time work since the injury, other than the part-time low wage subsidized activities organized by the defendant. Secondly, it noted that the plaintiff still had documented, ongoing physical and mental issues concerning bladder and bowel dysfunction, memory and concentration, and anger management. Finally, the Commission noted that the plaintiff did not have reliable transportation and would require the employer to accommodate his wheelchair. Based on the entirety of the record, the Commission affirmed the Magistrate’s finding of total disability.

Proof of Disability

Welsh v. Nexteer Automotive Corp., (Board of Magistrates, January 3, 2017)
The plaintiff alleged that he felt a pop and burning sensation in his groin when he was pulling a cart of metal chips and shavings. The plaintiff was later diagnosed with an inflamed varicocele and underwent surgical intervention. The treating surgeon testified that it was very likely that the strain as described by the plaintiff exacerbated the inflammation. The defendant denied the plaintiff’s claim for medical and wage loss benefits.
The Magistrate did find that the plaintiff sustained his burden in showing that the injury arose out of and in the course of his employment. This was based on the Magistrate’s acceptance of the treating surgeon’s testimony for the plaintiff over that of the evaluating internist’s opinion and testimony for the defendant.
However, the Magistrate also held that the plaintiff did not sustain his burden in proving that a disability resulted from the injury. Under the Act, “disability” is defined as “a limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease.” Section 301(5) indicates the steps to establishing an initial showing of disability, which include disclosing qualification and training, outlining jobs which fit the plaintiff’s qualification and training, demonstrating the work-related injury prevents the employee from performing those jobs, and providing evidence that the plaintiff cannot obtain any of those jobs. The plaintiff failed to submit any evidence regarding the initial showing of a disability under Section 301(5). The Magistrate found it reasonable to assume the plaintiff would have meet the definition of “disability” during the time he was recovering from his surgery; however, this assumption does not rise to the level of proof of disability under the Act. Therefore, the Magistrate awarded reasonable and necessary medical expenses, but denied the plaintiff’s claim for wage loss benefits.

Job Search Efforts

Dahoui v. Fishbeck, Thompson, Carr & Huber Inc., (Board of Magistrates, October 13, 2016)
The plaintiff, a mechanical engineer, sustained a compensable injury to his low back and legs as the result of lifting a heavy computer monitor. The defendant disputed benefits based on an independent medical examination which found that the plaintiff did not show any post-traumatic pathological changes and that the plaintiff could return to work as an engineer without restrictions. At the time of trial, the plaintiff presented evidence that he could return to work with restrictions of no lifting over 10 pounds, no excessive twisting, turning or pending and a sit/stand option. As evidence of his job search, the plaintiff also presented his resume and emails inquiring about job postings.
The Magistrate held that the plaintiff sustained his burden of proof in establishing a compensable low back injury. However, the plaintiff did not sustain his burden in showing that he has made a good faith effort to seek employment within his restrictions. As part of a showing of disability according to Stokes v Chrysler, the plaintiff must show that he or she cannot obtain employment at the same or higher wage within their restrictions as a result of a good faith attempt. The Magistrate found that the emails sent by the plaintiff to prospective employers were not evidence of a good faith job search and even rose to the level of sabotaging his job search efforts. In the emails, the plaintiff did disclose that he had restrictions, but misstated his restrictions by indicating that he would need to lie down as frequently as possible during the day. Therefore, the Magistrate denied wage loss benefits to the plaintiff beyond April 25, 2016.
Reasonable Offer of Employment

Reist v. AZO Services Inc., (April 19, 2017)
The plaintiff alleged that he sustained carpal tunnel syndrome to both his wrists as a result of many years of significant driving with gripping and grasping of a vibrating steering wheel. He also alleged that many years of driving long hours in a seated position and other activities resulted in injuries to his neck, bilateral upper extremities and bilateral wrists/hands. The Magistrate held that the plaintiff did meet his burden of proof in showing that he sustained work-related bilateral carpal tunnel and cervical spine injuries.
The defendant argued that the plaintiff was not entitled to wage loss due to the plaintiff unreasonably refusing an offer of reasonable employment. The evidence showed that defendant offered a return to work position on January 9, 2017, for a Residential Cart Delivery Truck job. However, the job as described did not meet with plaintiff’s restrictions of a ten-pound lifting restriction and no repetitive bending and twisting. The second job offer was made on January 31, 2017, for the same job, but with a different job description that removed only a requirement for a Class B or Class C commercial driver’s license. There was no mention of any lifting requirement and/or weight limit. When the plaintiff did attempt to return to work, he testified that he did not perform all the work activities of the described job because some of the activities, specifically the lifting of the carts, exceeded his lifting restrictions. The plaintiff also testified that he performed the job duties for two days before he discontinued working due to an aggravation of his cervical spine complaints and a desire to return to his doctor.
The Magistrate found that the defendant did not ensure that the job met the plaintiff’s work restrictions based on the lack of a credible explanation as to what they did to accommodate the plaintiff’s restrictions with the second job offer. The Magistrate also found that even if the job offer was valid, the plaintiff made a good faith effort to perform the job duties and his testimony was credible regarding the discontinuation of his work. Therefore, the Magistrate awarded medical benefits and open award of wage loss benefits.

Petition for Termination

Johns v. ABC Beverage Management Inc., (ACO, August 17, 2017)
The plaintiff was granted an open award of benefits in 2003 for total disability as the result of a right knee injury that eventually required an arthroplasty. This Appellate Commission claim for review arose from the Magistrate’s determination that the plaintiff was no longer disabled such that wage loss benefits were no longer owed. At the time of trial, defendant submitted the report of the IME physician, who found that the plaintiff had made an excellent recovery from his total knee replacement and had reached maximum medical improvement. The physician also showed measurable improvement in motion from prior examinations. Finally, the physician opined that the plaintiff could return to work in a full, unrestricted capacity. The plaintiff testified that, in contrast to the IME report, his knee had continued to worsen since the replacement.
However, the Magistrate found this testimony not credible due to the lack of support for this position in the treatment notes. The Appellate Commission upheld the Magistrate’s decision, finding that there was sufficient evidence to show a change in condition of the plaintiff’s condition.
WORKERS’ COMPENSATION BENEFITS

Recoupment of Benefits

Releford v. Ascension Health, (Board of Magistrates, July 6, 2017)
On March 1, 2013, the defendant filed a Petition to Stop ongoing wage loss payments stemming from an open award of benefits granted in 2004. The Petition was based upon the finding of Dr. Lawley’s October 14, 2011, IME that the plaintiff was determined to no longer have a work-related disability. The defendant argued that benefits were no longer owing after the IME date (10/14/2011). The defendant also included a claim for recoupment of benefits issued between the IME date and petition date. In the original case, the Magistrate found in favor of the defendant on the issue of benefits no longer being owed as of the IME date. The Appellate Commission upheld the determination regarding cessation of benefits, but remanded to the Magistrate for a determination on defendant’s entitlement to recoupment.
On remand, the Magistrate noted that this was a case of first impression because no statutory or case law existed in a situation where a defendant was paying benefits based on an open award and there was no fraud or intentional act on the plaintiff’s part. In his analysis, he indicated that the instant case provided a problematic situation for the plaintiff in that she would either be forced to refuse weekly benefits while waiting for defendant to file a petition, or be forced to essentially put her benefits into escrow; neither situation is one that most plaintiffs can afford. Ultimately, the Magistrate held that the defendant was not entitled to recoupment based on the fact-specific scenario.

Retaliatory Discharge

Roring v. Ford Motor Co., (U.S. District Court, Eastern District of Michigan, February 15, 2017)
This litigation alleged violations of the Americans with Disabilities Act and the Michigan Workers’ Disability Compensation Act (WDCA). The plaintiff alleged that he was constructively discharged in retaliation for asserting his rights under the WDCA in violation of Section 301. The allegations stem from a claim for benefits under the WDCA for a compensable thumb injury the plaintiff sustained in 2002. The plaintiff returned to work with restrictions for several years until a 2011 IME released his restrictions. The plaintiff never challenged the IME findings and continued to work in his favored work position due to a lack of operational need in other areas. In 2015, the defendant informed plaintiff on several occasions he would need to take on additional duties due to operational needs. The plaintiff refused the assignments, citing his medical restrictions that were rescinded pursuant to the 2011 IME. Shortly thereafter, the plaintiff took medical leave due to a mental health conditions, but eventually returned to employment.
To establish a prima facia case of retaliation under the WDCA, the plaintiff must establish that: 1) the plaintiff asserted his right to workers’ compensation benefits; 2) defendant knew of the plaintiff’s assertion; 3) plaintiff suffered an adverse employment action; and 4) there was a causal connection between plaintiff’s assertion of those rights and the adverse employment action.
The Court held that the plaintiff could not prove that he suffered an adverse employment action. The plaintiff’s allegations of constructive discharged failed on the grounds that the voluntary medical leave was insufficient for establishing a constructive discharge and that the employer’s conduct was not so severe that a reasonable person would feel compelled to resign. The plaintiff’s subjective and speculative assertions that the defendant would terminate his employment for refusing assignments were insufficient to sustain a claim for constructive discharge. Therefore, the Court granted the defendant’s Motion for Summary Judgment.

Intentional and Willful Misconduct

Kruger v. Satcon Technology Corp., (Board of Magistrates, December 19, 2016)
The plaintiff was injured in a motor vehicle accident while driving home from work. His bloodwork at the emergency room tested positive for cocaine and benzodiazepine. At the time of the accident, he was operating a rental car paid by the defendant. The auto insurance carrier paid benefits and sought reimbursement from the employer’s workers’ compensation carrier. The workers’ compensation carrier asserted that they did not owe benefits based on the plaintiff’s intentional and willful misconduct and that the accident did not arise out of and in the course of his employment.
The Magistrate first assessed the employer’s defense under Section 305 of the Act, which indicates that an employee shall not be entitled to compensation under the Act “[i]f the employee is injured by reason of his intentional and willful misconduct.” The defendant also cited its employee handbook that contained a policy statement of a drug free workplace. However, the Magistrate noted that there was no evidence that the employee used cocaine and/or benzodiazepine while conducting business off premises or working hours. The Magistrate also noted the absence of any enforcement of the drug free workplace policy on the employer’s part. Finally, the Magistrate found no clear evidence that the motor vehicle accident was caused by the employee’s use of cocaine and/or benzodiazepine in any of the expert witnesses’ testimony. At most, the Magistrate found that testimony raised the possibility that the employee was impaired at the time of the motor vehicle accident. Based on the evidence presented, the Magistrate did not find that the defendant established that the plaintiff engaged in intentional and willful misconduct to disqualify him from benefits.
However, the Magistrate did hold that employee’s accident did not qualify as compensable under an analysis of the exceptions to general rule that that travel to and from work does not arise out of or in the course of one’s employment. Therefore, the Magistrate denied and dismissed the auto insurer’s Petition for Reimbursement.

EMPLOYER-EMPLOYEE RELATIONSHIP

Employee Under the Act

Ostendorf v. Michigan State University, (Board of Magistrates, February 27, 2017)
The plaintiff was injured in a motor vehicle accident. Benefits were paid by United Educators and State Farm Mutual Automobile Insurance Company. Both of these entities alleged that the plaintiff was an employee of Michigan State University (MSU) and was injured in the course of her employment. Subsequently, they asserted that MSU was responsible for the payment of benefits under the Act and filed Petitions to Intervene.
The sole issue before the Magistrate was whether the plaintiff was an employee under the Act pursuant to MCL 418.161(1)(b). This section of the Act defines the term “employee” and deems that “nationals of foreign countries employed pursuant to Section 102(a)(1) of the Mutual Education and Cultural Exchange Act of 1961 (MECEA)…shall not be considered employees under this Act.” The Magistrate first found that the plaintiff was a national of a foreign country based on her VISAs and internal MSU documentation. Further, the Magistrate found that the plaintiff’s involvement with MSU was that of a research associate under a grant from the Department of Energy. MSU provided monies to the plaintiff to participate in an educational exchange involving research. The Magistrate also accepted expert testimony that opined the plaintiff’s employment was pursuant to the MECEA, rather than pursuant to other statutes or programs. Therefore, the Magistrate held that the plaintiff would not be considered an employee covered by the Act.

Bradybaugh v. State Farm Insurance Co., (ACO, October 26, 2017)
In Bradybaugh, the plaintiff made a claim under his homeowner’s insurance policy for damage to his kitchen resulting from a flood on August 2, 2007. The claim was assigned to claims representative Mr. Thompson. At some point, the plaintiff expressed concerns to Mr. Thompson that the damaged portions of the kitchen had not been removed. It was then arranged between the two that the plaintiff would do the preparatory work himself. While performing this work, the plaintiff sustained an injury.
The issue before the Magistrate was whether the plaintiff was an employee under a contract of hire and entitled to compensation for the alleged injury suffered while performing the preparatory work. The plaintiff argued that when he accepted the duties of the preparatory work for his home, an implied contract for hire arose on the basis that he would be performing services with the expectation of compensation from the defendant. Plaintiff did receive a check from the defendant and presented it as evidence. The defendant argued that no implied contract of hire existed between itself and the plaintiff as to support an employer/employee relationship. The defendant argued that it did not direct the plaintiff’s work. The Magistrate ultimately held that the plaintiff was not an employee within the meaning of the Act. In reaching this conclusion, the Magistrate accepted the testimony of Mr. Thompson, the claims representative, which showed that he would not use the term “hire” when dealing with and insured and that he was not authorized to issue an employment offer on behalf of State Farm. The Magistrate also noted that the check which the plaintiff claimed as his compensation under the contract of hire did not contain any deductions for social security, taxes, or the usual deductions under a contract of hire. Further, the check was made payable to both the plaintiff and the plaintiff’s wife, who was the joint policyholder. The Appellate Commission held that the plaintiff did not establish the elements of an employee-employer relationship pursuant to the Act and affirmed the Magistrate’s decision.

Statutory Employer

Hamlett v. Blanchard Roofing and Tom Waligorski Roofing, (Board of Magistrates, May 15, 2017)
In Hamlett, the plaintiff was a roofer who claimed right shoulder and neck injuries arising out an incident in which a fiberglass ladder struck him in the right shoulder. The plaintiff named both defendants and alleged Tom Waligorski Roofing as a statutory employer under the Act. Both defendants were uninsured.
The plaintiff testified Rusty Blanchard would direct his work by telling him where to report, supply the materials for the job and give instructions as to each day’s activities. Regarding Tom Waligorski’s involvement, the plaintiff testified that they would use a dump truck with “Tom Waligorski Trucking” written on the vehicle and use his materials, such as compressors, ladders and coils. The plaintiff testified that for the majority of the jobs he was paid by Mr. Blanchard. Finally, he considered Mr. Blanchard as the supervisor on the jobs.
Mr. Waligorski testified that he had been in the roofing business since 1961 and has owned his own business since 1971. Since 2000, he testified that he began hiring other individuals to subcontract on roofing jobs. He had used Mr. Blanchard in this capacity for several years. He also testified that for the last fifteen years, he only had one part-time employee, a secretary.
The Magistrate accepted Mr. Waligorski’s testimony as credible and held that he was neither the direct or statutory employer, nor subject to the Act. The Magistrate also found Blanchard Roofing to be a direct employer of the plaintiff based on the plaintiff’s testimony that Mr. Blanchard contacted him with jobs and the exclusive work that plaintiff performed for Blanchard.
OPIOIDS

Reasonable & Necessary Standard

Medina-Lopez v. Wirtz Manufacturing Co. Inc., (Board of Magistrates, December 16, 2016)
The plaintiff sustained severe injuries to his left hand and arm, which resulted in multiple surgeries. The plaintiff alleged that his injuries led to the development of reflex sympathetic dystrophy and Complex Regional Pain Syndrome for which the plaintiff required opioid medication. The plaintiff and his wife represented to multiple doctors that the plaintiff was unable to use his left hand in any capacity. Further, they both represented that the plaintiff could not tolerate even light touch to his affected extremity. The defendant contested the plaintiff’s use of opioid medication, arguing that the plaintiff’s use was not medically reasonable or necessary, thus the medication would be non-compensable under the Act.
The Magistrate held that the plaintiff’s use of ongoing opioid medication was not reasonable nor necessary. In reaching this conclusion, the Magistrate reviewed medical records and medical expert testimony. The testimony of the defendant’s expert witness indicated that there was no evidence of RDS/CRPS, which was the diagnosis for which the medications were being prescribed. Further, drug testing indicated discrepancies in the substances found and the medications being prescribed. Hair follicle testing raised questions as to whether the plaintiff was even taking the opioid medications. The defendant also presented video surveillance that showed the plaintiff carrying boxes and large items with no evidence of discomfort or pain responses. The Magistrate indicated that the surveillance contradicted the plaintiff’s assertions of the extent of his disability and his allegation that even the lightest touch to his hand caused excruciating pain. Therefore, the Magistrate denied the ongoing payment of narcotic and opioid-derived medication as a reasonable and necessary component of treatment for the left hand and upper extremity injuries.

Leslie v. Consolidated Personnel Corp., (Board of Magistrates, August 28, 2017)
This case arose out of an Application for Mediation or Hearing – Form C filed by the defendant to cease payment for the plaintiff’s pain medication after an earlier open award of benefits. The plaintiff was a former long-distance truck driver who developed right leg deep venous thrombosis (DVT) in the 1990’s. His treatment consisted of an anticoagulant and compression stockings. He was also using Tramadol, Tylenol No. 4, and topical creams for chronic pain syndrome of his right lower extremity.
The defendant alleged that the plaintiff’s use of the opioid and other pain medication was not reasonable nor necessary to treat his DVT. The defendant arranged for the plaintiff to be evaluated by Dr. Herbert Malinoff. Dr. Malinoff opined that the plaintiff’s diagnosis was chronic pain syndrome, but he could not relate the etiology of the chronic pain syndrome to the venous thrombosis within a reasonable degree of medical certainty due to other co-morbid conditions, including arterial insufficiency and peripheral neuropathy. Therefore, Dr. Malinoff found that the plaintiff’s current use of opioid and pain medication did not relate to any work-related condition. Finally, Dr. Malinoff opined that the opioid and pain medication was not reasonable nor medically necessary given their ability to cause “dependency, rebound pain, and hyperalgesia with a worsening internal perception of pain.”
The Magistrate found that the defendant sustained its burden of proof in showing that the plaintiff’s use of opioid medication was not related to his work-related condition. Therefore, the Magistrate ordered that the defendant was no longer responsible for payment of the defendant’s pain and opioid medications. However, the defendant continues to be responsible for anticoagulants and compression stockings, as long as reasonable and necessary, pursuant to trial stipulations.