Epson v Event Staffing, 2009 ACO #152

AWW: The Commission affirmed the magistrate’s decision that the plaintiff’s AWW is based on his wages earned during the pre-season as opposed to what the plaintiff would have made during the regular season.
Wage Loss: In a splintered en banc opinion, the Commission attempted to more clearly define “wage loss.” Commissioner Grit (the author of the majority opinion) provided the following analysis: First, pursuant to MCL 418.301(4) as clarified in Sington, disability is defined as a limitation in the employee’s maximum wage earning capacity in work suitable to his or her qualifications and training caused by a work-related injury or disease. Proof of disability does not prove wage loss. Commissioner Grit indicated that to prove wage loss, pursuant to Haske and Romero, the plaintiff must show that, “as a consequence of work-related injury or disease, he or she suffered a reduction in his wage earning capacity.”

Key point: In order to prove the reduction, the employee must prove the actual work-related injury, the loss of wages, and a direct connection between the injury and the loss of wages. [Note: Stokes overturned the disability analysis of Haske but left unchanged the wage loss analysis, as indicated in Romero v Burt Moeke Hardwoods, Inc., 280 Mich App 1 (2008).]

Seasonal Employment: The Commission remanded this matter to the magistrate for additional analysis under Romero. The plaintiff, a seasonal football player, argued that his wage loss benefits should extend year round. The defendants argued in the alternative because, logically, after the season ends, the plaintiff is not suffering a work-related wage loss. The Commission disagreed with the defendants. Key point: the plaintiff is not automatically disentitled to wage-loss benefits at the end of a season; however, but the plaintiff must establish that his ongoing wage-loss is a result of the work related injury.