Case Law Update

BCPWQ Seminar

April 21, 2017

CAUSATION

“ARISING OUT AND IN THE COURSE OF” – LUNCH

Chaffer v. City of Romulus, (Board of Magistrates, August 25, 2016). This matter arose out of a motor vehicle accident in which the plaintiff was involved on her way to pick up lunch for herself and co-workers. The plaintiff testified that on the date in question, she and her co-workers had discussed having a holiday lunch, which was not custom for them. She told the others that she was not able to get the food, but ultimately agreed to do so when she was advised that no one else would be able to. The plaintiff objected to the restaurant choice, but ultimately agreed when the co-worker agreed to pay for the lunch order. The plaintiff went directly to the restaurant, obtained the ordered food, and began her journey back to the office. She did not stop, or plan to stop, anywhere else coming or going. On her return to work, she was sitting at a red light when she was rear-ended by another vehicle. The plaintiff was eventually transferred to the emergency room via ambulance, and suffered significant injuries to her back and neck. The defendant argued the motor vehicle accident did not arise out of the scope and/or in the course of employment. The Magistrate disagreed, finding the plaintiff was engaged in a special mission at the direction of her supervisor when she drove her car to a restaurant to pick up lunch for herself and her co-workers. Her supervisor also paid for her lunch. The plaintiff did not want to make the trip, did not volunteer to drive, and did not want to purchase food from that particular restaurant until her boss offered to pay for lunch. Her picking up the food also meant that other employees stayed and were expected to work until the plaintiff returned with the food. The directive from her supervisor, especially given the plaintiff’s reluctance, is sufficient to bring her travel to and from the restaurant within the course and scope of her employment. Accordingly, the plaintiff is entitled to workers’ compensation benefits for suffering a work-related injury.

“ARISING OUT OF AND IN THE COURSE OF” – WORK TRAVEL
Salenbien v. Allstate Insurance Co., (Court of Appeals, August 18, 2016). This matter arose out of a motor vehicle accident that occurred when an employee was traveling on company business. Prior to the motor vehicle accident, the plaintiff was travelling to meet with a potentially large client. Following the business meeting, the plaintiff was involved in the motor vehicle accident. There was a question of fact with regards to where the plaintiff was traveling to at the time of the accident. The original Magistrate found that the accident did not occur in the course of and arise out of employment, noting that there was insufficient evidence to determine whether plaintiff was on his way to the office, on his way home, or going to some other non-work location. The Appellate Commission upheld the decision of the Magistrate, agreeing that the accident did not arise out of the plaintiff’s employment activities. The Commission stated that there must be some type of nexus between the alleged injury and the plaintiff’s work. An injury is not compensable just because it occurs while traveling on company business. This may establish that it occurred in the course of employment, but is not dispositive of the issue of “arising out of.” The Court of Appeals ultimately disagreed with the Commission, reversing the decision. The Court concluded that the plaintiff’s travel was “employment related.” The Court also held that this case falls into a special category in which travelling from site to site is the essence of the employee’s job. “When engaged in this type of work, he should be protected while on the highway in the course of his duties after leaving the last point at which he rendered services regardless of whether he is then journeying to his next place of service, or returning to business quarters, or the place of his domicile.” Cases in which an employee’s travel is integral to his employment are fundamentally different. Thus, the Court held that it matters not whether the plaintiff was traveling between customer sites or from a customer’s location back to the office; his travel would have been the primary mission of his employment and an integral part of his duties in either instance.

“ARISING OUT OF” – IDOPATHIC FALL

Freeman v. Employment Group Holdings Corp., (Board of Magistrates, December 15, 2015). The plaintiff in this case alleges a slip and fall while cleaning up fiberglass in the course of his employment. The plaintiff claimed he was working at an elevated height, with a slippery fiberglass substance, which caused him to fall and strike his head, resulting in a temporary loss of consciousness. Subsequent medical records revealed that the plaintiff had a diabetic issue, and diabetic symptoms immediately following the incident, which likely resulted in a short seizure. The medical records reflected a possible syncopal episode/closed head injury. The plaintiff advised his physicians immediately following the injury that he did not recall what happened, although he believed he struck his head on one of the conveyors. The plaintiff could not recall the last time he ate, but provided a history of insulin-dependent diabetes. An employee is entitled to compensation if he receives a personal injury arising out of and in the course of employment. Further, an employee who suffers an accident while engaged at his work, but which accident is not attributable to the nature of the risks involved in such employment, is not said to arise out of employment. For an injury to “arise out of employment,” there must be some causal relationship between a work-related event and the disabling injury. An injury generally does not “arise out of employment” where the predominant cause of the harm was attributable to personal factors, and circumstances of the employment did not significantly add to the risk of harm. Accordingly, the Magistrate concluded, based on the evidence presented, that the plaintiff did not slip as the result of fiberglass on his boots. Rather, the plaintiff’s fall was either idiopathic or unexplained, making this matter non-compensable.

“ARISING OUT OF” – SOCIAL OR RECREATIONAL

Williams v. Park Family Health Care PC, (Board of Magistrates, July 11, 2016). This matter arose out of a shooting that resulted in the death of the plaintiff. The plaintiff was historically in a romantic relationship with a co-employee, who was also the maintenance worker at the building where the plaintiff worked. After the romance went sour, the maintenance man began threatening the plaintiff. He had complete access to the building where the plaintiff worked. One day, as the plaintiff was talking to her co-workers, she was fatally shot by the maintenance worker on the defendant’s premises. The Magistrate noted that in order for a worker’s injury/death to be compensable, it must arise out of and in the course of employment. The occurrence of an injury on an employer’s premises in the course of employment does not, by itself, establish prima facie showing that the injury arose out of the employment. Where it is clear that the origin of an assault upon a workers’ compensation claimant by a co-worker is private and personal, and the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held non-compensable. In this, the maintenance man had keys to all the doors at the clinic, including the employee entrance door where the plaintiff worked. He used the key to gain access to the building prior to the assault and to the area where the plaintiff was working. There was no “special knowledge” related to the keys. Since the employer in this case did not exacerbate or facilitate the relationship between the plaintiff and the assailant, and the only connection to the employment is that the shooting took place inside the clinic where both the plaintiff and the assailant worked, the relationship was purely personal. The assailant was determined to harm the plaintiff, and the assault could have taken place anywhere. Thus, the Magistrate held the fatal shooting of the plaintiff on the employer’s premises did not arise out of her employment.

“ARISING OUT OF” – SOCIAL OR RECREATIONAL

LaFave v. Blue Lounge, (ACO, March 29, 2016). The plaintiff in this case is a bartender who alleges a back injury as a result of hugging an overly enthusiastic bar patron. Specifically, the plaintiff was bartending while working her shift, when an overly enthusiastic customer and friend lifted her, while hugging, resulting in a back injury. When the plaintiff finished her shift, she notified the employer of ongoing back pain. The defendant argued the injury occurred during social and recreational activities or outside of the scope and course of the plaintiff’s employment duties. After reviewing the evidence and hearing the party’s testimony, the Magistrate noted the plaintiff was engaged in her work duties immediately before the incident. The Magistrate did not believe the incident in question fell within the category of social or recreational. The Magistrate opined that a bartender is expected to be pleasant and polite to customers. Immediately before the patron greeted and hugged the plaintiff and immediately following, the plaintiff was engaged in her regular bartending duties. Being polite to a “overly enthusiastic” patron would arguably fall within her duties as a bartender. The Magistrate distinguished this situation with a situation involving an employee on a smoke break, or an employee who left her job duties to have a few drinks for a significant period of time. Thus, the plaintiff was awarded workers’ compensation benefits for meeting her burden in establishing a compensable work injury.

“IN THE COURSE OF” – REASONABLE TIME

Sanders v. University of Michigan, (Board of Magistrates, December 14, 2015). This matter involves the death of an employee, who was hit and killed by a bus while crossing a street to enter her employer’s premises. On the date of death, the plaintiff was employed as a custodian for the defendant. The decedent arrived to work approximately one hour and fifteen minutes before her shift was set to start. As the plaintiff was exiting the parking garage, which was maintained by the employer, she attempted to cross the street to her worksite. The plaintiff was ultimately struck by a bus, which resulted in her death. Subsequent discovery revealed the plaintiff arrived early to work on a regular basis, which was not discouraged by her employer. It was a normal pattern, as the plaintiff was usually the first employee to enter the workplace. There is a legal presumption that an injury is in the course of employment if the employee is going to or from his or her work, while on the premises, and within a reasonable time before and after work hours. In this case, although the accident did not occur on the premises, the Magistrate concluded that the decedent was on a reasonably direct path to her worksite. The Magistrate also opined that the decedent’s presence one hour and fifteen minutes before her shift was a “reasonable time.” This determination was based on the fact that it was a normal pattern for the decedent to arrive to work at that time, as well as the failure of the defendant to discourage this act in the past. Based on the above, the Magistrate concluded the plaintiff’s death occurred in the course and scope of her employment.

“IN THE COURSE OF” – REASONABLE TIME

Morin v. City of Houghton, (Board of Magistrates, June 23, 2016). This matter arose following the death of an employee, who was killed when a work truck ran over him. Subsequent evidence indicated the plaintiff was underneath the truck and trying to fix an issue, at the request of a co-employee, when the truck unexpectedly rolled forward and over him. The defendant argued that the decedent’s shift had ended, and he had stayed on the employer’s premises for social reasons, and therefore, outside the course of his employment. However, testimony revealed the plaintiff was completing his timecard, at which time he was called in by a co-worker to assist him with a task. Section 301(3) of the Act, states that an employee going to or from his or her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his working hours, is presumed to be in the course of his or her employment. In this case, the decedent was authorized to provide assistance to co-workers, and there was nothing unusual or inappropriate in requesting assistance. Thus, the decedent stayed on the employer’s premises initially to complete his timecard, and then to assist a co-worker with a work task. There is nothing about the incident that could be characterized as social or recreational. Further, the decedent’s injury happened within a reasonable time after working hours. Although the plaintiff’s official shift had ended, he was finishing up his duties for the day. Thus, the Magistrate determined the plaintiff was in the course of his employment at the time of his injury, resulting in his death.

CAUSAL RELATIONSHIP – MENTAL INJURY

Perkowski v. Chrysler Group LLC, (ACO, December 2, 2016). This matter arose out an emotional injury claim filed by the plaintiff, alleging that his supervisors harassed him, called him names, and threatened him because they felt he was not doing his job. The plaintiff claimed depression, crying, inability to sleep, and inability to go to work. The plaintiff apparently began seeking treatment for the emotional difficulties sustained at work. However, the plaintiff’s supervisors refuted these allegations, claiming they rarely worked at the same time as the plaintiff, and when they did, would not spend any time together. The Magistrate noted the presence of possible non-work stressors in the plaintiff’s life, such as the death of family members, family illnesses, absence of a sex life with his wife, and other stressors. The Magistrate also reviewed physician testimony, which disabled the plaintiff because of deep depression and anxiety based on harassment and yelling that he received while working. However, another Board-Certified psychiatrist evaluated the plaintiff on several occasions, and found the plaintiff to be malingering, and failed to find any proof of a disability or depression. Ultimately, the Magistrate found the plaintiff to have suffered a work-related mental illness, entitling him to workers’ compensation benefits. However, on appeal, the Appellate Commission reversed the Magistrate’s findings, holding that the plaintiff failed to meet his burden in proving a work-related mental illness. The Commission found the Magistrate accepted the opinions of the plaintiff’s physician, without question and balancing of the work-related versus non-work-related factors. The Commission held the Magistrate came to a conclusion without any support and certainly not a weighing of the various family stressors the plaintiff testified to. This does not meet the requirements of the Statute. A mental disability, to be compensable pursuant to §301(2) of the Act, must be supported by an actual employment event and it must be shown the plaintiff’s perception or apprehension is grounded in reality, that is, not a delusion or imagination of an impaired mind. The Commission held that these elements had not been met by the plaintiff, who had the burden of proof. The plaintiff anticipated problems either resulting in emotional stress or as a result of preexisting stress prior to starting to work at the defendant’s facility. He articulated no reasons for such anticipations. As such, the plaintiff has not met his burden in proving a work-related mental illness.

CAUSAL RELATIONSHIP – MENTAL INJURY

Herring v. State of Michigan/Grand Rapids Home for Veterans, (ACO, April 25, 2016). This matter arose out of the plaintiff’s Application alleging a last day of work mental injury due to several workplace incidents, involving sexual and verbal harassment. Subsequent discovery revealed the plaintiff suffered from bipolar disorder and had been treating with prescription medication to regulate her related symptoms as early as 2004. Medical testimony also revealed the plaintiff’s medications needed adjustment during the period of time in which she began having manic episodes at work, suggesting the illness itself was the cause of such episodes. The plaintiff’s physician testified her blaming of people at work for manic episodes was a feature of her personality, diagnosed as a narcissistic and borderline personality, which made her default to blaming others as the reason for her frustrations. Although the Magistrate opined the plaintiff may have experienced some unfavorable events at work, any psychotic episodes were symptomatic of her preexisting condition. The Magistrate did not find that any unfavorable work events aggravated the plaintiff’s preexisting bipolar disorder in a significant manner. This matter was appealed to the Appellate Commission, who reviewed the Magistrate’s findings. The Commission noted that mental disability shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disability shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof. Based on case law, the claimant must demonstrate: a) there has been an actual employment event leading to his disability, that is, that the event in question occurred in connection with employment and actually took place, and; b) the claimant’s perception of such actual employment event was not unfounded, that is, that such perception or apprehension was grounded in fact or reality, and not in the delusion or the imagination of an impaired mind. To determine whether work events significantly contributed to a mental condition, the Court has suggested quantifying two categories of contributors to a claimant’s condition, occupational and non-occupational conditions. In this case, the Commission affirmed the Magistrate’s ruling, finding that the records supported the plaintiff’s perceptions of the alleged workplace event were unfounded, and did not result in the injury resulting in disability.

CAUSAL RELATIONSHIP – MENTAL INJURY

Kelley-Reed v. University of Michigan, (ACO, March 23, 2016). The plaintiff in this matter alleged a work-related mental disability due to extreme stress and anxiety caused by a supervisor’s false accusations and unwarranted disciplinary actions. Specifically, the plaintiff contends her supervisor falsely accused her of leaving work early without permission and raising her voice at him. As a result of the work incident, the plaintiff was hospitalized due to an overdose of medications. The plaintiff was subsequently diagnosed with Major Depressive Disorder, which was both recurrent and severe. The plaintiff testified that she was suicidal at the time, and felt her primary problem was due to the incident at work, as that was the main thing she thought about on a daily basis. After reviewing the evidence, the Magistrate noted the plaintiff has the burden of proof to establish a mental disability that was contributed to, aggravated or accelerated by employment in a significant manner. Mental disabilities are only compensable when arising out of actual events of employment, and not unfounded perceptions. Further, the worker’s perceptions of those events have to be reasonably grounded in actual facts. In analyzing whether a claimant’s perception of the actual events of employment had a basis in fact or reality, the factfinder must apply an objective review by examining all the facts and circumstances surround the actual employment events. The Magistrate found the plaintiff failed to sustain her burden of proving a work-related disability. The Magistrate concluded an event did occur during the plaintiff’s employment, although the plaintiff’s reaction (overreaction) was unusual, and therefore, not a reaction reasonably grounded in fact or reality. Further, the medical evidence revealed the plaintiff suffered from bipolar disorder, as well as a mixed personality disorder, which the plaintiff’s physicians did not believe were caused, aggravated or accelerated by the plaintiff’s work event. There was a discussion of a strong family history of depression, as well as the plaintiff’s own longstanding history of depression and mood disorder. Based on the plaintiff’s unreasonable reaction, as well as the medical history, the Magistrate’s denial of benefits was affirmed.

CAUSAL RELATIONSHIP – ARTHRITIS

Baker v. City of Kentwood, (ACO, March 4, 2016). This matter arose as the result of an undisputed work-related injury of the ulnar collateral ligament in the plaintiff’s left thumb, while performing duties as a fitness instructor for the defendant. Subsequent to that injury, the plaintiff began to suffer from basilar arthritis of the left thumb. The defendant refused to pay for medical treatment related to the basilar arthritis, arguing it was a preexisting condition. The plaintiff’s physician testified that the abovementioned injury aggravated or intensified the arthritis in the plaintiff’s thumb. Further, it was revealed the plaintiff was right-handed, although she had no problem at all in her right thumb. Accordingly, the Magistrate concluded the specific event resulted in the tear of the ulnar collateral ligament, which caused stress on the basilar joint. Based on that, the Magistrate found it reasonable for the stress placed on the basilar joint to produce a pathologically change in the form of arthritis. The Commission reviewed the record, as well as the Magistrate’s findings, and affirmed the Decision. Accordingly, the plaintiff was awarded reasonable and necessary medical treatment for the pathological change to the plaintiff’s basilar joint of the left thumb.

Lewis v. Motor City Central Parking Systems, (Board of Magistrates, September 29, 2015).
Lewis alleged her employment caused, contributed to or significantly aggravated conditions of her right upper extremity, hands, neck, back, lower extremities, knees and related sequelae as a result of a work-related motor vehicle accident on October 31, 2010. The Magistrate granted a closed Award, finding the plaintiff not entitled to wage loss or medical benefits after July 14, 2011. In so holding, the Magistrate noted the plaintiff sustained minor soft tissue injuries to her neck and back as a result of the low speed minor motor vehicle accident on October 31, 2010. Four consulting and examining medical experts opined that the MRI findings were not caused by the motor vehicle accident and the low back surgery was not related to the motor vehicle accident. These four experts (Drs. Freidman, Holda, Lee and Kneiser), overruled plaintiff’s expert, Dr. Kornblum. The treating surgeon’s pre-operative and post-operative diagnosis of severe degenerative disc disease and severe lumbar radiculopathy with ruptured discs contradicted the original treater’s opinion that the disc abnormality was related to the motor vehicle accident. There was no evidence that the plaintiff’s severe degenerative disc disease was significantly aggravated by the motor vehicle accident. Relying on the opinions of the four consulting and examining medical experts, the Magistrate found the plaintiff’s disability no longer related to her employment.

CAUSAL RELATIONSHIP – CONGENITAL CONDITION

Agnew v. Sappi Fine Paper North America, (Board of Magistrates, December 14, 2016). The Magistrate denied benefits to the plaintiff, who alleged that strenuous and repetitive work activities caused or aggravated low back, shoulder, hip and upper and lower extremity problems resulting in disability and medical treatment. Evidence indicated the plaintiff’s symptoms in his upper extremities, back and hips were related to developmental conditions and spondylolisthesis, as well as degenerative changes that were more related to genetics and the aging process. While the plaintiff’s work activities may have been expected to cause periodic symptoms, the great weight of evidence suggested that the work activities neither caused nor significantly aggravated any of the pathologies identified in the medical records and deposition testimony. In adopting his opinion, Magistrate Slater felt the opinion of Dr. Grant Hyatt, who “meticulously and carefully went through all the medical records available and who carefully constructed his rationale” garnered greater weight than Drs. Lawley, Ronan and Bruinsma. While the plaintiff’s work activities may have been expected to cause periodic symptoms, the great weight of the evidence in this case simple indicates that the work activity neither caused nor significantly aggravated any of the pathologies identified in the medical records and deposition testimony.

Cowell v. Sunrise Foods Distribution Company, (Board of Magistrates, January 28, 2016).
The Magistrate ruled that the plaintiff, who had bilateral spondylolisthesis in his lumbosacral spine, failed to prove his work activities significantly aggravated the pathology to satisfy the requirements set forth in Rakestraw. The Magistrate found both the plaintiff’s expert, Dr. Clark, and defendant’s expert, Dr. Hyatt, credible witnesses. Nevertheless, the Magistrate differentiated those opinions on the basis that the hypothetical presented to Dr. Hyatt was more closely in line with what was seen in the factual findings. Specifically, Dr. Clark’s opinion was based on the assumption that the plaintiff was lifting 300 pound fixtures on a regular basis and that his exacerbations of his symptoms was associated with that heavy lifting. Instead, the plaintiff’s history to the treaters at the time of the exacerbation did not describe increased symptoms associated with heavy lifting at all, but described pain made worse by physical activities, as well as sitting, standing and simply walking. The history found in the medical records was more consistent with the facts presented to Dr. Hyatt, who found the plaintiff’s condition was genetically based, along with degenerative changes, which were proportionate to the aging process. Consequently, the Magistrate concluded the set of facts presented to Dr. Clark did not present an accurate picture when compared to the history provided to medical providers who saw the plaintiff at a time much closer to the alleged injury, and did not comport with the history given to Dr. Hyatt, and did not comport with the stipulated facts.

CAUSAL RELATIONSHIP – USE OF SURVEILLANCE

Dungey v. General Motors, (Board of Magistrates, February 9, 2016). The Magistrate found the plaintiff failed to prove she suffered a compensable work-related injury to the neck or cervical spine while employed by the defendant as a result of an August 22, 2011 work event. In so holding, the Magistrate noted the medical evidence established the plaintiff had preexisting problems in her neck and received regular treatment. Also, credible medical testimony indicated degenerative or longstanding pathological changes had occurred in the plaintiff’s neck prior to the date of the alleged work incident. A doctor (Dr. Hyatt) characterized the August 2011 alleged event as a flare-up of symptoms, without any corresponding pathological change. The Magistrate further found neither the plaintiff’s testimony nor the surveillance videos supported her claim that she had any injury or ongoing problems with her neck related to her employment. The plaintiff’s complaints during the time period at issue were not consistent with her activities. Surveillance evidence included multiple days and many hours of surveillance. The Magistrate did not find any restrictions in the plaintiff’s neck motion. Significantly, the Magistrate compared the video before and after the plaintiff’s alleged injury, noting no difference in the plaintiff’s movements with the neck. As the Magistrate did not find a compensable work-related injury, the defendant was not responsible for payment of any wage loss benefits. The Magistrate acknowledged that surveillance video and surveillance reporting often reflect only a snapshot in time. However, in this case, the surveillance video included multiple days and many hours of surveillance (15 days and 129 hours). In reviewing the video, the Magistrate utilized her own opinion in evaluating the plaintiff’s neck motion and whether or not the video evidenced any restrictions on that motion (it did not). What is of greater importance with regard to the surveillance, was comparing the video before her alleged injury and after her alleged injury. The Magistrate was unable to identified the differences between the two. The surveillance reflected the plaintiff was busy with her business, and continued to be so, throughout all her multiple medical leaves with defendant.

PROXIMATE CAUSE – INTERVENING CARELESSNESS

Gay v. CJ Rogers Construction, (Board of Magistrates, August 25, 2016). The plaintiff in this case suffered a compensable back injury in the course of his employment in 1979. Since then, the defendant paid workers’ compensation benefits, including medical treatment. The plaintiff underwent two back surgeries, one in 1990 and another in 2008. After the plaintiff’s surgery in 2008, his treating surgeon instructed him to be very cautious about body mechanics. Despite the physician’s advice, the plaintiff continued to work at home, loading, unloading, chopping and lifting wood. He subsequently began to complain of back pain, and he was diagnosed with a left recurrent L4-5 disc herniation, and L4-5 degenerative spondylolisthesis. He was recommended for surgery. However, the defendant claimed the plaintiff’s ongoing need for surgery was due to his own careless conduct. The Magistrate noted the burden of proof lies with the defendant to show that the surgery is not reasonable, necessary or related to the original 1979 injury. Where the primary compensable injury arises out of and in the course of employment, compensability may be extended to a subsequent injury or aggravation of the primary injury where it has been established that the subsequent injury or aggravation is the direct and natural result of the primary injury. The claimant’s own conduct should not act as an independent intervening cause of the subsequent injury or aggravation. In this case, the plaintiff admitted to chopping wood for 15 minutes a day all year long, although he knew this was not good for his back. Further, the medical records reflect that his back problems are admittedly due to chopping and lifting wood. Accordingly, the plaintiff’s continued careless disregard of medical advice equates to negligence, and his behavior is an intervening cause that breaks the causal nexus to the original work injury. Thus, any ongoing treatment, including the recommended surgical intervention, was no longer related to the original work injury.

PROXIMATE CAUSE – TERMINATION

Collins v. Kace Logistics, (Board of Magistrates, November 20, 2015). The plaintiff in this case was hired as a material handler for Case Logistics. She suffered a slip and fall in the course of her employment, resulting in severe injuries to her right shoulder, neck, and lower back. An injury report was immediately filed, and the plaintiff was referred to the medical clinic for treatment. Initially, the plaintiff continued to be paid her salary while only receiving treatment. She ultimately returned to her training job. However, the plaintiff was never released to work without restrictions. Several months after the date of injury, the plaintiff continued to work with restrictions, although she testified she still had severe pain. However, the plaintiff was ultimately given a random drug test, which she failed. The plaintiff’s employment was terminated, and she lost her health insurance. The plaintiff, nonetheless, continued to treat for her work-related injuries, and remained restricted from employment. The defendant argued that the plaintiff, who tested positive for marijuana on a drug screen, was not entitled to benefits because she was terminated for fault. The defendant utilized §301 of the WDCA, which provides that an employee who is terminated from reasonable employment for fault is considered to have voluntarily removed herself from the workforce. After reviewing the evidence, the Magistrate concluded the plaintiff did sustain her burden of proving a work-related injury to her neck, right shoulder and low back arising out of and in the course of her employment with the defendant. With regards to the defendant’s argument that the plaintiff was terminated for fault, the Magistrate concluded that reasonable employment was never offered to the plaintiff, and therefore, §301 does not apply. Section 301 of the Act would support the defendant’s position if the plaintiff was terminated from reasonable employment for fault of the employee. However, the Magistrate concluded the plaintiff was not working within her restrictions when she returned to work following her date of injury. Thus, the plaintiff is entitled to workers’ compensation benefits related to the subject date of injury.

DISABILITY

RESIDUAL WAGE-EARNING CAPACITY

Kohloff v. Chrysler Group LLC, (ACO, September 9, 2016). This matter arose out of an August 25, 2005 injury to the plaintiff’s left upper extremity while using a boxcutter. The main focus of this claim was the plaintiff’s residual wage earning capacity. Two vocational experts performed residual wage earning capacity assessments, and subsequently testified that the plaintiff had a residual wage earning capacity of $10.00 – $12.00 per hour. The Magistrate accepted the experts’ testimony and found the plaintiff could perform sedentary work at $11.00 per hour, for 40 hours per week, for a total of $440.00 per week. However, the issue was that the plaintiff had found subsequent employment at various jobs following her injury, all paying more than $440.00 per week. Nevertheless, the Magistrate accepted the testimony of the vocational experts. The defendant argued that the Magistrate erred in relying on the vocational testimony over the plaintiff’s actual wages. The Magistrate has the discretion to choose which medical expert to rely upon in reaching a decision, as well as similar discretion to choose the evidence that he or she relies upon. Further, the vocational experts had the plaintiff’s employment information to utilize during their evaluation. Nevertheless, both experts’ conclusions were competent and substantial, as well as similar. The Magistrate relied on the concurring experts when she found the plaintiff’s residual wage earning capacity to be $440.00 per week. Finally, the plaintiff’s actual post-injury earnings are not meaningless or ignored in this case. Although not directly relied upon to determine the plaintiff’s residual wage earning capacity, the defendant is allowed to take credit for those actual wages in determining the weekly wage loss benefit due in a given week. In other words, if the plaintiff continues to find work that generates a higher wage, credit for those earnings is allowed. Nevertheless, the Magistrates’ decision to accept the testimony of the vocational experts, rather than the actual wages obtained by the plaintiff, is affirmed.

Florian v. Gary Grimm, (Michigan Court of Appeals, November 8, 2016). The Magistrate determined Mr. Florian sustained a severe leg injury while working as a logger. As such, Mr. Florian was entitled to workers’ compensation benefits. The Michigan Appellate Commission reversed the Magistrate’s award of benefits beyond March 10, 2010. The Court of Appeals reversed the Appellate Commission’s findings limiting Florian’s benefits to the period before March 10, 2010. The pertinent part of the Opinion is with regard to the Court of Appeals’ Stokes analysis. Read narrowly, the Court of Appeals’ opinion essentially indicates the Appellate Commission erred by using the wrong legal framework to review the Magistrate’s decision. In essence, the Appellate Commission reviewed the Magistrate’s findings on de novo basis as opposed to determining whether the Magistrate’s ruling had established a disability that was supported by competent, material and substantial evidence. Read broadly, the Court of Appeals’ decision potentially implicates what types of jobs the plaintiff is required to search for in an effort to prove disability. In the instant case, the Court of Appeals relied heavily on the plaintiff’s vocational expert. Through that vocational assessment, the vocational expert determined Florian could no longer work as a logger, his logging skills were not transferrable to other occupations, and his only other vocational experience and training was too outdated to be considered in a Transferrable Skills Analysis. The vocational expert indicated Florian required work that would allow him to sit down to manage his pain level and as such, those jobs typically paid between $8.00 and $10.00 an hour – significantly less than a logger’s wage. The Court of Appeals held this evidence showed that Florian had no reasonable employment options available for avoiding a decline in wages, thus meeting the second Stokes step. The Court of Appeals went on to indicate the Appellate Commission erred by reversing the Magistrate’s determination that Florian had satisfied the remaining steps of Stokes. Under step three, Florian was required to show that his work-related injury prevented him from performing some or all the jobs identified as within his qualifications and training that pays maximum wages. Under step four, Florian would have been required to show that he made a good-faith attempt to procure post-injury employment if there had been jobs at the same salary or higher that he was qualified and trained to perform, and if his work-related injury did not preclude performance. Notably, the Court of Appeals indicated that steps three and four of Stokes apply only if there are identifiable jobs a plaintiff is able to perform that are within his qualifications and training that pay his maximum wages. Accordingly, Florian had no duty to seek lower paying, unskilled or light work. Consequently, the Court of Appeals held that the Appellate Commission’s analysis was based on erroneous legal reasoning, reversed its ruling that Florian did not establish a disability, and reinstated the Magistrate’s open award of benefits.

RESIDUAL WAGE EARNING CAPACITY – JOB SEARCH EFFORTS

Coppola v. AD Transport Express Inc., (Board of Magistrates, August 12, 2016). This matter arose out of a Form C Application filed by the defendant, stating the claimant recovered from his previously-found disabilities, and was able to return to work without restrictions. The defendant subsequently filed another Form C Application, claiming the plaintiff failed to make a good-faith attempt to find work within his qualifications and training, thus failing to establish a continuing disability. After reviewing the evidence, the Magistrate found the defendant failed to carry the burden of proof of establishing the plaintiff recovered from his previously-found disabilities, and was able to return to work without restrictions. The defendant relied solely on an IME evaluation by Dr. Weingarden, although the Magistrate found the testimony of the plaintiff’s treating physician to be more credible. The plaintiff underwent significant surgical procedures to both his shoulders. The plaintiff’s treating physician imposed significant restrictions, although he did allow the plaintiff to work within those restrictions. However, based on the surgical procedures the plaintiff underwent, the Magistrate was unconvinced the plaintiff could return to work unrestricted. However, the Magistrate agreed with the defendant that the plaintiff failed to make a good-faith attempt to find work within his qualifications, training and restrictions. The evidence revealed the plaintiff did not file any applications in the process of his work search, for approximately three months. Further, the plaintiff’s testimony did not appear to be consistent with the job logs submitted into evidence. The logs submitted were both cursory and sporadic. The plaintiff did not give any specificity as to who he spoke with, or whether he went in to discuss work. Thus, the Magistrate found the plaintiff to be entitled to ongoing benefits pursuant to the previous open award. However, those ongoing benefits were to be reduced due to his residual wage earning capacity and failure to make reasonable efforts to find employment within the reduced wage earning capacity.

WAGE EARNING CAPACITY – JOB SEARCH EFFORTS

Pezzati v. General Motors Corp., (Board of Magistrates, December 8, 2015). The plaintiff in this case was a long-term general assembly person for General Motors. In 2004, he began to sense bilateral upper extremity burning, tingling and weakness. However, he continued to work until September 2011, when his bilateral upper extremity condition became disabling. Defendant never disputed the claim as being work-related, and voluntarily paid workers’ compensation benefits for a significant period of time. Although there was no dispute that the plaintiff could not return to his prior occupation, the plaintiff made no effort to look for employment within his restrictions, qualifications, education and training. The plaintiff testified that he only began looking for work when his benefits were reduced. He conceded he likely would not have looked for work if his benefits had continued unreduced. The plaintiff admitted there were several gaps in his job search efforts, as he became discouraged due to the lack of job listings. After reviewing the evidence, the Magistrate concluded that the plaintiff did suffer a work-related upper extremity condition. However, the Magistrate concluded the plaintiff failed to establish that he made a good-faith job search, entitling the defendant to a reduction. This conclusion was based on the plaintiff’s testimony that he would not have looked for work had the defendants not reduced his benefits. Further, the plaintiff had not looked for any work in the initial stages, despite being released with restrictions. Based on the evidence presented, the Magistrate concluded that $9.00 per hour would be an appropriate deduction. Accordingly, the defendant was entitled to a reduction based on a residual wage earning capacity.

WAGE EARNING CAPACITY – JOB SEARCH EFFORTS

Tasley v. General Motors Co., (Board of Magistrates, April 14, 2016). This matter arose out of a cumulative trauma claim to the plaintiff’s upper extremities, resulting in bilateral carpal tunnel syndrome. This claim was accepted as compensable, and workers’ compensation benefits were voluntarily paid for a significant period of time. However, based on a wage earning capacity assessment, the plaintiff was advised by the defendant that her workers’ compensation benefits would be reduced, as several jobs were found to be available within her restrictions by the defendant’s vocational expert. The plaintiff presented evidence in the form of job logs, reflecting inquiry into about 498 jobs between January 2014 and March 2016. The Magistrate calculated that to be 18.4 jobs inquired about, or applied for, per month. The plaintiff testified that she applied online, made inquiries in person and over the phone. She documented with each entry the nature of the contact and listed the name of the person with whom she spoke. Despite the plaintiff’s diligent attempts, jobs were not reasonably available to exercises the ability to earn wages. Therefore, the Magistrate held that the plaintiff was entitled to a reinstatement of benefits at her full rate. However, although the plaintiff did provide thorough job logs for the majority of her disabled time, there was a six-month gap in which the plaintiff failed to establish any effort at job search. During that period of time, the Magistrate held the defendant was entitled to an offset for the benefits paid during that period. In conclusion, the plaintiff met her burden of proof to establish a good-faith job search effort for the majority of the time, in which she is entitled to a reinstatement of benefits at her full rate. However, for the short period of time in which she failed to establish a job search, the defendant is entitled to a credit for wage benefits paid.

REFUSAL OF REASONABLE EMPLOYMENT

Turner v. USF Holland, Inc., (ACO, March 10, 2016). The plaintiff in this case, a hi-lo driver for the defendant, suffered bilateral lower extremity injuries as a result of a work incident. The plaintiff underwent significant treatment, and was ultimately released to return to sedentary work with a “sit/stand option.” The evidence revealed the plaintiff did not look for work after he was injured. Further, it was undisputed that the defendant gave the plaintiff a written offer of sedentary, office work. The plaintiff declined defendant’s offer for work. Wage loss benefits were subsequently suspended for plaintiff’s unreasonable refusal of a bonafide offer of reasonable employment. The Magistrate, nevertheless, reinstated wage loss benefits, ruling the defendant never remade the offer of work after the plaintiff reinitiated treatment with a pain management specialist. The Magistrate concluded the specialist was never given an opportunity to evaluate the plaintiff’s condition, as well as the offer of employment. Further, the Magistrate concluded, although the plaintiff did not meet the fourth prong of Stokes requiring him to look for work after he was injured, the plaintiff was still entitled to partial wage loss benefits. This matter was appealed to the Appellate Commission, who concluded there was no legal basis to pay weekly wage loss benefits when the plaintiff did not establish the forth prong of Stokes evaluation. The plaintiff, by his own admission, did not make any job search. Further, the Commission opined that since the defendant made an offer of reasonable employment to the plaintiff, which was declined, the plaintiff is required to inform the defendant of his desire to reenter the workforce. The Commission reversed the Magistrate’s Decision, disagreeing the defendant was required to make the offer of reasonable employment again once the plaintiff began subsequent treatment. Thus, the Commission reversed the Magistrate’s Order reinstating wage loss benefits to the plaintiff after they were suspended for plaintiff’s unreasonable refusal of employment.

Davis v. Wolverine Packing Company, (Board of Magistrates, May 27, 2016). The plaintiff alleges he sustained injuries to his right foot and lower extremity at work on May 27, 2014 when he was run over by a hi-lo. The plaintiff alleged his benefits were improperly terminated. The defendant argued that work within the plaintiff’s restrictions was offered, but not performed, and continued to be available. The Magistrate found the defendant’s offer of reasonable employment exceeded or ignored the plaintiff’s medical restrictions. The first offer, for work in a guard shack, set forth a sit-down job, but the defendant knew there was walking involved and walking outside in the cold weather. The claimant was unable to fit his foot into a shoe. The second job offer in the guard shack was rescinded before the plaintiff could start the job. The third offer, which was a return to regular employment without restrictions, was clearly contradictory to the treating doctor’s findings and recommendations. The testimony of the employer’s doctor established numerous inconsistencies and contradictions between the plaintiff’s appearance and the doctor’s examination. As a result, the Magistrate found his opinions were not credible. Accordingly, the testimony of the employer’s doctor was insufficient as a basis for removing restrictions or releasing the plaintiff to return to regular employment. Accordingly, the Magistrate found the plaintiff was not unreasonable in declining the offer to return to unrestricted employment. Even partially disabled, the plaintiff was not able to find gainful employment within the restrictions necessitated by his work injury. Therefore, the Magistrate found the claimant entitled to continued benefits and medical treatment.

SIGNIFICANCE OF PENSION

Williams v. Chrysler Group LLC, (Board of Magistrates, October 21, 2015). This case involves a retired plaintiff who alleges that his work duties with his prior employer through his last day of work caused, contributed to, and/or aggravated his knee, shoulder and neck conditions. The plaintiff began working for the defendant in 1973 as a laborer. From his date of hire, through his last day of work on March 30, 2008, the plaintiff had significant complaints and treatment for the abovementioned conditions. However, he continued to work in a regular capacity through his last day of work. On March 30, 2008, the plaintiff retired from employment with the defendant, and subsequently received pension benefits after his retirement. Nevertheless, he subsequently filed an Application claiming his repetitive work duties resulted in numerous work-related conditions. The plaintiff must prove an injury arising out of and in the course of employment, as well as a medically distinguishable injury from a preexisting condition. The Magistrate concluded the medical evidence failed to reflect a work-related injury, and/or a change in underlying pathology. Further, the Magistrate noted a legal presumption that an individual who is receiving a regular retirement pension from his employer is “presumed not to have a loss of earnings or earning capacity.” The plaintiff in this case voluntarily resigned with receipt of regular pension benefits immediately after his last day of work. Although the plaintiff argued he took his pension due to fear he would lose his job, the Magistrate concluded that this does not overcome the presumption, as stated in the Act. Since the plaintiff took his retirement/pension, worked in his regular job, and did not leave work due to a medical condition, but rather, solely due to his retirement, the plaintiff was denied workers’ compensation benefits.

COOPERATION WITH VOCATIONAL ASSESSMENT

Frederick v. American Electric Power, (Board of Magistrates, May 9, 2016). At issue in this case was whether the plaintiff needed to attend and cooperate with a vocational evaluation where a prior vocational evaluation took place without an in-person interview, which resulted in a reduction of wage loss benefits being paid to her. The employer has a right to present a meaningful defense and has many tools to do that. The Magistrate held it is not, however, the responsibility of the Magistrate to provide an employer with unfettered access to a plaintiff where the employer’s prior actions have indicated that this access is unnecessary. In this case, the employer decided that a prior vocational evaluation, which took place without an interview of the plaintiff, was legally and factually sufficient to make a decision of the magnitude and significance to unilaterally reduce the plaintiff’s weekly wage loss benefits. Based on the defendant’s unilateral decision to reduce benefits without an in-person interview of the plaintiff, the Magistrate refused to permit an interview of the plaintiff at a second vocational evaluation. In so ruling, the Magistrate pointed out that he was not setting forth any hard-and-fast rules for all future cases assigned to his docket. Rather, rulings on discovery issues, advanced by either side, are fact-specific. This case was brought before the Magistrate on the plaintiff’s motion to quash.

WORKERS’ COMPENSATION BENEFITS

SPECIFIC LOSS BENEFITS

Corrigan v. New Page Corp., (ACO, February 19, 2016). The plaintiff in this matter was employed by the defendant in several capacities since 1977. Throughout his employment, the plaintiff suffered three distinct injuries to his left knee, which resulted in at least two surgical procedures. There was some dispute in the form of medical testimony as to whether the left knee condition was degenerative in nature, or work-related. The Magistrate concluded the plaintiff did suffer a work-related condition that was either caused, aggravated, or contributed to by work activities. The Commission affirmed the Magistrate’s decision in that regard. However, another issue involved in this matter is the claim for specific loss benefits. The Magistrate awarded specific loss benefits to the plaintiff for loss of his left leg, opining that the plaintiff lost usefulness of that extremity. The Commission reversed the Magistrate’s findings with regards to specific loss benefits, concluding the left lower extremity did not lose its usefulness in its uncorrected state (prior to left knee replacement surgery). Prior to the surgery, the plaintiff did not use a cane, a walker, or any other device to assist him in walking. The plaintiff also drove himself to work every day, and did not have any work restrictions. Therefore, although the plaintiff’s left knee caused him great pain, the Commission concluded the evidence did not reflect a loss of usefulness of the left leg. Accordingly, the Magistrate’s award of specific loss benefits was reversed.

PETITION TO STOP

Whitehead v. Leo’s Coney Island, (ACO, March 15, 2016). This matter arose and was presented to the Appellate Commission as a result of the defendant’s filing of a Petition to Stop Benefits. Historically, the plaintiff received an open award of benefits as it was determined that she sustained a personal injury arising out of and in the course of her employment with the defendant. Several years later, the defendant filed a Petition to Stop based on the premise the plaintiff had recovered from her work-related injuries. The only medical evidence that was presented to the Magistrate was from the defendant, including IME reports and deposition testimony. After reviewing this evidence, the Magistrate concluded that the defendant had sustained its burden of proof in establishing the plaintiff’s condition had changed, and thereby granted the Petition to Stop. However, of significant, the Magistrate also addressed the issue of the plaintiff’s credibility. He found the evidence of substance abuse on the part of the plaintiff to be compelling. The plaintiff was discharged as a patient from at least two physicians during treatment, as well as had several encounters with police regarding drug possession. The Magistrate concluded the abuse of prescription medication becomes significant in assessing the plaintiff’s complaints of pain. Thus, the plaintiff’s testimony regarding the severity of her current symptoms is not credible, nor was it supported by the medical evidence, which show little or no objective evidence to support the plaintiff’s complaints. The Appellate Commission reviewed the Magistrate’s opinion, and affirmed same based on the evidence in the record.

UNREASONABLE FAILURE TO PAY

Rodammer v. Exhibition Services, Inc., (Board of Magistrates, January 27, 2016). This matter arose out of a specific event injury on October 1, 2012, in which the plaintiff injured his left upper extremity. Specifically, the plaintiff’s left hand was caught between a metal lip of a ramp near the loading area of the defendant. The plaintiff immediately reported the injury to his employer, before being taken to the medical center for treatment. The plaintiff could not use his left hand or fingers for approximately eight weeks. Thereafter, the plaintiff returned to work for the defendant. During the period of disability, the defendant failed to pay for wage loss and outstanding medical bills. The evidence revealed the medical bills were sent to the defendant employer by certified mail. After reviewing the evidence, the Magistrate concluded the plaintiff sustained his burden of proof in establishing a disability. Since the defendant had knowledge of the plaintiff’s disability, and there was no evidence of any dispute with regard to the injury or the obligation of the employer to pay benefits or of its obligation to pay the medical bills, the defendant is required to pay a penalty to the plaintiff. The defendant simply ignored both of the issues hoping perhaps that they would just disappear. Thus, the plaintiff was entitled to wage loss benefits during the disability period, payment of all outstanding medical bills, and the defendant was responsible for paying $1,500.00 penalty pursuant to §801 of the WDCA.

Capen v. Omnisource Corp, (MCAC, 2016). The Commission affirmed the denial of defendant’s Petition to Stop Benefits but reversed the Magistrate’s assessment of a penalty under MCL 418.801(3) for the late payment of medical expenses. The Commission held that sending bills to the carrier’s attorney is insufficient to satisfy the requirement in §418.801(3) that the carrier receive notice of nonpayment by Certified Mail. Relaying medical bills to the carrier’s attorney raises numerous questions about notice and short circuits the very clearly written penalty Statute. Furthermore, sending bills to any party or representative other than directly to the carrier complicates the issue of whether a penalty is owed.

PETITION TO RECOUP

Sutton v. Professional Grounds Services, (Board of Magistrates, February 16, 2016). This matter was presented before the Michigan Workers’ Compensation Board of Magistrates following the carrier’s petition to recoup benefits paid to the plaintiff. The employee suffered a knee injury arising out of and in the course of his employment with the employer. The carrier subsequently paid workers’ compensation benefits, voluntarily, until the plaintiff was released to return to work without restrictions. The carrier alleged the employee was paid workers’ compensation benefits based on lost wages from two employers, although the employee failed or refused to provide documentation of earnings from the non-injury employer. Based on that, the carrier alleged the employee was overpaid benefits based on dual employment, when dual employment was never actually confirmed. The Magistrate noted that the carrier has the burden to establish its right to recoupment. More importantly, plain statutory language bars recoupment of benefits paid one year or more before a carrier takes action to recover for overpayment. Further, case law has consistently denied recoupment to an employer/carrier when the carrier pays benefits voluntarily, rather than pursuant to an Order. Thus, due to the carrier’s untimely request for recoupment, as well as the voluntary nature of payment, the carrier’s petition to recoup was denied.

COORDINATION OF BENEFITS

Arbuckle v. General Motors LLC, (Mich., July 15, 2016). In this case, the plaintiff was injured during the course of his employment in 1991. During his employment, the plaintiff was represented by his union, UAW. Following his injury, the plaintiff began receiving a total and permanent disability pension. In addition, a workers’ compensation Magistrate awarded the plaintiff workers’ compensation benefits at a fixed rate. At some point, plaintiff also began receiving SSDI benefits. Initially, the plaintiff’s workers’ compensation benefits were not reduced by his disability pension benefits, as it was prohibited under the Collective Bargaining Agreement. However, several years later, Defendant and the UAW engaged in negotiations that resulted in a reduction of workers’ compensation payments for certain employees based on a coordination of pension benefits and workers’ compensation benefits. Accordingly, the plaintiff’s workers’ compensation benefits were reduced pursuant to a new formula. The plaintiff argued that the defendant’s formula was unlawful because it used SSDI benefits to offset the workers’ compensation benefit. Further, the Plaintiff argued that he was no longer an active member of the UAW when the negotiations took place, resulting in the reduction of his payment. Therefore, the UAW should not have authority to bind him to their agreements. After reviewing the prior decisions, the Supreme Court held that the defendant may coordinate the plaintiff’s disability pension benefits because the parties’ collective-bargaining agreements and the subsequent modifications thereto did not vest the plaintiff’s right to uncoordinated benefits. None of the agreements made between the parties created an unalterable right to uncoordinated benefits for life. They instead evinced the parties’ intent to reserve the power to amend the plaintiff’s right to uncoordinated benefits on termination or earlier amended of the agreement. The defendant’s subsequent coordination of the plaintiff’s workers’ compensation benefits with his disability pension benefits did not violation the terms of the plaintiff’s disability pension plan, nor did it violate the WDCA.

REASONABLE AND NECESSARY MEDICAL

Dukes v. General Motors, (Board of Magistrates, April 5, 2016). The parties in this case had previously entered into a redemption agreement, leaving the issue of medical benefits open. However, on the redemption documents, the agreement specifically stated that medical was being left open “only” for ICD 729.5, which refers to “pain in limb.” The statements made by the parties on the record simply refer to “a work-related condition.” Thus, when the plaintiff subsequently attempted to obtain medical treatment for his back, the defendant denied such treatment. The plaintiff argued the medical was meant to be left open for the back, legs and bilateral CTS. After reviewing the evidence, the Magistrate could not find any statute or rule that required a medical bill for a covered condition to be submitted using a code specified on redemption documentation. Nonetheless, the Magistrate held the defendant is obligated to pay for any treatment related to pain in a limb, provided treatment is reasonable and related to any work injuries. The Magistrate noted that radicular pain from an individual’s back could be related to a limb. For example, the Magistrate noted a scenario in which diagnostic testing, such as an MRI for low back pathology, was brought on by pain radiating into a limb. The Magistrate noted treatment like this would be held as reasonable and related, pursuant to the redemption agreement.

EMPLOYER-EMPLOYEE RELATIONSHIP

EMPLOYEE UNDER THE ACT

Aninos v. Laduc Enterprises, (ACO, June 8, 2016). This matter came before the Michigan Compensation Appellate Commission on appeal by the defendants, arguing that the plaintiff was not an employee of the defendant. The Magistrate had found the plaintiff to be an employee, and not an independent contractor, pursuant to the law as it existed at the time of trial. However, following the Magistrate’s Opinion/Order, the Supreme Court reversed the law at the time, holding that an employee under MCL 418 161(1)(n) must satisfy each criteria of that provision. Under §161(1)(n), an employee means every person; (1) performing service in the course of the trade, business, profession, or occupation of an employer at the time of injury, (2) 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 (3) is not an employer subject to this Act. At the time the Magistrate concluded the plaintiff to be an employee of the defendant, it was not a requirement for all three criteria to be present. However, the Supreme Court subsequently said that all three criteria must be present in order for a plaintiff to be an employee. In this case, subsequent discovery revealed the plaintiff held himself out to render services to the public, and also maintained business separate from any alleged employment with the defendant. Based on that evidence, the Magistrate’s Opinion finding the plaintiff to be an employee of the defendant was reversed.

EMPLOYEE V. INDEPENDENT CONTRACTOR

Smith v. Lakeside Divisions Inc., (Board of Magistrates, November 2, 2015). This matter arose out of a Form C Application filed by an intervening plaintiff, Michigan No-Fault Carrier, seeking reimbursement for no-fault benefits paid to the plaintiff following a motor vehicle accident. The plaintiff, Mr. Smith, was involved in a motor vehicle accident as a driver for the defendant, Lakeside Transport. The vehicle he was driving was provided to him by Lakeside Transport, who also set his hours and provided him with a manifest. on a daily basis, of who he was going to pick up, and where and when. Mr. Smith was not employed with any other employer on the date of injury. Lakeside Transport had approximately eighteen drivers employed at the time, as well as approximately ten vans. Mr. Smith testified that he had to sign in and sign out every day. Mr. Smith testified he had to use their buses/vans to make all pick-ups and deliveries. The defendant, Lakeside, had the right to hire and fire him. The issue involved was whether the plaintiff was an employee of the defendant on the date of injury, thereby requiring the defendant to pay workers’ compensation benefits and reimburse the intervening plaintiff. Based on the evidence presented, the Magistrate concluded the plaintiff was performing services for the defendant’s business, such as those performed by an employee. Thus, it was determined the plaintiff was an employee, as opposed to an independent contractor.

PARTNERSHIP

Gansberger v. AJR Development, Inc., (ACO, October 12, 2016). The plaintiff in this case was looking to start a business refurbishing mobile homes, although he did not have the equipment or money to start the work. The plaintiff subsequently contacted defendant Tacco, as he believed he had the equipment and front money necessary to take advantage of the business opportunity. The plaintiff and defendant Tacco had been friends for a significant period of time, and had business dealings prior to this opportunity. On the alleged date of injury, defendant Tacco had a previous business called “Floors Plus,” which had obtained liability insurance coverage with the insurance certificate in defendant Tacco’s name alone. Nevertheless, defendant Tacco utilized the liability insurance coverage in order to do work with the plaintiff. Defendant Tacco and the plaintiff entered into an oral agreement whereby they would bid on jobs together, do work together and split any profits from the jobs equally. The plaintiff and defendant Tacco bid on nine jobs, all of which they won and worked together to get the jobs finished. Payments were made to Floors Plus, at which time defendant Tacco prepared a 1099 to pay the plaintiff non-employee compensation. The plaintiff testified he never maintained a separate business that he held out as able to do work for the general public. He never had any employees, trucks, signs, business cards, equipment, tools, or a business bank account. The plaintiff testified that he thought he was an employee of defendant Tacco the entire time. One day, the plaintiff injured his spinal cord while cutting and removing carpet, and filed the pending Application. The Magistrate found the plaintiff was not an employee, and defendant Tacco was not an employer subject to the Act. The Magistrate found the relationship between the plaintiff and the defendant Tacco to be a partnership. There was no evidence supporting the conclusion that the defendant had three or more employees working on a regular basis. Also, the testimony revealed the plaintiff and defendant Tacco worked together and split profits. The plaintiff introduced defendant Tacco as his partner on several occasions, and several other factors, including the parties’ intent, partnership property, management and control of business, all reflected a partnership. Thus, the Magistrate held there was no evidence of an employee/employer relationship. Accordingly, the Commission upheld the Magistrate’s finding that the relationship between the plaintiff and defendant was a partnership, and thus, the plaintiff was not entitled to workers’ compensation benefits.

EXCLUSIVE REMEDY PROVISION

Hall v. IKEA Property Inc., (U.S. District Court E.D. Michigan, March 17, 2016). This matter involves several parties, and attacks the issues of independent contractors and the exclusive remedy provision. Historically, the plaintiff was hired as an unloader by an independent owner. That owner entered into a service agreement with a subcontractor, TSS. TSS had a contractual relationship to provide trucking services for defendant JW Logistics. Finally, a contract existed between Ikea and defendant JW Logistics, wherein JW provided trucking and delivery services for Ikea. While unloading a moving truck, the plaintiff suffered a left lower extremity injury. He ultimately filed a negligence claim against defendants Ikea and JW Logistics. The court noted §171 of the WDCA, which insures workers’ compensation coverage to an employee of a contractor and subcontractor, even if their employers fail to obtain adequate coverage. Employers subject to liability under §171 are commonly referred to as a “statutory employer,” and if an employer is a statutory employer under the Act, the exclusive remedy provision applies. In this case, the plaintiff’s employer, as well as TSS, failed to purchase workers’ compensation insurance. Accordingly, defendant JW qualifies as a statutory employer, and incurs liability for the plaintiff’s workers’ disability compensation benefits. Further, since the defendant is a statutory employer under §171, the sole remedy the plaintiff has against the defendant is entitlement to workers’ compensation benefits.

INTENTIONAL TORT EXCEPTION

Luce v. Kent Foundry Co., (Court of Appeals, May 17, 2016). In this case, the plaintiff was injured in the course of his employment when his hand was crushed between the door of a large machine. The injury caused extensive damage and resulted in the amputation of a portion of a finger. Subsequent discovery revealed the plaintiff was trained to work on the machine, and operated the machine at least two hours each day. However, the machine appeared to malfunction, and parts would break off, on a regular basis. Although the breakages occurred frequently, no one had ever gotten caught between the door, or injured himself, until the plaintiff’s injury. Prior to the plaintiff’s injury, he noticed a malfunction/breakage and informed his maintenance supervisor, although no repair occurred. Following the injury, the plaintiff filed a personal injury suit against his employer under the intentional tort exception to the exclusive remedy rule of the Workers’ Disability Compensation Act (WDCA). The defendant argued that there was insufficient evidence to prove the defendant specifically intended to cause the plaintiff’s injury. The court reviewed the evidence, and noted the section of the Act stating, “An intentional tort shall exist when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded the knowledge.” Thus, unless an intentional tort occurs, an employee’s sole remedy against his employer is provided by the WDCA. Because it is undisputed that the defendant was aware the doorstops were broken at the time of the plaintiff’s injury, and had not made any attempts to repair the doorstops, the evidence does reflect the employer had actual knowledge of a potential situation. The question then becomes whether they had actual knowledge of “an injury certain to occur.” This element establishes an extremely high standard of proof that cannot be met by reliance on the laws of probability, the mere prior occurrence of a similar event, or conclusory statements of experts. Since the evidence reflects the doorstops routinely broke and became ineffectual, without any injury to any employee, there was nothing to inform defendant that an injury was certain to occur. The existence of a dangerous condition does not mean an injury is certain to occur. An employer’s awareness of a dangerous condition, or knowledge that an accident is likely, does not constitute actual knowledge that an injury is certain to occur. Thus, the plaintiff failed to present any evidence that the defendant specifically intended to harm him under the intention tort exception and the exclusive remedy is provided by the WDCA.

OPIOIDS

Webb v. American Resource Management, (Board of Magistrates, July 21, 2015). Defendants filed a Form C to stop payment of medical treatment not deemed reasonable or necessary pursuant to the IME opinion of Dr. Malinoff. Previously, the plaintiff received an order from Magistrate Purcell indicating the defendants were responsible for payment of medical treatment that is reasonable and necessary. Magistrate McMurray limited his review to the facts and evidence arising after Magistrate Purcell’s Decision as to whether the defendant had sustained its burden of proof that use of opioids and sedative medication to treat chronic pain was no longer reasonable or necessary. Magistrate McMurray identified only two occasions where the plaintiff sought opioid medications from more than one doctor in late 2014 and early 2015. It appears the plaintiff did follow the medication therapy provided by the treating physician. Despite defendant’s use of Dr. Malinoff, the IME physician who indicated the plaintiff did not require opioid or sedative medication at all, the Magistrate determined that the opinion of the treating physician outweighed the independent medical evaluator in that the treating physician noted functional improvement with the use of opioid therapy. Furthermore, the lack of evidence of opioid misuse by the plaintiff and testimony by the treating physician that there was no evidence of such aberrant behaviors further supports continuation of opioid therapy. Ultimately, Magistrate McMurray denied defendant’s Motion to Petition to Stop and indicated opioid and sedative medication is both reasonable and necessary.

Webb v Fisher Corp. (Board of Magistrates, March 11, 2016). In this case, wage loss and vocational rehabilitation benefits were redeemed on August 24, 2011; however, the medical was left open. Thereafter, issues arose with regard to the plaintiff’s receipt of and treatment with narcotic medication, and a dispute arose with regard to same. Subsequent thereto, Magistrate Williams authored an Opinion indicating the plaintiff was entitled to ongoing medical treatment. However, Magistrate Williams cautioned that the plaintiff’s ongoing, prolonged use of opioid-based medication should be closely monitored and may not be entirely appropriate long term. Thereafter, another disagreement arose relating to the defendant’s ongoing obligation for payment of work-related medical treatment, prompting a request by the plaintiff to the Workers’ Compensation Agency to schedule a “compliance hearing” (Form WC-40). However, a compliance hearing never took place as the matter was then placed on a Form A trial docket. A Form A was filed in August 2014, referencing the defendant’s continued failure to pay medical per the previous Order. Additionally, the defendants filed its own Application for Mediation or Hearing – Form C expressly stating that “it seeks to terminate certain medications pursuant to new healthcare rules.” The evidence established a claim examiner for the defendant’s third-party administrator advised Dr. French that according to new guidelines under the WDCA, when opiate medication is prescribed for treatment over a period beyond 90 days, certain information and other obligations are imposed upon or otherwise required of the doctor. Dr. French responded in kind with a letter of her own, indicating that she is entitled to treat the claimant in any manner which she deems appropriate, in the best interest of the patient. Dr. French went on to indicate that the “busy paperwork” necessitated by the WDCA’s promulgation is unnecessary and essentially a waste of time. She goes on to note the requester must certainly have had all her records relating to the claimant, which would be self-explanatory, and she is uncertain how to summarize the pain the claimant has been experiencing over the near 20 years of treatment, including 23 surgeries, extensive physical therapy, multiple pain evaluations, etc. She also denied having any opioid treatment agreement with the patient, does not have periodic urine drug screens and so on, but does periodically review his medication regime. She also indicates that had other treatment modalities or regimes afforded the claimant adequate pain relief, she would not be prescribing such medication. The doctor then delineated exactly what medications the claimant was prescribed, their dosages and which occasions she had previously prescribed even stronger narcotics. The Magistrate went through the Healthcare Service Rules adopted by the WDCA. Specifically, Magistrate Williams noted the word “shall” as mentioned in the subsections of the Healthcare Service Rules on four occasions connotates a mandatory command, not merely a suggestion or definition more akin to the words “may,” “might,” or even “should.” Rather, such a term as understood in applicable instances is the equivalent of a must or an absolute requirement as a condition precedent. Therefore, the magistrate held that to the extent Dr. French failed to do what is mandated and required by the express terms of the statute itself, if it is assumed that the insurer holds such provider to the strict standards enumerated therein, the parties seeking reimbursement for treatment beyond the 90-day period are not entitled to payment. Consequently, the plaintiff, through her treating physician, Dr. Catherine French, failed to comply with the valid and applicable administrative rules that expressly govern this treatment, specifically Rule 1008a; R418.1010088, and all the mandatory requirements of §a-f. To the extent that such compliance with such rules is a precondition for the employer or carrier’s obligation to reimburse or otherwise pay for such continued treatment, but which is not found to exist here, and thus deemed deficient in one or more respects as outlined above, as it presently stands, and until something changes, defendant is no longer required to bear the financial responsibility for such treatment. Magistrate Williams indicated that such obligation to pay for the plaintiff’s reasonable and necessary treatment was terminated effective June 15, 2015, the date of Dr. French’s initial response, which was found to be insufficient to comply with the above Rules.

Whitehead v. Leo’s Coney Island, (ACO, March 15, 2016). This matter arose and was presented to the Appellate Commission as a result of the defendant’s filing of a Petition to Stop Benefits. Historically, the plaintiff received an open Award of Benefits as it was determined that she sustained a personal injury arising out of and in the course of her employment with the defendant. Several years later, the defendant filed a Petition to Stop based on the premise the plaintiff had recovered from her work-related injuries. The only medical evidence that was presented to the Magistrate was from the defendant, including IME reports and deposition testimony. After reviewing this evidence, the Magistrate concluded the defendant had sustained its burden of proof in establishing the plaintiff’s condition had changed, and thereby granted the Petition to Stop. However, of significant, the Magistrate also addressed the issue of the plaintiff’s credibility. He found the evidence of substance abuse on the part of the plaintiff to be compelling. The plaintiff was discharged as a patient from at least two physicians during treatment, as well as had several encounters with police regarding drug possession. The Magistrate concluded the abuse of prescription medication became significant in assessing the plaintiff’s complaints of pain. Thus, the plaintiff’s testimony regarding the severity of her current symptoms is not credible, nor was it supported by the medical evidence, which shows little or no objective evidence to support the plaintiff’s complaints. The Appellate Commission reviewed the Magistrate’s opinion, and affirmed same based on the evidence in the record.

Pichey v. Faygo Beverages, (Board of Magistrates, June 29, 2016). This litigation arose out of a Form C Application filed by defendants requesting a determination as to the relatedness of certain diagnoses and related medical treatment. The plaintiff’s treatment included Neurontin, Vicodin and physical therapy to treat the plaintiff’s low back pain with right-sided radicular symptoms. Magistrate Tjapkes noted that the plaintiff suffered from a variety of medical or physical problems that may be causing his back pain. The plaintiff is obese and has multilevel degenerative changes within his low back. Magistrate Tjapkes noted the EMG testing was negative for the legs and Dr. Guyot noted the plaintiff’s symptom presentation was not indicative of any particular nerve compression. Nonetheless, the Magistrate found there was a work relationship between the plaintiff’s compressed discs in his thoracic spine and the work event. Magistrate Tjapkes went on to indicate the lumbar spine pathology was not work-related. With regard to medical treatment, Magistrate Tjapkes turned his attention to determining what treatment was reasonable and related to the thoracic spine injury. Magistrate Tjapkes noted the medical records and testimony strongly supported the conclusion the plaintiff should not be taking narcotic pain medication on a regular basis, as he testified to doing. Both the plaintiff’s physician and the IME physician recommended the plaintiff wean off Vicodin and the plaintiff testified he attempted to do so, although it appears he had little success. Magistrate Tjapkes adopted the plaintiff’s physician’s recommendations as it was very consistent with the vast majority of physicians who feel that short-acting opioids or narcotics are inappropriate for long-term pain management. Magistrate Tjapkes recommended the plaintiff find an alternative remedy for chronic pain. He further held that anything other than very occasional use of narcotics for temporary flare-ups of pain is not reasonable. Although Magistrate Tjapkes indicated he could not recommend treatment, the defendant is entitled to have the plaintiff try alternative pain medications other than narcotics and does not have to pay for narcotics as the frontline pain management protocol. Magistrate Tjapkes found the plaintiff’s use of Gabapentin was also not reasonable and necessary, but related that to the fact the plaintiff’s lumbar spine condition was not work-related. Ultimately, Magistrate Tjapkes’ opinion is instructive with regard to medication management. Magistrate Tjapkes found the use of short-acting opioids and narcotics are in and of themselves unreasonable and not necessary with regard to treatment of chronic pain regardless of the underlying relationship to work. Contrast Magistrate Tjapkes’ opinion with regard to Gabapentin, where Magistrate Tjapkes made it clear that Gabapentin was unreasonable and not necessary as it did not relate to the plaintiff’s work-related injury.

Bennett v. Stone Container Corp, (Board of Magistrates, August 12, 2016). Defendants filed a Form C Application seeking a determination regarding the reasonableness and necessity of medical treatment. Specifically, the plaintiff’s receipt of care by Dr. Basch, including pain-specific medications, Flexeril, and neuroleptic antidepressants. Defendants offered the deposition of Dr. Sczecienski and a report of Dr. Mayerberger. Dr. Mayerberger indicated that immediate release morphine sulfate tablet should only be used for breakthrough pain and not for chronic pain. Nevertheless, the Magistrate noted the plaintiff testified that she understands the use of the short acting versus chronic opioid medication. Dr. Mayerberger recommended the use of immediate release medications be tapered off over a two to four week period, although the plaintiff’s “credible” testimony at trial indicates she was not using the immediate release opioid medication on a regular basis. Magistrate McAree did not find Dr. Mayerberger’s tapering recommendation, which was predicated upon an at least 50% reduction in pain, convincing. The fact that Dr. Mayerberger had not evaluated the plaintiff in person, did not have all the facts, and was relying on some kind of “statistical algorithm” cutting off someone’s pain medications over a very short period of time reduces the credibility of the physician. With regard to Dr. Sczecienski’s testimony, Magistrate McAree adopted the plaintiff’s long-time treating physician Dr. Basch’s recommendations over Dr. Sczecienski. In short, Magistrate McAree found the plaintiff had multilevel surgeries, previously found to be work-related, and she continued to experience residual pain and symptoms. She had chronic pain for more than 20 years, for which she took pain medications. She treated with one doctor for most of the time, trusts this doctor and indicates there is an agreement between the two wherein she will only use the opioids prescribed in the appropriate doses. The plaintiff acknowledged that she horded certain medications because of bureaucratic delays in having prescriptions refilled. Magistrate McAree found her testimony, coupled with the medical reporting of Dr. Basch, persuasive, and for that reason he denied defendant’s Form C Application for Benefits.