Case Law Update

BCPWQ Seminar

2020

CAUSATION

Work Travel

Smith v Chrysler Group, LLC, Michigan Court of Appeals. (February 25, 2020)

Facts: The plaintiff was employed as an auditor for defendant. At the time of his injury, the plaintiff was driving to an assembly plant to conduct an audit that was to begin at 7:30. He was involved in a motor vehicle accident and sustained injury. After analyzing the case under the Forgach factors, the trial court held that the injury arose out of and in the course of the plaintiff’s employment. The Appellate Commission reversed, holding that the facts did not establish three of the four Forgach factors.

Holding: On appeal, the Court of Appeals held that the balancing test the Appellate Commission used to analyze work travel cases by was incorrect. The Court held there is no such test and rather these cases hinge on whether there is any exception to the general rule that going to and coming from work injuries are not compensable. Therefore, the Appellate Commission should have used the six Bowman exceptions to determine whether the case was compensable. Each of the six exceptions are independent of each other, so only one needs to be satisfied in order for a work travel injury to be compensable.

1. The employee is on a special mission for the employer.
2. The employer derives a special benefit from the employee’s activity at the time of injury.
3. The employer paid for or furnished transportation as part of the employment contract.
4. The travel comprised a dual purpose, combining employment-related business needs with the personal activity of the employee.
5. The employment subjected the employee to excessive exposure to traffic risks.
6. The travel took place as a result of a split-shift working schedule or employment requiring a similar irregular nonfixed working schedule.

In the case at hand, the Court held the injury was compensable because the plaintiff was on a special mission for the employer. A special mission can be defined as when an employee has identifiable time and space limits on his employment and a journey takes time and trouble in making the journey or is a special inconvenience, hazard or urgency. The plaintiff usually worked at a main base. The defendant directed the plaintiff to work at the assembly plant such that his travel to the plant was an integral part of his employment.

Further, the defendant paid for the plaintiff’s travel. As such, there was a sufficient nexus between the employment and the injury.

            Recreation

Huey v Valley Electrical Contractors, Appellate Commission. (July 12, 2019)

Facts: The plaintiff was an electrician apprentice and was working at the Dow Chemical plant in Midland. Valley Electrical employees would park offsite and shuttle to the plant. There was a van available to the workers to drive offsite for lunch and breaks. The plaintiff and two co-workers took the van one day, simply to get off the job site during one of their breaks. On the way back to the job site, they were involved in motor vehicle accident. The trial court held that the accident was compensable under the Act because it was an exception to the general going to and from rule.

Holding: The Appellate Commission determined that that Magistrate analyzed the case incorrectly. Rather than analyzing it as a “going to and coming from case,” the Magistrate should have viewed it as a recreation case. Generally speaking, injuries that occur during an activity of which the major purpose is recreational are not covered under the Act. The Commission viewed the plaintiff and his co-workers’ activity as a joy ride. Consequently, benefits were denied based on this alone.

Work as the Occasion for Injury

Hamady v Shermeta, Adams & Von Allman, P.C., Appellate Commission. (July 19, 2019)

Facts: The injured worker in this claim was an attorney who was walking across a street from a non-employer parking lot to get to the 36^th District Courthouse when she was struck by a vehicle. Litigation was between the no-fault insurer and worker’s compensation insurer. The issue at trial concerned whether the worker was within the “course and scope of her employment” at the time of the accident. The trial court held that the employee was still traveling to work at the time of the accident and the situation did not fall under the Forgach exception.

Holding: The Appellate Commission overturned. The Commission determined that the case should not have been analyzed as a “going to/coming from” work situation. Rather, it analyzed the facts as a “work as the occasion for injury” case under Whetro v Awkerman, 383 Mich 235 (1970). Technically speaking, Whetro only answered the arising out of employment question. Therefore, the Commission first analyzed whether the injury occurred “in the course of” the worker’s employment. Because the employer considered the worker to be “on the clock” as soon as she left her home, and because she was paid mileage, the worker was considered to be “in the course of her employment.”  Further, the Commission found that the employer directed the injured worker to park in the least expensive parking lot.

Finally, in analyzing whether the injury arose out of employment, the Commission particularly latched onto the fact that the worker ensured that her brief was delivered to the presiding judge even after her accident. As such, they held that she was indeed in the course of her employment at the time of the accident and consequently the accident arose out of her employment.

Psychiatric Disability

Bohl v Saginaw County, Board of Magistrates.  (May 20, 2019)

Facts: Plaintiff was a corrections officer for Saginaw County who alleged that work stresses and harassment caused a psychiatric disability. In order to determine whether the plaintiff proved a compensable psychiatric disability, the Magistrate had to conduct a three-part test.

Holding: First, the Magistrate had to determine whether actual events of employment occurred. The plaintiff alleged that there was backstabbing in his department, that he felt he was being watched, and that there were group conversations about him. The Magistrate determined that these allegations did not amount to an actual event occurring because the plaintiff did not provide any specifics with regard to when these events occurred, what had been said, or who was doing the acts.

The plaintiff did provide a specific event that he had been cussed out by his superior. But that was categorically denied by the superior. He also believed that prison transport times had been changed to make it more difficult for him to perform his job on time. This allegation was refuted by his superiors who testified that transports had always been done at the same time for twenty years. Finally, he alleged the he was transferred off of prison transports for no reason. However, evidence showed that he was transferred due to his tardiness, which the plaintiff readily admitted he had issues with. Because there were some actual events, the Magistrate moved on to step two of the analysis.

Step two requires the Magistrate to determine whether “the events are grounded in fact or reality measured objectively.” Many of the allegations, such as backstabbing and constant observation, were only the plaintiff’s perception of events and were not grounded in objective fact. Further, any allegation of harassment was trivial at best and only amounted to disagreements or simple management by a superior.

Finally, the Magistrate determined that any actual events were not significant enough when compared to other circumstances of the plaintiff’s life. The plaintiff did not have any anxiety or stress until 2011, which is around the time the plaintiff was going through a divorce. Further, the plaintiff was running his own business, which also caused him financial stress. Ultimately, those issues outweighed the alleged work complaints and the plaintiff did not prove a compensable disability.

Idiopathic injury

Brock v Wayne County Airport Association. Board of Magistrates. (April 8, 2019)

Facts:  The plaintiff worked as a patrol officer. One day during his work, he investigated a suspicious vehicle. During his investigation the plaintiff found drugs and other paraphernalia. Following the arrest and processing of the suspect, the plaintiff started drafting his paperwork. He testified that the room he was working in was extremely hot. As he continued to write his report, he suffered a syncopal episode. He was treated at a local hospital and was ultimately released to return to work without any restrictions the next day. At trial, the medical records indicated that the plaintiff suffered his syncopal episode without any aggravating factors. The defendants’ medical expert did concede that extreme heat can lead to such an episode, but ultimately testified that the plaintiff’s work did not cause the incident.

Holding: The main issue for the court to decide was whether the episode arose out of and in the course of the plaintiff’s employment. The Magistrate held the evidence did not support a work-related injury. Specifically, the Magistrate determined that the mere possibility that the work environment could have resulted in a syncopal episode is not enough to prove causation. Further, there was other evidence that helped prove what caused the episode. The plaintiff had suffered a similar incident in 1998 and at that time he reported he had not eaten anything before the episode. Similarly, in the case at hand, the plaintiff had not eaten anything and had worked 11 or so hours. As such, the plaintiff’s own decision to not eat seemed to have caused the syncope and not the heat.

Causal Relationship

Change in Condition

Schultz v Nexteer Automotive Co. Board of Magistrates. (December 18, 2018)

Facts: Plaintiff worked in one position at a factory since 1997, working under multiple different ownerships. She began working for the defendant in 2010. Prior to working for defendant, plaintiff had undergone a left shoulder manipulation surgery in 2003. Then, following a 2004 motor vehicle accident, the plaintiff underwent left shoulder surgery in 2005 and yet another surgery in 2006. She was then involved in another motor vehicle accident in 2009, injuring her neck and right shoulder. Plaintiff then returned to work in 2012 with restrictions of no lifting 10 pounds with the left hand and no lifting more than 30 pounds with both hands. The plaintiff continued to work doing several jobs with repetitive movements. In 2015, her condition in her left shoulder became progressively worse. At the same time, the plaintiff had right shoulder pain, and her treating physician placed her on left arm work only. The only issue at trial was whether the plaintiff’s left shoulder condition was related to her work. She did not sustain a specific event injury.

Holding: The Magistrate held that there was no doubt that the plaintiff had a significant pre-existing condition in her left shoulder. As such, the plaintiff was burdened with showing that her shoulder had a distinguishable change in pathology. The Magistrate compared MRI evidence of the left shoulder from 2007 to 2015. It was established that the 2015 MRI showed a distinctive rotator cuff tear that was not seen in the 2007 MRI. As such, the repetitive work activity the plaintiff performed was the direct cause of her shoulder pathology.

Kaufman v Diversified Construction Specialists. Board of Magistrates. (October 1, 2018)

Facts: The plaintiff originally suffered a work-related injury to his ankle after a specific event on June 9, 2015. He had to undergo an ankle fusion and had consistent pain thereafter. He testified that his ankle injury altered his gait to the point of causing new injury to his left knee and lower back. He claimed that this pain started after he transitioned out of a wheelchair following his fusion surgery. Nonetheless, evidence confirmed he had lower back treatment with a chiropractor three days before the original ankle injury.

Holding: The burden was on the plaintiff to prove his ankle and lower back sustained a distinguishable change in pathology. The Magistrate held there was no medical evidence provided that proved any change occurred. The fact that the plaintiff testified he had new symptoms in his knee and back was not enough to show a change in pathology. Further, even though the plaintiff’s treating physician testified these symptoms were consistent with an altered gait, the disability standard was not met. Simply having symptoms that may be related to an altered gait did not mean there was a distinguishable change in pathology.

Willful and Intentional Misconduct

Overly v J Stevens Construction Inc.  Board of Magistrates. (July 16, 2019)

Facts: The plaintiff worked as a roofer for a subcontractor. While working on a project, the plaintiff somehow fell from the roof and sustained severe injuries, including below the waist paraplegia. When the plaintiff went to the hospital, lab work was positive for minor alcohol, marijuana, and barbiturates. Testimony revealed that the night prior to the accident, the plaintiff and his coworkers did drink alcohol and the plaintiff had also ingested some sort of pill that was assumed to be a recreational drug. Evidence suggested there was no rule against drinking alcohol the night before work. There were a number of issues in this case; if the plaintiff was an employee, who was the proper employer, and what was his average weekly wage? Ultimately, the Magistrate determined that the plaintiff was an employee who suffered a work-related injury, but the Magistrate had to decide whether the alcohol and drugs found in the plaintiff’s system amounted to willful and intentional misconduct that would disqualify the plaintiff from receiving benefits because he was ultimately responsible for the incident occurring.

Holding: With regard to the alcohol in the plaintiff’s system, the evidence showed his BAC at the hospital, following the accident, was a .05, below the “legal limit.” As such, the Magistrate determined that the alcohol level was so minimal that it could not be said it was a major contributor to the fall alone. The Magistrate then analyzed the marijuana levels in the plaintiff’s system. While, the plaintiff testified he smoked marijuana, it was days or weeks before the incident. The Magistrate discussed how THC stays in a person’s system long after the effects of marijuana use have gone away. There was no evidence that the plaintiff smoked or ingested the substance right before the accident or that he had the appearance of being under the influence. Consequently, there simply was not enough evidence to prove marijuana caused the accident. The Magistrate made the same determination regarding the barbiturates. Overall, the Magistrate simply could not determine whether the plaintiff was impaired as a result of these substances at the time of the incident. Because he could not make that determination, he could not hold that willful and intentional misconduct caused the injuries.

DISABILITY

Opioids

Jordan v State of Michigan; Dept. of Mental Health, Appellate Commission. (June 5, 2019)

Facts: The plaintiff worked as a registered nurse and sustained a work-related injury in 1995 after a patient attacked her. Her claim was voluntarily paid for 20 years until an independent medical evaluation determined her condition was related to degenerative changes. The trial court held the plaintiff’s condition was not related to the work incident, but rather was degenerative osteoarthritis. Further, the Magistrate concluded that the plaintiff’s condition did not disable her from work, but rather her use of opioids did.

Holding: The Appellate Commission agreed that the plaintiff was disabled because of her opioid use. However, that opioid use was directly linked to the work-incident. The plaintiff did not use opioids before the incident and the opioids consistently reduced the plaintiff’s pain. Consequently, her opioid use was reasonable and necessary treatment for her work injury, which subsequently precluded her from obtaining any work. As such, she was entitled to worker’s compensation benefits due to her opioid dependence.

Good Faith Job Search

Bell v Saginaw. Michigan Supreme Court. (November 20, 2019)

The Michigan Supreme Court remanded a case back to the Board of Magistrates in a short opinion. The issue for remand concerned the Magistrate’s opinion that he did not need to make a ruling on the plaintiff’s residual wage-earning capacity because the plaintiff did not conduct a good-faith job search in 2012 or 2014. Thus, that issue was moot. According to the Court, the Magistrate’s analysis failed to name what jobs the plaintiff is qualified to perform within the same salary range as his maximum earning capacity. As such, the Magistrate failed to make the proper finding of a prima facie case of disability. After he makes those findings as to what jobs pay the plaintiff’s maximum salary or above, the Magistrate then must find whether the plaintiff’s injury prevents him from obtaining these jobs or if he is capable of performing the jobs, that he cannot obtain them.

Davis v Wolverine Packing Co. Appellate Commission.

Facts: The plaintiff worked as a picker for the defendant wherein he would drive a hi-lo in a freezer and grab food orders. He injured his right foot when it was crushed by a hi-lo being driven by a co-worker. The plaintiff was released to return to work without restrictions by a defense IME. However, he never returned to work because he obtained an off-work slip from his treating physician. He was subsequently fired for missing work. The trial court determined that the plaintiff was not made a bona fide offer of employment and performed an adequate job search. Therefore, he should receive full benefits.

Holding: Upon appeal, the Appellate Commission determined the plaintiff did not perform a good-faith job search. First, the plaintiff did not start looking for jobs until after he met with vocational experts as part of the litigation. When he did start looking for work, he only put his resume on the sites Michigan Works!, Career Builder, and Indeed.com. The plaintiff would occasionally view jobs on these sites and “applied” by simply forwarding his resume through the site. The Commission went on to say that a “good faith” job search requires diligence and scope. But it also requires more than a list of companies, which is seemingly too vague. It went on to suggest that job logs should be specific with an employer contact, how contact was made, when contact was made, what position was applied for, and whether any follow up was done.

Wage Loss

Walton v Nexteer Automotive Corp. Board of Magistrates. (August 30, 2019)

Facts: Plaintiff worked as a machine repairman. Part of his job entailed driving on a cart wherein he would transport his tools and supplies. On June 30, 2014, the plaintiff was driving his cart when he was struck head-on by a forklift. The plaintiff hit his head on the forklift and his cart was pushed back approximately 30 feet. Following the incident, the plaintiff treated for cervical spine problems but was able to continue working at defendant’s in a restricted fashion. Then, the plaintiff was involved in a non-occupational incident wherein he sustained an injury to his right knee. This caused the plaintiff to miss work from August 28, 2015, through October 3, 2016. Following treatment for his knee, the plaintiff was cleared to return to work without restrictions. At that time, he attempted to return to this restricted work with defendant, but his employment was ultimately terminated.

Holding: The Magistrate determined that the plaintiff sustained a work-related cervical spine injury as a result of the 2014 accident. Despite that ruling, the other issue was whether plaintiff was entitled to wage-loss and how much. The plaintiff argued that he should receive wage loss benefits following his attempt to return to work from his knee surgery. Defendants argued that he was not entitled to wage loss because the reason he was not working was his non-occupational knee injury. The Magistrate cited MCL 418.301(9)(e)(i), which says if the employee has worked for less than 100 weeks and loses his or her job through no fault of their own and the employee is still disabled, then they are entitled to wage loss benefits. In this case, the Magistrate held that the plaintiff’s knee injury occurred through no-fault of his own. Thus, the missed time from work and subsequent termination did not affect his ability to obtain wage loss benefits.

Residual Wage-Earning Capacity

Bunn v Michigan, Dept. of Corrections. Appellate Commission (July 12, 2019)

Facts: The plaintiff won an open award in 1997 after suffering PTSD and depression as the result of his work as a corrections officer. In 2017, the defendants had the plaintiff evaluated by Dr. Antonio Cubano who determined the plaintiff’s condition had resolved completely. Consequently, the defendants filed a Petition to Stop benefits based upon the IME report. Ultimately, the Magistrate determined that Dr. Cubano’s report was not credible and the plaintiff did not have a wage-earning capacity as defendants hoped to prove. Consequently, the Petition to Stop was barred by res judicata.

Holding: The Appellate Commission affirmed the Magistrate’s decision. Regarding whether there was a “change in condition” that would warrant a stop to benefits, the Commission deferred to the Magistrate’s credibility determination. Ultimately, the Magistrate’s credibility determination receives deference and, since he found the IME report to be less credible than the plaintiff’s testimony, there was no evidence to support the stop. The Appellate Commission further held that because the original trial occurred in 1998, consequently the 1987 definition of disability applied as determined in Haske v Transport Leasing Inc, Indiana, 455 Mich 628. The defendants attempted to argue that their wage-earning capacity argument was not barred by res judicata. However, res judicata, as applied in worker’s compensation, is applicable to issues of eligibility, but not for future purposes. In the case at hand, utilizing the Sington and Stokes rulings would disestablish the plaintiff’s benefit eligibility. Meaning that the previous trial ruled that the plaintiff was eligible for benefits because he proved he was disabled according to the Haske definition. Finally, to say that Sington and Stokes supersede Haske would cause great injustice. People who won awards based on the Haske definition of disability would be greatly harmed if Sington and Stokes applied to their cases retroactively.

Total and Permanent Disability

Chin v State of Michigan. Appellate Commission (March 22, 2019)

Facts: The plaintiff had a long and convoluted claim history that began in 1985. These claims alleged that her work activities caused low back and neck injuries. Ultimately, in 2008, after several years of litigation and multiple decisions, the plaintiff was granted total and permanent disability with regard to her bilateral legs. At the trial level, the defendants filed a Petition to Stop total and permanent disability benefits. The Magistrate ultimately held in favor of defendants, stating that the medical records did not support the loss of use of both legs. Ultimately, he found the defendants’ medical expert most credible wherein the plaintiff did not have any loss in the legs. The decision to stop total and permanent disability benefits was appealed.

Holding: The Appellate Commission held that the Magistrate committed legal error in his decision and overturned his ruling. In order to prove that total and permanent disability benefits were no longer appropriate, defendants needed to show that there was a change in condition from when the original Magistrate awarded the benefits. First, the Magistrate did not make a comparison between the plaintiff’s condition in 2008 and her condition at the time of trial. Second, the defendants’ medical expert did not review any medical records before 2013. As such, it was impossible for him to comment on whether a change in condition occurred. Further, the defendants’ expert made no mention as to whether the plaintiff loss “industrial use” of her legs. As such, there was no evidence to prove the plaintiff had regained industrial use of her legs because they did not know her baseline condition at the time of the original award.

WORKER’S COMPENSATION BENEFITS

Foreign Nationals and MECEA

Kuhlgert v Michigan State University, Michigan Court of Appeals (May 21, 2019)

Facts: The plaintiff was a German national and in the United States on a J-1 Visa. She was working at Michigan State University under the Mutual Educational and Cultural Exchange Act (MECEA). After she finished work, she left the Food and Safety Toxicology building and walked through campus to her car. When she was approximately 900 feet from the Food and Safety Toxicology building, she was hit by a delivery truck that was backing up. The plaintiff sustained severe injuries. She filed a negligence action against MSU in the Court of Claims. MSU’s insurance company intervened and argued the plaintiff’s exclusive remedy was through the WDCA.

Holding: Pursuant to MCL 418.301(1), nationals from foreign countries who are employed pursuant to 102(a)(1) of the MECEA are not considered to be employees under the WDCA. Consequently, the exclusive remedy does not pertain to them. MSU’s insurance company argued that because MSU paid the plaintiff directly, she was an employee. The Court, however, found that even though the State Department, who administers MECEA programs, did not directly pay the plaintiff, the statutory language of the MECEA is sufficiently broad enough to allow other entities to pay foreign nationals on behalf of the State Department.

Further, even if the plaintiff were considered an employee, her injury was still not compensable under the WDCA. The Court found that the injury did not occur during the course of the plaintiff’s employment. Even though she was technically on MSU’s premises at the time of her injury, the plaintiff was not in the course of her employment because she had finished her work and was 900 feet away from the building she worked at. The Court determined that because MSU’s campus is so vast, it could not view “premises” in the broad sense of the word. Rather, it focused specifically on the building where the plaintiff worked. As such, she was sufficiently removed from her employer’s premises at the time of the accident to the point where her injury did not occur during her employment.

Exclusive Remedy

Readus v Chrysler Group, LLC. Michigan Court of Appeals. (February 14, 2019)

Facts: The case stemmed from an incident wherein Mr. Readus was stabbed and killed by a coworker while working at an automobile assembly plant. The issue before the court was whether the estate’s claim was barred by the WDCA exclusive remedy provision, or if it could prove that Chrysler had committed an intentional tort by knowing the coworker had a propensity for violence and continued to employ him. In order to succeed on an intentional tort claim, the plaintiff needed to prove that the employer had actual knowledge that an injury was certain to occur but disregarded that knowledge.

Holding: The Court of Appeals upheld the trial court’s decision that the claim was barred by the exclusive remedy provision because the employer did not commit an intentional tort. The decedent’s estate argued that the coworker had a history of violence in the workplace and even brought weapons with him to work. Further, the coworker had been convicted of assault in 1997, which the employer knew about. According to the Court, there was no personnel evidence that informed the employer about the co-worker’s arrest. There were only some unexcused absences that ultimately did not result in his termination. Nonetheless, even if it was aware of the assault, there was no way for Chrysler to predict that the coworker would murder an employee some 15 years later. Because the estate could not prove an intentional tort took place, it must seek remedy from the Worker’s Compensation Board of Magistrates that the murder arose out and in the course of the decedent’s employment.

Coverage Exclusion

Dunham v D & M Logging. Board of Magistrates. (November 30, 2018)

Facts: The plaintiff was a partner in D & M Logging. While logging on May 7, 2014, he was injured when a tree fell onto him. Prior to the injury, the plaintiff and his business partner created an “Exclusion to Coverage” agreement wherein the plaintiff would be excluded from worker’s compensation coverage in 2013. The exclusion form was endorsed by the worker’s compensation insurance company on June 5, 2014. The question for trial was whether this exclusion form was valid and thus barred the plaintiff from recovery.

Holding: First, even though the exclusion form bared the plaintiff’s signature, at the time of trial, he denied ever signing the document. Despite this testimony, the Magistrate inferred from the evidence that the plaintiff gave permission to the other members of the partnership to sign and submit the exclusion on his behalf given the extraordinary cost of logging premiums. Therefore, the plaintiff did execute an exclusion. However, the Magistrate ultimately held that the plaintiff was not excluded from coverage because the insurance company did not endorse the exclusion until after the date of injury. D and M sent the exclusion form to its insurance agent immediately after it was executed. The insurance carrier, however, did not endorse the exclusion form until a year after it was completed. The Magistrate acknowledged that there was no case law as to when an exclusion form is considered valid in these situations. When an exclusion form is sent directly to the Agency for processing, it is not valid until received by the agency. Similarly, an exclusion sent to the insurance company should not be valid until it is properly endorsed by the insurance carrier, according to the Magistrate’s own opinion.

Wrongful Termination

Williams v SpartanNash Co. U.S. District Court, Western District of Michigan. (October 18, 2019)

Facts: The plaintiff filed a wrongful termination suit against defendant alleging that it violated the WDCA, among other federal acts. The plaintiff worked as an order selector for defendant. From the time that he was hired, he had a number of unexcused absence issues that accumulated to the point where his employment could have been terminated but was not. In October of 2015, the plaintiff sustained an injury to his right shoulder when moving a box of frozen bread. He underwent surgery and returned to light-duty work in March 2016. He was released unrestricted in November 2016 but then complained of neck pain. Plaintiff worked light duty while he was supposedly treating for his neck. However, continued absences led to his termination. The plaintiff attempted to get his job back because he alleged several other union members receive “last chance” agreements. He alleged the only reason he did not obtain one was because he filed a worker’s compensation claim for his injuries.

Holding: The district court dismissed the wrongful termination claim. The WDCA prohibits an employer from retaliating against an employee who files a claim under the Act. There are four steps to proving a retaliatory discharge claim: 1) the employee asserted a right to obtain necessary medical services; 2) the employer knew the employee engaged in this conduct; 3) the employer took adverse employment action against the employee; and 4) that the adverse action and the employees assertion to obtain medical services are causally connected. To prove this, the plaintiff had to show that the employer would not have taken the adverse action had it not been for his assertion to seek medical treatment. In the case, the plaintiff admitted that his employer never said or did anything against him that would be considered discriminatory. Further, the “last chance” offers were not universally and regularly provided to all employees. Finally, the employer showed a legitimate, non-discriminatory reason for the termination: the plaintiff’s repeated attendance violations. As such, the termination did was not borne out of his claim for compensation benefits.

Overpayments

Fisher v Kalamazoo Regional Psychiatric Hospital. Michigan Court of Appeals. (September 10, 2019)

Facts: The plaintiff sustained an undisputed, compensable injury. The defendants voluntarily paid benefits for three months but at an incorrect rate. Consequently, defendants filed a petition to recoup the overpayments. Citing several Appellate Commission opinions, the trial Magistrate held that the defendants could not recoup the overpayment without showing the employee committed a fraudulent act that led to the overpayment. The case was appealed to the Appellate Commission which affirmed the decision. On appeal to the Michigan Court of Appeals, the defendants did not argue that plaintiff was fraudulent. Rather, they asked the Court to purely consider a question of law as to whether recoupment of benefits was conditioned upon proving the employee engaged in fraud to obtain the overpayment.

Holding: The Court discussed that the fraud requirement was originally created by the Appellate Commission in Whirley v JC Penney Co, Inc. in 1997. The Commission’s opinion in Whirley did not contain any citation to an authority. The Act itself makes zero mention of a fraud requirement when seeking reimbursement for an overpayment. Consequently, the Commission exceeded its statutory authority by creating the fraud rule. Even if the promulgated rule is in the best interest of society, the Court determined that it is not the Commission’s nor the Court’s duty to make such a rule. That responsibility falls upon the Legislature. Therefore, Fisher was reversed and there is no longer a fraud requirement when seeking reimbursement for an overpayment.

Pension Coordination

Reidenbach v City of Kalamazoo, Michigan Court of Appeals. (January 3, 2019)

Facts: The plaintiff sustained a work-related injury and was receiving both worker’s compensation benefits and a pension directly from the City of Kalamazoo (the City). The issue was how much the City could coordinate the compensation benefits with the pension payments. The City started the pension fund in 1942 but ceased payments in 1997 because the pension fund became “overfunded.” The plaintiff started working for the City in 1992. He contributed a total of 20 percent of his pension funds. He argued that the City was only allowed to coordinate 28 percent of his compensation benefits because that is how much it contributed to the pension fund during his employment. The City, however, had contributed 53 percent of the total pension funds over the lifetime of the fund. (The total contribution may have been higher, but the City did not provide any evidence of contributions before 1974). Following a number of decisions at multiple levels, the case was appealed up to the Michigan Court of Appeals.

Holding: The plain language of MCL 418.354 states the coordination amount “must be based on the ratio of the employer’s contributions to the total contributions of the plan or program.” Even though the statutory purpose of the coordination is to prevent “double payments” to the employee, and the employer technically did not pay anything to the plaintiff’s pension after 1997, a literal reading of the statute did not result in an absurd or unjust result. Further, the “after-tax value” of the coordination does not concern taxes actually paid by the plaintiff. Even if the plaintiff is exempt from a certain tax, the plain language of the statute requires use of the “tables” published by the Bureau of Worker’s Disability Compensation, which consider FICA, federal, and state income tax.

MEDICAL BENEFITS

Opioids

Minthorn v ET 10 Inc. Board of Magistrates. (December 3, 2018)

Facts: The plaintiff suffered a compensable injury in 2008 to his right femur when a boat he was working on slipped off its trailer and struck his leg. There was no dispute that this was a work-related injury. Indemnity benefits had been settled out in 2014 with medical benefits being left open and paid for by defendants. Medical benefits were then fully denied, including the plaintiff’s use of opioids. The plaintiff had a long history of narcotic/opioid abuse. He admittedly misused prescription drugs, received drugs that were not prescribed to him, and used “street drugs.” He reportedly would take ten to fifteen Vicodin pills per day. He had also previously been hospitalized due to an overdose, was treated at a detox center, and had been refused prescriptions by multiple providers. The defendants’ medical experts all testified that they had concerns with continuing prescriptions of opioids due to his history. Even the plaintiff’s medical expert testified there would be concerns regarding plaintiff’s opioid use and he was at high risk for abuse.

Holding: The Magistrate found that because of the history of abuse and the medical expert’s opinions that opioids would not be effective for this plaintiff, medical treatment consisting of narcotics and opioids was not reasonable and necessary. As such, defendants were not required to pay for same.

England v General Motors Corp. Board of Magistrates (May 21, 2019)

Facts:  The plaintiff in this case suffered a compensable low back injury in 1992. He had been prescribed OxyContin by his treating physician sometime in 2017 for his chronic back pain. The defendants’ did not pay for the prescription, arguing that it was not reasonable and necessary for this particular plaintiff. Plaintiff’s testimony showed that he was an avid beer consumer, drinking approximately one to two beers per day. He further had a family history of alcoholism. He also had started consuming marijuana in the 1970’s and continued to present day. Again, the plaintiff’s treating physician believed the OxyContin was a reasonable prescription to treat the plaintiff’s chronic back pain and it was related to the 1992 injury. The defendants’ medical expert had concerns regarding the combination of alcohol, marijuana, and OxyContin. He testified that such a combination was inappropriate and the OxyContin use should be discontinued.

Holding: Based on the medical records, the Magistrate determined that the plaintiff was treating reasonably and necessarily for his work-related low back injury. The medical experts do not dispute that the plaintiff needs pain management. Consequently, the Magistrate believed the defendants’ expert had a reasonable and appropriate treatment plan wherein the plaintiff was not to drink alcohol or smoke marijuana. Consequently, he ordered that the defendants do not need to pay for the plaintiff’s prescribed OxyContin because he was using it in an unreasonable and unnecessary manner by taking it with alcohol and marijuana.

Reasonable and Necessary Treatment

Belcher v Ford Motor Co. Appellate Commission. (April 5, 2019)

Facts: This matter had proceeded with a full trial in 2013. After that trial, the trial court ordered defendants to pay reasonable and related medical care for the plaintiff’s back, right leg, and headaches. In the years following, the plaintiff started treating with a licensed massage therapist twice per week for his low back. The sole issue at the time of trial was whether massage therapy was reasonable and necessary to treat the work injury.

Holding: The Commission affirmed the trial court’s decision that the plaintiff’s massage treatments were reasonable and necessary to treat the work injury. The defendants argued that massage therapy on the whole is not a treatment that can be paid for under the WDCA. Defendants attempted to invoke the 2014 physical therapy amendments that state a carrier does not need to pay for physical therapy treatments unless it was provided by a licensed physical therapist pursuant to a prescription from a licensed medical professional. The defense seemingly tried to argue that the massage therapy had never been prescribed. However, the Commission noted that the physical therapy amendments did not apply to this case. The massage therapist the plaintiff treated with was licensed under MCL 333.17957 and therefore the treatment was not “physical therapy.” Because medical experts found the massage therapy to be beneficial to the plaintiff’s back pain, it was considered reasonable and necessary.

Stackable v GTech Corp.: Compensation Appeals Commission (November 26, 2019)

Facts: The plaintiff in this matter won an open award at the trial level for a specific event back injury.The Magistrate ordered defendants to pay for the reasonable and related medical treatment provided as a result of the work injury. Part of the defendant’s appeal to the Commission was that because the treatment the plaintiff received was not beneficial and did not result in a successful recover, it could not be considered “reasonable and necessary.”

Holding: The Commission held that it is not a simple question as to whether a treatment worked or not when determining if it is a reasonable treatment. Rather, a decision maker must focus on “the nature, severity, and impact of the injury and those factors that play a role in the decision to proceed with treatment.” In other words, it is a totality of the circumstance analysis. The Commission further discussed that if a rule existed wherein only successful treatments were considered “reasonable,” it would have a chilling effect on injured workers who may not undergo risky procedures where a good result is not guaranteed. In this particular case, the plaintiff received a few injections that were not continued after they proved unsuccessful. This is unlike the case Rayis v Utica Packing Company, 1991 ACO 214, wherein therapy had been provided over an extended period of time without any relief.  In that case, the continued treatment was not reasonable and necessary because it had proven to be ineffective for that particular claimant.

EMPLOYER – EMPLOYEE RELATIONSHIP

Seasonal Employment

Blackwell v Ameri Construction & Concrete. Appellate Commission. (January 5, 2019)

Facts: The plaintiff successfully proved a work-related lower back injury, which was affirmed by the Appellate Commission. One of the issues on appeal was whether the fact that the plaintiff was a seasonal worker affected his ability to obtain benefits year-round. The defendants argued that because the plaintiff’s job was to pour concrete, and concrete could not be poured year-round, the plaintiff’s wage loss in the off-season was not due to his injury.

Holding: Typically, the plaintiff must prove that any wage-loss they sustained is the direct result of the alleged injury. Defendants often argue that since a seasonal worker would not earn money in the off-season anyway, his or her wage loss during that time is expected and not due to the injury. In this case, the Appellate Commission cited the defendants’ vocational assessment. The vocational expert found jobs that the plaintiff could perform with his restrictions, but they were positions that could be done throughout the year. As such, because those jobs paid less than his previous job, the plaintiff suffered from wage-loss year-round as the result of his injury and must be paid by defendants throughout the year as a result.

Independent Contractor

Parshall v Worden & Co., Inc. Appellate Commission. (July 31, 2019)

Facts: This matter came to litigation because an intervening insurance company was seeking reimbursement against Worden & Co. Inc.’s worker’s compensation carrier. Mr. Parshall (plaintiff) provided services to the defendant as a mechanic wherein he would service the various trucks used in the business. The plaintiff sustained an injury while on the defendant’s premises when he was run over by one of the trucks. Records indicated that the plaintiff held himself as “working” for the defendant, even though he used the job as therapy. Moreover, he reported that he was involved in the firing process of one of the defendant’s employees. The plaintiff was paid $10 per hour because any more would affect his Veteran’s Affairs benefits. In fact, he would often “bank” his working hours so he would not work more than 40 hours a week. Despite this evidence, the plaintiff testified at trial that he was never paid and worked as a volunteer for therapeutic purposes. Therefore, the Magistrate held the plaintiff was an independent contractor.

Holding: The Commission held that the facts on the record did not support the Magistrate’s finding that the IRS 20 factor test tipped in favor of plaintiff being an independent contractor. The Commission found the evidence supported that the plaintiff did not hold himself out as an independent contractor, he used defendant’s tools on occasion, he did not employ anyone, he was the only mechanic working on the trucks at the time of the accident, and ensuring that trucks were operating was integral to defendant’s business. Further still, a witness testified that the plaintiff had previously submitted an application, but that application mysteriously disappeared from his file. Finally, the fact that there was no independent contractor form signed by either party made it difficult to hold the plaintiff was not an employee.

Murdock v Kalamazoo Pallet LLC. Board of Magistrates (June 26, 2019)

Facts: The estate of Chris Murdock sought a determination that Mr. Murdock was NOT an employee, but an independent contractor at Kalamazoo Pallet at the time of his death. The estate had also filed a circuit court claim alleging negligence that the defendant did not provide proper training or supervision of its workers. If the plaintiff was not an employee, then the estate could pursue much larger damages in circuit court. Murdock was hired by defendant in June 2017 as a general maintenance man. He had no prior experience of this type of work, but rather was trained on the job. On or about August 1, 2017, Murdock was going to remove a tire on a tractor using ether, a flammable chemical that causes a small explosion and “seats” the tire on the rim. In that process, there was an explosion and Murdock was pronounced dead at the site of the explosion.

Holding: Under the most general definition of an employee according to the Act, Murdock was an employee because he was in the service of another under a contract that was either express or implied. The Magistrate noted that because he was paid an hourly wage each week, this was enough to satisfy this definition. However, there are two more tests to determine the exact relationship. First, the Magistrate noted that there was no evidence to support that Murdock owned his own business, held himself out to the public for services, or was an employer covered by the Act. He then performed the IRS 20-factor test. All 20 of the factors weighed in favor of Murdock being an employee of the defendant. Most notably, Murdock had no requisite skills to perform his job and needed to be trained to perform the essential functions of his job. The plaintiff also worked 40 hours a week with some overtime, thus it impliedly limited him from obtaining other gainful employment. Accordingly, because Murdock was considered an employee, his estate was limited to benefits afforded to them under the Act only.