Case Law Update
BCPWQ Seminar
2022
CAUSATION
“Arising Out Of and In The Course Of”
Idiopathic Falls
Zepke v U.S Farathane LLC (Mich. W.C.B.M, January 12, 2021)
Because the Worker’s Disability Compensation Act demands that a Plaintiff show that their injury arose “out of and in the course of employment,” Plaintiff is not entitled to benefits under the Act in an instance of an “idiopathic fall.” See MCL 148.301 (1)(4), and see Ledbetter v Michigan Caron Co, 74 Mich App 330 at 333 (1977). A so-called idiopathic fall, in the context of Workers’ Compensation, means a fall event that is strictly personal to the employee and correspondingly unrelated to employment. Id. The sole fact that a fell occurred at work does not alone provide enough connection to employment to necessarily render the claim compensable.
Here, Plaintiff was a 78-year-old female who worked for employer Farathane as a machine operator. She alleged and provided evidence that on the date of injury she fell form a chair and injured her head, legs, and ankles. The self-insured employer disputed the injury and no Workers’ Compensation benefits were ever paid.
Evidence also indicated that Plaintiff’s blood sugar was over 200 when she came to work, and it was 330 when paramedics later provided her with emergency treatment. The Plaintiff disputed that a syncopal episode was produced by a blood-sugar or heart condition.
The Magistrate found that Plaintiff did fall at work. However, he concluded that no element of work caused or increased the risk of the fall. He determined that most likely the fall was the result of a blackout caused by her preexisting diabetes and heart condition.
The magistrate further analyzed whether any feature of the work environment contributed to a risk of injury associated with the fall. He found none.
It bears noting the distinction that, even if a plaintiff hypothetically blacked out at work and suffered an idiopathic fall, some portion of the injury would be compensable if a feature of the workplace contributed to additional risk of injury upon falling. Imagine for example if one fell into a machine, or if one fell and struck one’s head on a sink. The portion of a plaintiff’s injury, but not the blackout and fall itself, would potentially be compensable because that risk arose from the workplace environment. See McCain v Chrysler Corp, 128 Mich App 723 (1984).
Finding an idiopathic fall and no such added risk here, the Magistrate denied Plaintiff’s claim.
Intentional Act
Rodriguez v. Prowse Construction LLC (WDCAC, 2021 ACO #9)
To be compensable, an injury must arise out of and in the course of employment. MCL 418.101. Here the Commission upheld a Magistrate’s decision denying a widow’s survivor benefits. It found that a fatal, 65-foot fall from scaffolding at work was not compensable given credible testimony that decedent committed suicide.
Witness testimony indicated that the deceased, Mr. Rodriguez, had engaged in an argument with co-workers on the morning of his fall. Thereafter, he appears to have left the work cite in anger to eat lunch by himself. He returned late to work following lunch. Later, several empty beer cans were discovered in the deceased’s cooler. Testimony was given by workers who were near to Mr. Rodriguez, that after work resumed following lunch, again argued with coworkers before throwing himself and his tools over a safety rail resulting in his fatal fall. Though testimony was also given from witnesses on the ground that they believed the deceased had fallen by accident.
The Magistrate rejected plaintiff’s argument that the deceased fell as a result of some other cause besides suicide. The magistrate further held that a suicide is only compensable under the Workers’ Compensation Act if there is some causal connection to employment.
On appeal, the Commission indicated that the Magistrate’s factual conclusion of suicide was reasonable. While suicide is not categorically barred as being compensable under the Worker’s Compensation Act, no argument was made that work in any way caused plaintiff’s suicide. The Commission correspondingly upheld the Magistrates conclusion that Mr. Rodriguez’s fall was an intentional and independent event that did not arise out of or in the course of his employment, despite it occurring at work.
Work Travel
Lewis v Lexamar Corp. (Mich. Ct. App., December 17, 2020)
A workers’ compensation plaintiff must show that an injury arose out of and in the course of employment. MCL 418.101. An employee going to or from work while on the premises where the employee’s work is performed, and within a reasonable time before and after his or her working hours, is presumed to be in the course of employment. MCL 481.301 (3). However, injuries sustained going to, or coming to work are generally not compensable. Here, the Court of Appeals upheld a decision that a fatal car crash was not compensable, where a deceased employee had left work and was driving to a welding class that was paid for by the employer, LexaMar.
The deceased employee, Mr. Lewis, worked as a specified tool worker for LexaMar. On the day of the accident, Plaintiff finished his shift and drove to a welding class at a nearby college. LexaMar paid for the class, but it did not require Plaintiff to attend it. Plaintiff did not work as a welder. However, it might have benefitted LexaMar if Plaintiff had attained a welding certification given an apparent lack of certified welders. On that day, Plaintiff was involved in an automobile accident which he did not survive. The Magistrate held that Plaintiff (through an estate representative) established that there was sufficient relationship to Plaintiff’s employment to make his claim compensable.
There are six exceptions to the general rule that injuries during travel to or from work are not compensable:
- The employee is on a “special mission” for the employer
- The employer derives a special benefit from the employee’s activity
- The employer paid for or furnished the transportation for the employee
- The travel comprised a dual purpose combining employment and personal activity.
- The employment subjected the employee to excessive traffic risks.
- The travel took place as a result of a split-shift schedule or similar irregular working schedule.
Of these, the Magistrate effectively found that two applied – that Plaintiff was on a special mission, and that LexaMar enjoyed a special benefit. However, the Commission reversed, and the Court of Appeals upheld that reversal.
The central factual dispute was the extent to which LexaMar encouraged Plaintiff to take the welding class. Testimony was given that a human resource director encouraged Plaintiff to take the class and indicated that he would receive a raise upon completion. Plaintiff successfully negotiated with LexaMar to have the class paid for in full. However, the same human resource director testified that she had encouraged, but not strongly encouraged Plaintiff to take a different course at the same college. She denied having promised a raise upon completion.
The Court of Appeals held that the Magistrate erred by effectively resting the decision on an erroneous conclusion that the college was itself a second job site, and that the Magistrates focus on whether the employer “strongly encouraged” Plaintiff to attend had improperly expanded the law.
Ultimately, the Appellate Court found that none of the above exceptions was met. However, this case also strongly implies that if attendance at the class had effectively been required, the claim would have been compensable as either a special mission or special benefit.
Causal Relationship
Degenerative Conditions
Carson v. Bandit Industries Inc. (Mich. Ct. App., September 30, 2021)
In cases involving claims of a new, work-related injury which is like a preexisting condition, the plaintiff must show at least an injury that is medically distinguishable from the preexisting condition. Rakestraw v General Dynamics Land Systems, Inc., 666 N.W.2d 199 Mich (2003).
Here, Plaintiff was a welder hired in 2013 to a job that required kneeling, bending, and lifting up to 100 pounds. Plaintiff alleged that he felt a pop in his back in April of 2014 while lifting a heavy part at work. Plaintiff reported the incident the next day, and later testified that he felt burning in his back and legs. He was soon diagnosed with radiculopathy and placed off work.
An Independent Medical Examination was conducted on behalf of Bandit Industries, and the doctor opined that there were preexisting degenerative changes to Plaintiff’s lumbar spine and that the work incident may have aggravated those disk injuries. Bandit secured a second Independent Medical Examination with a second doctor, who found to the contrary that there was no present radiculopathy, that Plaintiff’s low back pain was not neurological, and that he could return to work.
At trial, Bandit relied on the second Independent Medical Examination. It further presented surveillance video of Plaintiff performing yard work at his brother’s business, which included branch trimming and weed whacking, which Plaintiff had failed to report to either doctor. The Magistrate found that Plaintiff had sustained a compensable, work-related injury.
On appeal to the Appeal’s Commission reversed the Magistrate, and the Michigan Court of Appeals ultimately upheld that reversal (on remand after the case visited the Supreme Court). Specifically, the Appellate Commission held that Plaintiff’s spinal degeneration was a preexisting condition that required that application of Rakestraw and some showing of a medically distinguishable condition, for which evidence was lacking. In its decision, the Court of Appeals then specifically cited the language in Rakestraw rejecting the compensability an injury that “fortuitously manifests itself during the workday.” The Court of appeals reaffirmed that a Rakestraw claimant must prove that the injury actually occurred at work, not just that work was the place that symptoms first manifested themselves.
Because insufficient evidence was provided to support some medically distinguishable injury, the claim was not compensable.
Editor’s Note: See Page 21 for the prior Court of Appeals decision involving issues of recoupment of benefits.
Mental Injury
Cramer v Transitional Health Services of Wayne (Mich. Ct. App., August 26, 2021)
The usual legal standard to show causation is elevated in cases of conditions of the aging process, and mental disabilities. For mental disability cases a Magistrate will employ the Martin test, which is a four-step comparison all mental-stress factors that existed prior to, or outside of work to those that are work-related to determine if work significantly aggravated or accelerated any pre-existing mental disability.
Here, Plaintiff worked for defendant Transitional Health Services as a dietary manager at a nursing home. She alleged that while wiping a light fixture with a wet rag, she received an electric shock, fell from a ladder, and struck her head both on a sink and on the floor. She was taken to a hospital, but no signs of injury were found, and she was released.
Plaintiff later developed non-epileptic seizures, meaning seizures produced by stress as opposed to a brain abnormality. Plaintiff was diagnosed with PTSD and complained of severe headaches.
The defense claimed, without dispute, that Plaintiff had suffered 19 years of abuse at the hands of an ex-husband. It further claimed that Plaintiff was exaggerating her claims.
The trial amounted to a battle of experts. The Plaintiff presented medical testimony indicating a bonified, work-related pathology coupled with a sincere effort to improve on Plaintiff’s part. The defense presented medical testimony calling into question whether Plaintiff was being entirely truthful and delegitimizing the diagnoses of mental impairment. One expert stated that he “strongly recommend that medical care providers discontinue the current practice of reacting to every new symptom as a manifestation of some serious underlying illness. … I believe it is likely that [Plaintiff] will completely resolve all of her current difficulties once there is a resolution of whatever legal proceedings are underway.”
The Magistrate expressly accepted the testimony of the defense experts. Moreover, the Magistrate applied the Martin test and found that Plaintiff’s history of abuse and non-work-related trauma outweighed any work-related contribution to her current mental disability, to whatever extent those existed.
The Court of Appeals stressed deference to the Magistrate based on the latter. The Magistrate applied the correct legal standard, the Martin test. As a result, the Court of Appeals differed to the Magistrates factual findings in holding the Magistrates conclusion that no significant aggravation occurred through work, was appropriate.
DISABILITY
Job Search Efforts
Razo v GM and Sons Inc. (Mich. W.C.B.M. January 21, 2021)
The Magistrate held that the plaintiff made a good faith effort to find employment within his restrictions.
The plaintiff testified that his main employment was seasonal and that he was injured in November 2015, which was the end of his season. He eventually underwent surgery for his alleged work-related condition. After a period of recovery, he began to look for work by visiting workplace premises and asking about job openings. He would ask the employer representatives at the respective sites to fill out his job log because of his limitations in writing English. The defendants argued that the plaintiff was not entitled to weekly benefits because he did not conduct a good faith job search.
MCL 418.301(4)(c) indicates that the employee must establish a wage loss between the disability and the reduced wages. The subsection provides that one of the ways to establish a wage loss is to demonstrate a good-faith effort to secure work within his or her earning capacity.
The Magistrate found that the plaintiff made a good faith effort to find employment within his restrictions. She found that his job log reflected inquiries to different employers for different positions and the plaintiff credibly referenced the types of jobs he felt that he could perform within the post-operative restrictions. Therefore, the Magistrate held that the plaintiff had established a wage loss and was entitled to workers’ disability compensation benefits.
Proof of Disability
Omer v Steel Technologies Inc., 507 Mich. 492 (2021)
On appeals from a Magistrate’s decision in a Workers’ Compensation case, the decision must at least be based on competent, material, and substantial evidence provided at trial. Here, a medical professional declared plainly that Plaintiff was “disabled” with little if any additional evidence to that effect. The Michigan Supreme Court upheld the Magistrates decision that Plaintiff suffered a work-related disability.
Plaintiff suffered a low-back injury while working for Steel Technologies. At trial, the Magistrate concluded that Plaintiff was totally disabled, and cited a statement to that effect made by Plaintiff’s own doctor, as well as a statement made by Plaintiff’s chiropractor that Plaintiff could not work.
On appeal, Steel Technologies argued that those conclusory statements did not amount to competent, material, and substantial evidence sufficient to support the Magistrate’s holding. The Supreme Court disagreed, reasoning that the Magistrate’s holding was predicated on much more than those statements. The evidence also included medical records, vocational-expert testimony, and credible testimony by Plaintiff himself. Therefore, the Magistrate’s ruling was sufficiently supported.
Residual Wage Earning Capacity
Lavrack v General Motors Co. (WDCAC, 2021 ACO #8)
The WDCAC affirmed the magistrate’s decision of an unreduced open award, finding that the plaintiff did not have a post-injury wage earning capacity pursuant to MCL 418.301(4)(b).
The plaintiff filed suit against her employer alleging a left knee injury and disability from a slip and fall. The case proceeded to trial where both sides presented the testimony of their respective vocational experts. The plaintiff’s vocational expert testified that there were no suitable jobs within the plaintiff’s restrictions that were reasonably available. The magistrate adopted the findings of plaintiff’s vocational expert. The magistrate granted an open award of unreduced benefits to the plaintiff. The defendant appealed the magistrate’s decision on the basis that the magistrate erred by not applying a wage earning capacity.
MCL 418.301(8) applies in cases where the plaintiff is partially disabled, i.e. the plaintiff is capable of working with restrictions. The statute permits an adjustment in the plaintiff’s benefit rate if he or she had a “wage earning capacity” following the injury. MCL 418.301(4)(b) defines “wage earning capacity” as “the wages the employee earns or is capable of earning at a job reasonably available to that employee, whether or not wages are actually earned.”
The WDCAC focused on the requirement that a job be “reasonably available” to the injured party. The plaintiff’s vocational expert testified that there were no reasonably available jobs within the plaintiff’s restrictions. The magistrate adopted this finding in reaching his decision. The magistrate’s decision to accept plaintiff’s vocational expert’s testimony was not challenged by the defendant. The WDCAC found that the magistrate’s decision was supported by competent, material and substantial evidence on the whole record.
The WDCAC also commented on the interplay between reasonably available jobs and the good-faith job search requirement of MCL 418.301(4)(b). This section indicates that the employee has an obligation to seek work reasonably available to that employee. Although plaintiff testified that she made a good faith effort to secure work, she was under no duty to do so. This was because of the vocational expert’s testimony that there were no jobs reasonably available to her. The employee is under no obligation to search for jobs that don’t exist.
A concurring opinion clarified that the plaintiff certainly had an obligation to look for work and that the majority opinion should not be read as suggesting that employees are not required to look for work within their qualifications, training, and restrictions. The opinion indicated only the benefits of hindsight allowed the WECAC to find that the plaintiff was not required to look for work.
Therefore, the WDCAC found that there were no jobs reasonably available to the plaintiff and she could not be found to have a post-injury wage earning capacity pursuant to MCL 418(4)(b).
EMPLOYER-EMPLOYEE RELATIONSHIP
Employee Under the Act
Reed v Hodge (Mich. Ct. App., November 4, 2021)
The Michigan Court of Appeals found that the trial court erred in granting defendant’s motion for summary disposition with respect to the exclusive remedy provision of the Act.
The plaintiffs, Robert Reed and Emily Schenk, were working as emergency medical technicians in a moving ambulance. The ambulance was involved in a motor vehicle accident and the plaintiffs alleged that they sustained injuries. They filed suits alleging negligence against Huron Valley Ambulance (HVA), the ambulance driver, and driver of the other vehicle. HVA moved for summary disposition alleging that the Act provided the exclusive remedy. The plaintiffs alleged that they were not employed by HVA, but instead by HVA’s parent company, Emergent Health Partners (EHP). HVA offered an affidavit stated that HVA was a wholly owned subsidiary of EHP. The trial court concluded that HVA was the plaintiffs’ employer and granted the defendant’s motion for summary disposition.
The Act provides an exclusive remedy against an employer or coworker for work-related personal injuries. MCL 418.131(1) indicates that “the right to recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer for personal injury or occupational disease.” To determine if an employee-employer relationship exists for purposes of the Act, the economic-reality test applies. This test involves examining factors of the control of the worker’s duties; payment of wages; the right to hire, fire and discipline; performance of duties toward the accomplishment of a common goal. Chiles v Machine Shop, Inc., 238 Mich. App. 462, 467; 606 NW2d 298 (1999). In applying this test, no signal factor is controlling, and the totality of the circumstances must be examined. Id.
The defendant argued that its status as a wholly owned subsidiary of EHP qualified it as the plaintiffs’ employer for purposes of the Act. However, no evidence was presented to the trial court as to the factors of the economic reality test. The affidavit that the trial court relied upon did not indicate who controlled the plaintiffs’ work duties, paid wages, hired, fired or disciplined them, or that their job duties were for the purpose of accomplishing a common goal. The Court found that evidence of corporation status did not contravene the requirements of applying the economic reality test in determining the employer. Therefore, the Court reversed and remanded to the trial court for further proceedings.
PROCEDURAL ISSUES
Independent Medical Examinations
Nezwisky v Borgwarner Inc. (Mich. W.C.B.M., January 21, 2021)
This matter arose from the defendant’s Motion to Dismiss or Suspend & Forfeit Benefits. The magistrate denied the Motion without Prejudice.
The plaintiff filed an Application for Mediation or Hearing in pro se alleging psychological injuries stemming from a July 31, 2017 injury. The disability duration was indicated to be the injury date through October 19, 2017. She claimed expenses, costs, fees and lost wages for this time period. At a Status Conference held in February 2020, it was disclosed that the matter involved a “closed period” of wage loss and medical bills. The defendant arranged for the plaintiff to be evaluated by Dr. Harvey Ager on July 15, 2020. The appropriate citation letter was sent to the plaintiff on June 2, 2020. The plaintiff called defendant two days prior to the evaluation indicating that she would not be attending the upcoming evaluation. Her reasoning was that she was only claiming a closed period of benefits and she was not required to appear based upon her reading of the statutory provision. The defendant filed a Motion to Dismiss or Suspend & Forfeit Benefits based on the plaintiff’s apparent refusal to attend the evaluation. At the Motion hearing, both parties confirmed that defendant had never cited her for an examination prior to the scheduled examination.
MCL 418.385 provides the right for an employer or workers’ compensation carrier to have the employee-claimant examined in reference to the basis of the claim and allegations of work-related disability. The statute mandates that the employee-claimant “submit himself or herself to an examination.” In addition to an initial examination upon notice of an injury, the statute also allows for periodic examinations “from time to time thereafter during the continuance of his or her disability.” The magistrate pointed out that this second element is extremely important for defense of a workers’ compensation claim in a scenario where the employer or carrier arranged an evaluation and then accepted benefits. Without the allowance for periodic evaluations, the employer or carrier would be virtually unable to contest the employee-claimant’s allegations of ongoing disability at a later time.
The plaintiff argued that because she had no “continuance of…disability” she was not required to submit to the evaluation at defendant’s choosing. While the magistrate made no rulings on the validity of her claims that her disability had ended, he did find that her interpretation of the statute was without support. Contrary to her reading, the magistrate found that the end of her disability period did not nullify the defendant’s right to have her evaluated following being given notice of the injury.
In ruling on the motion, the Magistrate declined to grant defendant’s request for suspension and/or forfeiture of benefits. He noted that the defendant’s examination was scheduled almost three years after the alleged injury date. In his examination of the case timeline, he noted that defendant’s carrier had filed a Notice of Dispute when plaintiff initially reported her claim in 2017. Based on that dispute, there was little incentive to pursue an examination until plaintiff filed the instant litigation. However, the litigation had been pending for over one year until defendants decided to exercise their right for an evaluation. The magistrate’s denial of defendant’s requested relief was based on the defendant’s delay in pursuing an examination.
The magistrate also based his determination on his belief that plaintiff’s refusal to appear was based on her “plausible argument made in good faith.” The defendants were allowed to re-cite the examination and re-file and pursue sanctions should the plaintiff continue in her refusal to attend.
Schweininger v Advanced Technology Solutions (WDCAC, 2021 ACO #12)
MWDCAC 21-0006, September 29, 2021
The Commission granted expedited review of the magistrate’s interlocutory order quashing the defendant’s request for an independent medical evaluation (IME). The Commission affirmed the magistrate’s order.
The matter arose from the plaintiff’s Application for Mediation or Hearing alleging injuries to his head and neck, resulting in neurological sequelae. Defendant scheduled the plaintiff for an IME with a neuropsychologist. Plaintiff filed a motion to quash that examination, seeking a determination as to whether he could be compelled to attend that IME. Plaintiff argued that a neuropsychologist does not meet the requirements of the Act. Defendant argued that the exact wording of the Act has never eliminated neuropsychologists from previous evaluations. Defendant also argued that if the legislature had intended to exclude neuropsychologists from performing evaluations, it would have done so. After hearing both sides, the magistrate granted the plaintiff’s motion and held that plaintiff was not required to submit to an IME with a neuropsychologist.
MCL 418.385 indicates that an employee, at the request of the employer or carrier, “shall submit himself or herself to an examination by a physician or surgeon authorized to practice medicine under the laws of the state.” Plaintiff argued that a neuropsychologist was not “a physician…authorized to practice medicine under the laws of the state.” The Public Health Code (Code) defines “physician” as “an individual who is licensed under this article to engage in the practice of medicine.” MCL 333.17001(1)(e). The Code further indicates that psychology “shall not include the practice of medicine such as prescribing drugs, performing surgery, or administering electro-convulsion therapy.” MCL 333.18201(1)(b). The Commission reasoned that under the Code, a neuropsychologist did not meet the definition of “physician.” As a neuropsychologist is not a “physician” under the clear language of the Code, a neuropsychologist cannot meet the requirements of the Act. Therefore, the Commission affirmed the magistrate’s decision.
Remand of Magistrate Order
Moore v Gurney Payroll Co. LLC, Hartford Accident & Indemnity Co. and Second Injury Fund/Dual Employment Provisions (WDCAC, 2021 ACO #10)
Defendants Gurney Payroll Company, LLC and Hartford Accident & Indemnity Co. appealed an order of the magistrate. The Commission reversed the magistrate’s order and remanded back to the magistrate.
This matter arose from two Form C Applications filed by defendants Gurney/Hartford. The first Application requested recoupment from plaintiff Ray Moore as a result of an alleged overpayment of weekly benefits. An amended Form C Application added the Second Injury Fund (SIF) under the Dual Employment Provisions (DEP) seeking reimbursement of weekly benefits paid to plaintiff allegedly attributed to dual employment. Gurney/Hartford reached an agreement with the SIF/DEP. The parties drafted a Voluntary Payment Agreement (Agreement) that indicated the SIF/DEP would reimburse $628.88 to Hartford upon the dismissal of the Application against the SIF. The Agreement was signed by the defendants and submitted to the magistrate for his approval. The magistrate drafted an order that dismissed “the Application” which suggested that he intended both the initial application and the amended Applications to be dismissed.
Defendants Gurney/Hartford appealed the magistrate’s order. Defendants alleged that the order the magistrate entered was not the order that the parties intended. The WDCA analyzed the wording of the Agreement in comparison to the Order issued by the magistrate. The WDCA agreed that the Order that the magistrate entered deviated from the intention of the Agreement submitted by the parties. The WDCA indicated that the Agreement the parties signed would not constitute an adjudication, but WDCA found that the wording of the Order would constitute an adjudication requiring payment of that which the parties had only agreed would be made on a voluntary basis.
The WDCA also indicated that that magistrate did not have the authority to enter the order that he entered based Michigan Administrative Rule 408.46(4). This rule prevents an agreement of two parties from putting an obligation on a third party that the third party did not anticipate. In this case, the Order could be construed as indicated there was a finding of injury, which was not the intention of the Agreement. Further, even if the magistrate intended his Order to constitute an adjudication, he did not follow any of the procedures outlined in R 408.46(4).
Ultimately the WDCA reversed the magistrate’s Order in its entirety and remanded the case for further proceedings not inconsistent with the WDCA’s Opinion and Order.
Standard for Claims of Review
Cassaday v Dow Chemical Co. (WDCAC 2021 ACO #1)
The WDCAC found that the Plaintiff/Appellant did not demonstrate sufficient cause to extend the time deadline for filing a claim for review.
The Appellant filed a claim for review on June 22, 2020 relating to an Opinion and Order denying the Appellant’s claim for benefits mailed on June 27, 2015. The Act mandates that a claim for review must be filed within 30 days of the magistrate’s Opinion and Order (MCL 418.851) or within such time as sufficient cause has been shown to be appropriate in the factual circumstances presented. (MCL 418.859a(1)) The Appellant was allowed additional time after filing his claim for review to submit proof of sufficient cause to extend the time for filing of the claim for review.
The WDCA summarized several principles and elements that should be considered when determining whether an appellant has demonstrated “sufficient cause.” First, the “sufficient cause” standard is less stringent than a “good cause” standard and is fact specific. Second, an assessment of the actual causes of the delay is required. Third, the appellant’s conduct should be evaluated. Fourth, when sufficient cause is found to exist, it is usually premised on some factor over which the appellant had little or no control. Fifth, there needs to be an absence of prejudice from the delay in the respondent. Sixth, the delay sought to be excused is usually measured in days and occasionally months. Finally, ignorance of the Act’s requirements is not relevant.
The WDCA noted that the Appellant’s letter explaining his case for sufficient cause lacked any reason or cause that resulted in the delay in filing the claim for review. The Appellant’s main argument was that the magistrate erred in his findings; however, this allegation alone is not sufficient to grant his claim for review because this forms the basis for most claims for review. The Appellant failed to demonstrate that there was a meritorious issue to be resolved in an appeal. The facts that he presented did not shows an “obvious and indispensable element” in meeting statutory requirements demonstrating sufficient cause. Therefore, the WDCA found that the Appellant’s claim for review was not timely and that he did not demonstrate sufficient cause to extend the deadline for filing a claim for review.
WORKERS’ COMPENSATION BENEFITS
Coordination of Benefits/Benefit Reduction
Grohman v Grohman Electric (Mich. W.C.B.M, January 20, 2021)
The Magistrate found that the defendant properly reduced the plaintiff’s weekly benefits pursuant to MCL 418.357(1), thus denying the plaintiff’s request for recoupment and penalty imposition.
The litigation arose from the plaintiff’s Application for Mediation or Hearing alleging that the defendant improperly reduced his weekly wage benefits. He sought recoupment of the accrued benefits plus penalties of interest and an additional $1,500 for “unwarranted and unjustified” actions.
In a prior litigation, the plaintiff was found totally and permanently disabled for the loss of industrial use of his legs from a March 20, 2013 work injury. He was granted an open award for $798.00 in weekly benefits. The plaintiff turned 65 years of age on February 16, 2019. Defendant began reducing his weekly benefits by 5% on November 1, 2019, retroactive to his 65th birthday, based on the provisions of Section 357(1).
The plaintiff argued that MCL 418.354(16) prohibited the reduction of weekly benefits based on the prior finding of total and permanent disability. He based this argument on an obscure doctrine of “implied repeal.” He argued that Section 354(16) was enacted subsequent to Section 357(1) and was intended to repeal that section as the two are irreconcilable.
Both sections at issue deal with the employer’s rights to decrease a plaintiff’s weekly benefits. Section 357(1) is commonly known as the “Age 65 Reduction.” This section provides for a 5% reduction in weekly wage benefits after a worker turns 65 years of age. The reduction continues to grow at a rate of 5% per year. Section 354(1) allows the defendant to reduce weekly benefits by amounts received by an employer regarding other benefits, such as old age Social Security benefits, self-insurance plans, wage continuation plans, disability insurance provided by the employer, etc. However, Section 354(16) prohibits coordination of benefits made to an employee deemed totally and permanently disabled.
In analyzing the plaintiff’s argument of “implied repeal,” the Magistrate pointed out that plaintiff cited two United State Supreme Court cases but failed to explain how these two cases applied to the facts of the instant case. The Magistrate further noted that Section 357(2) addresses this alleged irreconcilability by providing that the “Age 65 Reduction” would not apply to a person whose payments are coordinated under Section 354. In other words, defendants can either reduce the weekly benefits due to attainment of Age 65 or offset the weekly benefit by specific other benefits described in Section 354(1). Further, there is nothing in the statute prohibiting an application of the “Age 65 Reduction” to a party deemed totally and permanently disabled.
Therefore, the Magistrate held that the defendant was entitled to reduce the plaintiff’s weekly wage benefits, which it did so properly and legally. The Magistrate denied the plaintiff’s request for recoupment of weekly benefits and denied the plaintiff’s request for imposition of penalties.
Exclusive Remedy Provision
Bellinger v International Precast Solutions (Mich. Ct. App., October 21, 2021)
While employers must pay benefits for injuries and disabilities to workers arising from and in the course of employment, the Workers’ Compensation Act (WDCA) provides in exchange that pursuit of benefits under the WDCA is the exclusive remedy for a worker, barring negligence claims. However, the WDCA does not bar intentional tort claims against the employer.
Here, Mr. Bellinger, attempted to bring suit for Intentional Infliction of Emotional distress. Mr. Bellinger worked for the employer cleaning a cement machine, which had a spinning auger to prevent the cement from hardening. Plaintiff alleged that the employer instructed him to use a wire to fix a safety lever into the on position. Plaintiff did so, and when his clothes became entangled in the auger, he was pulled into the machine and his legs amputated.
Plaintiff alleged that the employer then accused him of misconduct to avoid paying Workers’ Compensation benefits – allegedly hiding the wire and lying to investigators. The employer also disciplined Plaintiff with a three-day suspension. Based on those allegations, Plaintiff sued in circuit court alleging psychological distress due to the employer’s intentional conduct.
The Michigan Court of Appeals held that, despite the allegation of an intentional tort on the part of the employer, the language of the statute, requiring that Plaintiff show a “specifically intended injury,” nonetheless barred Plaintiff’s claim. Even presuming Plaintiff’s allegations to be true, no evidence or allegation of an intent to injure was produced. Therefore, jurisdiction for the claim lay exclusively with the Worker’s Compensation Agency, and dismissal from circuit court was appropriate.
Elder v McGee and General Motors LLC. (Mich. Ct. App., December 17, 2020)
The benefits form a Workers’ Compensation claim is the exclusive remedy, as provided in the Workers’ Compensation Act (WDCA). Arguably, the central aim of the exclusive-remedy position is to extinguish work-related negligence claims in exchange for the near strict-liability benefits under the WDCA.
Here, Plaintiff essentially attempted to bring just such a negligence claim in association with a work-related injury. Plaintiff was walking through his employer’s parking lot, in association with his work, when he was struck by a coworker driving a truck. Plaintiff alleged that the employer, General Motors, knew and disregarded the dangerous interplay between pedestrians but failed to take preventative measures. On its face, that allegation speaks to a negligence action.
Of course, being aware of the MDCA’s bar against negligence claims and general exception for intentional torts, Plaintiff chose to style his complaint as the latter. But the MDCA exclusive-remedy provision does not set forth a clean, categorical delineation between negligence and intentional torts as some suppose.
The act bars all claims unless a plaintiff shows that a tort was intentional because of a “deliberate act of the employer and the employer specifically intended an injury.” Further, that specific intent to injury will only be found if an employer “had actual knowledge that an injury was certain to occur.” It is the second component, that an injury was specifically intended, that serves as an effective, rather than a categorical bar, to all negligence claims.
As a result, in this case, the Plaintiff’s stylization of his suit as for an intentional tort was ineffective. The Court of Appeals upheld the dismissal of his case. To survive a defendant’s motion to dismiss, Plaintiff would have to not just allege some intentionality, but to allege and then provide evidence of a specified intent on the part of the employer to harm the employer – a “certain to occur” injury.
As one may suspect, in this case, Plaintiff’s allegation that the dangerous interplay between pedestrians and automobiles fell short of that standard. Furthermore, Plaintiff presented no evidence of employer’s actual knowledge that an injury would certainly occur. The Court of Appeals affirmed the trial court’s dismissal of Plaintiff’s claim.
Ruiz v Benteler Automotive Corp. (Mich. Ct. App., September 16, 2021)
The Michigan Court of Appeals found that the trial court erred in denying defendant’s motion for summary disposition with respect to the plaintiff’s tort claims of false imprisonment and intentional infliction of emotional distress. However, the Court also found that the trial court did not err in denying the motion with respect to the plaintiff’s tort claim of battery.
The plaintiff alleged intentional torts against his employer and supervisor because of a specific event injury. In the incident, a heavy bin fell onto his foot and caused injury. Joan Talbot, a production unit leader, attempted to assist him following the incident. According to the plaintiff, defendant Talbot took him to a “tool crib” to assess his injury and administer first aid. She apparently attempted to remove his boot, despite the plaintiff telling her to stop. He alleged that he screamed in pain and told her to stop her attempts to remove his boot. He also alleged that he was kept in the “tool crib” for an hour, despite his requests for an ambulance to be called immediately. The plaintiff alleged three intentional torts against his employer and Talbot: battery, false imprisonment, and intentional infliction of emotional distress (IIED).
The Act provides an exclusive remedy against an employer or coworker for work-related personal injuries. MCL 418.131(1). The only exception to this provision is an intentional tort. The Act indicates that an intentional tort exists when “an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury.” Id. The plaintiff must establish that “the employer must deliberately act or fail to act with the purpose of inflicting an injury upon the employee.” Travis v Dreis & Krump Mfg. Co., 453 Mich. 149, 172; 551 NW2d 132 (1996). The defendants filed a motion for summary disposition contending that the exclusive remedy position of the Act prohibited the plaintiff’s intentional tort claims. The trial court denied the defendant’s motion with respect to all three intentional tort claims.
The Court held that the trial court erred regarding the false imprisonment and IIED claims. Regarding the false imprisonment claim, a plaintiff must establish that the defendant committed an act with the intention of confining another, the act directly or indirectly resulted in confinement, and the person confined was conscious of the confinement. The Court held that there was insufficient evidence to establish that defendant Talbot specifically intended an injury. Regarding the IIED claim, to fall under the intentional tort exception of the Act, a plaintiff must establish that the employer must have had a specific intent to inflict the alleged injury of emotional distress on the plaintiff. The Court found that Talbot’s conduct did not rise to the level necessary to establish an IIED claim. While her conduct may have been medically wrong or socially insensitive, it was not extreme and outrageous. Nothing suggested that she specifically intended to inflict emotional distress on the plaintiff.
The Court further held that the trial court did not err regarding the battery claim. The plaintiff alleged that he told defendant Talbot to not touch his foot because it hurt. Despite his request, she tried to take his boot off anyway. He alleged that she did this up to 10 times while he screamed in pain. The Court found that a reasonable juror could conclude that Talbot committed a battery and specifically intended an injury.
Interaction with No-Fault Act
Smith v Everest National Insurance Co. (Mich. Ct. App., July 1, 2021)
When a person is injured both in a motor vehicle accident and during the course of their employment, both the No-Fault Act and the Workers’ Compensation Act are generally implicated. Per usual, to prevail in a Workers’ Compensation claim, a plaintiff must show the injury arose out of and in the course of employment. To prevail in a No-Fault action, a plaintiff must show that they suffered an accidental injury arising “out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” MCL 500.3105 (1) (emphasis added).
Here, Plaintiff worked for employer Swift Towing LLC as a tow-truck mechanic. A tow truck was driven up an approximately 10-inch ramp to be serviced. Its transmission was placed in neutral, and the wheels were chocked to prevent it from rolling. Plaintiff was repairing an electrical problem with the “neutral safety switch” beneath the vehicle. The tow truck’s wheel suddenly began to move, pinning Plaintiff below the truck. He suffered a shoulder injury, punctured lung, and several broken ribs, and he required surgery.
Plaintiff received workers’ compensation benefits through Swift from the date of the injury. On that date, Plaintiff’s wife also had an automobile insurance policy with Everest. Plaintiff brought suit on the basis of that policy for No-Fault benefits.
The central issue of the case turned on whether the tow truck was “parked” at the time of the accident. No Fault does not generally cover accidents associated with automobiles which are parked. See again MCL 500.3105 (1). In addition, MCL 500.3106 (2)(a) provides that such injury does not arise from “ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s compensation disability compensation act … are available to the employee [who was injured while] doing mechanical work on a vehicle.”
Applying these rules together, the Court of Appeals determined that, to whatever extent the tow truck had been parked, Plaintiff was ineligible to receive additional compensation through the No Fault Act, as the availability of Workers’ Compensation benefits would act as a bar.
It bears noting that normally when both No Fault and Workers’ Compensation benefits are available, then payers of No-Fault benefits are entitled to a set off from the Workers’ Compensation benefits. However, as the Court of Appeals expressly stated, the Issue here was not a set off between two existing claims, one from Workers’ Compensation and the other from No-fault. The question was whether the No-Fault claim could exist at all, given the collection or worker’s compensation benefits and the potential the tow truck was parked.
Here, it was beyond dispute that Plaintiff received workers’ compensation benefits. The Court of Appeals remanded the case for a factual determination as to whether the tow truck was “parked.” Presuming that it was, no additional benefits would be owed beyond the already-paid workers’ compensation benefits.
Recoupment of Benefits
Carson v Bandit Industries Inc. (Mich. Ct. App., December 17, 2020)
The Michigan Court of Appeals affirmed the MCAC’s decision reversing the magistrate’s order denying the defendant’s claim for recovery of benefits paid to the plaintiff.
The plaintiff’s Application for Mediation or Hearing alleged a low back injury on April 22, 2014. The defendant filed a Petition to Recoup benefits that they alleged were overpaid to plaintiff. At trial, the defense presented surveillance footage showing the plaintiff performing work for his brother’s lawn service business. The plaintiff testified that he would help his brother’s business on a “limited” basis for approximately 10 hours per week. He claimed that the work he did primarily consisted of training new employees and that he received no monetary compensation.
The magistrate found that the plaintiff’s testimony that he did not receive compensation credible. As a result, he found no basis for recoupment since the plaintiff did not earn any wages while assisting his brother’s company. The defendant appealed to the MCAC and the MCAC found that the defendant had demonstrated that the plaintiff received benefits as a result of fraudulent conduct.
While the instant case was pending, the Court of Appeals issued its opinion of Fisher v Kalamazoo Regional Psych Hosp, 329 Mich App 555 (2019). The holding of Fisher is that the Act does not require that the employer-defendant show fraudulent conduct by the employee-plaintiff to be entitled to recoupment of overpayments. The court held that this requirement was “created” by Whirley v JC Penny Co, Inc, 1997 ACO 247. However, the Whirley court exceeded its statutory authority in creating this requirement. The Fisher court rejected the employee fraud doctrine requirement.
The instant case question was whether Fisher should be applied retroactively. Judicial decisions are generally applied to all pending cases in which the same issue has been raised and preserved. This principle is known as judicial retroactive effect.
The court concluded that the Fisher decision was an examination of the Act; the decision did not create a new principle of law nor overrule binding caselaw. Plaintiff Carson could not reasonably rely on an “old rule” that imposed a fraud requirement because no such rule existed. Therefore, the holding of Fisher was retroactively applied to the instant case. The court ruled that the defendant was entitled to recoup against the plaintiff, subject to the one-year back rule.
Editor’s Note: See Page 6 for the later Court of Appeals decision involving issues of compensability for degenerative injuries.
Retaliatory Discharge
Chapman-Stanford v MidMichigan Medical Center (Mich. Ct. App., October 28, 2021)
The Workers’ Disability Compensation Act (WDCA) prohibits any manner of discrimination against an employee because the employee filed a complaint or proceeding under the Act. To establish a prima facia case, a plaintiff must show that such a right was asserted, that the employer knew of that protected conduct, that the employer then took an adverse employment action against the employee, and finally that the adverse action and the employee’s protected conduct under the Act were causally related.
Here, the Court of Appeals ruled that dismissal of Plaintiff’s claim was appropriate because insufficient evidence was presented to place the question of a causal connection into question for Plaintiff. Ms. Chapman-Stanford worked as a surgical technologist for the employer, MMMC-Clare. She suffered cognitive complications following an incident where she struck her head on a monitor. She returned to work under restrictions which limited her work as a technologist.
Subsequently, MMMC-Clare underwent system-wide budget cuts. Plaintiff’s supervisor was required to eliminate one technologist position. Plaintiff had the lowest seniority and the only record of having been disciplined. She was terminated. MMMC-Clare facilitated Plaintiff’s transfer to MMMC-Gratiot.
At MMMC-Gratiot, Plaintiff injured her knee. After missing approximately 20 days absence, Plaintiff had exhausted her medical leave and returned to work. She had been tardy on several occasions as well. Plaintiff was then terminated from MMMC-Gratiot.
Plaintiff filed suit in circuit court alleging retaliation. The Court of Appeals affirmed that dismissal of Plaintiff’s case was appropriate for lack of evidence that causally linked Plaintiff’s termination and her protected conduct in filing a Workers’ Compensation claim.
When a Plaintiff alleges a prima facia case of retaliation on circumstantial evidence, the burden shifts to the Employer to present a legitimate reason for dismissal. Plaintiff’s poor record of attendance and previous disciplinary record stood as evidence of a legitimate reason, and Plaintiff offered no specific evidence to place the issue back into genuine dispute. The court noted that in such cases, an unblemished disciplinary record prior to the employer’s actions, can be sufficient to support a claim of retaliation. The Court further noted that no such unblemished record existed here.
Peake v Marada Industries Inc. d/b/a Cosma Body Assembly Michigan (E.D. Mich., June 30, 2021)
The U.S. District Court of the Eastern District of Michigan granted the defendant’s motion for summary judgement regarding the plaintiff’s claim of retaliation under the Michigan Workers’ Disability Compensation Act.
The plaintiff worked as a Health, Safety, Ergonomics & Environmental Coordinator for the defendant. She claimed that she suffered posttraumatic stress disorder as a result of her work activities. She took a leave of absence for one month. During that time, the employer filed a claim for short term disability (STD) on her behalf. The STD carrier determined that the disability was due to “occupational sickness or injury” and denied benefits. The plaintiff never reported a claim for workers’ compensation benefits, nor requested that her employer file a workers’ compensation claim on her behalf. Shortly after, she was terminated from her position.
To establish a prima facie case of retaliation under the Act, the employee must prove four elements. First, that the employee asserted a right to obtain necessary medical services or actual exercised that right. Second, that the employer knew that the employee engaged in this protected conduct. Third, that the employer took an employment action adverse to the employee. Finally, that the adverse employment action and the employee’s assertion or exercise of a right under the Act were causally connected. Cuddington v United Health Servs., Inc., 298 Mich. App. 264, 826 N.W.2d 519 (Mich. Ct. App. 2012).
In analyzing the elements of a prima facie case for retaliation, the court found that the plaintiff’s claim failed because she did not assert a right to obtain necessary medical services nor exercised that right. The plaintiff testified that she did not file a workers’ compensation claim and that she was aware it was the employee’s responsibility to do so. She also never spoke to anyone at the employer about filing a workers’ compensation claim.
Both sides conceded that a claim was made for STD benefits that was ultimately denied on the basis that the disability was due to “occupational sickness or injury.” Under the STD carrier’s policy, disability based on these conditions are not compensable. However, filing a STD claim and receiving a denial does not constitute asserting or exercising a right under the WDCA.
Therefore, the court held that the plaintiff had not met her burden of proof for establishing a case of retaliation under the WDCA and granted summary judgment to the defendant.