Case Law Update

BCPWQ Seminar

2023

CAUSATION

“Arising Out Of and In The Course Of”

Intentional Act/Horseplay

Neiman v Versaw Earthworks (Mich. WCBM 2022)

The plaintiff, a laborer and truck driver, alleged that he was injured when he fell from an industrial garage door. The injury occurred when a co-worker activated the garage door and the plaintiff held onto the bottom of the garage door until it reached the ceiling. Defendants disputed benefits as the injury was deemed to be not work-related.

At the time of trial, the defendant’s representatives testified that plaintiff’s job duties did not require him to ride up the garage door, nor was the activity explicitly or implicitly approved. Statements from the plaintiff and his co-worker indicated that the two were “just messing around” and “joking around” at the time of the incident.

For an injury to be compensable, the injury must arise out of employment activities. An injury may be excluded from coverage if it does not arise from the scope of a party’s employment. The Act specifically excludes injuries which are incurred during social or recreational activities (MCL §418.301(3)) or are the result of intentional and willful misconduct (MCL §418.305).

These types of injuries are usually attributed to “horseplay” by the injured party. The test for horseplay involves four factors: 1) the extent and seriousness of the deviation from work duties; 2) the completeness of the deviation from work duties; 3) the extent to which the horseplay was an accepted part of the employment; and 4) the extent to which the nature of the employment may be expected to include some horseplay. Petrie v GMC, 187 Mich App 198, 466 NW2d 714 (1991). Some horseplay is expected in the workplace and would be compensable under the Act. Crilly v Ballou, 353 Mich 303, 391 NW 2d 493 (1958).

The magistrate found that the act of grabbing the door and riding it was “far beyond anything that would legitimately be considered part of plaintiff’s normal job duties.” This act was a complete deviation from the plaintiff’s normal job duties. The employer’s testimony that none of the employer representatives would have allowed this behavior was found to be factual evidence that the defendant would not have accepted this level of horseplay in the work environment. Finally, the magistrate found that this activity would have posed a risk of serious injury to an employee or others and would not be expected in the work environment. Therefore, the magistrate held that the plaintiff’s injuries resulted from horseplay that deviated from the usual job duties and thus did not arise out of his employment. He affirmed the defendant’s denial of benefits.

Causal Relationship

Conditions of the Aging Process

Braya v National Entertainment Network (Mich. WCBM 2022)

The plaintiff alleged a 2018 motor vehicle accident caused, contributed to, or significantly aggravated a low back injury. On the alleged date of injury, plaintiff was driving a company van when she struck a deer. She sought treatment several days later and reported discomfort in her lower back and right shoulder. The subsequent treatment focused on the lower back, including office visits, diagnostic testing, chiropractic manipulations and physical therapy. Ultimately, the plaintiff underwent a L5-S1 fusion on August 27, 2021.

Under MCL §418.301(1), a plaintiff must prove that a work injury caused, contributed to or aggravated pathology to create a medically distinguishable change. If an injury is alleged to be a condition of the aging process, the court applies the significant manner test to determine if the injury is compensable. The four factors of the significant manner test are: 1) the number of occupational and non-occupational contributors; 2) the relative amount of contribution of each contributor; 3) the duration of each contributor; and 4) the extent of the permanent effect that resulted from each contributor.

In this case, the magistrate reviewed the extensive medical records offered into evidence. The medical records offered by the defendant showed a long and consistent history of treatment for lower back problems. The earliest available medical record dated back to December 20, 2004 and indicated she had been seeing a chiropractor since she was 21 years of age in 1982. X-rays taken in February 2006 showed moderate disc space narrowing at L5-S1. An MRI of the lumbar spine performed in April 2007 showed degenerative disc disease at L4-5 and L5-S1 with annular bulging and foraminal narrowing bilaterally. The magistrate also noted continued treatment with complaints of worsening lower back pain.

The plaintiff underwent a post-accident lumbar MRI in February 2019 which showed degenerative changes at L4-5 and L5-S1 with minimal central canal stenosis and mild bilateral neuroforaminal stenosis. An EMG performed in May 2019 showed no evidence of lumbar radiculopathy or lumbosacral plexopathy.

Having established the longstanding nature of the plaintiff’s lumbar condition as a condition of the aging process, the magistrate applied the significant manner test and found that the evidence did not establish that the work-related motor vehicle accident significantly aggravated any lumbar pathology. He found that the records did suggest a natural ongoing progression of underlying degenerative disc disease. His review of the evidence showed that the level that was addressed in the surgery showed degenerative changes long before the work-related motor vehicle accident. Therefore, the treatment and surgery were not related to the plaintiff’s work injury or employment.

Kim v Magna Mirrors of America Inc. (Mich. WCBM 2021)

The plaintiff alleged two dates of injury, both related to ear injuries caused by wearing safety glasses while at work. Plaintiff alleged that “overexertion” led to hearing loss, dizziness, and infection which ultimately required multiple surgeries.

At trial, the pro se plaintiff established that she had complained to the employer regarding complaints of ear pain due to wearing safety glasses. The defendant introduced an IME which stated that the alleged injuries were related to plaintiff’s “chronic ear disease” which predated the alleged injury dates and began in her childhood. The evaluating doctor opined that the use of safety glasses was not the cause of the plaintiff’s underlying middle ear mastoid disease. Further, he was unable to determine what symptom precluded Plaintiff from returning to work.

Therefore, the magistrate held that the plaintiff did not meet her burden in establishing that the alleged injury caused, contributed to, or aggravated the existing pathology in a manner that was medically distinguishable.

Interplay with Pre-Existing Conditions

Belknap v Roger’s Body Shop Inc. (Mich. WCBM 2022)

The plaintiff alleged that while working at an automotive repair shop he was installing a tire when he heard a pop in his neck and his left arm went numb. After the injury date he began having severe headaches, including migraines. Plaintiff admitted to having headaches prior to injury. He saw a doctor for about two years for treatment of right-sided headaches, the same as the injury now claimed. He had sensitivity to light and sound.

After the injury, the plaintiff underwent chiropractic treatment, an MRI, and neck surgery. He also was prescribed Topomax and Imotrax to control the migraines.

Ultimately, the magistrate found there were four differences between the pre-injury and post-injury headaches: frequency (more frequent), duration (lasting longer), intensity (much more pain, cannot be controlled with over-the-counter medications), and disabling. Although there was not a clear diagnostic test the magistrate could point to that showed a change in pathology, rather than just an increase in symptoms, he relied on reporting from a neuro evaluation that referenced the work injury as the cause of headaches. Based on that, he found that the headaches were caused by the work injury.

Sopoliga v St. John Hospital & Medical Center (Mich. WCBM 2022)

The plaintiff, an emergency room technician, alleged that while working in the ER on November 25, 2017 she slipped on water, causing injury to her right knee. Her injury was diagnosed as a torn meniscus and dislocated kneecap. Following the injury she was off work for a few days and then returned to light duty work as a “sitter.” Later, a blood clot was discovered at a follow-up appointment with occupational medicine. She was diagnosed with deep vein thrombosis (DVT) and was taken off work on May 15, 2018.

The defendants disputed the DVT condition as related to right knee contusion. At trial, defendants entered the IME report of their medical expert into evidence. In that report, the defendant’s expert pointed out that the ER notes from May 15, 2018 misstate the ultrasound reports. Specifically, the ultrasound report said the clots were “acute and sub-acute”, not “acute on chronic” as claimed by the ER doctor. This is an important distinction, because acute DVT occurs within 1-3 days after injury, and sub-acute occurs within 28 days after injury. Further, he noted that the onset of the DVT was acute on May 10, 2018, when the onset of swelling was first noted. The defendant’s expert opined that this rules out the plaintiff’s November 25, 2017 work injury as the cause of her blood clots, and thus treatment is not work related.

The magistrate found that the plaintiff sustained a soft tissue injury to her right knee arising out of and in the course of her employment on November 25, 2017. Based on the defendant’s expert’s analysis, the magistrate further found that the right knee injury had healed. The DVT was not related to the work injury.

Proof of Disability

Allen v Materials Processing Inc. (Mich. WCBM 2022)

The plaintiff initially commenced an action seeking workers’ compensation benefits via an Application for Mediation or Hearing dated August 15, 2016. That Application alleged an injury to his right lower extremity and a ruptured Achilles tendon.

The defendant’s main contention was that the plaintiff’s alleged Achilles tendon rupture did not occur in the course and scope of his employment. This contention was based on an emergency department (ED) record dated June 22, 2016. That record stated that the plaintiff presented to the ED with complaints of right foot, ankle and lower leg pain. He told the ED staff that the pain began when he jumped down from his truck while unloading groceries. He did not indicate that he was working at the time of the incident.

Defendant also offered the testimony of its medical expert. The plaintiff gave the doctor a history that he injured his ankle and foot on June 21, 2016 while sweeping dust and debris with a push broom. The doctor opined that the plaintiff’s alleged mechanism of injury “could conceivably be associated for a mechanism injury for an Achilles tendon rupture.” The doctor later authored an addendum report after reviewing the June 22, 2016 ED report. He indicated that the history given by the plaintiff was inconsistent with the history in the ED report. He opined that jumping from the back of the truck and landing on a flat surface would more likely be a mechanism for an Achilles tendon rupture.

The defendant finally offered a memo from the employer detailing a timeline of events from the alleged date of injury to approximately one week later. The memo confirmed that there were no accidents or injuries reported by the plaintiff or any other employee on the date of the alleged injury. The memo then indicated that the plant was scheduled to be closed for the next two days. The plaintiff notified his employer that he would not be in on the next day he was scheduled but did not give a reason. The next scheduled day plaintiff was a “no call/no show.” Finally, a co-worker reported that the plaintiff “jumped off a tailgate of his truck and broke his ankle.”

The magistrate reviewed all the evidence offered by the defendant. He found that the plaintiff did not establish an injury. His decision was based on the detailed description of the non-work-related injury in the medical record. That history was supported by the consistent account given by the plaintiff’s co-worker. The magistrate found no connection between the plaintiff’s lower extremity and his employment with the defendant. Therefore, the magistrate denied the plaintiff’s claims.

Significant Manner Test

Cramer v Transitional Health Services of Wayne (___ Mich ___; ___ NW2d ___ (2023) (Docket No. 163559))

This Michigan Supreme Court case originated from the plaintiff’s allegations that she sustained post-traumatic stress disorder and non-epileptic seizures resulting from a fall after an electrical shock. The magistrate found that the plaintiff failed to meet her burden of proof that her mental injuries were contributed to or accelerated in a significant manner as required by the test in Martin v Pontiac Sch Dist., 2001 ACO 118. The Michigan Compensation Appellate Commission affirmed the magistrate’s denial of benefits for the mental injuries. After several rounds of appeals, the Michigan Supreme Court granted the plaintiff’s application to rule on two issues. The first was whether the four-factor test in Martin conflicts with MCL 418.301(2) in that it bars eligibility for workers’ compensation benefits for a preexisting condition. The second issue was whether the Court of Appeals erred by affirming the Commission’s conclusion that the magistrate properly applied the Martin test.

Under MCL §418.301(2), mental disabilities and conditions of the aging process are compensable if contributed to or aggravated or accelerated by the employment in a significant manner. An analysis of the “significant manner” requirement was set in Martin. The Martin test requires a magistrate to consider four factors: 1) the number of occupational and non-occupational contributors; 2) the relative amount of contribution of each contributor; 3) the duration of each contributor; and 4) the extent of the permanent effect that resulted from each contributor.

In its holding of the first issue, the Court found that the Martin test was contrary to MCL §418.301(2) and that it imposed a higher burden on plaintiffs than the Act requires. The Court analyzed past cases that had applied the Martin test and found that fact finders used the Martin test to determine if the work contributor was the most significant factor, rather than a significant factor. In that sense, the Martin test had become a bright-line test, rather than a totality of the circumstances analysis as was intended by the Act. The Court found that the factors also tended to lean towards a finding of non-compensability. Therefore, the Court overruled the four-factor test as set forth in Martin.

Due to the overruling of Martin, the Court held that the relevant analysis for the significant manner requirement of MCL §418.301(2) was articulated in Farrington v Total Petroleum, Inc., 442 Mich 201; 501 NW2d 76 (1993). Under the Farrington test, a plaintiff must show that the mental disability or condition of the aging process was “significantly caused or aggravated by employment considering the totality of all the occupational factors and the claimant’s health circumstances and nonoccupational factors.” Farrington, 442 Mich at 216-217. The Court found that the Farrington test was a better fit in analyzing the statutory language of a “significant manner” because it reinstated a totality-of-the-circumstances approach to consider all relevant facts.

The case was remanded to the magistrate for analysis of the plaintiff’s claims under the Farrington standard.

The dissenting opinion held that the Court’s majority opinion was incorrect in overturning the Martin test in favor of the Farrington test. The dissent found that the majority’s criticisms of Martin were mostly based on criticisms of Taig v Gen Motors Corp, 2006 Mich ACO 134. However, the dissent found the reasoning of the Taig majority opinion flawed because the Taig majority opinion incorrectly disregarded non-occupational factors in favor of only occupational factors. The dissent pointed out that Taig analysis was contradictory of Farrington, as it would not allow a “totality of the circumstances” analysis. The dissent also points out that Martin was never intended to be bright-line test, as it distinctly says in its own text. Martin did not preclude consideration of medical evidence, but rather required an analysis of the totality of the claimant’s health circumstances.

The dissent opined that adoption of the Farrington test by the majority was unnecessary and not helpful in analyzing the statutory language of MCL §418.301(2). The change was unnecessary because the majority opinion does not preclude use of the factors set forth in Martin while analyzing under the Farrington standard. The dissent also pointed out that the factors set forth in Farrington were more relevant to a physical disability case, rather than a mental disability case.

Ultimately, the dissent found that the Court of Appeal’s judgment affirming MCAC’s decision and the magistrate’s denial of benefits for the alleged mental disability should have been affirmed.

DISABILITY

Job Search Efforts

Dandu v Beaumont Health Care (Mich. WCBM 2022)

The magistrate awarded wage loss and medical benefits to the plaintiff for injuries sustained while working as a physical therapy assistant. Based on the medical evidence, the magistrate found that the plaintiff remained under permanent restrictions related to her left shoulder.

The issue then became whether the plaintiff sustained any wage loss. Vocational experts from both parties testified. The plaintiff provided a work history that included work as a hairstylist and physical therapy assistant. She did not have computer skills and required assistance to open and file applications for employment on Indeed.com. Both experts agreed that the plaintiff’s maximum wage-earning capacity as a physical therapy assistant was $24 per hour. Moreover, at the time of her injury, that would have been the only job within her work history that she would be qualified and trained to perform in order to earn her maximum wage-earning capacity.

The plaintiff’s vocational expert opined that based on her experience and restrictions, plaintiff had a residual wage-earning capacity in the unskilled, sedentary category of approximately $10 per hour, up to $12-13 per hour. The defendant’s vocational expert pointed to plaintiff’s use of EPIC, a medical note keeping program, as evidence that the plaintiff could learn office computer skills and thus had a residual wage-earning capacity of $13-15 per hour.

As for a good-faith job search effort, the plaintiff testified that she looked for work in 2018 and 2019 through Indeed.com and newspapers, but minimal documentation was provided to support this. She did not identify the amount of time spent weekly or geographically in terms of search. No job search was conducted after 2019. The plaintiff attempted to explain her failure to search by saying she was waiting “to get better.” The magistrate found that the plaintiff did not perform a diligent job search. In accordance with the vocation expert’s opinions, the magistrate further found that the plaintiff had a residual wage-earning capacity of $13 per hour on a full-time basis, which significantly reduced the plaintiff’s entitlement to benefits.

McLaughlin v Grosse Ile Township (Mich. WCBM 2022)

The plaintiff, a long time patrol sergeant for defendant, alleged that he sustained a left wrist injury while in training. He underwent extensive treatment, which included reconstructive surgery. The procedure did not result in a complete recovery, and he had decreased range of motion. He was given permanent restrictions by his treating physician.

The plaintiff’s benefits were terminated after an IME. He remained off work and received “sick & accident time.” The plaintiff’s employment was eventually terminated.

The defendant arranged for a vocational evaluation. In the vocational interview, the plaintiff disclosed that he had applied for chief of security for Ford Field and that he had looked into several other jobs but had not received any employment offers. The vocational evaluator located several positions utilizing the plaintiff’s police experience, including police dispatcher, 911 communications dispatcher, and security manager or supervisor. The vocational evaluator testified that the plaintiff would have the ability to earn at least $20.00 per hour performing work within his restrictions.

According to MCL §418.301, a plaintiff must show that the occupational injury or disease has limited the plaintiff’s wage-earning capacity in work suitable to his or her qualifications and training.

The magistrate first found that the plaintiff did sustain a work injury and that he needed permanent restrictions for the work injury. The magistrate then analyzed the plaintiff’s potential post-injury wage-earning capacity. The magistrate indicated that the plaintiff’s disability was partial, as based on the testimony indicating restrictions. Under the Act, the plaintiff was obligated to conduct a good-faith job search to look for work within his restrictions. The magistrate found that the plaintiff had not made a good faith job search for work after his termination. This was based on the vocational evaluator’s testimony that he located several jobs within a reasonable distance from plaintiff’s home that paid significant wages. However, the plaintiff had only applied for one job following his termination. Although he claimed that he wished to return to work related to the police force, he testified that he was not aware of any job openings related to his former occupation.

Therefore, based on the magistrate’s finding that the plaintiff did not conduct a good faith job search, he allowed the defendant to reduce the plaintiff’s benefits after the date of termination.

Wood v Magnesium Products of America Inc. (Mich. WCBM 2022)

The plaintiff suffered a work-related amputation above his left knee and multiple fractures to his left arm in 2001. After the injury he briefly returned to work for the defendants in an office, doing “whatever they wanted him to do.” He noted that he is unable to sit for long periods of time due to phantom leg pain. He uses a manual wheelchair and crutches. He also alleged anxiety and depression and has an issue with loud noises because of the accident. He was referred to a psychologist, but he did not receive treatment.

The defendant requested that he study and take the GED. He passed 4 of 5 sections. His weekly benefits were terminated due to a lack of cooperation. The plaintiff indicated he didn’t know why he failed part of the test. The plaintiff testified that he looked for a job but was unable to find one.

The magistrate found that the plaintiff participated in vocational rehabilitation in a satisfactory manner for a time, but eventually drifted away. The plaintiff did not participate sufficiently to get to a point where he could pursue retraining for a job, but that was based upon depression and other mental issues that went untreated. As such, the plaintiff was unable to fully participate in the rehabilitation. Accordingly, the original work injury was the cause of his continued wage loss because the untreated mental health issues were found to be related to that work injury.

Residual Wage-Earning Capacity

Kaufman v Diversified Construction Specialists Inc. (Mich. WCBM 2021)

The plaintiff, a union carpenter, alleged that he sustained injuries to his left ankle, left knee, left shoulder, back and neck after a fall at work. He additionally claimed that he lost industrial use of both legs and his left arm. He also requested total and permanent disability, for psychological mental health services.

The parties stipulated that the left ankle injury arose out of and in the course of employment, but all other conditions were disputed. The plaintiff’s weekly benefit rate was stipulated to be $655.16.

At trial, the plaintiff testified that he had been looking for employment with the help of a vocational expert. He provided job logs that showed he had called approximately 300 companies, but no offers of employment had been made. On cross-examination, the plaintiff testified that he did not provide applications to any of the companies, but rather he called them on the phone. If there was no answer, then he hung up the phone.

The magistrate found that the plaintiff disclosed his qualifications and training, provided evidence of the jobs he is qualified and trained to perform, and demonstrated that the injury prevents him from performing any job that would provide his maximum wages. Despite this, the magistrate found that the plaintiff failed to establish a good-faith job search effort. The evidence demonstrated that the plaintiff had the physical ability to work but did not actively seek out interviews. Based on the vocational reporting, the plaintiff’s residual wage-earning capacity would be $12 per hour based on work performed at the unskilled and sedentary level.

EMPLOYER-EMPLOYEE RELATIONSHIP

Employee Under the Act

James v Bouland Construction, 22 ACO #10 (MWDCAC 2022)

The plaintiff alleged that he sustained injuries to his head, lungs, and fractures when he fell off a roof while working. The plaintiff and several health care providers filed Applications for Mediation or Hearing. The Agency showed no record of coverage for the employer. Applications were then filed against Bouland Construction as a statutory employer pursuant to MCL §418.171, also known as the “shoot-through” provision.

The issue at trial was whether the plaintiff was an independent contractor or an employee of the employer. MCL §418.161(1)(n) indicates that the determination of whether a person is an employee or independent contractor is analyzed under the IRS 20-Factor Test. The factors include the level of instruction provided to the party by the company, the amount of control the company exerts over the party, the continuity of the relationship, methods of payment, provision of tools and materials, and availability of the person’s services to the public. No single factor is conclusive in determining employee-independent contractor status. Not all 20 factors must be present to indicate independent contractor status. The withholding of federal income tax by the employer is prima facia considered to be an employer under the Act.

The owner testified that he would direct the plaintiff on the individual job and paid the plaintiff an hourly wage. However, the owner also testified that he did not direct the plaintiff’s work or hours, nor did he provide tools. Further he did not withhold taxes from the plaintiff’s wages, nor provide him with a W-2 or 1099 tax form. Upon analyzing the testimony and evidence, the magistrate held that the plaintiff was not an employee, but rather was an independent contractor under the Act.

In analyzing the magistrate’s reasoning, the Commission found that the magistrate’s decision was based upon competent, material, and substantial evidence. The factors that the magistrate found persuasive in her reasoning were that the plaintiff provided his own tools, the plaintiff was free to seek other employment opportunities, and that the business owner did not spend all of the workday supervising the plaintiff. Further, the magistrate also found it persuasive that the owner did not withhold taxes nor provide the plaintiff or other workers with a W-2 or 1099.

Therefore, the Commission affirmed the magistrate’s decision that the plaintiff was not an employee of an uninsured roofing company.

Parshall v Worden & Co., 2022 ACO #9 (MWDCAC 2022)

The plaintiff, an auto mechanic, began working for the defendant in the Fall of 2014. At the time of hire, he specifically requested that any hours worked be “banked” until Spring and then paid on a 1099; he was receiving veterans’ and social security disability and did not want the employment to affect those benefits.

On June 10, 2015 the plaintiff was run over by one of the defendant’s trucks. Following the alleged injury, benefits were paid by the auto no-fault carrier. Defendants postured that the plaintiff was an independent contractor rather than an employee and therefore was not entitled to workers’ compensation benefits.

The no-fault insurance carrier bears the burden of proving that the plaintiff was an employee of the defendant so as to permit it to recoup benefits it paid as the result of a motor vehicle accident. In order to determine this, the Commission applied the 20-factor test referenced in MCL §418.161.

The plaintiff alleged that at the time of the accident, he had not yet been paid for any of his services. He did not work a consistent schedule but was informed when work was available. He could work at his own pace, use his own tools, and determine the priority/order of jobs to be done.

Despite the fact that Plaintiff retained a high degree of control over the services he performed, he was found to be an employee of the defendant. The Commission relied upon several factors including that he did not require training or supervision because of his extensive experience. Further, he worked on the defendant’s premises and was paid hourly, rather than on a job-by-job basis. As such, the workers’ compensation insurance carrier was ordered to repay the no-fault insurance carrier for benefits previously paid.

PROCEDURAL ISSUES

Standard for Claim of Review

Kim v Magna Mirrors of America Inc., 2022 ACO #3 (MWDCAC 2022)

The plaintiff appealed the magistrate’s opinion denying a claim for benefits. The plaintiff was not represented by an attorney for the trial hearing or appeal. Following her request, plaintiff failed to file a transcript of the trial hearing, nor did she file an extension for more time to file the transcript. The defendant filed a motion to dismiss, to which plaintiff filed a response arguing against dismissal.

MCL §418.861a(5) requires an appellant to file the hearing transcript with the Commission not later than 60 days after filing an appeal and to then serve the hearing transcript on all parties. This requirement is necessary to allow the Commission to analyze the magistrate’s opinion to determine if the reasoning is supported by law and findings of fact.

The plaintiff first argued that she was not required to file the hearing transcript because she could not afford to pay the cost of a transcript. The Commission found multiple cases have held that the inability to incur costs of litigation is a legally insufficient basis to avoid the statutory requirement.

The plaintiff then argued that the transcript was not necessary to demonstrate error in the magistrate’s opinion. The Commission reasoned that a transcript is mandatory so that the parties can identify a meritorious issue to be resolved on appeal. The appellant could not preserve or present arguments without an actual hearing transcript and the Commission had no basis on which to rule. Therefore, the Commission found that there was no showing of a meritorious issue and dismissed the plaintiff’s appeal.

WORKERS’ COMPENSATION BENEFITS

Coordination of Benefits/Benefit Reduction

Cantu v General Motors (Mich. WCBM 2022)

The plaintiff alleged bilateral carpal tunnel syndrome, cervical and thoracic spine injuries related to a cumulative trauma caused by repetitive job duties through his last day of work in 2003. The plaintiff argued that he was being paid at an incorrect rate due to General Motor’s unlawful and/or incorrect offsets.

The defendant accepted the plaintiff’s condition as work-related and voluntarily paid benefits beginning in 2004. However, the defendant began reducing the plaintiff’s weekly rate in 2010 based on a formula contained in the collective bargaining agreement (CBA) between the UAW and General Motors (GM). The formula calculated a reduction in weekly compensation benefits based on the injured employee’s weekly compensation benefits, Social Security Disability Benefits (SSDB) and GM’s disability pension. When the plaintiff turned 65 years of age, his disability pension was converted to a retirement pension and was subject to coordination under MCL §418.354. When the plaintiff turned 66 years and 2 months, his SSDB was converted to old age Social Security and subject to coordination also under §354.

The plaintiff first argued that GM should not have been able to use his SSDB benefits when calculating the initial reduction and there would have been no offset of weekly benefits until his pension was converted. This argument was addressed in Kelley v General Motors LLC, 335 Mich App 349 (2021). The Kelley court held that they were precluded from addressing the issue based on §301 of the Labor Management Relations Act. This section sets forth the relationship between union members and their employers. It allows for lawsuits regarding violations of a collective bargaining agreement to be settled by federal courts. Therefore, the Kelley court held that the claim was preempted by federal law and that the remedy desired by the plaintiff was unavailable in state court. The magistrate in this case adopted that holding.

Alternatively, the plaintiff argued that if the reduction itself was legal, GM was not entitled to use the full amount of his SSDB benefits. The magistrate found that the plaintiff’s argument was rendered moot by the application of MCL §418.833. This section limits the plaintiff’s recovery to one year prior to the filing of an Application. The plaintiff’s benefits were reduced by the CBA formula starting in 2010 and reductions pursuant to §354 began in 2020. The plaintiff’s Application was filed in 2021. Therefore, all benefit reductions in dispute would be outside the one-year back recovery window.

Dependency at Death

Lopez v Samaritas (Mich. WCBM 2022)

The decedent was employed by Samaritas Nursing Home when she contracted COVID-19 and passed away from the infection. At the time of her death, the decedent and her husband, Juan Lopez, had been married for almost 30 years. A dispute arose as to whether Mr. Lopez was a whole or partial dependent.

Mr. Lopez testified that he had not worked since 2014 because of injuries sustained from previous accidents. He testified that the only source of household income was the wages earned by his wife. He denied that he received any benefits, such as disability or unemployment.

Mr. Lopez further testified that he lived with his wife and his stepdaughter at the time of his wife’s death. The decedent held the mortgage to their house and paid all the household expenses, including utilities and car maintenance. The decedent also purchased all household and personal items, including food, clothing, etc.

Further testimony was given by the decedent’s stepdaughter, Priscilla Zapata. Ms. Zapata testified that she is the daughter of the decedent but was never adopted by Mr. Lopez. She had lived with her mother and Mr. Lopez for approximately 10 years prior to her mother’s death. She testified that she never provided any support to Mr. Lopez. She would pay for her own food and personal items but would never purchase anything for Mr. Lopez. She did not pay rent but did pay the household water bill and the occasional cell phone bill.

MCL §418.321 provides for death benefits to be paid to “dependents of the employee who were wholly dependent upon the employee’s earnings for support at the time of the injury.” The section sets out that death benefit is the 80% of the employee’s after tax average weekly wage for 500 weeks from the date of death. The issue of dependency is heavily based on the facts at the time of the injury.

In analyzing the issue of whole verses partial dependency in this matter, the magistrate found the testimony that the decedent’s husband was receiving no benefits from any other source besides his wife compelling and controlling. The magistrate distinguished this instant case from analogous cases in which the alleged dependent was receiving some sort of other benefit, such as a pension or Social Security. The magistrate did acknowledge that the decedent’s daughter paid the water bill and occasional cell phone bill but found that those bill payments did not cause Mr. Lopez’s dependency to be lowered to a partial dependent of the decedent.

Therefore, the magistrate found that Mr. Lopez was wholly dependent on the decedent at the time of her death. He was awarded a death benefit of the full rate for 500 weeks starting on the date of the decedent’s death.

Exclusive Remedy Provision

Brecht v Davey Tree Expert Co., 20-cv-10786 (E.D. Mich. 2002)

The plaintiff, a journeyman tree trimmer, was assigned by the defendant to a worksite. Another Davey employee was working as a foreman. The plaintiff and the foreman had an altercation which ended in the foreman attacking the plaintiff. The plaintiff sustained a fractured femur. It was later discovered that the foreman had been fired from a previous employer for punching a co-worker. Defendant employer hired him fully aware of the prior incident. The plaintiff later testified that he warned defendant that the foreman was “an accident waiting to happen” but did not provide any specific details which led him to this opinion.

The plaintiff alleged that he was injured as a result of the defendant employer’s intentional tort and should be exempted from the Act’s exclusive remedy provision. The defendant argued that the plaintiff could not satisfy the exception to the Act’s exclusive remedy provision.

The court first held that the plaintiff could not show that defendant committed an intentional tort that caused him injury. The plaintiff was required to show that the defendant committed a deliberate act that caused injuries to him to prevail under an intentional tort theory. The only deliberate injury-causing acts identified by the plaintiff were committed by the foreman, not the defendant employer. The plaintiff argued that the foreman’s conduct should be imputed to the employer because the foreman was a supervisor. However, case law indicates that liability cannot be imposed against an employer for torts intentionally committed by an employee when the conduct was outside the scope of employment. The foreman was not acting withing the scope of his employment when he assaulted the plaintiff. There was also no evidence that the defendant instructed him to perform those actions against the plaintiff.

The court then held that the plaintiff could not show that the defendant had actual knowledge that an injury was certain to occur. The foreman’s testimony was that he did not tell anyone at defendant employer that he intended to injure the plaintiff and defendant employer had no knowledge that he would assault the plaintiff. The plaintiff’s vague statements to defendant employer regarding his thoughts about the foreman also did not rise to the level of giving defendant employer actual knowledge.

Home Modifications

Daniels v Flat Rock Community Schools (Mich. WCBM 2022)

The plaintiff was permanently and totally disabled due to a work accident that resulted in above-the-knee amputations of both legs. She sought home modifications as well as attendant care services. The plaintiff has the burden of proof to establish a compensable workers’ compensation claim by a preponderance of the evidence for each element.

At trial, the plaintiff testified that she could walk with assistance for 25 feet. She had lived in her home for 14 years, and the current value was approximately $135,000. She was unable to use her shower or toilet without assistance and was frequently bumped into walls due to the width of the doors and hallways. She exercised at home daily, using bands, a ball, and parallel bars. The bars were outside due to a lack of space in her home. She was unable to access her washer or dryer due to space limitations. She drove a 2013 Honda Odyssey and did not currently have a garage; her husband had to clear a path to the car and clean snow off in the winter so she could use it. She stated that she did not wish to move from her current residence.

Plaintiff presented a proposal for home modifications that totaled $371,811.33. This included expanding the house by 42 feet, widening multiple hallways, moving the laundry room to the opposite side of the house, adding a garage. About 70% of the existing house would be demolished and rebuilt to do this. It was not known whether this proposed renovation would run afoul of any city codes.

The defendants entered the deposition of their medical expert, a physical medicine and rehabilitation specialist. He testified that it was important to have a five-foot turning radius in every room so the plaintiff could easily access each and turn within them. He also testified it was important for the plaintiff to have access to all sinks, cabinetry, and cooktops from her wheelchair, as well as any adaptable equipment for use in the kitchen or bathroom. He did not believe a garage was necessary in order to give the plaintiff independence.

The defendants also presented multiple alternative proposals, such as modified modular homes at a cost of approximately $275,000, and modifications to the existing house at a cost of $215,914.86. Renovations to the existing house incorporated their expert’s recommendations, including widening doorways to 42 inches, removal of the wall between kitchen and laundry area, and renovation of the bathroom.

At trial, the Magistrate noted that the Act requires an employer to furnish to an injured employee “reasonable” medical treatment as well as items “necessary to cure, so far as reasonably possible, and relieve from the effects of the injury.” MCL §315(1). Accordingly, whether the plaintiff would prevail turned on the reasonableness of the various proposals.

The magistrate found that the defendant’s proposed home modifications would greatly improve the plaintiff’s independence and would be more reasonable than the plaintiff’s proposal.  The magistrate noted the high cost of the plaintiff’s proposed modifications, which would be approximately three times the home’s value. Further, many items requested by the plaintiff did not rise to the level of “reasonable” under the circumstances, such as the garage or the massive expansion of the home.

In contrast, the defendant’s proposal incorporated all necessary modifications that had been mutually identified by experts for both parties. Moreover, the cost of the defendant’s proposal was approximately 75% less than the plaintiff’s proposal. Ultimately, the plaintiff’s proposal was denied, and the defendant’s proposal to modify the existing home was accepted.

Recoupment of Benefits

Fisher v State of Michigan/Kalamazoo Regional Psychiatric Hospital (Mich. WCBM 2021)

The defendant sought recoupment of benefits. Its Application alleged that the plaintiff was voluntarily paid at a weekly rate of $606.62 for approximately 3.5 months, but the correct weekly rate was $548.88. The total overpayment was allegedly $768.43.

The Petition to Recoup was initially denied, based upon a line of cases which held that recoupment of voluntarily payment of wage loss benefits was not allowed absent fraudulent behavior or other intentional acts by the claimant. Further, the magistrate noted that MCL §418.833(3) governs actions to recoup overpayments and places a one-year limit on same. The defendant appealed to the Commission, and the Order denying was upheld. The defendant then appealed to the Michigan Court of Appeals.

The Court of Appeals held that the plain language of MCL §418.833(2) was not limited in its scope by concepts of fraud or intentional misconduct on the part of the claimant. The matter was remanded to the Commission, who subsequently entered an Order which allowed the defendant to recoup overpayments.

Bratten v L&D Electric Inc. (Mich. WCBM 2022)

The defendant sought to recoup overpaid benefits paid from December 8, 2020 through December 15, 2020 totaling $3,130.96. At trial, the defendants entered into evidence a list of weekly indemnity payments from that time ($782.74 per week), a detailed earnings history of the plaintiff, and calculation of the plaintiff’s average weekly wage (AWW) and rate.

Historically, voluntarily paid benefits could not be recouped in the absence of fraud. Rule 10(6) states that reimbursement may be ordered for overpayment where benefits are overpaid due to a mathematical, technological, or clerical error. The overpayment at hand was a mathematical error. As such, the defendant was entitled to receive from the plaintiff the amount of overpayment, $3,130.96.

Retaliation

Picard v Costco Wholesale Corp., 2:20-CV-10005-TGB-APP (E.D. Mich. 2022)

The plaintiff alleged a claim of retaliation for filing a workers’ compensation claim. Previously, the plaintiff worked as a depot clerk for the defendant before slipping and injuring her elbow at work. She did not return to work for about two months. Her workers’ compensation claim was paid without dispute. About a month after returning to work, she injured her back while lifting heavy boxes. She was diagnosed with scoliosis, disc herniation, and spondylolisthesis at L5-S1. She was given work restrictions that limited lifting to 20 lbs., as well as walking, sitting, and standing at will. Workers’ compensation benefits were paid for nine months.

Pursuant to the defendant’s policy, the plaintiff was sent to Habitat for Humanity on a temporary basis to perform a job within her restrictions. This program ended after 12 weeks, but at that time she was not able to perform her original role. The plaintiff was sent multiple job openings, of which she applied for one. She was not selected due to her inability to meet the lifting requirement. The plaintiff was terminated 2.5 years after the initial injury. She found subsequent employment elsewhere.

To prove prima facie claim of retaliation under the Act, a plaintiff must show (1) he asserted his right to workers’ compensation benefits; (2) defendants knew that plaintiff asserted his right to workers’ compensation benefits; (3) defendant terminated plaintiff; and (4) there was a causal connection between plaintiff’s assertion of his right to workers’ compensation benefits and his termination.

The plaintiff was able to establish the first three elements.

The causation element of a retaliation claim is usually hard to prove. More than a mere temporal connection is required. There must be circumstantial evidence offered that leads to an inference that the employer’s decision to take adverse employment action was at least partially retaliatory.

The court found that the two years between the plaintiff’s workers’ compensation claim and termination was insufficient to establish a temporal connection. The plaintiff alleged that statements were made by coworkers that made her believe the defendant thought she was a liability because of her injury. The court found that subjective feelings are not enough to establish a causal connection.

The defendant was able to show a legitimate business reason for its actions: it was unable to accommodate her in her depot clerk position because of the extensive medical restrictions. Therefore, summary judgement in favor of the defendant was granted.

Reniewicz v K&M Logistics Inc., 355385 (Mich. Ct. App. 2021)

The plaintiff, a truck driver for defendant, alleged that he was injured while unloading a truck in June 2016. The plaintiff filed a workers’ compensation claim and was paid benefits for ten months while he was off work. The defendant held the plaintiff’s job for him while he was disabled. While the plaintiff was cleared to return to work without restrictions, the plaintiff alleged that he told defendant that he could not operate a truck with a manual transmission. On the day of his return, the plaintiff alleged that he was assigned a manual transmission truck that was later discovered to have had a broken axle. He left to get breakfast and was later told via text message that his employment was terminated. The defendant alleged that it assigned the plaintiff a truck with an automatic transmission, only to discover it had a broken axle. Plaintiff left the premises promising to return but later advised the defendant that he would not be returning so long as he was assigned a manual transmission truck.

The plaintiff alleged that the defendant violated the Act by retaliating against him for exercising a right afforded by the Act. The defendant filed a motion for summary disposition and the trial court granted defendant’s motion.

To prove prima facie claim of retaliation under the Act, a plaintiff must show (1) he asserted his right to workers’ compensation benefits; (2) defendants knew that plaintiff asserted his right to workers’ compensation benefits; (3) defendant terminated plaintiff; and (4) there was a causal connection between plaintiff’s assertion of his right to workers’ compensation benefits and his termination.

The plaintiff argued that the defendant took an adverse employment action towards the plaintiff by terminating his employment and that the termination was due to his claim of workers’ compensation benefits. The court found that the plaintiff could not establish that he was fired for claiming workers’ compensation benefits. This was because the defendant held the plaintiff’s job for ten months after he was injured and accepted him back after he was released to return to work. The court acknowledged that there was a dispute between the parties as to whether the defendant terminated the plaintiff, or if the plaintiff quit. However, even if the defendant did terminate the plaintiff, it was due in response to the plaintiff’s refusal to perform his job responsibilities as opposed to his workers’ compensation claim. Therefore, the court affirmed the trial court’s order granting summary disposition to defendant.