Workers' Disability Compensation

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Martin L. Critchell, Workers' Disability Compensation, 59 Wayne L. Rev. 1275

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1275
WORKERS DISABILITY COMPENSATION
MARTIN L. CRITCHELL
f
Table of Contents
I. INTRODUCTION................................................................................ 1275
II. WORKERS` DISABILITY COMPENSATION ACT OF 1969:
UNCHANGED................................................................................. 1276
III. WORKERS` DISABILITY COMPENSATION AGENCY RULES: A
NEW WAY TO PAY........................................................................ 1276
IV. WORKERS` COMPENSATION BOARD OF MAGISTRATES
RULES: UNCHANGED.................................................................... 1278
V. MICHIGAN COMPENSATION APPELLATE COMMISSION
RULES: UNCHANGED.................................................................... 1278
VI. SCHARNITZKE V. COCA-COLA ENTERPRISES: ENFORCING A RULE. 1278
VII. SMITTER V. THORNAPPLE TOWNSHIP: ENFORCING A STATUTE..... 1280
VIII. CUDDINGTON V. UNITED HEALTH SERVICES: THE RIGHT TO
SEEK CARE ................................................................................... 1282
IX. LOVELY V. RIDGE CO.: LIMITING MEDICAL COSTS ....................... 1284
X. BARCLAY V. GENERAL MOTORS CORP.: CONTINUING EVIDENCE
FOR CONTINUING DISABILITY...................................................... 1287
XI. NORMAN V. FERNDALE FOURSQUARE CHURCH: THE PARTIES
TO SETTLEMENT ........................................................................... 1289
XII. CONCLUSION................................................................................ 1292
I. INTRODUCTION
There are three sources for the law of workers` disability
compensation in Michigan. Foremost is the Workers` Disability
Compensation Act of 1969 (WDCA).
1
Another is the rules of the
f Shareholder, Conklin Benham, P.C. Adjunct Professor of Law, Thomas M. Cooley
Law School. B.A., 1973, Western Michigan University; J.D., 1976, Wayne State
University School. The author is a member of the Michigan Supreme Court Historical
Society, the Advocates Guild of the Michigan Supreme Court Historical Society, the
American Society of Writers on Legal Subjects (The Scribes), and the Federalist Society
for Law and Public Policy Studies. He is also a contributing author, EMPLOYMENT LAW IN
MICHIGAN (AN EMPLOYER`S GUIDE), Institute of Continuing Legal Education (2012) and
MICHIGAN INSURANCE LAW AND PRACTICE, Institute of Continuing Legal Education
(2002).
1. MICH. COMP. LAWS ANN. § 418.101-.941 (West 2006).
1276 THE WAYNE LAW REVIEW [Vol. 59:1275
Workers` Compensation Agency for the administration of uncontested
claims,
2
the Workers` Compensation Board of Magistrates for hearing
and deciding contested claims,
3
and the Michigan Compensation
Appellate Commission for reviewing and deciding appeals from
decisions after hearing.
4
And the third source is the case law from the
Michigan Supreme Court, Michigan Court of Appeals, and Michigan
Compensation Appellate Commission about the availability or meaning
of one or another statute in the WDCA or administrative rule.
With just one exception, these sources did not effect any change in
the law of workers` compensation between June 1, 2012 and June 19,
2013.
II. WORKERS` DISABILITY COMPENSATION ACT OF 1969: UNCHANGED
There was no amendment to the WDCA between June 1, 2012 and
June 19, 2013. This quiescence was expected after all the changes that
were effected by 2011 P.A. 266 and 2012 P.A. 83.
III. WORKERS` DISABILITY COMPENSATION AGENCY RULES: A NEW
WAY TO PAY
On March 4, 2013, the Workers` Compensation Agency changed
how an employer might pay weekly compensation by amending MAC
Rule 408.48(2) to say that '[w]eekly payments shall be made payable by
check and mailed or electronically transferred directly to the injured
employee or the injured employee`s dependent, pursuant to sub rule (3)
of this rule.¨
5
There are several noteworthy features of this rule allowing an
employer two ways to pay weekly compensation. First, payment by
check is the default method of payment. Payment by an electronic
transfer is an alternate that the employer and employee or dependent
must both accept instead of payment by check, as MAC Rule
408.48(3)(a)
6
says that '[w]eekly compensation payments may be made
by an electronic transfer when both of the following have occurred: The
claimant consents to and authorizes in writing the use of electronic
2. MICH. ADMIN. CODE r. 408.31(1) (2014).
3. MICH. ADMIN. CODE r. 418.51 (2014).
4. MICH. ADMIN. CODE r. 418.1 (2014).
5. MICH. ADMIN. CODE r. 408.48(3) (2014).
6. Id.
2014] WORKERS DISABILITY COMPENSATION 1277
transfer payments.¨
7
No consent is required for paying weekly
compensation by check.
8
Second, the employer has the initial choice. An employee or
dependent cannot compel the employer to pay weekly compensation by
an electronic transfer instead of by check.
9
Indeed, the employer need not
even inform the employee or dependent that an alternate method of
payment is available.
10
Third, the option has limited application. Only weekly compensation
in an uncontested case may be made by an electronic transfer, as MAC
Rule 408.48(3)
11
says that '[w]eekly compensation payments may be
made by an electronic transfer.¨
12
While weekly compensation includes
the weekly compensation for an employee with a disability from an
injury sustained at work under MCLA sections 418.301(7) and (8),
13
weekly compensation for an employee with one or more of the physical
losses under MCLA sections 418.361(2)(a)-(l) and (3)(a)-(g),
14
and
weekly compensation for a surviving dependent of an employee who
died from an injury at work under MCLA section 418.321,
15
the term
does not include the costs of medical care under MCLA section
418.31591,
16
vocational rehabilitation under MCLA section 319(1),
17
funeral burial under MCLA section 418.345,
18
or the proceeds of a
settlement under MCLA section 418.835(1).
19
It is problematic whether
weekly compensation includes the amount of interest assessed when an
employer pays a retroactive period of weekly compensation, as interest
does not accrue with each weekly compensation payment under MCLA
section 418.801(6).
20
Employers may choose to present and promote the payment of
weekly compensation to employees and surviving dependents by
electronic transfer to avoid the costs of paying by check and claims for
penalties under MCLA section 418.801(2)
21
for tardy delivery.
7. Id.
8. Id.
9. Id.
10. Id.
11. MICH. ADMIN. CODE r. 408.48(3).
12. Id.
13. MICH. COMP. LAWS ANN. § 418.301(7)-(8) (West 2014) (emphasis added).
14. MICH. COMP. LAWS ANN. § 418.361(2)(a)-(l), (3)(a)-(g) (West 2014).
15. MICH. COMP. LAWS ANN. § 418.321 (West 2014).
16. MICH. COMP. LAWS ANN. § 418.31591 (West 2014).
17. MICH. COMP. LAWS ANN. § 319(1) (West 2014).
18. MICH. COMP. LAWS ANN. § 418.345 (West 2014).
19. MICH. COMP. LAWS ANN. § 418.835(1) (West 2014).
20. MICH. COMP. LAWS ANN. § 418.801(6) (West 2014).
21. Id. § 418.801(2).
1278 THE WAYNE LAW REVIEW [Vol. 59:1275
Employees and surviving dependents may agree in order to avoid the
fees that are charged by institutions for negotiating checks.
The rule is so new that there is neither data nor anecdote about its
actual use.
IV. WORKERS` COMPENSATION BOARD OF MAGISTRATES RULES:
UNCHANGED
There was no change to the rules of the Workers` Compensation
Board of Magistrates concerning the hearing and disposition of workers`
compensation cases between June 1, 2012 and June 19, 2013.
V. MICHIGAN COMPENSATION APPELLATE COMMISSION RULES:
UNCHANGED
There was no change to the rules of the Michigan Compensation
Appellate Commission (Appellate Commission) concerning the
administration of appeals from decisions by the Board of Magistrates
between June 1, 2012 and June 19, 2013.
VI. SCHARNITZKE V. COCA-COLA ENTERPRISES: ENFORCING A RULE
The case of Scharnitzke v. Coca-Cola Enterprises
22
involved three
rules of the Appellate Commission. One rule established how to cross
appeal by saying, 'A cross appeal shall be filed on the claim for review
form specifically identifying that the party cross appeals the magistrates`
decision.¨
23
The other two established when to file a cross appeal by
saying, 'A cross appeal shall be received by the commission not later
than 30 days after the cross appellant has received a copy of the
appellant`s brief,¨ and 'There shall not be delayed cross appeals.¨
24
All three of these rules were involved because Christopher M.
Scharnitzke made two filings with the Appellate Commission after
receiving the brief that Coca-Cola Enterprises filed to explain its appeal
from the decision by the Board of Magistrates.
25
Scharnitzke filed a self-
styled cross appeal with the Appellate Commission less than thirty days
after receiving the brief of Coca-Cola.
26
The other was a cross appeal on
22. 493 Mich. 947; 828 N.W.2d 19 (2013). The author was counsel for defendant-
appellant Coca-Cola Enterprises.
23. MICH. ADMIN. CODE r. 418.4(5) (2014).
24. Id. r. 418.4(1), (3).
25. Scharnitzke v. Coca-Cola Enters., No. 304515, 2012 WL 5193200, at *1 (Mich.
Ct. App. Oct. 18, 2012).
26. Id. at *2.
2014] WORKERS DISABILITY COMPENSATION 1279
the claim for review form that was filed with the Appellate Commission
more than thirty days after receiving the brief of Coca-Cola.
27
The Appellate Commission enforced the three rules. The Appellate
Commission dismissed the self-styled cross appeal, as it did not conform
to the claim for review form required by Rule 418.4(5).
28
The Appellate
Commission dismissed the cross appeal using the claim for review form
for tardiness under Rule 418.4(1) and would not indulge any of the
reasons proffered by Scharnitzke to excuse the delay because of Rule
418.4(3).
29
The court of appeals granted leave to appeal
30
and reinstated the
cross appeal despite these rules by saying that the doctrine of substantial
compliance applied and was met.
31
The supreme court peremptorily reversed the court of appeals and
affirmed the application of the rules by the Appellate Commission. The
court made the rather unremarkable observation that actually applying
the rules was no abuse of discretion by the Appellate Commission.
32
The
court said, 'Under R 418.4(3), no delayed cross-appeal is permitted. As a
result, it was not an abuse of discretion for the [Michigan Compensation
Appellate Commission] to strictly enforce its rule.¨
33
This pronouncement by the court in deciding the case of Scharnitzke
only extends the earlier pronouncements about the propriety of actually
applying other rules of the Appellate Commission. Concerning the rule
about when to file briefs, MAC Rule 418.6(2),
34
the court said, '[T]he
full [Workers` Compensation Appellate Commission] thus provided fair
notice of its intent to begin enforcing the statutory deadlines.
Accordingly, we hold that . . . dismissal is to be evaluated in light of the
[notice].¨
35
Justice Markman said, in concurring with the application of
the rule describing when to file the transcripts with the Appellate
Commission, that
[w]hile there is no evidence of any intention to mislead on the
part of plaintiff`s counsel, nonetheless he was required to file the
27. Id.
28. Id.
29. Id.
30. Id at *1.
31. Scharnitzke, 2012 WL 5193200, at *2, *4.
32. Scharnitzke v. Coca-Cola Enters., 493 Mich. 947; 828 N.W.2d 19 (2013) (citing
MICH. ADMIN. CODE r. 418.4(3)).
33. Id.
34. MICH. ADMIN. CODE r. 418.6(2).
35. Marshall v. D.J. Jacobetti Veterans Facility, 447 Mich. 544, 550; 523 N.W.2d 585
(1994).
1280 THE WAYNE LAW REVIEW [Vol. 59:1275
transcript within 60 days of the filing of the appeal pursuant to
MCL 418.861a(5), and he did not. That counsel viewed the
transcript as irrelevant does not alter the fact that he failed to file
it.
36
VII. SMITTER V. THORNAPPLE TOWNSHIP: ENFORCING A STATUTE
The supreme court decided the question of the availability of a
statute in the WDCA allowing for the reduction of weekly compensation
by the amount of disability insurance benefitsMCLA section
418.354(1)(b) presented by the case of Smitter v. Thornapple
Township.
37
The question was decidedly different from the problems in
the cases of Franks v. White Pine Copper Division,
38
Romein v. General
Motors Corp.,
39
and Quinton v. General Motors Corp.,
40
which involved
a question about the availability of section 418.354(1)(b). Those cases all
involved an employee who had been injured at work before the
enactment of section 418.354 on March 31, 1982.
41
Robert Smitter was
injured at work for Thornapple Township after section 418.354(1) had
been enacted on March 31, 1982.
42
Moreover, in all of those cases, the
employer had applied the statute to reduce the weekly compensation that
was otherwise due to the employee.
43
But Thornapple Township had
deliberately not applied the statute.
44
The question was whether
Thornapple Township had to apply section 418.354(1)(b) and so reduce
the weekly compensation for Smitter by the amount of the disability
insurance that was also paid.
45
The occasion for the question was the ruling by the court of appeals
in the case of Rahman v. Detroit Board of Education.
46
There, the court
36. Ferdon v. Sterling Performance, Inc., 489 Mich. 877, 877-78; 796 N.W.2d 46
(2011) (Markman, J., concurring).
37. Smitter v. Thornapple Twp., 494 Mich. 121, 156; 833 N.W.2d 875 (2013).
38. 422 Mich. 636; 373 N.W.2d 715 (1985).
39. 436 Mich. 515; 462 N.W.2d 555 (1990).
40. 453 Mich. 63; 551 N.W.2d 677 (1996).
41. See Franks, 422 Mich. at 644; Romein, 436 Mich. at 520; Quinton, 453 Mich. at
67.
42. Smitter, 494 Mich. at 127.
43. See Franks, 422 Mich. at 645; Romein, 436 Mich. at 521-24; Quinton, 453 Mich.
at 68.
44. Smitter, 494 Mich. at 127.
45. Id. at 126.
46. 245 Mich. App. 103, 120-21; 627 N.W.2d 41 (2001).
2014] WORKERS DISABILITY COMPENSATION 1281
of appeals said that the application of section 418.354(1)(b) was
permissive, not imperative.
47
The supreme court recognized that section 418.354(1)(b) was
imperative, having used the imperative shall.
48
The court also observed
that the statute provided one exception for volunteer firefighters, which
implied that there was no other exception to the requirement of applying
section 418.354(1)(b).
49
The court reiterated that non-textual considerations such as 'public
policy¨ were useless.
50
There were two dissents. Justice Cavanagh thought the question was
moot because Smitter was actually a volunteer firefighter who was
within the exception of section 418.354(15).
51
This was most problematic
as Smitter, Thornapple Township, and the Michigan Second Injury Fund
had stipulated that Smitter was a paid firefighter, not a volunteer.
52
The
stipulation had been accepted and never recanted.
Justice McCormack dissented, saying that 'the language of MCL
418.354(1) is inapplicable to most cases.¨
53
What was meant was that no
employee would object when an employer deliberately refrained from
applying MCLA section 418.354(1). The only objection would come
from the Second Injury Fund when the employer asked for repayment of
a portion of the weekly compensation under MCLA section 418.372(1),
an unusual situation in which the injured employee had another job.
Justice McCormack could not possibly have meant otherwise as MCLA
section 418.354(1) applies to all cases involving an employee injured
after March 31, 1982.
54
Moreover, the idea expressed by Justice McCormack that
'employers are free to contract as they see fit with regards to [workers`
47. Id. at 120 ('[T]he subsection indicates that the employer`s obligation to pay the
employee`s beneIits may be reduced by the amount oI pension the employer pays to the
employee. . . . [T]he statute allows the employer to coordinate . . . .¨).
48. Smitter, 494 Mich. at 136, 138 ('MCL 418.354(1) provides that the employer`s
obligation shall be reduced` by the requisite amounts listed in the statute. The
Legislature`s use oI the word shall` generally indicates a mandatory directive, not a
discretionary act. . . . The coordination of benefits is mandatory, not discretionary . . . .¨).
49. Id. at 136-37. See also MICH. COMP. LAWS ANN. § 418.354(15) (West 2014).
50. Smitter, 494 Mich. at 140 ('[T]his Court may not substitute its policy preferences
Ior the policy decisions that have been clearly provided by the statute.¨).
51. Id. at 142 (Cavanagh, J., dissenting) ('I believe that Robert Smitter was a
volunteer Iire Iighter` Ior purposes oI applying MCL 418.354(15) oI the |WDCA|, and,
thus, Thornapple Township was permitted to provide Smitter with uncoordinated
beneIits.¨).
52. Id. at 127.
53. Id. at 157 (McCormack, J., dissenting).
54. Romein v. Gen. Motors Corp., 436 Mich. 515; 462 N.W.2d 555 (1990).
1282 THE WAYNE LAW REVIEW [Vol. 59:1275
compensation and insurance benefits] in accordance with their
employment needs¨
55
directly conflicts with the statutes in the WDCA
that void any agreement or contract inconsistent with the WDCA.
56
Though overruling the precedent established by Rahman, the
decision by the court in the case of Smitter should be viewed as restoring
the availability and meaning of section 418.354(1) and not as any change
in the law.
VIII. CUDDINGTON V. UNITED HEALTH SERVICES: THE RIGHT TO SEEK
CARE
With five exceptions, the WDCA provides the only redress from an
employer after an employee sustains an injury at work.
57
The exceptions
allow an injured employee to sue for damages when the employer
deliberately injured the employee;
58
the employer deliberately forced the
employee to pose as an independent contractor in violation of MCLA
section 418.171(4);
59
the employer was without workers` compensation
insurance or the approval of the director of the Workers` Compensation
Agency to self-insure under MCLA section 418.611(1)(a) or (b);
60
the
employee was injured during a social or recreational activity;
61
and the
employee was fired or otherwise discriminated against for exercising a
right afforded by the WDCA.
62
The availability of the fifth exception was the subject of the case of
Cuddington v. United Health Services.
63
The exception under section
418.301(13) was involved because Raymond Cuddington was injured at
work for United Health Services and fired; he subsequently filed a claim
for workers` compensation benefits under the WDCA and then sued for
damages for the discharge under section 418.301(13).
64
In the lawsuit,
Cuddington maintained that he had been fired for seeking medical care
the day after the injury while United Health Services said that the firing
55. Smitter, 494 Mich. at 156 (McCormack, J., dissenting).
56. See MICH. COMP. LAWS ANN. § 418.621 (1) (West 2013); MICH. COMP. LAWS ANN.
§ 418.815 (West 2013).
57. MICH. COMP. LAWS ANN. § 418.131(1) (West 2013); MICH. COMP. LAWS ANN.
§418.827(1) (West 2013).
58. MICH. COMP. LAWS ANN. § 418.131(1).
59. MICH. COMP. LAWS ANN. § 418.641(2).
60. Id.
61. MICH. COMP. LAWS ANN. § 418.301(3) (West 2013).
62. Id. § 418.301(13).
63. 298 Mich. App. 264; 826 N.W.2d 519 (2012).
64. Id. at 268-69.
2014] WORKERS DISABILITY COMPENSATION 1283
was for failing to document the medical consultation as required by an
employment manual.
65
The trial court dismissed the lawsuit because United Health Services
fired Cuddington before he had filed a claim to workers` compensation,
not afterwards, to allow the idea of retaliation.
66
The court of appeals reproved the pronouncement by the trial court
with the apt observation that MCLA section 418.301(13) allows an
employee to sue the employer for damages when fired for the exercise of
a right afforded by the WDCA as well as for filing a claim for workers`
compensation.
67
The court of appeals then announced that seeking care after an injury
was a right established by the WDCA. The court of appeals said, '[T]he
[WCCA] affords an injured employee a right to seek reasonable, needed
medical services for injuries that arise in the course of employment.¨
68
This ruling by the court of appeals was also apt, as the WDCA
affords an employee the right to have care for an injury sustained at
work. The supreme court recognized this in deciding the case of
Blackwell v. Citizens Insurance Co. of America
69
by saying, 'The
WDCA sets up a comprehensive system for the treatment of injured
workers that contemplates a claimant`s active role in obtaining medical
treatment, including normally choosing the provider . . . . [T]he
claimant[] [has a] right to choose.¨
70
However, the court of appeals may not have appreciated when the
right accrued. The right to choose a provider begins twenty-eight days
after the employer has provided care, as MCLA section 418.315(1)
states, 'After 28 days from the inception of medical care as provided in
this section, the employee may treat with a physician of his or her own
choice.¨
71
Additionally, the right is contingent on telling the employer
the name of the doctor, as MCLA section 418.315(1) says, '[T]he
65. Id. at 269-70.
66. Id. at 270.
67.
MCL 418.301(13) establishe[d] that a petition Ior workers` compensation .
. . is not a condition precedent to all retaliatory-discharge claims. Rather,
the statute creates a cause of action when an employer terminates or
otherwise discriminates against an employee in retaliation (1) for filing a
complaint under the WDCA, (2) for instituting . . . under the WDCA, or
(3) 'because of the exercise by the employee . of a right afforded by this
act.¨
Id. at 272 (some alterations added).
68. Id. at 274.
69. 457 Mich. 662; 579 N.W.2d 889 (1998).
70. Id. at 669 (emphasis added).
71. MICH. COMP. LAWS ANN. § 418.315(1) (West 2013).
1284 THE WAYNE LAW REVIEW [Vol. 59:1275
employee may treat with a physician of his or her own choice by giving
to the employer the name of the physician and his or her intention to treat
with the physician.¨
72
The court of appeals made no mention of this part
of MCLA section 418.315(1) when deciding the case.
The disposition may have been different had the court of appeals
appreciated when and how the right to seek care are accrued. Cuddington
received care on the day of injuryan ambulance was called to the site,
and he was seen by paramedicsthat could have started the twenty-eight
day period.
73
But Cuddington sought to consult a doctor the next day,
within the twenty-eight day period, before the right to choose accrued
under MCLA section 418.315(1).
74
And it was not clear if Cuddington
told United Health Services the name of the doctor that he intended to
consult, as the court of appeals only recounted that '[Cuddington]
declined to come in [to work], insisting that he was very sore and wanted
to see his doctor.¨
75
Additionally, there was no suggestion of emergency to obviate the
need to tell United Health Services the name of the doctor under McLean
v. Eaton Manufacturing Co.
76
In sum, the court of appeals reiterated the law that an employee has a
right to have care for an injury sustained at work, but it may not have
appreciated when that right begins or how that right must be asserted.
There is another feature of Cuddington. Cuddington was the only
opinion of the court of appeals concerning the WDCA that was released
for publication between June 1, 2012 and June 19, 2013. It is remarkable
that the court of appeals would publish an opinion about an exception to
the WDCA and not any of the many others about the statutes in the
WDCA about qualifying for compensation.
IX. LOVELY V. RIDGE CO.: LIMITING MEDICAL COSTS
A statute in the WDCAMCLA section 418.315(2)limits the
amount that an employer must pay when presented with a bill for the
care of an employee injured at work:
72. Id.
73. Cuddington, 298 Mich. App. at 268.
74. Id.
75. Id. (emphasis added).
76. 286 Mich. 285, 292; 282 N.W. 150 (1938) ('To excuse notice, it must appear that
the circumstances are such that there will be additional delay, dangerous to the life or
health of the employee, if efforts are made to contact the employer and afford him an
opportunity to Iurnish the needed medical care.¨).
2014] WORKERS DISABILITY COMPENSATION 1285
Except as otherwise provided in subsection (1), all fees and other
charges for any treatment or attendance, service, devices,
apparatus, or medicine under subsection (1), are subject to rules
promulgated by the workers` compensation agency pursuant to
the administrative procedures act of 1969, 1969 PA 306, MCL
24.201 to 24.328. The rules promulgated shall establish
schedules of maximum charges for the treatment or attendance,
service, devices, apparatus, or medicine, which schedule shall be
annually revised. A health facility or health care provider shall
be paid either its usual and customary charge for the treatment or
attendance, service, devices, apparatus, or medicine, or the
maximum charge established under the rules, whichever is less.
77
The Appellate Commission decided a question about the availability
of this statute in the case of Lovely v. Ridge Co.
78
The Appellate
Commission decided that section 418.315(2) applied to limit the charges
for care that was provided to an injured employee in another state as well
as in Michigan, saying that 'the state, by statute and rule, has undertaken
to extend [the] regulation of reimbursements to out of state providers of
medical services in workers` compensation cases.¨
79
The occasion for this was the objection by Ridge Company to the
bills from Thomas Mroz, M.D., for surgery that he performed in another
state, Ohio, for an injury that Sarah J. Lovely had sustained at work.
80
The decision by the Appellate Commission did not effect any change
in the law, for the Appellate Commission explained that there was
actually no prior authority on the subject:
[Sarah J. Lovely] argues that [Ridge Company`s] § 315(2)
argument is not applicable to the billings for services by Dr.
Mroz, as his services were rendered out of state. [Lovely] cites to
Trigleth [v. Kalin Constr. Co., 2003 Mich. A.C.O. 16] and
Donoho [v. Wal-Mart Stores, Inc., 2004 Mich. A.C.O. 142] for
authority in this regard. The relied upon language in those cases,
however, is not so dispositive. The relied upon language in both
cases is contained in quotations from the underlying [Workers`
Compensation Board of Magistrates`] decisions and is neither a
77. MICH. COMP. LAWS ANN. § 418.315(2) (West 2013).
78. Lovely v. Ridge Co., No. 11-0080, 2013 Mich. A.C.O. 70; 2013 WL 3388053
(Mich. Work. Comp. App. Com. June 21, 2013). The author was counsel for defendants-
appellants Ridge Company and Secura Insurance Company.
79. Id. at *7-8.
80. Id. at *3.
1286 THE WAYNE LAW REVIEW [Vol. 59:1275
pronouncement by the former [Workers` Compensation
Appellate Commission] nor critical to disposition of the issues
presented in those cases.
81
Indeed, the decision by the Appellate Commission represents the
acknowledgement of the law expressed by section 418.315(2) itself, as
the Appellate Commission said,
[W]e are faced with the plain language of the statute which
provides in pertinent part: Except as otherwise provided in
subsection (1), all fees and other charges for any treatment or
attendance, service, devices, apparatus, or medicine . . . are
subject to rules promulgated by the bureau of worker`s
compensation . . . .` [Lovely] relies upon no exception to this
otherwise all inclusive language . . . . ¨
82
The decision by the Appellate Commission has broad implications.
Not only does the decision establish that employer payment limits apply
regardless of where care was provided, but also regardless of any other
dispute about the care provided to an injured employee. Although there
were other challenges to the care provided to Lovely, none affected the
application of section 418.315(2). Indeed, section 418.315(2) applies
when there is no other dispute. Accordingly, the decision by the
Appellate Commission means that the limits to the amount that an
employer must pay for medical care under section 418.315(2) apply
regardless of where the particular care was provided and regardless of
any dispute about the propriety of the care.
The decision affects not only the doctors and hospitals whose
charges may not be paid in full but also the lawyer hired by the injured
employee or the provider to effect the recovery of the bills from the
employer. The lawyer hired by the injured employee or the provider is
affected by the application of section 418.315(2) because that application
to reduce the amount of the bill reduces the amount of the fee of the
lawyer, which is based on the amount actually paid by the employer.
83
81. Id. at *6.
82. Id.
83. Id. ('We thereIore remand the question oI quantiIying the base number against
which the percentage attorney fee award is to be applied . . . .¨).
2014] WORKERS DISABILITY COMPENSATION 1287
X. BARCLAY V. GENERAL MOTORS CORP.: CONTINUING EVIDENCE FOR
CONTINUING DISABILITY
An employee injured before 2011 P.A. 266 was effective on
December 19, 2011
84
could qualify for weekly compensation under no
fewer than four statutes in the WDCA. Most claims to weekly
compensation are based on section 418.301(4), as the others apply to
very particular situations. For example, subsections 418.361(2)(a)-(l)
apply to specific physical losses, such as a finger, hand, or foot;
subsections 418.361(3)(a)-(g) apply to multiple physical losses, such as
both hands or both feet; and section 418.373(1) applies to an injured
employee who retires from work and receives a service-based pension.
And in deciding the case of Stokes v. Chrysler L.L.C.,
85
the Michigan
Supreme Court described exactly how an employee injured at work could
qualify for weekly compensation under section 418.301(4). The court
ended much controversy by announcing in Stokes that
[t]he claimant must show more than a mere inability to perform a
previous job. Rather, to establish a disability, the claimant must
prove a work-related injury and that such injury caused a
reduction of his maximum wage-earning capacity in work
suitable to the claimant`s qualifications and training. To establish
the latter element, the claimant must follow these steps:
1) the claimant must disclose all of his qualifications
and training;
2) the claimant must consider other jobs that pay his
maximum pre-injury wage to which the claimant`s
qualifications and training translate;
3) the claimant must show that the work-related injury
prevents him from performing any of the jobs identified
as within his qualifications and training; and
84. See MICH. COMP. LAWS ANN. § 418.891(4) (West 2013); MICH. COMP. LAWS
ANN. § 418.301(4) (West 2013); MICH. COMP. LAWS ANN. § 418.361(2)(a)-(l),
.361(3)(a)-(g); MICH. COMP. LAWS ANN. § 418.373(1) (West 2013).
85. 481 Mich. 266; 750 N.W.2d 129 (2008).
1288 THE WAYNE LAW REVIEW [Vol. 59:1275
4) if the claimant is capable of performing some or all
of those jobs, the claimant must show that he cannot
obtain any of those jobs.
86
The court added that 'the burden of persuasion never shifts to the
employer,¨
87
which employers took to imply that the protocol was a
continuing requirement for the injured employee to continue to qualify
for weekly compensation. This implication was expressed in the first
decision that the Appellate Commission released in 2013, Barclay v.
General Motors Corp.
88
The Appellate Commission expressed the continuing requirement of
the injured employee for continuing qualification under section
418.301(4) because of the variability of the condition of the injured
employee and the labor market over time, saying that 'Irom the list of
jobs suitable to [an] [injured employee`s] qualifications and training, the
current standard requires a finding of those jobs that [the] work-related
mental or physical impairment allows [him or her] to continue
performing. Because the impairment may fluctuate, the analysis must
address those fluctuations.¨
89
And,
the next step further concentrates the job list to those jobs that
are: 1) suitable to [the injured employee`s] qualifications and
training; 2) within [any] work related restrictions; and
additionally 3) available to [the employee]. This step routinely
involves vocational job surveys and [the employee`s] directed
job searches. This step is glaringly missing from the analyses.
To adequately address this step, [the Workers` Compensation
Board of Magistrates] must consider fluctuations in the evidence
for the entire time of [the] claimed disability.
90
Although not binding precedent under MCLA section 418.274(3), as
decided by a panel of three commissioners, it is apparent that the
Appellate Commission intended the pronouncement in Barclay as an
omnibus opinion. The only fact that was important was that Richard L.
Barclay claimed weekly compensation for an injury working for General
Motors under section 418.301(4). The Appellate Commission did not
86. Id. at 297-98.
87. Id. at 285.
88. See generally Barclay v. Gen. Motors Corp., No. 08-0161, 2013 Mich. A.C.O. 1;
2013 WL 432710 (Mich. Work. Comp. App. Com. Jan. 8, 2013).
89. Id. at *5.
90. Id. at *5-6.
2014] WORKERS DISABILITY COMPENSATION 1289
mention the particulars of the injury and its consequences at one time or
another at all. And the pronouncement has been repeated by the
Appellate Commission verbatim in every later case involving a dispute
about an injured employee qualifying for weekly compensation under
section 418.301(4), although with no citation to Barclay itself.
91
The articulation of the requirement of continuing evidence from an
injured employee to establish and maintain the qualification to weekly
compensation under Stokes may result in fewer hearings as injured
employees seek to avoid the cost and difficulty of repeatedly
demonstrating the criteria of Stokes with regular updates of evidence of
their physical condition and the evolving labor market from vocational
experts. Instead, injured employees may try to convince their employer
that an injury was not only severe when sustained but intractable or
pursue a lump sum settlement.
The pronouncement by the Appellate Commission of the need for
continuing evidence to qualify for continuing compensation in Barclay
was not affected by the amendment of section 418.301(4) by 2011 P.A.
266. That amendment codified the protocol that was established by the
court in deciding the case of Stokes.
92
XI. NORMAN V. FERNDALE FOURSQUARE CHURCH: THE PARTIES TO
SETTLEMENT
A claim to workers` compensation may be concluded by a settlement
known as a redemption of liability.
93
A statute in the WDCAMCLA section 418.836(1)(6)establishes
that no redemption is effective until the board of magistrates establishes
that all parties have agreed to the settlement by saying that '[a]
redemption agreement shall only be approved by a worker`s
compensation magistrate if the worker`s compensation magistrate finds
all of the following: . . . (b) That the redemption agreement is voluntarily
agreed to by all parties.¨
94
But the exact meaning of all parties was not
91. See, e.g., Jones v. Chrysler Grp., L.L.C., No. 12-0084, 2013 Mich. A.C.O. 32;
2013 WL 1179250 (Mich. Comp. App. Com. Mar. 12, 2013).
92. Scharnitzke v. Coca-Cola Enters., No. 304515, 2012 WL 5193200, at *5 n.3
(Mich. Ct. App. Oct. 18, 2012) ('|T|he Legislature largely incorporated the standard set
forth in Stokes [v. Chrysler L.L.C., 481 Mich. 266, 289-90; 750 N.W.2d 129 (2008)]
when it amended the WDCA in 2011 P.A. 266, eIIective December 19, 2011.¨).
93. MICH. COMP. LAWS ANN. § 418.835(1) (West 2013).
94. MICH. COMP. LAWS ANN. § 418.836(1) (emphasis added).
1290 THE WAYNE LAW REVIEW [Vol. 59:1275
established until the Appellate Commission decided the case of Norman
v. Ferndale Foursquare Church.
95
The Appellate Commission decided that all parties in section
418.836(1)(b) meant anyone having a direct financial interest in the
proceeds, saying that 'parties` under MCL 418.836(1)(b) includes all
parties to the underlying claim having a direct financial interest in the
redemption proceeds.¨
96
This was broader than the meaning ascribed to section 418.836(1)(b)
by the chair of the Appellate Commission and by the director of the
Workers` Compensation Agency. The chair of the Appellate
Commission said that the only people who could be parties under section
418.836(1)(b) were the employee or surviving dependent of a deceased
employee, the employer, and any compensation insurer of the employer,
not a lien holder having an independent and unaffected claim: '[T]he
plain meaning of the statute is that the parties to redemption settlements
are plaintiff, carrier and the employer. There is no mention of any other
party under the redemption provisions of the [WCCA].¨
97
Before, the
director of the Workers` Compensation Agency had expressed the same
idea from analogizing cases involving a redemption by one of many
employers to the case that involved one of many claimants.
98
The basis for the broader understanding by the Appellate
Commission was the definition of parties in Black`s Law Dictionary
when section 418.836(1)(b) was enacted.
99
There, the Appellate
Commission said,
If definitions gleaned from Black`s Law Dictionary provide
insight into the meaning of the statutory term 'parties¨ in MCL
418.836(1)(b), which had its genesis in 1981, the definition for
that precise term in publication in Black`s from 1968 to 1979
and the one published in 1979 are more reliable guides to that
meaning than would be a definition of 'party¨ that was first
published in 1999. We learn from those earlier definitions that
95. No. 13-0057, 2012 Mich. A.C.O. 96; 2013 WL 6224549 (Mich. Work. Comp.
App. Com. Nov. 15, 2013). The author was counsel for defendants-appellants Ferndale
Foursquare Church and Insurance Company of the State of Pennsylvania.
96. Id. at *15 (original emphasis omitted).
97. Norman v. Ferndale Foursquare Church, No. 12-0046, 2012 Mich. A.C.O. 96;
2012 WL 6092711, at *2-3 (Mich. Work. Comp. App. Com. Nov. 29, 2012) (Wheatley,
Chair, dissenting).
98. Id. at *6 ('|The director] stated that: We are aware of no reported Michigan
Worker`s Compensation decision in a case involving multiple defendants that permits a
non-participating defendant to void a redemption . . . .`¨).
99. Id. at *10-12.
2014] WORKERS DISABILITY COMPENSATION 1291
'parties,¨ before and as of 1981, was understood to refer to more
than parties to a contract and to specifically contemplate active
participants in litigation.
100
The ruling by the Appellate Commission did not change existing law
simply because there was no existing law. The problem was novel.
101
The ruling is problematic, as the Appellate Commission did not say
what was or was not a 'direct financial interest¨
102
to allow someone to
participate in the process of redemption.
The circumstances of the immediate case provide few clues. There
was no question that Cynthia Norman had a 'direct financial interest¨
because she was the employee who would receive the proceeds of the
settlement. Additionally, it was unquestioned that Ferndale Foursquare
Church and its compensation insurer, Insurance Company of the State of
Pennsylvania, had a 'direct financial interest¨ because they were to pay
the settlement of the claim by Norman. But the 'direct financial interest¨
of State Farm Mutual Automobile Insurance Company was not so clear.
State Farm was neither to receive a portion of the proceeds nor entitled to
receive a portion of the proceeds of the redemption under Allstate
Insurance Co. v. Sentry Insurance Co.
103
Furthermore, State Farm was
not responsible for the payment of the proceeds of the redemption as
were Ferndale Foursquare Church and Insurance Company of the State
of Pennsylvania.
The ruling may impede the redemption process for 'protecting the
interest of all parties with a financial interest in the outcome of a
workers` compensation case¨ under Norman.
104
This requires identifying
and notifying those people in order to hear any objections; and it is not
even clear that a process of identification and notification is the
responsibility of the employee, the employer, or the board of magistrates.
Such a cloud of uncertainty did not exist in the case of Norman, as State
Farm had appeared and even filed an independent claim for repayment
from Ferndale Foursquare Church and Insurance Company of the State
of Pennsylvania,
105
but the ruling by the Appellate Commission was not
limited to people who had filed claims that were then consolidated with a
100. Id.
101. See Norman, 2013 WL 6224549, at *3.
102. Id. at *15.
103. 175 Mich. App. 157, 161; 437 N.W.2d 338 (1989) ('[N]o statutory lien [against
the workers` compensation Irom Sentry Insurance Company| arose in Iavor oI |the no-
fault insurer, Allstate Insurance Company] under [MCLA section 500.3109(1)] through
payment oI survivor loss beneIits to McNeilly`s widow.¨).
104. Norman, 2013 WL 6224549, at *15.
105. Id. at *5.
1292 THE WAYNE LAW REVIEW [Vol. 59:1275
claim for compensation filed by an employee such as Norman. But there
are many people who do not file a claim as State Farm but do have a
direct financial interest, who now must be identified, notified, and
afforded an opportunity to oppose a redemption. These include an auto
no-fault insurer;
106
a group disability insurer with an assignment of
compensation under MCLA section 418.821(2);
107
the Friend of the
Court with a lien for child support under MCLA section 552.625a;
108
a
physician or hospital with an unpaid bill under MCLA section
418.315(1);
109
and the Second Injury Fund under MCLA section
418.372(1)(b).
110
XII. CONCLUSION
Though there was little actual change in the law of workers`
disability compensation between June 1, 2012 and June 19, 2013, there
was much rectification and clarification of existing law by case law.
This process of clarification instead of change is most likely to continue
in the coming year as the amendments to the WDCA under 2011 P.A.
266 are applied to resolve more claims.
106. See id.
107. MICH. COMP. LAWS ANN. § 418.821(2) (West 2013).
108. MICH. COMP. LAWS ANN. § 552.625a (West 2013).
109. MICH. COMP. LAWS ANN. § 418.315(1) (West 2013).
110. MICH. COMP. LAWS ANN. § 418.372(1)(b) (West 2013).

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