Governor Rick Snyder signed a new
legislative amendment to the Michigan Workers’ Disability Compensation Act on
January 14, 2015 to create the First Responders Presumed Coverage Fund (also
known as the First Responders Fund). As
of the date of publication, there is not yet funding available and the various
procedures for implementation and/or processing claims for this Fund are still
The purpose of this legislation
is to create a presumption that a “personal injury” has been sustained by a
defined group of claimants (primarily full-time, active service firefighters
who meet the criteria outlined in § 405) who are diagnosed with various types
of cancers. A full list of the included
cancers is listed in subsection (2) of § 405
At the time when the cancer manifests itself, the claimant must have
been employed in a position that includes “expos[ure]
to the hazards incidental to fire suppression, rescue, or emergency medical
services” and have been employed for sixty months or more.
If these criteria are met, the
claimant’s “personal injury” (cancer) is PRESUMED to be work-related if he or
she files his or her claim for workers’ compensation benefits against the First
Responders Fund. In order to claim
benefits from the Fund, the claimant must suspend any claim that he or she has
directly against the employer. If he or
she files the claim against the employer, no presumption applies; in other
words, there is only a presumption of work-relationship if the claim is filed
against the newly created First Responders Fund as opposed to the
employer. If a claimant redeems his or
her case with the Fund, he or she suspends any claim against the employer
indefinitely. Prior to filing for
benefits, subsection (4) requires that a claimant “shall first apply for and do
all things necessary” to qualify for any pension benefits “to which he or
she…may be entitled.”
In order to rebut the
presumption, the Fund may submit “scientific evidence that a [claimant] was a
substantial and consistent user of cigarettes or other tobacco products within
the ten years immediately preceding the date of injury” and that this use “was
a significant factor” in the development of the cancer.
Please continue to visit the
“Newsletter” section of our website for updates on the implementation of this
law, as well as any and all other updated information pertaining to workers’
compensation law and practice in Michigan.
Cross v Perfection
Associates, Inc., 2013 ACO #95
The Michigan Compensation
Appellate Commission recently issued a decision following the plaintiff’s
appeal in the case of Cross v Perfection Associates, Inc.
At trial, Magistrate Tjapkes found that the plaintiff suffered a crushing injury
to her left arm on April 26, 2011 and had an average weekly wage of
$250.16. However, he did not
award the payment of weekly wage-loss benefits on the theory that the
“disability” was not causally related to the injury because the plaintiff had
not engaged in an appropriate job search.
Namely, she did not make an adequate effort to find subsequent
The plaintiff advised the
defendant’s expert vocational witness that she did not believe she should be
looking for a job because of her injury, and she listed restrictions on her
resume. At trial, she testified that
when she contacted a prospective employer, her first two questions were “are
you hiring?” and “how much does it pay?” (according to
her resume, she was seeking $18.00 - $20.00/hour to start). Finally, according to the job search log
submitted at trial, she did not start looking for work until 16 days before
trial began. According to the Magistrate
and the MCAC, this did not constitute a good faith job search under the Act.
In support for his decision from
a factual standpoint, the Magistrate stated, at page 29 of his Opinion:
I am also not
persuaded that plaintiff made a genuine effort to find employment. She certainly provided evidence that she put
in applications at various places. But
even able-bodied people have to do more these days to secure employment. Plaintiff limited her independent efforts to
putting in her resume at Michigan Works, which is hardly a hotbed of employment
possibilities. Otherwise, she seems to
have only contacted either places suggested by defendant’s vocational expert,
which would have been information received after a delay under the best of
circumstances, or a rather random sampling of local retailers and
restaurants…Plaintiff also admitted she did not try to find work for some time.
When the December 19, 2011
amendments were ratified, we opined that the court’s definition of what
constitutes a “good faith job search” would become a hot
issue in the months and years ahead. We
will continue to monitor future decisions as this definition is refined, as
well as monitor the anticipated future appeal of Cross.
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.
Sixth Circuit Court of Appeals recently issued a decision in the case of Jackson v. Sedgwick Claims Management
Services, Inc. This decision is the
latest in the line of RICO cases that have been filed in various jurisdictions
over the past several years.
Jackson, the District Court initially
granted the defendant’s Motion to Dismiss on the basis that RICO did not allow
for a recovery as pleaded by the plaintiff.
Relying on another decision issued in the companion case of Brown v. Cassens
Transport Company, however, the Court of Appeals was divided on how to
resolve the plaintiffs appeal following the initial decision. The majority holding in Brown determined under a similar factual scenario that the
plaintiff had properly alleged a
claim under RICO, and therefore should survive the defendant’s motion to
dismiss. Specifically, in arriving at
this determination, Brown concluded
that the plaintiff had a “property interest” in the receipt of workers’
compensation benefits, and that the conspiracy alleged by the plaintiff in
preventing the continued receipt of those benefits could potentially be a
compensable deprivation under the federal RICO statute.
general, a plaintiff must allege a “proprietary type of damage” in order to
establish a RICO claim.
latest majority decision by the Sixth Circuit in Jackson addressed general concerns about the scope of the RICO statute
extending into the “personal injury” realm beyond the initial intent of the
legislature. It also addressed the fact
that workers’ compensation is traditionally an area where the state statutes
prevail, and there were some concerns about applying a federal statute such as
RICO in order to circumvent the state’s exclusive remedy provision in
determining eligibility to workers’ compensation benefits. Ultimately, the Sixth Circuit decided that
the alleged entitlement to workers’ compensation benefits did not constitute an
injury to “business or property” that would be compensable under RICO. Therefore, they overruled Brown and affirmed the initial decision
from the District Court which granted the defendant’s Motion to Dismiss.
we anticipate that the plaintiff will again appeal this decision, the majority
opinion in Jackson appears relatively
straightforward and is likely to be left undisturbed. The majority summarizes its determination
rather succinctly, in that “Michigan’s decision to create a
workers’ compensation system does not transform a disappointing outcome in
personal injury litigation into damages that can support a RICO civil
the Sixth Circuit mentions that the plaintiff has an alternative remedy in the
state’s workers’ compensation forum to “have their day in court” if they
believe that fraud is taking place. On page
17 of the Opinion, the majority states, “the workers’ compensation scheme Michigan
has established provides ample mechanisms by which the employee can contest
these actions.” By using the phrase
“these actions,” the majority is referring back to situations where the injured
employee may believe that an employer has taken either a meritless position or
procured fraudulent evidence in order to support a meritless position.
prevailing theme, however, is that the proper venue to pursue these type of
claims is in the state’s workers’ compensation court and not in the federal
courts under RICO. We will continue to
update our website with any future decisions on this or other related cases at www.michigancompdefense.com
Mohney v American International Group/Second
The Michigan Supreme Court
recently issued an Order in the case of Mohney v American
International Group, et al, Supreme Court Order # 146846, regarding whether
or not the plaintiff’s injuries “[arose] out of and in the course of” his
employment. The Court reversed an
earlier decision from the Michigan Court of Appeals, and remanded the case to
the Michigan Compensation Appellate Commission for entry of an Order denying
the plaintiff’s claim for workers’ compensation benefits.
Traditionally, the law has held
that “an employee going to or from his or her work, while on the premises where
the employee’s work is to be performed…is presumed to be in the course of his
or her employment. See, e.g., Simkins
v Gen Motors Corp (after remand),
453 Mich 703 (1996). In Simkins, this principle was held to include injuries that
did not occur on the employee’s work-site, i.e., property “not owned, leased, or maintained by his employer,” as long as the
individual was travelling in a “reasonably direct route” between a parking area
that was “owned, leased, or
maintained by the employer” and that person’s work-site. Id.
In Mohney, however, the Michigan
Supreme Court found after several appeals that Simkins did not directly apply because the parking area at issue was not owned, leased, or maintained by the
employer. The defendant employer did not
own the area where the plaintiff was allegedly injured. The defendant did have access to 77 parking
spaces as part of its lease for office space with the building owner, which were
provided for free except for a prorated charge for maintenance,
and which charge was paid with the rent.
There was no evidence that the parking area was directly maintained by
the employer. Initially on remand, the
Magistrate held that there was “constructive maintenance” because of the
prorated increase in rent for maintenance costs paid by the defendant employer to
the owner of the building. The MCAC did
not agreed with the theory of constructive maintenance, but found that the
employer “leased” the parking area under the above-cited facts. The Michigan Supreme Court reversed, finding
that the scenario was factually insufficient to establish ownership, lease, or
maintenance of the parking area.
SMART Act – Initial Summary of Changes in Workers’ Compensation
On January 10, 2013, President
Obama signed the SMART Act into law after it passed in the House of
Representatives and the United States Senate.
While many of the specific implementations will become known to us in
the months ahead, it certainly appears as though this Act contains favorable
reforms as part of the interplay between CMS and the administration of workers’
First, it appears as though CMS
will now be able to issue a “final demand letter” for conditional payments
PRIOR to settlement (up to 120 before the redemption hearing), and implements
specific time periods for which disputes will be resolved. This provision will go into effect 90 days
after the signing of the law, and is certainly preferable to the current system
where a final demand letter is not issued until after the redemption hearing,
which leaves open the possibilities that CMS will request a different amount
for conditional payments after the settlement than it requested before the
In 2014, the Secretary will
institute a threshold level where conditional payments will no longer be
reimbursed. Very little is known about
this provision at the present time, although we look forward to learning more
about it in the year ahead. It may be
similar to the $25,000.00 threshold in place regarding MSA’s. In addition, the new Act provides for a quick
turnaround time of 11 days in order to resolve any disputes of reported
conditional payments from CMS.
The Act also includes a specific
statute of limitations for which CMS can recover conditional payments of three
years after the receipt of notice of the settlement (or payment, if the
case was not redeemed).
There are additional provisions
regarding the fines for noncompliance with CMS provisions and changes to the
reporting requirements that we urge you to discuss with your RRE. Those changes are still in the process of
DO YOU USE INDEPENDENT CONTRACTORS?
If your business regularly utilizes
person who you have designated to be
an Independent Contractor, you should be aware that there has been a change in the Workers’ Compensation law pertaining to whether your company would be considered the independent
contractor’s employer and
for his/her workers’
compensation benefits. As of January 1, 2013, the legislature enacted a 20-factor test to determine if an employer/employee
relationship exists for
workers’ compensation liability. The 20- factors are:
requires the contractor comply with its instructions about when, where and how the service is to be done, the contractor
could be considered an employee.
TRAINING: If your business requires that the contractor perform the job in a
particular manner then
the contractor could be considered an employee. An
independent contractor will use his/her own methods to be complete the service
and should receive no training from your business.
If the services performed by the contractor are an important part
your business operation
then the contractor
could be considered
The integration of the two businesses indicates that the contractor is subject to your direction or control.
RENDERED PERSONALLY: If
the contractor is
to perform the service personally is an indication that contractor is an employee
since an independent contractor is free to assign work to his/her own employees if necessary.
HIRING, SUPERVISION AND PAYING
ASSISTANTS: If the business allows the contractor to hire, supervise or pay assistants for the business, the
contractor is likely to be deemed an employee unless the contract specifies that the
hire and supervise
other as part of the contract.
CONTINUING RELATIONSHIP: If
and contractor have
an ongoing relationship for the service provided, the contractor could be considered
The IRS has held that even irregular recurring jobs would qualify as
SET HOURS OF WORK:
If the business requires the contractor to work a set
number of hours, the contractor could
an employee since an
independent contractor sets
his/her own schedule.
FULL TIME REQUIRED: If the business requires the contractor to work substantially full time to the business, the contractor will likely be considered an
employee since an independent contractor is free to work when and for whom he or she chooses.
WORK DONE ON PREMISES:
If the business requires that the services being performed
completed on the business’ premises, the contractor could
employee, especially if the service could be
10. ORDER OR SEQUENCE TEST: If the business requires that the service be
performed in a
certain order, the contractor could be considered an employee since the independent
perform the services in whatever order he/she deems
OR WRITTEN REPORTS: The contractor is required
to submit regular reports would suggest an employee relationship since it is a method of controlling the contractor.
12. PAYMENTS BY THE HOUR, WEEK OR MONTH:
Payment of wages by a set
schedule would suggest
relationship since independent
contractors are traditionally paid by the job
13. PAYMENT OF
BUSINESS AND/OR TRAVELING EXPENSES: If the business pays the contractor’s expenses, the contractor would be considered an
14. FURNISHING TOOLS AND MATERIAL:
If the business provides the tools and material necessary for the contractor to complete the service, the contractor
would likely be considered
15. SIGNIFICANT INVESTMENT:
If the contractor maintains his or her own
office, no employment
would be presumed.
16. PROFIT OR LOSS: If the contractor can realize a profit
or loss by his or her
services, then no employment relationship
would be presumed.
17. WORKING FOR MORE THAN ONE FIRM AT A TIME: If the contractor performs more than de minims services for other businesses then no employment
relationship would be presumed.
18. MAKING SERVICE AVAILABLE TO THE GENERAL PUBLIC: If the
contractor makes his or her
regular or consistent basis then
TO DISCHARGE: If the business has
right to discharge
the contractor, then an employment relationship could be established. A business’ right to end the relationship with an independent contractor is typically controlled by the terms of the contract.
20. RIGHT TO TERMINATE: If the contractor has the right to terminate the relationship with the business without incurring liability, then an employment relationship
could be established.
These factors are fairly general
and some will
likely apply to your business
relationship with an
implemented a process where a business can
request a hearing
determine if the contractor performing services is covered with an employment relationship but this request for a hearing will
likely take too
long for the services to be
It should be noted that the workers’ compensation liability for injuries sustained
by an independent contractor or his/her employees will only revert back to your business “if” the contractor does not
have workers’ compensation insurance of his/her
own. As such, if your business needs to hire an independent contractor to perform services, it is wise to request a copy of the
contractor’s certificate of insurance for workers’ compensation and even follow up with a call to the agent to ensure that the
insurance coverage is still in effect. If your independent contractor did not
have workers’ compensation coverage and
claim is filed
against your workers’
compensation carrier, your insurance carrier has the right to audit your records and raise your premium for those uninsured
If you have any questions about this article or workers’ compensation in general, please feel free to contact Charfoos Reiter Hébert at 248-626-7300 or firstname.lastname@example.org and one of our attorneys will get back to you as quickly as
Please see below for a summary of the December 19,2011 amendments to the Michigan Workers' Disability Compensation Act and a very brief guideline summary of the Michigan Act.
Summary of Amendments to the Michigan
Workers’ Disability Compensation Act – as Amended, December 19, 2011
Governor Snyder signed the
amendments to the Michigan WDCA on December 19, 2011.
The bill was given immediate effect.
The amendments apply to injuries that occur on or after December 19, 2011.
There were a number of changes,
some of which will affect the adjuster’s claim handling on a daily basis,
weekly basis or yearly basis. Some
non-substantive changes were of a corrective or grammatical nature.
The 2011 amendments added several
additional provisions that become effective on January 1, 2013. On and after
1/1/2013 to determine if an employer-employee relationship exists we are to
look to the 20-factor test used by the United States Internal Revenue Service.
(See Revenue Ruling 87-41, 1 C.B. 296). Additionally if the employer is
required to withhold Federal Income Tax this would be prima facie evidence that
an employment relationship exists. After 1/1/2013 a business entity may ask for
a ruling from the Michigan Administrative Hearing System on an individual case
Board of Magistrates
The Qualifications Advisory
Committee (QAC) has been abolished. The
Governor has the sole power to appoint Magistrates. The only pre-qualification is the individual
has been licensed to practice law in the State of Michigan for at least five years. The Magistrates are evaluated by the Director
of the Agency and the Chief Magistrate on an annual basis. The Governor has the power to remove the
Magistrate based upon their recommendations or what the Governor considers to
be a neglect of duties.
The Magistrates are appointed to
four year terms and may be reappointed without term limitations. (This
eliminates the prior 12 year term limitation)
Under the prior § 301(4)(b), “wage-earning capacity” means the wages an employee
“is capable of earning” at a job reasonably available to him or her. The legislature added language “…whether or not wages are actually
earned.” The amendments place an
affirmative duty on the employee to seek work that is reasonably available and
that a Magistrate may consider a good faith job search in determining that
The employee must:
Disclose his/her qualifications and training, including
education, skills and experiences, whether or not they are relevant to the job
the employee was performing at the time of his or her injury.
Provide evidence as to the jobs, if any, he or she is
qualified and trained to perform within the same salary range as his or her
maximum wage earning capacity at the time of the injury.
Demonstrate that the work related injury prevents the
employee from performing jobs identified within his or her qualifications and
training paying maximum wages.
If the employee is capable of performing any of the
jobs identified above, they must show that they cannot obtain those positions.
The Act requires a showing of a
good-faith effort to procure post-injury employment on the part of the
The burden then shifts to the
defense to refute the employee’s testimony.
Therefore, the Act now provides a right of discovery to the employer “if
necessary for the employer to sustain its burden and present a meaningful
defense.” The employee may then present
additional rebuttal evidence.
Under § 301(8) of the new amendments,
if the disability is partial, the employer is responsible for 80% of the
difference between the after-tax AWW at the time of the injury and the
employee’s “wage-earning capacity after the injury.” In figuring this differential, we use the new
definition that includes what the employee actually earns as well as what he or
she is capable of earning.
- the wage-earning capacity standard is different for police and
firefighters under § 302. It omits the
language contained within § 301 that defines wage-earning capacity as the
capability of earning wages “whether or not actually earned.” We will determine the full impact of that
omission from the Michigan
courts in the months and years ahead.
Aggravation of Pre-Existing Conditions
§ 301 adopted the language from
the Rakestraw case relative to aggravation:
A personal injury under this Act is
compensable if work causes, contributes to or aggravates pathology in a manner
so as to create a pathology that is medically distinguishable from any
pathology that existed prior to the injury.
Prior to the amendments mental
disabilities and conditions of the aging process, including heart and
cardiovascular conditions were the only conditions or injuries that were
subject to the “significant manner” test. The amendments have added the term
“degenerative arthritis” as a condition of the aging process subject to this
additional standard of proof. This is a significant change which could have a
major impact on cases as we deal with an aging workforce.
Mental disabilities were further
defined with the addition of the following language:
…and if the employee’s
perception of the actual events is reasonably grounded in fact or reality.
We expect the new language
requiring perceptions to be “reasonably grounded in fact or reality” will be
further clarified by the Michigan
courts in the coming years.
amendments state in 301(9) (b) “If an employee is terminated from reasonable
employment for fault of the employee, the employee is considered to have
voluntarily removed himself/herself from the work force and is not entitled to
any wage loss benefits under the act.” It appears from this language that the
forfeiture of wage loss benefits is permanent. Please note that medical and
other benefits are not forfeited, only “wage loss” benefits. Reasonable medical
care is still required.
If the employee after being employed doing
“favored or accommodated” work loses his/her job through no fault of the
employee and if the employee is still disabled they are then entitled to
benefits as follows: if the favored work
was less than 100 weeks then you are required to reinstate wage loss
benefits. If the favored work lasted longer than 100 weeks but less than 250 weeks the 2011 amendments state that
the employee must first exhaust their unemployment benefits and then there is a
rebuttable presumption that they have established a new wage earning capacity.
Benefits are to be reinstated but based upon the new wage earning capacity and
not the original wage at date of injury. The burden is upon the employee to
file a petition to prove that he/she has not established a new wage earning
capacity. Note that this is a complete switch of the burden from the prior law.
As indicated above under the prior law if the favored work was for less than
100 weeks the presumption was that the employee had not established a new wage
earning capacity and the employer had the burden of going forward with proof
that a new wage earning capacity had been established.
If the favored work is for more than 250 weeks
there is a presumption that a new wage earning capacity has been established.
It appears from the language of the new amendments that this presumption is
These are significant changes from the old law
relative to favored work. Before the 2011 amendments fault was not a factor in
less than 100 week cases and the act stated benefits “shall” be reinstated. Now
that is true only if the employee was not at fault in losing his/her job. Under
the old law the rebuttable presumption was that a new wage earning capacity had
not been established and the burden was on the employer to prove otherwise.
Under the 2011 amendments the reverse is true.
Medical Care and Treatment
§ 315 Allows the employer/carrier
to direct treatment for 28 days “from the inception of medical care.” As in the prior act, there is a provision
which allows the employer/carrier to file a Petition with the Board of
Magistrates objecting to the employee’s choice of physician “for cause.” The Magistrate will have the power to order
treatment discontinued if “good cause” is shown. This type of hearing should
have “60 day” rush status.
determinations will now be appealed directly to the appellate commission as
opposed to the Board of Magistrates.
This means that future rehabilitation hearings will need to be conducted
“on the record.”
Dependency and Coordination
The amendments have removed the
“conclusive presumption” that an injured employee’s wife is a dependent. Also, if an employee is already receiving
old-age social security benefits at the time an injury occurs, the coordinated
social security reduction under § 354 cannot lower the weekly workers’
compensation rate below 50% of the full benefit rate that would be in place if
the individual was not on social security. The employer may take a credit for old-age
social security or pension benefits regardless of whether the employee is
receiving those benefits. However, they
cannot be forced to apply for a pension or old-age social security.
One final significant amendment
considered specific loss benefits and the standards outlined by the recent
decision in Trammel v Consumers Energy.
The amendments state that the effect of the joint replacement “shall be
considered” is determining whether a specific loss has occurred. Under Trammel, the standard revolved
around the “pre-corrected” state. It is not
retroactive and all pending cases will be evaluated under the old Cain II
The inconsistencies between
Chapter 3 and Chapter 4 have been eliminated.
There were several amendments to
the section covering professional athletes. Basically, these changes prohibit
the filing of petitions in multiple states.
There were some final
administrative changes regarding subpoenas, redemption hearings and mediation
that are still being developed. We
expect guidance from the Agency and/or publication of new rules on how these
procedural changes will be implemented.
Mediation will be eliminated and the mediators transferred. Future mediations will be conducted by a
Please note: The firm is in the process of revising our desk manual and
an updated version including the 2011 amendments will be available in the near
future. If you are interested in receiving a copy of this 85 +page manual
please email us at:
Disability Compensation Guidelines
Charfoos Reiter Hébert, P.C.
30500 Northwestern Hwy, Suite 450
Telephone: (248) 626-7300
A Charter Member of NWCDN
For a copy of our comprehensive desk manual: e-mail: email@example.com
LIMITS AND REPORTING REQUIREMENTS:
Employer’s Basic Report
of Injury - Form WC-100: An
employer/carrier shall report immediately to the Agency on Form WC-100 all
injuries, including diseases, which arise out of and in the course of the
employment, or on which a claim is made and results in any of the following:
(a) Disability extending beyond seven (7) consecutive days, not including the
date of injury; (b) Death; (c) Specific losses.
In case of death, an employer shall also immediately file an additional
report on WC-106. This form may be downloaded at: http://www.michigan.gov/documents/wca_WC-100__fillin_121830_7.pdf
Notice of Dispute - Form WC-107: In all cases where the right to benefits is disputed,
the employer/carrier shall report to the Agency on or before the fourteenth day
after the employer has notice or knowledge of injury or death on Notice of
Dispute Form 107.
Report on Rehabilitation - Form WC-110:
Reports are due three months from date of injury where indemnity
benefits are being paid and every 4 months thereafter. All reports are to be accompanied by a
current medical report. This Form is available at: http://www.michigan.gov/documents/wca_WC-110_fillin_122029_7.pdf
Medical Treatment: The
employer/carrier has the right to direct medical care for 28 days “from the
inception of medical care.” Note:
Medical bill reimbursement to worker should be made within 30 days after notice
or penalty may apply.*
Notice of Compensation
Payments – Form WC-107: This form is used to report to the Agency
payment of weekly compensation benefits made to the employee. A copy of the Form and additional
instructions are available at: http://www.michigan.gov/wca/0,4682,7-191-26917-41039--,00.html
WAGE LOSS BENEFITS: Due and
payable on the 14th day. Note: Penalty may apply if over
30 days late.*
weekly compensation rate is determined by establishing the Average Weekly Wage
(AWW) and the number of dependents.
AWW is the average of the highest 39 weeks of the 52 weeks immediately
preceding the date of injury. If there
are less than 39 weeks worked, the wage is determined by calculating the
average of those “weeks in which work [was] performed.”
formula is correct unless there are “special circumstances.” Consult the Michigan Workers’ Compensation
Agency’s website for a complete rate chart at:
Rate 2/3 State AWW 50% SAWW 25%
2012 $775.00 $573.56 $430.17 $215.09
$742.00 $548.90 $411.68 $205.84
2010 $746.00 $552.49 $414.37 $207.18
2009 $752.00 $556.53 $417.40 $208.70
fringe benefits are discontinued, the employer’s cost of those fringe benefits
must be added to the AWW if the claimant’s compensation rate is less than 2/3
of the State Average Weekly Wage (SAWW).
50% of the SAWW is the minimum benefit for
death cases. 25% of the SAWW is the
minimum benefit payable for specific loss and total and permanent disability
MILEAGE REIMBURSEMENT RATE:
Mileage is to be
reimbursed to the claimant for all medical related travel expenses. As of 10/1/11, the reimbursable rate is .555 per mile. For a complete mileage rate chart see:
*See Section 418.801 for all penalty
OF DISABILITY/WAGE EARNING CAPACITY:
MCL 418.301(4)(b) states “wage-earning capacity”
means the wages an employee “is capable of earning” at a job reasonably
available to him or her. As of 12/19/2011, the
legislature added language “…whether or not wages are actually earned.” The amendments place an affirmative duty on
the employee to seek work that is reasonably available and that a Magistrate
may consider a good faith job search in determining that availability. For injuries on or after 12/19/2011 an employee must:
qualifications and training, including education, skills and experiences,
whether or not they are relevant to the job the employee was performing at the
time of his or her injury.
as to the jobs, if any, he or she is qualified and trained to perform within
the same salary range as his or her maximum wage earning capacity at the time
of the injury.
the work related injury prevents the employee from performing jobs identified
within his or her qualifications and training paying maximum wages.
If the employee
is capable of performing any of the jobs identified above, they must show that
they cannot obtain those positions.
OF PRE-EXISTING CONDITIONS:
personal injury under the Michigan Workers’ Disability Compensation Act is
compensable if work causes, contributes to or aggravates pathology in a manner
so as to create a pathology that is medically distinguishable from any
pathology that existed prior to the injury.
As to mental disabilities and conditions of the aging process (and
degenerative arthritis as of the amendments in place effective 12/19/2011), the claimant
must show that the condition was aggravated in a significant manner.
disabilities must be based on actual events of employment and the employee’s
perception of which must be reasonably grounded in fact or reality. The employment event must aggravate or cause
the mental disability in a “significant manner.” MCL 418.301(2).
OR ACCOMODATED WORK:
the first 100 weeks of favored work, if the employee loses his or her job
through “no fault of the employee,” he or she shall be entitled to weekly
benefits at the original rate. If the
employee is terminated as a result of his or her fault, benefits may be
terminated. After 100 weeks of favored
work, there is a presumption that the employee has established a new wage
earning capacity. After 250 weeks of
subsequent employment, that presumption is conclusive.
Social Security benefits (50% of monthly benefit amount) and regular pension
benefits may be coordinated against wage loss benefits. Under certain circumstances, disability
pensions may be coordinated. The
claimant is required to provide a release of information form and/or proof of
application and award letter.
the employer provides disability benefits to the claimant, those benefits can
also be coordinated against the workers’ compensation wage loss liability. See MCL
418.354. There is
a special method of calculating the amount of the benefit to be
coordinated. This program can also be
found in the Agency’s website at:
Michigan bars receipt of benefits when the employee is injured
as a result of his or her intentional misconduct.
of January 1, 2013,
law on independent contractors will be controlled by the 20-factor test used by
the IRS. (Revenue Ruling 87-41, 1C.B.
296). One of the provisions
states that an individual will be considered an employee if federal income tax
was withheld from his/her pay.
For additional information on
Charfoos Reiter Hébert, P.C.
Visit our web page at: www.michigancompdefense.com
© Charfoos Reiter Hébert, P.C. March 1, 2012
August 17, 2011
Dan Hébert and Jim
Ranta recently conducted two “in-house” seminars for clients in Indianapolis,
Indiana. Dan noted that with the
centralization of claims handling he spends quite a bit of time doing in-house
or mini seminars for clients in various parts of the country. It not only gives him a chance to get out of
the office but also to meet clients personally on a one on one basis.
Jim Reiter was
recently re-appointed as the liaison to the Workers’ Compensation Committee for
the American Bar Associations Labor & Employment Law Section. Additionally Jim continues to serve on the
Board of Governors of the College of Workers’ Compensation Lawyers and on the
Executive Committee for the National Workers’ Compensation Defense Network.
this summer Dan Hébert was privileged to serve on a panel addressing the issue
of _Integration of Claims Handling/Litigation from the
Employer to the TPA to the Attorney in front of the Michigan
Self-Insured Association at their annual meeting in Traverse City, Michigan.
If you are interested
in an on-site “in-house” seminar please feel free to contact any attorney in
Charfoos Reiter Hébert