Recent Cases - Retiree Presumption

Workers' Compensation Appellate Commission

Retiree Presumption

In Turek v Metz Baking Co, 2007 ACO #232, the employee had been a longtime employee for the employer. He suffered a lower back injury in 1999 at work, underwent back surgery, and returned to work with restrictions. He worked at several jobs that accommodated his restrictions. The employer then accused the employee of violating a company policy. It presented him with the option of resigning or being fired. The employee elected to resign in 2004 with the understanding the employer would not contest his application for unemployment compensation benefits. After collecting such unemployment compensation benefits, the employee began working for two other employers.

The Magistrate granted the employee an open award, finding that the retiree presumption in MCL 418.373(1) did not apply. The Commission disagreed. The Commission said the employee was “actively employed” when he left work, which is a condition precedent to application of the retiree presumption. And, the Commission said that the lag time between the employee’s resignation from active employment (in January 2004) and the time when he applied for his pension (October 2004) was of no legal significance because “[t]here is no requirement in the statute that leaving active employment has to coincide with the application or receipt of [pension] benefits.”

The Magistrate had added that, even if the retiree presumption did apply, the employee met the presumption. Again, the Commission disagreed. Because the employee was working two jobs when he started receiving his pension benefits, the Commission explained that there is no support for the finding that the employee is unable to earn any wages under § 373(1).