Workers' Compensation Appellate Commision

Calculation of Partial Disability Benefits Where the Employee is Working at Lesser Paying Jobs

In Lomax v Delta Tube & Fabricating Corp, 2004 ACO #284, the plaintiff worked at a succession of different jobs for various employers post-injury. One of the issues presented was whether in calculating an ongoing partial rate of compensation you use a “rolling average” applied separately to each post-injury employment as the Commission had suggested was the correct approach in Kuzma v Great Lakes Beverage Co, 2002 ACO #6.

The Commission explained in Lomax that in an unpublished decision the Court of Appeals had reversed Kuzma’s “rolling average” method. Rather than a rolling average, the Court of Appeals in Kuzma – as quoted and adopted by the Commission in Lomax – said “‘[i]f the employee’s average weekly wage is less than that received before the injury, the benefits payable to the employee are eighty percent of the difference before [sic] the employee’s “after-tax weekly wage before the date of injury and the after-tax weekly wage” that the employee is able to earn after the injury.’” That is, the wages earned after the injury are not to be “averaged”. top

Non-Settling Party Cannot Object to Redemption

In Johnson v All Star Sports Bar et al, 2004 ACO #265, one of the defendants in a multi-defendant case challenged the redemption between plaintiff and another defendant. The non-redeeming defendant argued that § 836(1)(b) requires that a redemption be agreed upon by “all parties” and § 837 allows appeals of redemptions by “any of the parties to the action.” The Commission disagreed, saying that the word “party” in these statutes contemplates only the parties participating in the redemption. Therefore, the Commission affirmed the Deputy Director’s approval of the redemption between plaintiff and one defendant. top

Specificity of Job Offer for § 301(5) Purposes

In Nill v Borders Group, Inc, 2004 ACO #289, the Magistrate denied plaintiff benefits for a refusal of a valid offer of reasonable employment under MCL 418.301(5)(a). The Magistrate had found the employer’s letter offering the job did not adequately describe the work being offered but that the offer was later sufficiently clarified in conversations with the employer.

Plaintiff appealed challenging the sufficiency of the job offer. In affirming the Magistrate, the Commission offered the following synopsis of what constitutes a valid job offer for § 301(5)(a)/“reasonable employment” purposes:

In Hale v Borgess Medical Center, 2004 ACO #266, the plaintiff had brought to the workplace non-work-related pre-existing problems, including retrolisthesis, congenital pedicles, degenerative changes, and spinal stenosis. Plaintiff claimed that she slipped on water on the floor at work causing her to fall on her right knee causing pain there which migrated to her hip and into her back. The Magistrate granted plaintiff an open award of benefits for a low back condition.

Defendant challenged that ruling on appeal arguing the Magistrate incorrectly awarded benefits on the basis of a symptomatic aggravation of plaintiff’s pre-existing problem, contrary to Rakestraw v General Dynamics Land Systems, 469 Mich 220; 666 NW2d 199 (2003). The Commission disagreed.

The Commission found instructive the companion case to Mudel v Great Atlantic & Pacific Tea Co : Connaway v Welded Construction Co, 462 Mich 691; 614 NW2d 607 (2000). After reviewing Connaway, the Commission said that, while pain alone is not conclusive evidence of a medically distinguishable problem, “continuing pain, subjectively dissimilar from her pre-injury condition, and causing impaired performance of pre-injury activities can constitute … a ‘medically distinguishable’ condition” satisfying Rakestraw. The Commission then quoted testimony from plaintiff’s expert to the effect that “‘symptomatology follows pathology. So when her pain starts, I make the assumption that pathology begins to change or becomes present.’” top

Sington and the Employee’s Efforts to Find Work

In Henry v City of Midland, 2004 ACO #248, plaintiff suffered an injury to his right foot. He was accommodated for a period of time by his employer but the job was ultimately taken away from him. The Magistrate granted plaintiff an open award of benefits concluding plaintiff’s injury precluded him working at the highest paying job within his qualifications and training, an operator/mechanic job, per Sington v Chrysler Corporation, 467 Mich 144; 648 NW2d 624 (2002).

The Commission affirmed the finding that plaintiff was “disabled” but remanded for a supplemental opinion on the level of plaintiff’s wage loss given plaintiff’s lack of effort to find work.

In explaining its affirmance of the “disability” finding, the Commission said that where an employer accommodates an employee and then takes the job away the burden of proof shifts to defendant: “At this point the burden lies with defendant to produce evidence showing that there are jobs in the general marketplace the same or similar to plaintiff’s accommodated work as an operator/mechanic. Defendant offered no such proof.”

With respect to necessity for a remand on the rate question, the Commission noted plaintiff could do jobs other than an operator/mechanic, such as working as a salesman, because he had done purchasing work as a sales representative prior to his injury. The Commission noted plaintiff made no effort to seek such work. Plaintiff implied he “would not return to work except for defendant.” Under such circumstances, the Commission explained a remand is necessary to determine plaintiff’s level of wage loss because:

However, an employee bears the burden of proving he experiences a wage loss due to the injury. The existence of jobs in the marketplace reasonably available to plaintiff within his qualifications and training and within his capacity to perform, may represent wages which the employee is able to earn after injury. This is particularly true where the employee testifies there are specific jobs reasonably avaiable to the employee which he can perform, but makes no effort to obtain them. The magistrate did not provide any summary or analysis of plaintiff’s somewhat conflicting testimony concerning his efforts to search for or obtain work both before and after he last worked at Johnson Contracting.

An employee’s efforts in seeking employment may be an important inquiry under Sington.

The Commission said, while plaintiff had “significant restrictions, … we need the magistrate’s analysis of plaintiff’s remaining physical abilities, the work plaintiff remains qualified and trained to do, the availability of such work, as well as the impact of plaintiff’s effort or lack of effort to find work.” top

Sington After Remand

The Sington case returned to the Commission following its remand after the Michigan Supreme Court’s decision. Sington v Chrysler Corp (After Remand) 2004 ACO #220. On remand, the Magistrate found Mr. Sington remained capable of performing 13 of the 17 job classifications. The Magistrate denied Mr. Sington benefits on the basis he remained capable of earning equal wages within his qualifications and training at Chrysler. And, the Magistrate found that the jobs plaintiff could do, though accommodating plaintiff’s condition, were regular or real jobs and not make work or special jobs for injured workers.

The Commission affirmed the Magistrate saying:

Magistrate Wierzbicki, having heard the live testimony of both plaintiff’s and defendant’s witness, determined as noted above that defendant would have hired and placed a new worker with similary physical limitations (PQX vs. PQ) in at least 13 regular full-time classified positions. Further, the magistrate found plaintiff able to continue in such full-time-classified positions despite a de-minimus physical limitation. Finally, while it remains true a giant manufacturer has the flexibility in moving employees from one job to the next that a small “mom and pop” operation might not have, given the facts as found by the magistrate, these were real jobs in which plaintiff could have been replaced with new unrestricted workers.