Recent Cases - Michigan Supreme Court

SUPREME COURT

The Supreme Court issued an order in Simpson v Borbolla Construction & Concrete Supply, Inc (SC Docket No. 133274, order entered December 7, 2007). The Supreme Court vacated the published opinion of the Court of Appeals saying the Court of Appeals’ panel “erroneously held that Rakestraw v Gen Dynamics Land Sys, Inc, 469 Mich 220 (2003), does not apply” to this case.

The Court of Appeals in Simpson had held that the Rakestraw rule does not apply where the pre-existing condition is work-related. Put differently, the Court of Appeals in Simpson restricted the application of Rakestraw to cases presenting pre-existing non-work-related conditions. It is this aspect of the Court of Appeals’ decision the Supreme Court vacated.

The Supreme Court did affirm the result in the case, however, for the reasons stated in the Workers’ Compensation Appellate Commission opinion. The Appellate Commission had held the last employer liable because plaintiff’s work there aggravated plaintiff’s prior work injury in a medically distinguishable manner so as to satisfy Rakestraw’s requirement.

Justice Kelly concurred in the result, but would not have vacated the Court of Appeals’ Rakestraw analysis.

As of the time these case summaries are submitted, we are still awaiting the ruling of the Supreme Court in Stokes v DaimlerChrysler Corp, n/k/a Chrysler LLC. Stokes had been orally argued before the Supreme Court on the employer’s application for leave to appeal on October 4, 2007. Stokes addresses the parties’ respective burdens of proof on disability under Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002).

Another workers’ compensation case was recently orally argued at the Supreme Court on the employer’s application for leave to appeal. The case is Gee v Arthur B. Myr Industries, Inc (SC Docket No. 133762). The case involves the applicability of res judicata to a claim for family-provided attendant care under MCL 418.315.

Recent Cases - Desertion” in Death Cases

Court of Appeals

Desertion” in Death Cases

In the published decision Moore v Prestige Painting, ____ Mich App ____; ____ NW2d ____ (2007) (CA Docket No. 274252, rel’d December 27, 2007), the Court of Appeals addressed the question of whether the decedent employee had “deserted” his daughter so as to make the daughter a conclusive dependent under the second sentence of MCL 418.331(b).

The relevant portion of this provision of the Act says:

In the event of the death of an employee who has at the time of death a living child by a former spouse or a child who has been deserted by such deceased employee under the age of 16 years, … such child shall be conclusively presumed to be wholly dependent for support upon the deceased employee….

The deceased employee’s former girlfriend claimed the deceased had deserted his daughter. The girlfriend testified that she and her daughter had lived with the deceased employee off and on, but they were not living together at the time of the deceased employee’s death.

This case had gone through many appeals and remands previously on different issues, including the admissibility of DNA samples. But, the only issue addressed by the Court of Appeals in this decision is the desertion question. The Workers’ Compensation Appellate Commission had held that the word “deserted” is not defined in the Act and, consequently, a dictionary should be consulted to determine its meaning. After so doing, the Appellate Commission found the deceased employee did “desert” the daughter.

The Court of Appeals reversed. The Court said that, although the Appellate Commission acted properly in consulting a dictionary, the Commission’s application of that dictionary definition to the facts of the case was wrong.

The Court said that Random House Webster’s College Dictionary defines “‘desert’” in part as “‘to leave (a person, place, etc.) without intending to return,’ and ‘to fail (someone) at a time of need.’” Additionally, “‘desertion’” is defined in part as the “‘willful abandonment … in violation of legal or moral obligations.’”

The Court said the Commission had found the deceased employee deserted his daughter simply because he did not offer financial support in the six weeks prior to his death. The Court said that the dictionary definition of desert connotes, however, an intent to abandon and a sense of finality. The Court said that the record does not support a finding that the deceased intended to completely abandon the daughter and forsake contact or support obligations. The Court said the deceased did not leave his daughter and his girlfriend; instead, his girlfriend moved herself and the daughter from the deceased’s residence. And, the Court noted that, while the deceased was not financially supportive in his last weeks, he still acted as a father to the daughter by, for example, initiating paternity proceedings and providing a DNA sample for testing. The Court added that the legitimacy or illegitimacy of the daughter was irrelevant. A deceased employee might desert a legitimate or illegitimate child under the statute.

Recent Cases - Mental Disabilities and Attorney Fees on Medical Expenses

Court of Appeals

Mental Disabilities and Attorney Fees on Medical Expenses

In the unpublished decision, Brackett v Focus Hope (CA Docket No. 274078, rel’d October 23, 2007), the Court of Appeals addressed a mental disability claim and a claim that the employer is responsible for plaintiff’s attorney fee on unpaid medical expenses.

The employee worked for Focus Hope and was told at the outset of her employment that employees were expected to participate in Focus Hope’s annual Martin Luther King Day celebration. After her hire, the employee did not participate in the celebration because she disagreed with the locale chosen for the celebration that year. The employee said she became mentally disabled as a result of being confronted by the employer regarding her decision not to participate in the event. She prevailed before the Magistrate and Workers’ Compensation Appellate Commission on her mental disability claim, as well as her claim that the employer was responsible for paying attorney fees on unpaid medical expenses.

The Court of Appeals affirmed in both respects. The Court said a reasonable person on an objective basis could perceive being confronted about non-attendance as harassment or an untoward act by the employer under Robertson v DaimlerChrysler Corp, 465 Mich 732; 641 NW2d 567 (2002). And, the Court rejected the employer’s argument that the employee’s intentional non-attendance constituted intentional and wilful misconduct under MCL 418.305.

With respect to the attorney fee question, the Court said it would defer to the Appellate Commission’s construction of the last sentence of MCL 418.315(1) to the effect that a Magistrate may order the employer to pay attorney fees on unpaid medical expenses.

Recent Cases - Mental Disability

Court of Appeals

Mental Disability

The Court of Appeals resolved another mental disability case in the unpublished decision: Beckes v Detroit Diesel Corp (CA Docket No. 270791, rel’d November 27, 2007). In this case, the employee suffered an undisputed work-related orthopedic injury after lifting at work. He later developed a “somatic delusion” or “neurotic obsession” believing he had continuing back pain related to the lift even though all organic reasons for the back pain had long ceased.

The case was decided many times over the years by different Magistrates and by the Workers’ Compensation Appellate Commission. In its first three decisions, the Appellate Commission had denied benefits. In its last decision, the Appellate Commission awarded benefits. On appeal, the Court of Appeals affirmed.

The Court rejected the employer’s Robertson argument to the effect a reasonable person would not objectively perceive an ongoing work-related back problem. The Court said that: “The fact that plaintiff continued to feel back pain long after the injury healed is his reaction to the actual events, rather than an unfounded perception of events under Robertson.” The Court said that, per Robertson, a claimant’s reaction is to be judged subjectively.

Recent Cases - Authority to Enter Voluntary Pay Agreements

Workers' Compensation Appellate Commission

Authority to Enter Voluntary Pay Agreements

In Mazza/Automobile Club of Michigan v McLaren Regional Medical Center, 2007 ACO #203, plaintiff and intervening plaintiff appealed the Magistrate’s decision that had dismissed all applications on the basis of a voluntary pay agreement.

Plaintiff proceeding in pro per appealed the dismissal challenging her attorney’s authority to compromise her claim by signing the voluntary pay agreement. The intervening plaintiff appealed as well claiming it had not received appropriate notices of hearing from the Agency.

The Appellate Commission agreed with the plaintiffs and remanded the case for a limited hearing to develop relevant facts. The Commission said that the Court of Appeals in Bigger v Cadillac Malleable Iron Co, 156 Mich App 747; 402 NW2d 87 (1986) mandates a hearing when a party challenges an attorney’s authority to compromise the claim. The Commission explained that Bigger requires two issues be addressed: 1) whether the attorney possessed the authority to compromise the claim; and 2) whether reinstatement would produce prejudice to the opposing party.

With these guidelines, the Commission asked for a determination of whether plaintiff’s counsel had authority to compromise plaintiff’s claim. And, the Magistrate was to determine the reason why intervening plaintiff failed to appear on three different dates because the Commission could not determine the reason for the failure to appear.

Recent Cases - Handwriting Analysis Reversed

Workers' Compensation Appellate Commission

Handwriting Analysis Reversed

In Khalil v Oil Exchange C, Inc, 2007 ACO #200, the trial Magistrate granted the employee an open award of benefits for injuries sustained in an automobile accident. The main question presented was whether plaintiff was an “employee” of defendant or a person excluded by defendant’s insurance policy. In finding the policy covered plaintiff, the Magistrate engaged in an extensive handwriting analysis.

On review, the Appellate Commission said it “reject[ed] several of the magistrate’s findings because they lack support from substantial evidence and remand for reconsideration of the facts and a supplemental opinion.” The Commission said that, while it does generally uphold a Magistrate’s authority to determine whether the employee signed any document, it cannot do so here. The Commission found the Magistrate offered “a lengthy examination of particular signatures” on documents, such as exclusion forms, that “resembles the analysis of a handwriting expert.” The Commission concluded that “[b]ecause the magistrate does not possess such expertise, her analysis cannot support her finding.” The Commission added that the Magistrate “defeats her own finding when she states that many of plaintiff’s signatures look significantly different.” Over one dissent, the case was therefore remanded for redetermination.

Recent Cases - Fall in Parking Lot Not Proved to be Work-Related

Workers' Compensation Appellate Commission

Fall in Parking Lot Not Proved to be Work-Related

In Anderson v Barbara Ann Karmanos Cancer Institute, 2008 ACO #8, the employee slipped and fell while alighting from her car in a parking lot after her lunch hour causing a back injury. Following a trial that lasted over five days and produced “[s]even hundred, plus, pages of a record and probably an equal amount of pages of medical records,” the Magistrate found the fall to be work-related and granted the employee an open award of benefits. While there were many issues in the case, the threshold issue presented was whether the employee adequately demonstrated the fall occurred in a parking lot owned, leased, or maintained by the employer so as to trigger the presumption that the injury was in the course of employment under MCL 418.301(3) and Simkins v General Motors Corp (After Remand), 453 Mich 703; 556 NW2d 839 (1996).

The Appellate Commission said the Magistrate incorrectly described the employee’s testimony as occurring while alighting from a vehicle she had parked in her “assigned parking spot.” (Emphasis added). The Commission said the employee never testified she was “assigned” a parking place by the employer or that she had parked in a lot assigned by the employer. Consequently, the award was reversed.

Recent Cases - Necessity to Prove “Current Wages” at Suitable Jobs

Workers' Compensation Appellate Commission

Necessity to Prove “Current Wages” at Suitable Jobs

In Hogle v DaimlerChrysler Corp, 2007 ACO #233, the employer appealed an open award of benefits. The employer contended the Magistrate failed to evaluate, for “disability” purposes, the economic impact of the employee’s physical limitations from his work injury.
The Appellate Commission agreed with the employer but did not reverse the case. Instead, the Commission remanded the case “because the law changed” – the Court of Appeals had released Stokes v DaimlerChrysler Corp, 272 Mich App 571; 727 NW2d 637 (2006) – after the Magistrate’s trial.

The Commission said that the proofs offered by the employee could not sustain an award because:

he failed to prove that could not physically perform his prior jobs as a result of his work-related injury. Plaintiff testified that he could not perform his prior jobs. He offered nothing more. He failed to introduce any evidence that linked his inability to perform those jobs to his work injury. In fact, he offered no reason that he could not perform those jobs. He did not provide any information that detailed the physical requirements of his prior jobs. … Plaintiff’s failure to introduce sufficient evidence on the issue mandates a conclusion that he failed to prove that he could not physically perform his prior jobs.

The Commission remanded saying “current” wage information at other suitable work is needed:

Stokes requires plaintiff to introduce evidence that establishes a current wage for every job he previously performed. Plaintiff failed to offer that proof. His testimony that he did not earn comparable wages does not satisfy the standard. However, because the law changed after his hearing, due process protects him and allows him an opportunity to introduce that evidence. (Emphasis added).

Recent Cases - Green Sheet Controls and Necessity to Cross-Appeal

Workers' Compensation Appellate Commission

Green Sheet Controls and Necessity to Cross-Appeal

In Schroeder v T.J. Maxx, 2007 ACO #208, one of the questions presented was the employee’s argument that the Magistrate’s written opinion did not conform to the green sheet order. The Magistrate ordered the correct weekly benefit rate on the green sheet order, but his written decision recited a different weekly rate of compensation. The employer was allegedly using the lower incorrect rate to pay 70% benefits. The employee requested modification of the Magistrate’s opinion.

While affirming an open award, the Commission refused the modification the employee requested for two reasons. The Commission said that, first, the employee did not file a timely appeal or cross-appeal so as to legitimately challenge any aspect of the decision. Second, the Commission said the employer is obligated to pay the weekly benefits recited on the written green sheet order. The Commission said “[w]hen the green sheet order and the written opinion conflict, as they do here, there is no question that the green sheet order controls. Judges and magistrates speak through their orders, not through their written opinions.”

Therefore, the Commission said that, even if the employee had filed a timely appeal or cross-appeal, it would not modify the Magistrate’s written opinion because the green sheet order (with the correct rate) controls.

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).

The Duty to Accommodate under the Americans with Disability Act Web Presentation

Tuesday, January 15, 2008 at 12:00 p.m. EDT

Dear MSIA Members,

The School of Labor and Industrial Relations is excited to present its first free live web presentation featuring Stacy Hickox to discuss The Duty to Accommodate under the Americans with Disabilities Act.

Topic Description:
Employees with a disability have the right under the Americans with Disabilities Act to reasonable accommodations which do not cause an undue hardship to the employer. What is reasonable? This webinar will help answer that question by looking at various requests for accommodations, including transfers and a change in work schedule. We will also discuss what types of requests might be considered to cause an undue hardship on the employer.

Presenter Info:
Stacy Hickox is a visiting assistant professor in the School of Labor and Industrial Relations at Michigan State University (MSU). As an attorney, she practiced in the areas of employment and labor law, including claims of discrimination, unemployment compensation, and wage and hour claims. Before joining MSU, she practiced in the area of disability law at Michigan Protection and Advocacy Service. Ms. Hickox also taught for several years at MSU's law school, including courses in employment law, disability law, and civil rights. She has written a book on the Americans with Disabilities Act and several law review articles on various employment law topics. Ms. Hickox attended the School of Industrial and Labor Relations at Cornell University and received her law degree from the University of Pennsylvania.

Computer Requirements:
High-speed internet access is required to participate in this event.

Register Today:
Please register by visiting the website: http://www.eventpresenter.com/msu.
For more information, please email slir@msu.edu or call (517) 353-3123.

Sincerely,

MSU's School of Labor and Industrial Relations