By, Gerald (Jerry) Marcinkoski
The Workers’ Compensation Appellate Commission has issued an important en banc opinion. En banc opinions are decisions rendered by the entire Commission, rather than from just a three person panel. En banc opinions are precedential and relatively rare. This particular opinion should be helpful in those cases where the claimant has a disability but is out of work for a different, non-work-related reason. The different, non-work-related reason might be: a buyout, the bad economy, a non-work-related condition, or any other non-work-related explanation for the claimant’s absence or decrease in wages.
The case is Epson v Event Staffing, Inc, 2009 ACO #152. It is a case of a professional football player, but the holding of the Commission is clearly designed to speak to situations beyond seasonal employment. The flashpoint for the opinion was the defendant’s argument that the football player should not be entitled to weekly wage loss benefits during the off season because he would not have been playing football and gaining wages or salary anyway during that time period. That is, even though the football player’s physical problems extended into the off season, the defendant’s position was that no weekly wage loss benefits are payable because there are no weekly wages to lose.
In a 3-1 en banc opinion (there were only four Commissioners at the time), the Commission undertook an analysis of the second sentence of § 301(4), typically called the “wage loss” provision. This second sentence of § 301(4), which follows the definition of disability, says: “The establishment of disability does not create a presumption of wage loss.” The precise meaning of this sentence had been addressed in Haske, then again in Sington, in post-Sington Supreme Court orders, the recent Court of Appeals case of Romero v Burt Moeke Hardwoods, Inc, 280 Mich App 1 (2008), and other recent Commission opinions. The en banc majority reviewed all of this case law and came to the following conclusion which we should be able to use in a good number of cases. The en banc majority has said:
Disability and compensable wage loss are separate issues. Epson, supra, slip op at p 27 n 1.
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The [Supreme] Court also noted it had previously disavowed the concept that a plaintiff was automatically entitled to wage loss benefits regardless of the reason for the plaintiff’s unemployment. Epson, supra, slip op at p 28.
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“‘Under the wage-loss approach, an employee may prove a disability under the subsection 301(4) and thus be eligible for benefits and yet not be entitled to benefits because of other factors.’” Epson, supra, slip op at p 29 (emphasis in original).
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The Michigan Supreme Court’s Haske wage loss concept is perhaps best illustrated in the case of Castellon v Delphi Automotive Systems Corporation, 475 Mich 898 (2006). The magistrate agreed Ms. Castellon had work-related carpal tunnel syndrome. However, he denied wage loss benefits because the plaintiff went off work for a non-work-related condition, Bell’s Palsy. Epson, supra, slip op at p 30.
The en banc majority noted that Chief Justice Kelly in the Supreme Court’s Castellon opinion had said: “‘In such a situation, plaintiff would not be entitled to benefits because she still would not be out of work due to a work-related condition.’” Epson, supra, slip op at p 30 (emphasis in original). The Commission also noted that the Supreme Court in Harvey v General Motors Corporation, 482 Mich 1044 (2008) remarked:
“‘…the Workers’ Compensation Appellate Commission erred in stating that an employee does not need to demonstrate a connection between wage loss and the work-related injury. An employee is indeed required to demonstrate such a connection. See MCL 418.301(4); Sington v Chrysler Corp, 467 Mich 144, 160-161 (2002).’” Epson, supra, slip op at p 31 n 3.
The Commission also noted the recent unpublished Court of Appeals’ opinion Raybon v DP Fox Football Holdings LLC (CA Docket No. 268634) and said that, while seasonal employees are not automatically disentitled to benefits during the off season, employees – after proving Stokes “disability” – then need to also demonstrate that such disability is the reason for their absence of wages. The Commission said:
… Mr. Epson does need to factually link his wage loss, during the season and after the end of the season, to his work-related injury. Epson, supra, slip op at p 32.
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… we would remand on the limited issue of whether Mr. Epson’s wage loss is compensable. Epson, supra, slip op at p 33.
Many Magistrates miss this. That is, many award benefits upon finding that the claimant satisfies the Stokes disability standard and do not proceed to then consider whether that disability is the reason for the claimant’s loss of wages.
