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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.
Prior to the amendments, § 161 provided minimal direction. On and after January 1, 2013, the determination for an independent contractor will be controlled by a 20-factor test used by the U.S. Internal Revenue Service. One of the provisions is that an individual will be considered an employee when he or she is required to have federal income tax withheld.
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 § 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 availability.
The employee must:
1. 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.
2. 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.
3. Demonstrate that the work related injury prevents the employee from performing jobs identified within his or her qualifications and training paying maximum wages.
4. 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 employee.
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.
Police/Firefighters Exception - 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 made permanent 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, the “significant manner” test applied only to mental disabilities and conditions of the aging process. The amendments have added the term “degenerative arthritis” as a condition of the aging process subject to the same standard of proof.
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.
There were significant changes relative to situations where an employee loses his or her favored work position in less than the first 100 weeks. Previously, an employee was entitled to compensation if he or she lost the position “for any reason.” Now, language has been added that requires the position be lost through “no fault of the employee.” Although it is not completely clear, the language implies that this could be a permanent forfeiture of benefits and not simply a temporary one.
If favored work is performed for more than 100 weeks and less than 250 weeks, the presumption has changed to the plaintiff to prove that he or she has not established a new wage-earning capacity (previously, the presumption was on the employer). If the favored work is more than 250 weeks, there is now a conclusive presumption that a new wage-earning capacity has been established.
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 “cause” is shown. It is still unclear what a showing for “cause” will require. This type of hearing should have “60 day” rush status.
Rehabilitation hearing 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 standard.
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 Magistrate.
About The Authors:
This information was provided by our NWCDN partner James Reiter of the Law Firm of Charfoos Reiter Hebert, P.C., Farmington Hills, MI. Since 1977 they have represented employers in the defense of workers' compensation and related actions. By utilizing seasoned attorneys and concentrating their practice in the area of workers' compensation, they can better provide services for their clients in an efficient and cost effective manner. The firm presently enjoys an "A.V." rating in the Martindale-Hubbell Law Directory and has recently been recognized in the Martindale-Hubbell Register of Preeminent Lawyers in the Labor and Employment Law section.They provide representation in every aspect of workers' compensation law, including subrogation and insurance coverage matters.You may visit their website at www.michigancompdefense.com.
Charfoos Reiter Hebert, P.C. was a founding member of the National Workers' Compensation Defense Network,
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