Hanba & Lazar | HL Quarterly Update January 2019
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HL Quarterly Update January 2019

HL Quarterly Update January 2019

Minthorn In My Side 
     The recently-decided case of Michael Minthorn v. ET 10 Inc. was unusual from the outset. Plaintiff was working underneath a boat when the supports holding up the boat collapsed, causing injuries. Most notably, Plaintiff suffered a fracture of the right femur. Hanba & Lazar represented the insolvent insurance carrier for Defendant, and there was no dispute that Plaintiff suffered an injury. The wage loss portion of his claim was settled by way of redemption in February 2014. At that time, the medical aspect of Plaintiff’s claim was left open. Plaintiff’s problems began in earnest shortly after the 2014 redemption.

     Plaintiff’s case went to trial on October 1, 2018, and he testified about his care and treatment after February 2014. Plaintiff stated that he was not aware that medical had been left open after the redemption in 2014. While Plaintiff stated that he attempted to submit medical bills and mileage expenses for reimbursement, he could not provide any details regarding the amounts or timing of his requests. All Plaintiff could say was that he submitted some type of “form” on a yearly basis through December of 2016. Eventually, a Notice of Dispute was filed by Defendant’s carrier on October 13, 2014 as it related to Plaintiff’s claim for ongoing medical expenses. Soon thereafter, Medicaid began paying Plaintiff’s bills.

     Although Plaintiff’s claim for ongoing medical was denied in late 2014, he did not actually file another Application for Hearing until March 7, 2017. Once this litigation began, it was discovered that Plaintiff was Medicare eligible, so it became clear that the real issue in this case was the CMS approved Medicare Set Aside that totaled $200,993.00. The main reason why this Set Aside amount was so high was that Plaintiff was prescribed narcotic and opioid medication by Dr. Paul LaClair at least through January of 2017. Defendant did not believe this was an appropriate amount, and despite that fact that Medicaid had been paying his medical bills since 2014, Plaintiff wanted Defendant to fund the entire Set Aside as proposed by CMS.

     As expected, the appropriateness of the Set Aside amount hinged on whether it would be proper to fund Plaintiff’s future use of narcotic and opioid medication. Plaintiff secured the deposition testimony of Dr. LaClair, and Defendant secured the deposition testimony of Drs. Grant Hyatt, Jack Lennox, and Herbert Malinoff. As indicated above, Plaintiff chose to testify in support of his claim.

    Magistrate Lou Ognisanti, when summarizing the evidence, indicated that “The evidence is overwhelming that Plaintiff has had a history of narcotic/opioid use and misuse”. Plaintiff admitted that from June 2008 to May 2012, he abused prescription medication. These activities included receiving opioids from his ex-girlfriend and purchasing “street drugs”. During an evaluation with Dr. Gary Ralph on June 6, 2012, Plaintiff stated that he had a history of using 10-15 Vicodin pills per day, had been involved in residential drug rehabilitation programs twice in the past, and had previously abused alcohol, marijuana, cocaine, and LSD. Further, at the time of that visit with Dr. Ralph in 2012, Plaintiff was using the narcotics Vicodin and Butran.

     When Dr. LaClair testified, he confirmed that Plaintiff first treated with him in March of 2013. Beginning in 2014, Dr. LaClair prescribed narcotics Fentanyl, Norco, and Percocet. These prescriptions in some form continued through January of 2017. Dr. LaClair testified that he believed the use of these medications by Plaintiff was medically appropriate. Though Dr. LaClair’s testimony confirmed that there was some indication that Plaintiff was at a high risk for narcotic/opioid dependency, Plaintiff did not fully disclose to Dr. LaClair his history of addiction and associated treatment.

     Magistrate Ognisanti noted that while Drs. Hyatt and Lennox testified mainly about the issues of the causation of Plaintiff’s injuries, restrictions, and disability, they both also testified that Plaintiff should not be using narcotics based on his history. The strongest testimony, however, came from Dr. Malinoff, who is board certified in addiction medicine. Dr. Malinoff stated during his deposition that: “This man has failed opioid and analgesics and should not return to opioid use because of the risk for overdose, activating chemical dependency/addiction, as well as his lack of functional improvement. There are multiple references in the medical literature to the failure of opioid analgesics in chronic non-malignant pain. That appears to be the case with Mr. Minthorn and, for that reason, these medications are not, in my opinion, appropriate.”

     Magistrate Ognisanti indicated that he chose to accept the opinions of the three defense physicians, especially Dr. Malinoff, over that of Dr. LaClair. Magistrate Ognisanti indicated that he believed the opinions of these three physicians was most consistent with the evidence submitted during trial, especially given that Dr. LaClair admitted Plaintiff had not fully disclosed his relevant history of drug abuse.

     Ultimately, Magistrate Ognisanti held that the preponderance of the evidence supports the conclusion that Plaintiff’s medical treatment consisting of narcotic/opioid medication is not reasonable and necessary medical treatment as required by §315(1) of the Worker’s Disability Compensation Act. Therefore, Defendant shall not be required to pay for narcotic/opioid treatment, and Plaintiff’s claim was denied.

     Not only was this a favorable outcome, but barring any appeals, we will use this decision from Magistrate Ognisanti when discussing the matter with CMS, who we believe should decrease the amount of the previously approved Medicare Set Aside accordingly.

Still Not A Get Out Of Jail Free Card
    Up until the November 6, 2018 election, there was a lot of speculation about the practical implications of Michiganders voting to decriminalize marijuana possession. There is much more certainty about how the marijuana proposal will affect the employer-employee relationship, however. A section of the ballot proposal that was passed in November specifically states that the legalization of marijuana does nothing to change rules in individual workplaces.

     “This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana.”

      Given this straight-forward and simple language, it is clear that employers in Michigan can still utilize pre-employment drug tests and can fire, discipline, or decline to hire a worker who tests positive for THC, the psychoactive ingredient in the cannabis plant.

     It is worth noting, however, that case law arising from the federal and state court systems have been somewhat at odds regarding an employee’s right to use marijuana. In Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir., 2012), Plaintiff Joseph Casias was a medical marijuana cardholder from Battle Creek who used cannabis to treat the symptoms of cancer and an inoperable brain tumor. Plaintiff alleged a workplace injury in 2009, and tested positive for marijuana during a routine post-injury drug screen. As a result of the positive test, Plaintiff lost his job and subsequently sued. The U.S. Court of Appeals for the 6th Circuit ruled in favor of WalMart, holding that the state’s medical marijuana law could not dictate the actions of a private employer. However, quite separately, the Michigan Court of Appeals has ruled that an employer can not disqualify a person from receiving unemployment benefits if they test positive for marijuana while holding a medical marijuana card. The Michigan Court of Appeals made this holding despite the fact that employees can still be disqualified from receiving benefits if they use marijuana at work, are under the influence of marijuana at work, or can not demonstrate that they are a medical marijuana patient.

Source: https://www.freep.com/story/news/marijuana/2018/11/07/marijuana-legal-michigan-recreational/1918783002/

Retaliation Nation

    In Mitchell v. Dore & Associates Contracting, a recent unpublished opinion, the Michigan Court of Appeals agreed with the Bay County Circuit Court’s jury award of $170,000 to a worker who was let go from a laborer position after being injured on the job.
Plaintiff Ryan Mitchell worked as a construction laborer for Defendant, and injured his leg on March 1, 2013. Plaintiff sought worker’s compensation benefits, which Defendant did not challenge. In April 2014, Plaintiff was medically cleared to return to work by his doctor.
     Two months after returning to work, Plaintiff overheard his name being discussed by his supervisors, as to why he was back on the job. Soon after, Plaintiff was told that he was no longer wanted on the job. Plaintiff alleged he was let go because he made Defendant’s insurance premiums rise, while Defendant alleged that jobs for laborers had simply dried up. Plaintiff refuted Defendant’s claim by stating that two other laborers remained on the job, while Defendant responded by stating those laborers were still useful to the project because one was certified for use of heavy machinery and the other had more seniority than Plaintiff. Plaintiff was never recalled to work for Defendant again, and he eventually found new work as a cook for lower pay than what he was earning at Defendant.

     Plaintiff filed a retaliation claim against Defendant. The Court of Appeals quoted the state’s language for retaliating against employees for exercising their rights under the Worker’s Disability Compensation Act (WDCA): “A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act”.

     The Court of Appeals believed that Plaintiff presented a triable question of fact by stating it was undisputed that the company knew Plaintiff had applied for and been granted benefits before suffering an adverse employment action. While Defendant tried to refute Plaintiff’s claims, the Court of Appeals believed that those responses merely created a credibility contest for a jury to review, and were not substantial enough to warrant dismissal of Plaintiff’s claim on their own.
Source: https://milawyersweekly.com/news/2018/09/27/coa-rules-against-employer-in-workers-comp-case/

Submitted by Jonathan Rea

Please send us your comments or questions, and if there is a topic you would like to see discussed in the next Quarterly, let us know. We can be reached at (810) 767-9400 and email about the Quarterly should be sent to Jonathan Rea at jrea@hanbalazar.com.

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