H&L Quarterly – November 2023

01 Nov H&L Quarterly – November 2023

The H&L Quarterly Returns!

Hi everyone! After some time away, all of us here at H&L are excited to bring back our Quarterly, with everything you need to know about workers’ compensation in Michigan. Change is constant, so we are currently adjusting to newly appointed magistrates as well as potential changes to the law. As we continue to the transformations happening in our field, we will make sure that you stay just as updated as we are. 

Meet The Chief

Having been recently appointed to the Chief Magistrate position, we spoke with Magistrate Kevin Kales about what he would like defendants and employers to know about our workers’ compensation system. Magistrate Kales took care to explain how he believes it is the duty of a presiding magistrate to assist the parties in communicating effectively about the facts of the case. “I believe it’s our job to discuss the evidence among the parties. In fact, I believe we have an obligation to.” While some cases do need to be taken to trial, Magistrate Kales emphasized the practical implications of having a system where almost all cases eventually settle, and he believes that those implications include the need for respectful and productive communication between the parties and the magistrate.

Magistrate Kales also mentioned that he very rarely has defendants or employers directly involved in litigation discussions, which has the potential to cause discontent and misunderstanding. When this occurs, Magistrate Kales wants defendants to remember that the court room “is your place too,” meaning defendants should feel comfortable asking the presiding magistrate for explanations or clarifications about aspects of their case that are confusing or troubling.

Case Law Updates

U.I.A. Loses Again

During the litigation surrounding plaintiff Kollinger’s worker’s compensation claim, the attorney representing defendant Miller Broach subpoenaed the Unemployment Insurance Agency (UIA) in search of records that they maintained regarding benefits paid to the plaintiff. In response, the UIA sought to quash defendant counsel’s subpoena. Not only was the UIA’s motion denied, but they were held in contempt by the presiding magistrate for failing to produce the requested records. Therefore, the UIA appealed the magistrate’s holding to the Workers’ Disability Compensation Appellate Commission (WDCAC).  

When arguing before the WDCAC, the UIA attempted to utilize provisions of the statute under which they exist and operate, the Michigan Employment Security Act. The logic supporting the UIA’s argument was very simple, but was ultimately held to be ineffective. The UIA asked the WDCAC to enforce the first clause of the relevant statute and simply ignore the applicable exception to that clause which immediately follows. Though MCL § 421.11(b) states that the records held by the UIA “are confidential and must not be disclosed or open to inspection,” the very first subsection of that rule states that “Information in the employment agency’s possession that might affect a claim for worker’s disability compensation . . . must be available to interested parties.” It is clear from the language used that the statute sought to make the UIA’s records available in certain circumstances, and it is also clear that a defendant to a workers’ compensation claim has an interest in UIA records because a defendant is entitled to a reduction in the benefits owed to a plaintiff based on unemployment benefits paid.

Kollinger is the second recent case in which the UIA has sought to avoid complying with a subpoena in a workers’ compensation case, the other being Robinson v. Sundance Beverage Company, 2022 ACO #11. In Robinson, the WDCAC also held that the UIA must produce the records requested of them. 

The entirety of the WDCAC’s opinion in this case, Kollinger v. Miller Broach, 2023 ACO #8, can be read online at https://adms.apps.lara.state.mi.us/AppellateCommission/ViewWCACDecisionDocument/6648.

Seasonal Employees Entitled to Benefits Year-Round?

Plaintiff Razo alleged that he sustained both a specific event injury and cumulative trauma while pouring and installing cement, causing disabling spinal pathology that impaired his maximum wage-earning capacity. At trial, the magistrate entered an order finding that plaintiff had sustained injuries to his low back and left lower extremity. As a result of this holding, defendant GM & Sons, Inc. was ordered to pay for medical treatment related to the work injuries and to pay wage loss benefits in the form of an open award. After the case was appealed to the Workers’ Disability Compensation Appeals Commission (WDCAC), remanded, and appealed again, the WDCAC ultimately heard arguments advanced by the defendant as to whether plaintiff should be entitled to wage loss benefits during the “off-season” of December through March.  

The WDCAC explained in its holding that for plaintiff to be entitled to wage loss, he must show a connection between his disability and reduced wages during the off-season. During the trial proceedings, the magistrate heard evidence regarding plaintiff’s efforts to secure employment subsequent to his injury. The WDCAC held that the trial record did not contain sufficient analysis of the effect that the plaintiff’s job search played in deciding whether he had established a connection between his disability and reduced wages. Additionally, the WDCAC held that the magistrate did not make any findings of fact that would explain why plaintiff may be entitled to wage loss benefits during the off-season. Therefore, the case was remanded to the magistrate level for an explanation of why plaintiff may or may not be entitled to wage loss benefits during the winter months.

We believe that the most important holding made by the WDCAC in this case was that “Defendants have not shown that MCL 418.301(4)(c) contains language that prevents an employee from establishing the required “connection” simply because the employee’s in-season employment and resultant wages are not reasonably available to the employee during the off-season.” In other words, the WDCAC held that an employee who typically does not work during a certain part of the calendar year may still present evidence that, as a result of their injury, they suffered lost wages during the time frame in which they would typically not be working.  

The entirety of the WDCAC’s opinion in this case, Razo v. GM & Sons, Inc., 2022 ACO #13, can be read online at 
https://adms.apps.lara.state.mi.us/AppellateCommission/ViewWCACDecisionDocument/6638.