January 31, 2011

Recent Unpublished Court of Appeals Decisions on Stoppages of Work for Non Injury Reasons

by: Gerald (Jerry) Marcinkoski

There have been recent unpublished decisions from the Michigan Court of Appeals have largely gone unnoticed. This is partly because they are unpublished and, for that reason, technically not precedent. But, you should be aware of these decisions. Unpublished decisions from the Court of Appeals can be cited to the Workers’ Compensation Agency and the Courts as guidance, even though not technically binding, so long as you provide a copy of the opinion to the Court and opposing counsel. See, MCR 7.215(C)(1).

One such decision is Harris v General Motors Court, (C.A. Docket No. 291779, released December 2, 2010). In this case, an employee signed a severance agreement with her employer saying she would retire no later than January 1, 2007 in return for payment of a lump sum and receipt of a non-disability pension. After she signed the agreement and before January 1 arrived, she fell at work injuring her back. She filed for workers’ compensation benefits and prevailed with an open award before the magistrate and Workers’ Compensation Appellate Commission.

On the employer’s appeal to the Court of Appeals, the Court unanimously reversed. The Court said the employee’s award should be closed as of the date of her retirement. The Court explained that as of that date and beyond, the employee had no wage loss attributable to her disabling work injury because “even absent her injury, plaintiff would have suffered a wage loss after the date of her retirement.” The Court did indicate, however, that if the employee had demonstrated that she was reentering the work force after her retirement, the result could be different. A second Court of Appeals decisions decided two weeks later, Stiven v General Motors Corp, (C.A. Docket No. 294579, released December 16, 2010), held essentially the same thing.

A different case, Finley v Sam’s Club, (C.A. Docket No. 289437, released May 18, 2010), used the same “wage loss” rationale in a different setting.

The employee was a licensed optician. She worked for Sam’s Club and claimed a work related disability in the form of carpal tunnel syndrome. The reason for the termination of her employment at Sam’s Club was, however, that she “fill[ed] an expired prescription in violation of the law and company policy.” Plaintiff filed for workers’ compensation benefits and prevailed before the magistrate and Workers’ Compensation Appellate Commission.

On the employer’s further appeal, the Court of Appeals again disagreed. The Court explained that “the employee’s unemployment or reduced wages must be causally linked to the work-related disability” and, if it is not, then an award of wage loss benefits is inappropriate. The Court remanded the case to the Workers’ Compensation Appellate Commission for reconsideration in light of that principle.

Finally, the same principle has been applied in seasonal employees by the Court of Appeals, in two other unpublished decisions: Raybon v D.P. Fox Football Holdings, LLC (C.A. Docket No. 268634, released July 17, 2007) and Reece v Event Staffing (C.A. Docket No. 284451, released July 30, 2009). In both of these cases, the Court said it was a mistake to award year round wage loss benefits if the employee’s seasonal work ended and the employee would not be working anyway in the off season, injured or not.

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