The Worker’s Disability Compensation Act of 1969 was revised effective December 19, 2011 by Enrolled House Bill No. 5002 for injuries incurred on or after that date. (Copy of complete bill available at www.michigan.gov/wca.) The revisions theoretically provide incentives for (or place burdens upon, depending upon your perspective) injured workers to seek and obtain work, even if the job pays less than the claimants earned prior to their injury. MCL 418.301 as revised in part states.
“A disability is partial if the employee retains a wage earning capacity at a pay level less than his or her maximum wages in work suitable to his or her qualifications and training… ‘wage earning capacity’ means the wages the employee earns or is capable of earning at a job reasonably available to that employee, whether or not wages are actually earned. For the purposes of establishing a limitation of wage earning capacity, an employee has an affirmative duty to seek work reasonably available to that employee, taking into consideration the limitations from the work-related personal injury or disease. A magistrate may consider good-faith job search efforts to determine whether jobs are reasonably available.”
Previously, the employee’s burden was to accept reasonable employment if offered, and that requirement remains in effect.
A second significant change relates to workers whom a magistrate determines to be partially disabled, but who are not employed. Employers previously were required to pay compensation equal to 80% of the difference between the employee’s after tax average weekly wage before the personal injury and the after tax average weekly wage which the employee is able to earn after the injury. The revision states that the employee shall receive weekly benefits equal to 80% of the difference between the employee’s after tax average weekly wage before the injury, and the employee’s wage earning capacity after the injury. The new language eliminates the “after tax” determination after the injury, thereby reducing the rate for a partially disabled worker who is not working. However, for partially disabled workers who are employed, the calculation continues to require a determination of the after tax weekly wage in the subsequent job.
Another significant change is contained in MCL 418.361(2). Prior to the amendment, case law dictated that specific loss of an anatomical body part was to be determined based on the employee’s condition prior to having any corrective measures taken such as a joint replacement, or other type of implant. The amendment mandates that “any internal joint replacement surgery, internal implant, or other significant medical procedure shall be considered in determining whether a specific loss has occurred.” Consequently, if after the procedure, the employee is able to use the limb in an employment setting, specific loss benefits should be denied.
How worker’s compensation claimants, insurance carriers, and employers respond to these changes and how the courts will interpret “good faith job search efforts” remains to be seen.
For further information regarding these matters, please contact Mr. Snyder at 248.619.2582 or via email.