THE MICHIGAN SELF-INSURERS ASSOCIATION

SPRING CONFERENCE 2012 MICHIGAN RE-DEFINED BREAKOUT SESSION #2

Termination for Fault, Control of Medical Treatment, PreExisting Conditions and other Statutory Changes
Presented by:

Leonard M. Hickey Hickey Combs PLC

Themis J. Fotieo Reamon, Fotieo, Szczytko & House, PC

PERSONAL INJURY & PRE-EXISTING CONDITIONS

MCL 418.301(1) and MCL 418.401(2)(b):
An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this Act at the time of the injury, shall be paid compensation as provided in this Act. 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.

Codifies: Rakestraw & Fahr

DEGENERATIVE ARTHRITIS
MCL 418.301(2) and MCL 418.401(2)(b): Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions and degenerative arthritis are compensable if contributed to or aggravated or accelerated by the employment in a significant manner.

MENTAL DISABILITIES
MCL 418.301(2) and MCL 418.401(2)(b): Mental disabilities are compensable if arising out of actual events of employment, not unfounded perceptions thereof, and if the employees

perception of the actual events is reasonably grounded in fact or reality.

TERMINATION FOR FAULT - While employee is performing accommodated work

MCL 418.301(9)(b) and MCL 418.401(7)(b)
Prior statutory provisions 301(5)(d) and (e), and 401(3)(d) and (e): Specific injury: If employed less than 100 weeks, and employee loses job for whatever reason employee is entitled to receive benefits; if employed for 100 or more weeks, and employee loses job through no fault of the employee benefits are payable.

TERMINATION FOR FAULT - While employee is performing accommodated work

Prior statutory provisions 301(5)(d) and (e), and 401(3)(d) and (e): Occupational disease: If the employee is employed for less than 100 weeks or for 100 weeks or more and loses job through no fault of the employee benefits are payable

TERMINATION FOR FAULT - While employee is performing accommodated work

Amended language of MCL 418.301(9)(b)

and MCL 418.401(7)(b):

If an employee is terminated from reasonable employment for fault of the employee, the employee is considered to have voluntarily removed himself or herself from the workforce and is not entitled to any wage loss benefits under this Act.

COORDINATION OF EMPLOYERFUNDED RETIREMENT BENEFITS MCL 418.354(1)(d)

Prior provision: The after-tax amount of the pension or retirement payments received or being received pursuant to a plan or program established or maintained by the same employer from whom benefits . . . are received, if the employee did not contribute directly to the pension or retirement plan or program

COORDINATION OF EMPLOYERFUNDED RETIREMENT BENEFITS MCL 418.354(1)(d)

Amended provision: Subject to subsection (12) the after-tax amount of the pension or retirement payments received or being received by the employee, or which the employee is

currently eligible to receive if the employee has suffered total and permanent disability and has reached full retirement age, pursuant to a plan or

program established or maintained by the same employer from whom benefits. . . are received, if the employee did not contribute directly to the pension or retirement plan or program.

COORDINATION OF EMPLOYERFUNDED RETIREMENT BENEFITS MCL 418.354(1)(d)

MCL 418.354(12) (the language is unchanged):

Nothing in this section shall be considered to compel an employee to apply for early Federal social security old-age insurance benefits or to apply for early or reduced pension or retirement benefits.

COORDINATION OF EMPLOYERFUNDED RETIREMENT BENEFITS MCL 418.354(1)(d) MCL 418.354(16) provides that the coordination of benefits section does not apply to payments made to an employee as a result of liability pursuant to a specific loss or total and permanent disability provisions of the statute. This provision is inconsistent with the amended provision.

JOINT REPLACEMENTS AND SPECIFIC LOSS

MCL 418.361(2) - New sentence added:

The affect of any internal joint replacement surgery, internal implant, or other similar medical procedure, shall be considered in determining whether a specific loss has occurred.

JOINT REPLACEMENTS AND SPECIFIC LOSS

Nullifies Trammel v Consumers Power Co., 2009 ACO #126 (holding that a total knee joint replacement surgery constituted a specific loss of the leg, entitling employee to 250 weeks of specific loss benefits even though employee returned to unrestricted work).

EMPLOYER CONTROL OF MEDICAL CARE

MCL 418.315(1) After 28 days from the inception of medical are as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician. Prior provision only allowed employer to control medical care for 10 days.

ELIMINATION OF MEDIATION
MCL 418.223, provided for mediation in closed period, medical only, unrepresented claimant, and smaller claims. It was deleted by the statutory amendments. MCL 418.847(3) allows mediation by the parties if the Agency or MAHS determines a case may be resolved by mediation. If it cannot be resolved by mediation, it shall be set for trial .

INTEREST ON AWARDS Previous provision: When weekly

compensation is paid pursuant to an award of a workers compensation magistrate, an arbitrator, the Board, the Appellate Commission, or a Court, interest on the compensation shall be paid at the rate of 10% per annum from the date each payment was due, until paid. MCL
418.801(6)

INTEREST ON AWARDS

Amended provision:

. . . interest on the compensation shall be paid at a rate calculated in the same manner as interest on a money judgment in a civil action under 6013(8) of the Revised Judicature Act of 1961, . . . MCL 600.6013.

SUBPOENAS
MCL 418.853 now allows attorneys to sign subpoenas with the full force and effect of magistrates. Does the subpoena power apply to dates of injury prior to 12/19/11? Will medical facilities honor the subpoenas?

REDEMPTION BY STIPULATION
MCL 418.836(2) provides that the parties may stipulate in writing that the statutory requirements have been met and request the Magistrate to waive the redemption hearing. The Magistrate may approve the proposed stipulations or may conduct a hearing. Redemptions by Affidavit in Lieu of personal Appearance have required a hearing in the past.

REDEMPTION BY STIPULATION Pitfalls associated with performing redemptions by stipulation without a hearing: Complex issues Malpractice prophylaxis Medicare, Medicaid, and Friend of the Court issues May encourage and/or increase redemption appeals

DETERMINING EMPLOYMENT STATUS

Employee versus independent contractor MCL 418.161(1)(n) not effective until 01/01/13 Michigan Administrative Hearing System (MAHS) determines whether services performed by an individual are employment in an employer-employee relationship
On its own, or At the request of a business entity, Using the IRS 20-factor test

DETERMINING EMPLOYMENT STATUS If the employer is required to withhold Federal income tax for an individual, the individual is prima facie considered to be an employee Prior MAHS determinations of coverage are precedential as to similarly situated individuals

RETROACTIVITY
MCL 418.301 and 418.401 are retroactive to June 30, 1985, according to MCL 418.301(14) and MCL 418.401(10) Amendments to MCL 418.161(1)(n) regarding employees versus independent contractors is not effective until 01/01/13 The rest of the statutory amendment are effective 12/19/11 Relevant inquiry: Did the injury date occur before or after the effective date?