Your Workers’ Compensation Rights
The intent of this article is to give workers a general explanation of their rights under the Michigan Workers’ Disability Compensation Act and to answer the most common questions. It is not intended to be a substitute for competent legal advice. This article gives only a general description of the law and cannot explain all its complexities. Therefore, injured workers should always seek advice as to their specific rights. These rights may include other rights under private and group insurance plans, retirement plans, sickness and accident plans, the Social Security Act, as well as rights under employment, negligence, product liability and medical malpractice laws. I would be happy to explain your rights and answer your questions without charge. I hope the information in this article helps you know enough about your rights to better protect them if you’re injured on the job.
- COVERED EMPLOYEES
- COMPENSABLE INJURIES
- REPORT AND CLAIM
- TIME LIMITS
- MEDICAL BENEFITS
- WAGE LOSS BENEFITS
- COMPUTATION OF WAGE LOSS
- COORDINATION OF BENEFITS
- VOCATIONAL REHABILITATION
- DEATH BENEFITS
- OTHER LAWSUITS
- HEARING LOCATIONS
- OTHER HELPUL AGENCIES
WHAT IS WORKERS’ COMPENSATION?
Since 1912, the Michigan Workers’ Disability Compensation Act (Michigan Compiled Laws 418.101 and sections following) requires all employers provide employees who suffer job-related injuries or diseases with prompt medical treatment, weekly wage loss benefits and vocational rehabilitation services necessary to restore employees to useful employment.
When the injury or disease results in the employee’s death, burial expenses and wage loss benefits are payable to the victim’s dependents.
All benefits are payable without regard to whether or not the employer or employee is at “fault” or responsible for the injury.
Most employers meet their legal obligations by purchasing insurance coverage. However, some large employers or groups of employers are permitted by the state to act as their own insurers. Self-insurance is a privilege that may be revoked by the state. Failure to have workers’ compensation insurance can subject an employer to criminal and civil penalties as well as civil liability not limited by the workers’ compensation law. Workers who find out their employer does not have insurance coverage should report them to:
Workers Compensation Agency
7150 Harris Drive
P. O. Box 30016
Dimondale, MI 48821
Michigan Department of Attorney General
P.O. Box 30212
Lansing, MI 48909
WHO IS COVERED BY THE ACT?
All employees who work for an employer who regularly employs three (3) or more people at one time; or
All employees whose employer has employed at least one worker for 35 hours or more per week for 13 weeks or longer during the preceding year; or
All public employees working for the State of Michigan or any of its political subdivisions; or
Any employee injured outside Michigan who was working for an employer subject to Michigan law and was either a Michigan resident or was hired in Michigan.
Even if your employer claims that your are an “independent contractor” and does not deduct income taxes from your wages, you may still be considered an employee for workers compensation purposes, depending on a number of factors too complicated to set forth here. Check with an attorney if you are hurt at work, even if your employer considers you an “independent contractor”.
Professional athletes employed by out-of-state employers injured in Michigan may not be covered by Michigan law, but by the workers’ compensation laws of the state where their employer is based.
Federal employees, railroad workers, longshoremen or persons engaged in the maritime industry are covered by federal laws and separate workers’ compensation systems.
WHAT INJURIES ARE COVERED?
All injuries and diseases “arising out of and in the course of employment” are covered. If the injury or disease results in being off work for more than seven days, wage loss benefits become due. Reasonable and necessary medical treatment must be provided whether or not any work time is missed.
Employees going to and from work, while on the premises where the work is to be performed, and within a reasonable time before and after hours are presumed to be in the course of their employment.
Employees driving on work-related business are covered under workers’ compensation laws as well as the employer’s auto insurance coverage. Employees injured at gatherings for which the primary purpose is social or recreational are not covered under workers’ compensation.
Heart conditions, degenerative arthritis, and other “conditions of the aging process” may be compensable, if they are contributed to or aggravated in a significant manner by the employment.
Mental disabilities may be compensable if they were caused, contributed to, or aggravated in a significant manner by actual employment events. The employee must show that his or her perception of the employment events were reasonably grounded in reality.
Hernias are compensable if clearly recent in origin, arise from a strain or lifting incident at work, and are promptly reported to the employer.
Pre-existing conditions may be compensable if aggravated or accelerated in a significant manner by the employment and result in a medically distinguishable new condition.
Occupational diseases are medical conditions that usually develop over time and do not result from a single injury. They include conditions such as carpal tunnel syndrome, epicondylitis (tennis elbow), or other cumulative trauma disorders. Other occupational diseases include lung diseases caused by asbestos exposure, occupational asthma, and other diseases, including cancer, that can be caused by chemical or airborne exposures at work.
Each of these general rules is subject to a great number of exceptions. If you are injured under circumstances that are in any way connected to your work, you should immediately report the injury to the employer and consult an attorney specializing in workers compensation law.
HOW DO I PROTECT MY RIGHTS?
Report all injuries immediately.
The employee must give notice of an injury to the employer no later than 90 days after the employee knows or should know of the injury. Failing to give timely notice can result in a loss of your rights, so report all injuries immediately. Employers and their insurance companies will typically deny claims for injuries that are not reported immediately, the following day, or after days off. Therefore, even injuries that do not appear significant at the time should always be reported immediately or at least by the end of the day. Most employers require preparation of written injury reports. Make sure you fill out an injury report as soon as you report the injury. If your employer fails or refuses to make a report, download, fill out, and file the Employee Report of Claim form from the Workers’ Compensation Agency website.
Verbal notice to your supervisor can suffice, but written notice will help prove your claim if the consequences of your injury take months or even years to develop. Sometimes repeated minor injuries can result in a disabling injury or disease. Don’t take any chances. If you have written proof of the injury and keep a copy at home, you will be protected if your supervisor leaves or conveniently “forgets.” If your injury requires medical attention, you should insist the employer send you to their clinic or to a local hospital. Many claims are denied later by the insurance company if the employer doesn’t prepare a written report and fails to send the injury worker for medical care, thereby depriving the employee of the documentation of the injury by the medical provider. If the employer tells you to see your own doctor, ask them to put that request in writing, so not only your doctor will agree to treat you, but also document that you were treating a work-related condition.
Employers are not required to report injuries to the state which do not result in at least seven days (including weekends or holidays) off work. Therefore, you cannot assume the employer will retain records of every injury. Protect yourself by making sure a written record of every injury exists and by keeping a copy. Many medical providers, including hospitals, only keep medical records for a number of years and then destroy them. Under the Bullard-Plawecki Employee Right-To-Know Act, you have the right to have copies of all of your personnel records, including any medical records kept by the employer.
Keep the name, address, and phone number of co-workers who witnessed the injury or have knowledge of the particular hazard that caused your injury. Michigan’s Chemical Right-to-Know law requires employers to provide employees with material data safety sheets of any chemicals used in the workplace. If you’re injured by a chemical exposure, ask for the material safety data sheet. Keep the names and addresses of all company clinics or other health care providers for later reference. Welldocumented records of past injuries can be very helpful in proving occupational diseases or other disabilities that arise from a series of injuries.
It is illegal for an employer to discharge or discriminate against an employee for reporting an injury, filing a workers’ compensation claim, or exercising any rights under the workers’ compensation laws.
The law provides that no compensation shall be paid for an occupational disease if the employee falsely represents in writing that he or she has not previously suffered from the disease which is the cause of disability. This means that an employee must truthfully disclose all medical information on a medical history form when applying for employment. However, it is a violation of the federal Americans with Disabilities Act (ADA) for an employer to refuse to hire a person with a disability, if that disability does not prevent the person from performing the essential functions of the job.
WHAT TIME LIMITS APPLY?
In addition to the 90-day notice requirement, any claim for workers’ compensation must be filed within 2 years of the latest of:
- The date of injury; or
- The date the disability began; or
- The last date of employment with the employer against whom the claim is made.
The two year time limitation does not begin to run while the injured workers receives sick pay or any other wage replacement benefits or is offered restricted work by the employer. In cases of death or disability from an occupational disease, the two years begin to run from the time the occupational disease was diagnosed or should have been known to be work-related.
For employees who are already receiving any type of workers’ compensation benefits, a one-year back rule applies. This means in order to claim for some other benefit you should have received, you can only go back one year from the date you file your claim for the benefit. Similarly, if the employer claims you were overpaid benefits, the employer can only seek repayment going back one year.
WHAT MEDICAL BENEFITS AM I ENTITLED TO?
Employers must promptly provide medical care for every work-related injury, whether the injury results in time off work or not. Insist on getting medical treatment on the date of injury, as that will document the injury. If the employer suggests you go to your own doctor, insist that you be sent to the company clinic used by the employer for work-related injuries or request something in writing indicating the employer is sending you to your own doctor for treatment of your injury. The right to medical care for work-related injuries and diseases continues as long as necessary to treat the injury or disease. If the injury is permanent, it could last for the rest of your life. For the first 28 days after an injury, the employer or their insurance company can require the worker to treat with a doctor or clinic of the employer’s choice. After 28 days, injured employees have the right to treat with doctors of their own choice. To exercise this right, the employee must send a letter to the insurance company, notifying it of the name and address of the doctor and your intention to treat with that doctor. If your employer refuses to authorize treatment with the doctor of your choice, contact an attorney.
The employer must pay for office visits, surgery, hospital and outpatient services, prescriptions, medical supplies, and any type of equipment, treatment, or service necessary to treat the injury. You should not have to pay for any of these services, but if you do, you should send copies of the bills to the employer for reimbursement. You are also entitled to payment of round trip mileage to and from any visits to a medical provider for treatment. Current mileage rates are found on the Workers’ Compensation Agency website.
The employer has the right to have an injured worker examined from time to time by a so-called “independent” doctor, but after 28 days they cannot force you to treat with any particular doctor. If your employer sends you to an “independent” examination, you are entitled to a check for round-trip mileage before the examination. If you request a copy of the doctor’s report, it must be sent to you within 15 days of your request. When you go to an IME doctor, you do not have to collect all your treating medical records and tests for them, despite what the citation letter may say. You should wear a watch and note how many minutes the doctor actually spends examining you, as opposed to just talking to you. While you should be polite and cooperative, remember that IME doctors are not truly “independent”, and are working for the insurance companies that pay their fees.
Medical expenses for workers’ compensation injuries are regulated by cost containment rules. A medical provider dissatisfied with the amount paid under these rules cannot bill the injured worker for the balance. If a claim is disputed, the insurance carrier is supposed to file a written notice with the state, called a “Notice of Dispute.” You should receive a copy of this notice. If your medical care is disputed, make a copy for your own medical provider or your own medical insurance company. Michigan law requires private medical insurance companies to pay for medical treatment disputed by the employer. If your health insurance pays for treatment of your work-related condition while the case is disputed, the health insurance company is entitled to reimbursement if the dispute is resolved in your favor.
For more serious injuries, employers or insurance companies may hire medical “case managers.” Case managers are usually registered nurses who are hired to try to get the injured workers back to work as possible at the least cost. Sometimes case managers try to persuade treating doctors to avoid more expensive tests or treatments, or attempt to steer the employee to other doctors more susceptible to control by the insurance company. If you have a nurse case manager, insist that she meet with the doctor after your office visit with the doctor. For a brochure by the Agency entitled “Medical Case Management Do’s and Don’t’s” go to their website.
WHEN DO I GET WAGE LOSS BENEFITS?
Unlike medical benefits, which must be provided for all work-related injuries and diseases, wage loss benefits are only payable under certain conditions. To be entitled to wage loss benefits, you must be off work at least seven consecutive days. If your employer returns you to any work before the seven days has expired, you are not entitled to any wage loss benefits for that period of time. After spending seven days off work because of your disability, you are entitled to wage loss benefits for the period beginning with the eighth day off work. If you remain off work 14 days or more, you are entitled to wage loss benefits for the entire two weeks.
In general, disability is defined as a limitation of wage earning capacity, in work suitable to his or her qualifications and training, caused by an injury or occupational disease. In order to eligible for wage loss benefits, the injury must cause an inability to earn wages in all jobs that pay “maximum wages” in any jobs suitable to the employee’s qualifications and training, including any jobs that the employee has the transferable skills to perform. The amount of wage loss benefits may depend on whether you are considered totally or partially disabled.
“Disability” is defined as a limitation in the employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. “Total disability” is defined as the inability to earn in any job paying maximum wages in work suitable to the employee’s qualifications and training. An employee is “partially disabled” if he or she has a wage earning capacity at a pay level than his or her maximum wages after an injury. Whether you are partially or totally disabled is crucial in determining how much wage loss benefits you are entitled to receive. Workers who are totally disabled are entitled to receive 80% of their after-tax wages. But partially disabled workers receive a wage loss rate that has their residual wage earning capacity deducted from their 80% after-tax wage loss rate. Partially disabled workers can only receive their full wage loss rate if they can demonstrate that they have made a good faith effort to find suitable work, but have been unable to do so.
If you are partially disabled, you must actually look for work, even if your employer is unwilling or unable to take you back to work because you are unable to do your former job. If you are partially disabled, you must take action to actively look for work or your wage loss benefits will be cut. If you are receiving workers’ compensation benefits, request job search assistance from the employer or workers’ compensation insurance carrier in writing. If you’re not receiving workers’ compensation benefits, go to your local Michigan Works! office and put your resume online with the Michigan Talent Bank. Contact your local Michigan Rehabilitation Services office, and apply for vocational rehabilitation services. A partially disabled employee who makes a good-faith effort to find work, but can’t find a job, is entitled to full wage loss benefits as if totally disabled. If you actually find a job, you are entitled to 80% of the difference between your former job and your current job.
Employers can avoid paying wage loss benefits by offering any work within the employee’s medical restrictions. Under the federal Americans with Disabilities Act, your employer may be obligated to offer you an open job that is within your medical limitations. If your employer places you in a lower paying job as a result of your medical restrictions, they must pay partial disability wage loss benefits, 80% of the difference between your wages before and after the injury. If you refuse to accept a reasonable offer of work within your medical restrictions, you lose your right to wage loss benefits. Therefore, it is generally advisable to return to work and at least attempt to do any work offered by the employer. If the work aggravates your injury, ask to go to the company clinic or go see your treating doctor. However, if you return to your employer with restrictions after an injury, you must make sure that you are never late, absent without excuse, or do anything that could result in termination of your employment. If you are terminated from your restricted job after an injury for any “fault” of your own, you will forfeit your right to any further wage loss benefits forever. If you are fired from your restricted job after an injury, you should consult with an attorney who is familiar with both workers’ compensation law and employment law.
SPECIFIC LOSSES SCHEDULE
Another type of disability recognized under Michigan law involves injuries that result in the loss of a body part or the loss of industrial use of a body part. The law provides a scheduled number of weeks of wage loss benefits for this type of disability, with the number of weeks determined by the specific body part amputated or functionally destroyed. The number of weeks of wage loss specified must be paid to the employee even if the employee returns to work before the specified loss period has run. After expiration of the specified weeks, continuing wage loss benefits can be paid if the worker remains disabled. The following schedule shows the minimum number of weeks of wage loss for each body part:
- Thumb …………………65 weeks
- 1st finger ……………..38 weeks
- 2nd finger …………….33 weeks
- 3rd finger …………….22 weeks
- 4th finger ……………..16 weeks
Loss of only the first joint of any finger is compensated at one-half of the above-specified amounts. Loss of any portion beyond the outer joint is considered total loss of the finger.
- Great toe ………………33 weeks
- Any other toe ………..11 weeks
Again, loss of the first joint is one-half of the above-specified amounts.
- Hand ………………….. 215 weeks
- Arm …………………… 269 weeks
Loss of 6 inches or more below the elbow is considered loss of the hand, and any greater loss constituting loss of the arm.
- Foot …………………… 162 weeks
- Leg ……………………. 215 weeks
Loss of the leg 7 inches or more below the knee is considered loss of the foot, with any greater loss constituting loss of the leg.
- Eye ……………………..162 weeks
80% loss of the uncorrected vision in an eye constitutes total loss of that eye.
The scheduled losses listed above do not create a maximum period of wage loss, only the minimum period. In other words, if you remain disabled and off work after the minimum specific loss period, you remain entitled to continuing wage loss benefits.
TOTAL AND PERMANENT DISABILITY
Under the law, total and permanent disability means:
- Total and permanent loss of sight of both eyes.
- Loss of both legs or both feet at or above the ankle.
- Loss of both arms or hands at or above the wrist.
- Loss of any two of the members or faculties in (a), (b), or (c).
- Permanent and complete paralysis of both legs or both arms or of one leg and one arm.
- Incurable insanity.
- Permanent and total loss of industrial use of both legs or both hands or both arms or one leg and one arm.
Should an employee suffer a total and permanent disability, benefits are paid for a minimum period of 800 weeks from the date of injury. Payment continues during the 800 weeks (over 15-1/2 years) even though the victim may be employed and earning wages.
In addition, should the employee meet one of the standards for total and permanent disability, benefits may be available in addition to the wage loss benefits paid by the employer. These benefits are called “differential benefits” and are paid by a special fund administered by the State, the Second Injury Fund. Differential benefits are an attempt to allow for increases in benefits as wage rates generally increase. Should an employee suffer an injury that constitutes total and permanent disability, he or she should always check with a competent attorney to explore the availability of differential benefits.
At the conclusion of the 800 week period, the employer, its insurer, or the Second Injury Fund may seek to establish that circumstances have changed and that the employee is no longer totally and permanently disabled. After 800 weeks, if the employee is working and earning wages equal to or greater than those earned on the date of injury, no benefits will be paid while such earnings continue. The minimum wage loss benefit for totally and permanently disabled workers is 25% of the state average weekly wage for the year in which the injury occurred.
HOW MUCH IS MY WEEKLY BENEFIT?
Total disability wage loss rates are intended to approximate 80% of the employee’s average after-tax weekly wage. This means it will be about 60% of your gross pay before taxes and deductions. The rate is calculated by first reviewing a list of the last 52 weeks of wages earned by the employee. The highest 39 weeks are added up and divided by 39, resulting in the “average weekly wage”. If the employee worked less than 39 weeks in the year before the injury, the total wages earned are divided by the number of weeks worked.
Once the average weekly wage is calculated, the rate is determined by referring to tables published by the Workers’ Compensation Agency, taking into account the tax filing status (single, married, filing joint, head of household, etc.) and the number of dependents. The maximum wage loss rate is set each year at 90% of the state average weekly wage. If the worker is consider to be “partially disabled,” the worker’s remaining wage earning capacity after the injury is deducted from the wage loss rate unless the worker makes a good-faith effort to find work and is unable to do so. Wage rate tables are available on the Workers’ Compensation Agency website, under “Publications” heading and “Other Information”.
Michigan’s workers’ compensation law does not require that your employer continue fringe benefits, such as health insurance while you are off work. However, if fringe benefits are discontinued, the employer’s cost of those benefits must be added to the employee’s average weekly wage. If your employer is subject to the federal COBRA law, the employer must offer continuation of the fringe benefits at 102% of the employer’s cost. Regardless whether you can afford to buy the continuing coverage or not, the cost must be added to the average weekly wage. However, the highest the wage loss rate can be increased by adding the cost of the discontinued fringe benefits is 2/3rds of the state average weekly wage for the year of injury.
Historically, ALL WAGE LOSS BENEFITS ARE TAX FREE. While future changes in the tax code might affect this, as of the date of this publication, benefits remain tax free.
DO OTHER TYPES OF BENEFITS AFFECT MY WAGE LOSS BENEFITS?
It is possible for an injured worker to also be eligible for sick pay, short term and long-term disability, unemployment, pension, and social security disability benefits. Except for social security disability benefits, any other wage replacement benefit will reduce the amount of workers’ compensation wage loss benefits. Any wage replacement benefits which were not purchased by the employer will not reduce the workers’ compensation wage loss amount. If the benefit was purchased by both the employee and employer, the workers’ compensation wage loss benefits are reduced by the proportion of the benefit paid by the employer. The effect of each type of benefit on workers’ compensation wage loss benefits is explored below.
SICK PAY, SHORT TERM AND LONG TERM DISABILITY AND OTHER WAGE REPLACEMENT PLANS
Many employers have private insurance or self-funded plans which provide wage replacement benefits for disabled employees. The terms and amounts vary according to the plan or insurance policy. If the employer disputes your workers’ compensation case or is unable to make a prompt determination, these plans may be your only source of income while your workers’ compensation claim is pending. Most plans require the employee to repay the benefits if you obtain workers’ compensation later, while others allow the employer to take a credit against the workers’ compensation owed. In any case, don’t be afraid to disclose on the sick pay application form that your disability is the result of a work-related injury. If your workers’ compensation case has been disputed, the sick pay plan must still pay the benefit while it remains disputed.
Any workers’ compensation wage loss owed will be reduced, dollar for dollar, by the after-tax amount of any employer funded wage replacement benefits. If you have your own insurance policy that was not paid for by the employer, your workers’ compensation wage loss benefits are not affected, but your own insurance policy may claim a credit for the workers’ compensation benefits paid.
If an injured worker is laid off or terminated, the person may be eligible for unemployment benefits through the Michigan Unemployment Insurance Agency (UIA). If an employer lays off or terminates a totally or partially disabled worker, the employer should pay workers’ compensation wage loss benefits as long as the worker remains disabled. However, if the employer fails to do so, the worker may wish to file an UIA claim while a workers’ compensation claim is pending. If you believe it is possible that you may be laid off when you return to work after an injury, you should apply to the UIA to freeze your credit weeks, so if you are laid off when you are released to return to work, you will still have full eligibility for unemployment benefits.
In order to qualify for unemployment benefits, you must certify each week that you are able to work, available for work, and seeking suitable full-time work. If you’re unable to perform any work you are not eligible for unemployment. If you’re partially disabled and have done some work in the past that you’re still able to perform, then you are eligible for unemployment benefits.
Any workers’ compensation wage loss owed will be reduced, dollar for dollar, by the total amount of unemployment benefits received. Because unemployment is taxable income, and workers’ compensation is not, this means that the injured worker forced to take unemployment while waiting for workers’ compensation is losing the amount of taxes paid on the unemployment.
Injured workers age 62 or older may be eligible for old-age retirement benefit from the Social Security Administration (SSA). Fifty percent of the monthly amount of old-age retirement benefits can be a credit against the workers’ compensation wage loss benefit. If you’re receiving workers’ compensation wage loss benefits, it may not be in your financial interest to take your old-age social security benefits before the age when you become eligible for full social security old-age benefits. The age for full oldage retirement benefits used to be age 65, but it has been increasing to 66 and will eventually rise to age 67. Once you take your old-age social security benefits, the employer can take a credit against ½ of the initial monthly social security benefit. If you were already on old-age Social Security before the injury, your wage loss rate cannot be reduced to less than 50% of the full wage loss rate. Once the credit is taken, the employer cannot take an increasing credit for any subsequent social security cost of living increases. If you’re receiving workers’ compensation benefits and are thinking about applying for your old-age social security benefits, first seek the advice of a workers’ compensation attorney.
Under the Social Security Act, a worker is considered totally disabled if he or she is unable to work in any job that the worker is qualified to perform which exists in substantial numbers in the local or national economy. This is a different standard of total disability than Michigan workers’ compensation law. Receipt of social security disability benefits has no effect on workers’ compensation benefits. However, receipt of workers’ compensation can reduce your social security disability benefits. The yearly total amount of workers’ compensation wage loss plus the yearly social security disability benefits cannot exceed 80% of the highest yearly earned income in the last 5 years. To the extent your total exceeds this amount, your social security disability benefits will be reduced. Obtaining social security disability benefits may be advantageous even if you are receiving workers’ compensation benefits. One advantage is that social security disability recipients qualify for Medicare after two years of disability. This writer also handles social security disability claims.
Workers’ compensation wage loss benefits are reduced by employer funded pension benefits. If your employer funded your pension 100%, then your workers’ compensation wage loss benefits are reduced by the after-tax amount of the pension benefit. If you have reached full retirement age, are totally and permanently disabled and are eligible for a pension, the employer may deduct the after-tax amount of the pension which you are receiving or are eligible to receive. If you take out IRA benefits that you and your employer funded, then the offset is determined by the percentage your employer funded the IRA. So if your employer matched your own personal contribution, the employer would get a credit for 50% of the benefit paid. If you take a regular retirement, the workers’ compensation act presumes that you are not disabled as a result of a work-related injury. This presumption can only be overcome by evidence that you are totally disabled from all work. So if you’re receiving workers’ compensation wage loss, or if are partially disabled and working and are eligible for regular retirement, talk to an attorney before applying for a pension. The effect of taking the regular retirement may mean you will trade tax-free workers’ compensation benefits for a taxable pension and a presumption you are not disabled.
If you take a disability retirement, there is no presumption against a work-related disability, but the employer still may be able to take credit against the after-tax amount of the pension benefit. Talk to your attorney before applying.
If a job injury or occupational disease prevents the injured worker from returning to work, vocational rehabilitation services are available. Retraining, schooling and job placement, if not voluntarily offered by the employer or its insurance carrier, can be ordered by the Workers’ Compensation Agency. The cost of these services, as well as associated costs such as travel, tuition, and books are paid by the employer.
Instead of a positive experience to better the lives of worker’s compensation beneficiaries, some employers use vocational rehabilitation as a tool to try to force employees to settle their claims. They will hire a vocational counselor who will have you apply for a lot of low wage jobs. If you refuse to accept a job offered to you that is within your medical restrictions, no matter what the wage, your wage loss benefits can be cut off or reduced. If you fail to cooperate with their work search requests, your wage loss benefits can also be reduced or stopped. For Agency guidelines on vocational rehabilitation, go to their website.
If a new employer hires you, then after two years on the job, the employer can then claim you’ve reestablished a new wage-earning capacity and try to stop paying the difference between your old job and the new one. Faced with the threat of vocational rehabilitation, some workers choose to accept whatever settlement is offered. That’s why who is hired as your vocational rehabilitation counselor is important.
If you act first in selecting a vocational rehabilitation counselor, you are more likely to find a counselor who will actually try to help you acquire the training and skills you need to find a new career and will be more interested in trying to find you the best job possible. Therefore, as soon as the employer or insurance company starts talking about vocational rehabilitation, or it becomes clear that you will never be able to return to your former employer, you should seek out your own vocational rehabilitation counselor. Ask your attorney for names of reputable vocational rehabilitation counselors who are not in the insurance companies’ back pocket. If the employer refuses to accept your choice of vocational rehabilitation counselor, your attorney can file a petition and ask that your choice be ordered by the Agency.
Vocational rehabilitation services, including schooling, may be ordered by the Bureau for up to two years. Michigan Rehabilitation Services, a branch of the Michigan Department of Education, provides vocational services statewide. However, most employers use private vocational rehabilitation firms. A worker contacted by a rehabilitation counselor should make sure that the counselor is from a state approved agency. If there is a dispute over vocational rehabilitation, the employee or employer can request a hearing from the Bureau.
WHAT BENEFITS EXIST FOR JOB-RELATED DEATHS?
If death results from an injury or occupational disease, the employer or its insurer must pay the expenses of the workers’ last sickness. Burial expenses are limited to $6,000.00.
Persons dependent upon the deceased worker are entitled to weekly wage loss benefits for 500 weeks from the date of death. Wage loss benefits are calculated in the same manner as injuries. Should a dependent child be under the age of 18 years of age at the end of this 500 week period, benefits continue until the child reaches 18. If, at the expiration of the 500 week period, a dependent remains wholly or partially dependent, the dependent can petition a workers’ compensation Magistrate to order payment of full or partial benefits until he or she reaches the age of 21. Should a dependent spouse remarry, his or her entitlement to benefits ends with a final payment of $500.00.
The Workers’ Compensation Act provides that the minimum weekly benefit for death shall be 50% of the state average weekly wage for that year.
CAN I BRING A LAWSUIT TO RECOVER FOR LOSSES NOT COVERED BY WORKERS COMPENSATION?
The law provides that workers’ compensation benefits are the exclusive remedy an employee has for accidental work-related injuries. A worker cannot sue the employer or fellow workers for negligence that resulted in injury. However, if the employer knew that an injury was certain to occur, and still ordered the employee to perform the unsafe activity, the employer may be sued for an intentional tort. Employers may also be responsible for any discrimination prohibited by federal and state laws. For more information about these types of lawsuits, see my pamphlet entitled, an “Employees’ Guide To Employment Law.”
Where the injury, disease or death results from the negligence of someone other than the employer or co-workers, a lawsuit may be filed against the persons who caused the injury or accident. Motor vehicle accidents in the course of employment, defective products and machinery, chemical exposure and injuries caused by outside contractors may give rise to a lawsuit for damages. Recovery may be sought for economic and non-economic damages, but the employer has a right to be reimbursed for the cost of workers’ compensation benefits paid to the injured worker.
Whenever a worker suffers a serious injury or death, competent legal advice of an attorney who specializes in this type of work is recommended.
WILL MY EMPLOYER OR ITS INSURER TRY TO SETTLE MY CLAIM?
Unlike many other legal rights, the entitlement to workers’ compensation benefits cannot be settled or waived without the final approval of the Bureau of Workers’ Disability Compensation. No lump sum settlement (called a redemption) is valid without the approval of a workers’ compensation magistrate. Six months must elapse from the date of injury before a redemption can be approved.
Redemptions or settlements should never be entered into without a full understanding of the nature of the disability and the potential need for future medical care. By redeeming a claim, workers are giving up the potential for lifetime medical care for their work-related condition. Medicare may refuse to cover medical expenses for work-related injuries, so giving up the right to future medical benefits is a critical factor in deciding whether and under what terms to settle. Employers always require settlement of all injuries that occurred during the workers’ entire employment. Employers also require a resignation of employment and a release of all other legal claims as part of the settlement.
A waiver and release signed as part of a workers’ compensation redemption may eliminate possible claims under the federal Americans With Disabilities Act, the Michigan Persons with Disabilities’ Civil Rights Act, the Elliott-Larsen Civil Rights Act, or other Michigan and federal civil rights laws. Any employee who terminates his employment under these circumstances may be giving significant rights and should seek legal advice before doing so.
Redemption is a full and final settlement of the employee’s rights and should only be considered with complete knowledge of all of the consequences. Workers should NEVER redeem a claim without consulting an attorney. This writer offers reduced fee agreements for only negotiating a redemption settlement.
WORKERS’ COMPENSATION AGENCY HEARING LOCATIONS
The hearing location is determined by the county where the injury took place. The Agency has a clickable map that will provide the address, phone number, and map of the hearing office location.
THE WORKERS’ COMPENSATION AGENCY WEBSITE
The Workers’ Compensation Agency, part of the Department of Licensing and Regulatory Affairs (LARA), maintains a website with lots of information and pdf files available for downloading.
OTHER HELPUL AGENCIES
P.O. Box 30010
Lansing, MI 48909
P.O. Box 30644
Lansing, MI 48909
7150 Harris Drive
P.O. Box 30476
Lansing, MI 48909
2500 Kerry Street, Suite 210
Lansing, MI 48912
This information is intended to reflect your rights under the Michigan workers’ compensation laws as they exist in 2012. Workers’ compensation, however, is a politically sensitive area of the law, and in the past years many changes have been made to “improve the business climate” of the State. Unfortunately, these “reforms” have reduced benefits to injured workers. You can be sure that your elected representatives in Lansing are constantly lobbied by insurance and business interests. You should see to it that they also hear from those adversely affected by the workers’ compensation laws and of the many hardships and uncompensated losses they suffer.
The magistrates who initially decide workers’ compensation cases and the appellate commissioners who decide the appeals are all appointed by the governor. If you care about the orientation and philosophy of these appointed officials, you should vote in the Michigan governor’s race for the candidate who will best serve the interests of injured workers, not employers and their insurance companies.