Court of Appeals Upholds Termination of Wage-Loss Benefits Awards and Requires Proof to Demonstrate Entitlement to Continuing Benefits

I argued this case in July before the Court of Appeals.  The decision, although split 2-1, with Judge Saad concurring in the result only, reversed an Appellate Commission decision which, after two prior remands, suddenly concluded that the magistrates never had jurisdiction to consider GM’s argument that Plaintiff was not entitled to workers’ compensation benefits based on a 1980 “open award” entered “until further order” because GM had never filed a petition to stop.

Judge Beckering wrote the lead opinion, in favor of GM, finding that GM did not have to file a “petition to stop”.  Plaintiff had returned to work for GM, but that order remained extant.  Plaintiff was working, apparently in a non-restricted position (or limited by nature to his restrictions) as a “chipper” (a seniority job), subsequent to his return after the 1980 “open award”, and did not stop working until he took a disability retirement in 2005.  He then filed a claim for workers’ compensation benefits claiming multiple dates of injury, including the 1980 injury.  Defendants challenged plaintiff’s entitlement to benefits, including the 1980 award, claiming, with respect to that award that he established a new wage earning capacity.

The majority opinion concludes that the last Commission decision finding that this issue had never been addressed and that therefore plaintiff was still entitled to benefits based on the 1980 award was error.  The Court however remands for a proper consideration of 1980 law to the issue of whether Plaintiff had established a new wage-earning capacity, which would have prevented him from receiving benefits anyway.  Judge Beckering thoroughly details the necessary factual support for the argument that Plaintiff did, in fact, establish a new wage earning capacity; discussing Plaintiff’s post-return wage, the surveillance that was done showing Plaintiff lifting 150 pounds, when his restriction was 40, and doing many other things he had testified he was unable to do.  Beckering also highlights the total lack of credibility found by the magistrates as to Plaintiff’s testimony.  The remand is requiring a presentation of proofs in regard to whether under 1980 law Plaintiff had established a new wage-earning capacity and was not, therefore, entitled to benefits.

Judge Saad concurred in the “result only”.

Judge Gleicher dissented.  She would have affirmed. Her conclusion is that GM was in fact required to file a petition to stop because the 1980 award was entered until further order.

See the opinion here:  Ulin COA

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
Gallery | This entry was posted in May It Please the Court, Michigan Court of Appeals Unpublished Opinions, Workers' Compensation Cases. Bookmark the permalink.

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