Fundamental Distinction Between “Medically Distinguishable” Injuries Under Section 301(1) and “Significant Manner Contribution” Test Under MCL 418.301(2) Under Workers Disability Compensation Act Yet to Be Clarified by Courts

There is a confusion among the Workers’ Compensation Board of Magistrates and, in some cases, in the Michigan Compensation Appellate Commission (the Commission) between the proper prima facie injury analysis required of a plaintiff under MCL 418.301 when dealing with the range of types of “preexisting conditions”.

Part of this confusion is semantics, i.e., many magistrates and some Commission panels assume that a pre-existing condition is a pre-existing injury (covered solely by the “medically distinguishable” analysis under MCL 418.301(1)) and others assume a pre-existing condition is a “condition of the aging process” (covered solely by the “significant manner contribution” test under MCL 418.301(2)). 

This causes conflation (at best) in the analysis of whether or not and to what extent a plaintiff has proved a compensable, work-related injury under MCL 418.301 of the Workers Disability Compensation Act.

Where it is assumed that a pre-existing condition is a pre-existing injury, the “medically distinguishable” test and the jurisprudence interpreting MCL 418.301(1) comes into play, only.  In such cases, a true pre-existing injury is subjected to the “medically distinguishable” test to determine whether and to what extent a plaintiff can prove a “medically distinguishable” injury.

This is an unfortunately fungible concept in terms of interpretation by the Board of Magistrates (in most cases) and the Commission (in some cases) of the jurisprudence interpreting § 301(1) and § 301(2), but it seems clear to me the Supreme Court has put to rest any notion that aggravation of the exact pre-existing injury qualifies as a “medically distinguishable” injury under 301(1). 

One way I know this, is the fact that the new statutory language clarifies it.  If the new statutory provision were applicable to these cases, there would be no doubt about the analysis of a plaintiff’s claimed injury when he or she has a preexisting injury, because the Legislature incorporated the proper analysis from Rakestraw v. General Dynamics Land Systems, Inc. and Fahr v. General Motors Corporation, 978 Mich. 922 (2007) into the new legislation.  As of December 2011, the relevant sentence of MCL 418.301(1) reads:

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.

[MCL 418.301(1) (emphasis added).]

The emphasized language cannot be understated.  Clearly, the Legislature maintained the orientation established by the Court in Rakestraw, supra, distinguishing prior pathology from any new pathology, and stating that no compensable injury can be proved with a showing only of the former.  Only by meeting the burden of proving the latter, a new and distinct pathology – not the former, a mere change or worsening of the prior pathology, nor even an aggravation of symptoms arising therefrom – can the claimant demonstrate the existence of a personal injury, proper, arising out of andin the course of employment.  MCL 418.301(1); Rakestraw, supra.  See also Hill v. Faircloth Mfg. Co., 245 Mich. App. 710 (2001) (arising out of and in the course of are separate requirements and both must be demonstrated before an injury is compensable; the injury, to be compensable, must be because of the work, i.e., arise out of and occur during the work, i.e., in the course of).  The requirement explained in Hill, supra, to satisfy this conjunctive requirement in § 301(1) was retained by Rakestraw, supra, for pre-existing condition / pre-existing injury cases, and was further  retained, and strengthened, when the Legislature codified Rakestraw in December of 2011.

The confusion is compounded when the Board of Magistrates (in most cases) and the Commission (in some cases) conflates the § 301(1) “medically distinguishable” analysis with the § 301(2) “significant manner” test also developed by appellate jurisprudence to determine whether the plaintiff has proved a § 301(1) injury or a § 301(2) injury.  You will notice the Board of Magistrates (and sometimes medical or other experts) continually referring to whether work contributed in a significant manner to make an injury medically distinguishable from a pre-existing injury.  Sounds good, but this is wrong. 

It is also wrong when the discussion of a § 301(2) injury (a condition of the aging process) is subjected to language that makes it seem the party or the court is trying to apply a “medically distinguishable” analysis to the pre-existing condition of the aging process and to also fit that into the “significant manner” test of § 301(2).

From a technical legal practitioner’s standpoint, the easiest way to identify this up front and make sure there is no conflation is to consider whether a preexisting condition is simply a condition that is the result of a prior, acute, work- or non-work-related injury.  If a prior acute injury occurred and that injury is latent and continues to produce symptoms, i.e., conditions, then the § 301(1), and only § 301(1), “medically distinguishable” analysis applies.  This is where the discovery of pre-existing injuries and conditions, i.e., medical records, testimony, etc., becomes so important.  The question then is whether the Plaintiff suffers from a medically distinguishable injury under § 301(1) and all the pre-December 2011 jurisprudence that goes along with interpreting that language.

If the plaintiff suffers from a preexisting condition that is also a condition of the aging process, degenerative disc disease, etc., then the “higher burden” of the significant manner test of § 301(2) applies separate and apart from § 301(1).   Another way to consider it is that preexisting conditions that are also conditions of the aging process are a small subset of preexisting condition injuries and are subject to separate and independent analysis under § 301(2).

This is illustrated by the Supreme Court’s footnote 5 in its opinion in Rakestraw, supra.  In such cases, the determination must be made whether the employment contributed in a significant manner to the pre-existing condition that is a condition of the aging process.  This is a higher burden for plaintiffs.  The Commission developed the Martin factors to address the “significant manner” test under § 301(2).  Martin v. City of Pontiac2001 ACO # 118 (2001).

The “higher burden” on plaintiffs notwithstanding, the problem with Martin is that it lifted some of its analysis from many different legal principles and statutory schemes, e.g., Oregon, which do not make a distinction between a injuries that are a result of an acute, work- or non-work-related pre-existing injury and a preexisting condition that is also a condition of the aging process.  So, it is no surprise that subsequent case law and Commission decisions have conflated the analyses.

The fact is the two analyses, § 301(1) and § 301(2), require different legal tests and are subject to different standards of proof.  It is of primary importance at the outset to identify which claims are to be assessed under § 301(1) and which claims are to be assessed under § 301(2).

The Commission is aware of this, but does not always do a good job of articulating it on remand.  The attached decision at pp. 6-7 represents a proper statement of the starting point of the analyses and where they should focus going forward. 2013 ACO 56 (Jensen).

We have several cases on appeal or to be appealed which are trying to root out the conflation and provide a clarified analysis that will hopefully be of great benefit to our clients.  Let me know if you have any questions or need additional information regarding this issue.

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.
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