HB-4552, As Passed Senate, March 28, 2012

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4552

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1969 PA 317, entitled

 

"Worker's disability compensation act of 1969,"

 

by amending sections 161, 372, 625, and 891 (MCL 418.161, 418.372,

 

418.625, and 418.891), sections 161 and 625 as amended by 2011 PA

 

266 and section 372 as added by 1980 PA 357.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 161. (1) As used in this act, "employee" means:

 

     (a) A person in the service of the state, a county, city,

 

township, village, or school district, under any appointment, or

 

contract of hire, express or implied, oral or written. A person

 

employed by a contractor who has contracted with a county, city,

 

township, village, school district, or the state, through its

 

representatives, shall not be considered an employee of the state,

 


county, city, township, village, or school district that made the

 

contract, if the contractor is subject to this act.

 

     (b) Nationals of foreign countries employed pursuant to

 

section 102(a)(1) of the mutual educational and cultural exchange

 

act of 1961, Public Law 87-256, 22 USC 2452, shall not be

 

considered employees under this act.

 

     (c) Police officers, fire fighters, or employees of the police

 

or fire departments, or their dependents, in municipalities or

 

villages of this state providing like benefits, may waive the

 

provisions of this act and accept like benefits that are provided

 

by the municipality or village but are not entitled to like

 

benefits from both the municipality or village and this act. ;

 

however, However, this waiver does not prohibit those employees or

 

their dependents from being reimbursed under section 315 for the

 

medical expenses or portion of medical expenses that are not

 

otherwise provided for by the municipality or village. This act

 

shall not be construed as limiting, changing, or repealing any of

 

the provisions of a charter of a municipality or village of this

 

state relating to benefits, compensation, pensions, or retirement

 

independent of this act, provided for employees.

 

     (d) On-call members of a fire department of a county, city,

 

village, or township shall be considered to be employees of the

 

county, city, village, or township, and entitled to all the

 

benefits of this act if personally injured in the performance of

 

duties as on-call members of the fire department whether the on-

 

call member of the fire department is paid or unpaid. On-call

 

members of a fire department of a county, city, village, or

 


township shall be considered to be receiving the state average

 

weekly wage at the time of injury, as last determined under section

 

355, from the county, village, city, or township for the purpose of

 

calculating the weekly rate of compensation provided under this act

 

except that if the member's average weekly wage was greater than

 

the state average weekly wage at the time of the injury, the

 

member's weekly rate of compensation shall be determined based on

 

the member's average weekly wage.

 

     (e) On-call members of a fire department or an on-call member

 

of a volunteer underwater diving team that contracts with or

 

receives reimbursement from 1 or more counties, cities, villages,

 

or townships is entitled to all the benefits of this act if

 

personally injured in the performance of their duties as on-call

 

members of a fire department or as an on-call member of a volunteer

 

underwater diving team whether the on-call member of the fire

 

department or the on-call member of the volunteer underwater diving

 

team is paid or unpaid. On-call members of a fire department shall

 

be considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the fire

 

department for the purpose of calculating the weekly rate of

 

compensation provided under this act except that if the member's

 

average weekly wage was greater than the state average weekly wage

 

at the time of the injury, the member's weekly rate of compensation

 

shall be determined based on the member's average weekly wage. On-

 

call members of a volunteer underwater diving team shall be

 

considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the fire

 


department for the purpose of calculating the weekly rate of

 

compensation provided under this act except that if the member's

 

average weekly wage was greater than the state average weekly wage

 

at the time of the injury, the member's weekly rate of compensation

 

shall be determined based on the member's average weekly wage.

 

     (f) The benefits of this act are available to a safety patrol

 

officer who is engaged in traffic regulation and management for and

 

by authority of a county, city, village, or township, whether the

 

officer is paid or unpaid, in the same manner as benefits are

 

available to on-call members of a fire department under subdivision

 

(d), upon the adoption by the legislative body of the county, city,

 

village, or township of a resolution to that effect. A safety

 

patrol officer or safety patrol force when used in this act

 

includes all persons who volunteer and are registered with a school

 

and assigned to patrol a public thoroughfare used by students of a

 

school.

 

     (g) A volunteer civil defense worker who is a member of the

 

civil defense forces as provided by law and is registered on the

 

permanent roster of the civil defense organization of the state or

 

a political subdivision of the state shall be considered to be an

 

employee of the state or the political subdivision on whose

 

permanent roster the employee is enrolled if engaged in the

 

performance of duty and shall be considered to be receiving the

 

state average weekly wage at the time of injury, as last determined

 

under section 355, from the state or political subdivision for

 

purposes of calculating the weekly rate of compensation provided

 

under this act.

 


     (h) A volunteer licensed under section 20950 or 20952 of the

 

public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who

 

is an on-call member of a life support agency as defined under

 

section 20906 of the public health code, 1978 PA 368, MCL

 

333.20906, shall be considered to be an employee of the county,

 

city, village, or township and entitled to the benefits of this act

 

if personally injured in the performance of duties as an on-call

 

member of a life support agency whether the on-call member of the

 

life support agency is paid or unpaid. An on-call member of a life

 

support agency shall be considered to be receiving the state

 

average weekly wage at the time of injury, as last determined under

 

section 355, from the county, city, village, or township for

 

purposes of calculating the weekly rate of compensation provided

 

under this act except that if the member's average weekly wage was

 

greater than the state average weekly wage at the time of the

 

injury, the member's weekly rate of compensation shall be

 

determined based on the member's average weekly wage.

 

     (i) A volunteer licensed under section 20950 or 20952 of the

 

public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who

 

is an on-call member of a life support agency as defined under

 

section 20906 of the public health code, 1978 PA 368, MCL

 

333.20906, that contracts with or receives reimbursement from 1 or

 

more counties, cities, villages, or townships is entitled to all

 

the benefits of this act if personally injured in the performance

 

of his or her duties as an on-call member of a life support agency

 

whether the on-call member of the life support agency is paid or

 

unpaid. An on-call member of a life support agency shall be

 


considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the life

 

support agency for the purpose of calculating the weekly rate of

 

compensation provided under this act except that if the member's

 

average weekly wage was greater than the state average weekly wage

 

at the time of the injury, the member's weekly rate of compensation

 

shall be determined based on the member's average weekly wage.

 

     (j) If a member of an organization recognized by 1 or more

 

counties, cities, villages, or townships within this state as an

 

emergency rescue team is employed by a state, county, city,

 

village, or township within this state as a police officer, fire

 

fighter, emergency medical technician, or ambulance driver and is

 

injured in the normal scope of duties including training, but

 

excluding activation, as a member of the emergency rescue team, he

 

or she shall be considered to be engaged in the performance of his

 

or her normal duties for the state, county, city, village, or

 

township. If the member of the emergency rescue team is not

 

employed by a state, county, city, village, or township within this

 

state as a police officer, fire fighter, emergency medical

 

technician, or ambulance driver, and is injured in the normal scope

 

of duties, including training, as a member of the emergency rescue

 

team, he or she shall be considered to be an employee of the team.

 

For the purpose of securing the payment of compensation under this

 

act, on activation, each member of the team shall be considered to

 

be covered by a policy obtained by the team unless the employer of

 

a member of the team agrees in writing to provide coverage for that

 

member under its policy. Members of an emergency rescue team shall

 


be considered to be receiving the state average weekly wage at the

 

time of injury, as last determined under section 355, from the team

 

for the purpose of calculating the weekly rate of compensation

 

provided under this act except that if the member's average weekly

 

wage was greater than the state average weekly wage at the time of

 

the injury, the member's weekly rate of compensation shall be

 

determined based on the member's average weekly wage. As used in

 

this subdivision, "activation" means a request by the emergency

 

management coordinator appointed pursuant to section 8 or 9 of the

 

emergency management act, 1976 PA 390, MCL 30.408 and 30.409, made

 

of and accepted by an emergency rescue team.

 

     (k) A political subdivision of this state is not required to

 

provide compensation insurance for a peace officer of the political

 

subdivision with respect to the protection and compensation

 

provided by 1937 PA 329, MCL 419.101 to 419.104.

 

     (l) Every person in the service of another, under any contract

 

of hire, express or implied, including aliens; a person regularly

 

employed on a full-time basis by his or her spouse having specified

 

hours of employment at a specified rate of pay; working members of

 

partnerships receiving wages from the partnership irrespective of

 

profits; a person insured for whom and to the extent premiums are

 

paid based on wages, earnings, or profits; and minors, who shall be

 

considered the same as and have the same power to contract as adult

 

employees. Any minor under 18 years of age whose employment at the

 

time of injury is shown to be illegal, in the absence of fraudulent

 

use of permits or certificates of age in which case only single

 

compensation shall be paid, shall receive compensation double that

 


provided in this act.

 

     (m) Every person engaged in a federally funded training

 

program or work experience program that mandates the provision of

 

appropriate worker's compensation for participants and that is

 

sponsored by the state, a county, city, township, village, or

 

school district, or an incorporated public board or public

 

commission in the state authorized by law to hold property and to

 

sue or be sued generally, or any consortium thereof, shall be

 

considered, for the purposes of this act, to be an employee of the

 

sponsor and entitled to the benefits of this act. The sponsor is

 

responsible for the provision of worker's compensation and shall

 

secure the payment of compensation by a method permitted under

 

section 611. If a sponsor contracts with a public or private

 

organization to operate a program, the sponsor may require the

 

organization to secure the payment of compensation by a method

 

permitted under section 611.

 

     (n) Every person performing service in the course of the

 

trade, business, profession, or occupation of an employer at the

 

time of the injury, if the person in relation to this service does

 

not maintain a separate business, does not hold himself or herself

 

out to and render service to the public, and is not an employer

 

subject to this act. On and after January 1, 2013, services are

 

employment if the services are performed by an individual whom the

 

Michigan administrative hearing system determines to be in an

 

employer-employee relationship using the 20-factor test announced

 

by the internal revenue service of the United States department of

 

treasury in revenue ruling 87-41, 1 C.B. 296. An individual for

 


whom an employer is required to withhold federal income tax is

 

prima facie considered to perform service in employment under this

 

act. If a business entity requests the Michigan administrative

 

hearing system to determine whether 1 or more individuals

 

performing service for the entity in this state are in covered

 

employment, the Michigan administrative hearing system shall issue

 

a determination of coverage of service performed by those

 

individuals and any other individuals performing similar services

 

under similar circumstances.

 

     (o) An individual registered with the state of Michigan

 

verification system described in 42 USC 247d-7b shall be considered

 

an employee of the state of Michigan when engaged in the

 

performance of duties or services as a registrant, or when training

 

to provide those duties or services, except if another employer

 

provides coverage for that individual specifically for duties and

 

services arising from registration with this state. That individual

 

shall be considered to be receiving the state average weekly wage

 

at the time of injury or death, as last determined under section

 

355, from the state of Michigan for purposes of calculating the

 

weekly rate of compensation provided under this act, except that if

 

the individual's average weekly wage was greater than the state

 

average weekly wage at the time of injury or death the individual's

 

weekly rate of compensation shall be determined based upon the

 

individual's weekly average wage. The state of Michigan shall

 

exercise all the rights and obligations of an employer and carrier

 

as provided for under this act.

 

     (2) A policy or contract of worker's compensation insurance,

 


by endorsement, may exclude coverage as to any 1 or more named

 

partners or the spouse, child, or parent in the employer's family.

 

A person excluded pursuant to this subsection is not subject to

 

this act and shall not be considered an employee for the purposes

 

of section 115.

 

     (3) An employee who is subject to this act, including an

 

employee covered pursuant to section 121, who is an employee of a

 

limited liability company of not more than 10 members and who is

 

also a manager and member, as defined in section 102 of the

 

Michigan limited liability company act, 1993 PA 23, MCL 450.4102,

 

and who owns at least a 10% interest in that limited liability

 

company, with the consent of the limited liability company as

 

approved by a majority vote of the members, or if the limited

 

liability company has more than 1 manager, all of the managers who

 

are also members, except as otherwise provided in an operating

 

agreement, may elect to be individually excluded from this act by

 

giving a notice of the election in writing to the carrier with the

 

consent of the limited liability company endorsed on the notice.

 

The exclusion remains in effect until revoked by the employee by

 

giving notice in writing to the carrier. While the exclusion is in

 

effect, section 141 does not apply to any action brought by the

 

employee against the limited liability company.

 

     (4) An employee who is subject to this act, including an

 

employee covered pursuant to section 121, who is an employee of a

 

corporation that has not more than 10 stockholders and who is also

 

an officer and stockholder who owns at least 10% of the stock of

 

that corporation, with the consent of the corporation as approved

 


by its board of directors, may elect to be individually excluded

 

from this act by giving a notice of the election in writing to the

 

carrier with the consent of the corporation endorsed on the notice.

 

The exclusion remains in effect until revoked by the employee by

 

giving a notice in writing to the carrier. While the exclusion is

 

in effect, section 141 does not apply to any action brought by the

 

employee against the corporation.

 

     (5) If the persons to be excluded from coverage under this act

 

pursuant to subsections (2) to (4) comprise all of the employees of

 

the employer, those persons may elect to be excluded from being

 

considered employees under this act by submitting written notice of

 

that election to the director upon a form prescribed by the

 

director. The exclusion shall remain in effect until revoked by

 

giving written notice to the director.

 

     Sec. 372. (1) If an employee was engaged in more than 1

 

employment at the time of a personal injury or a personal injury

 

resulting in death, the employer in whose employment the injury or

 

injury resulting in death occurred is liable for all the injured

 

employee's medical, rehabilitation, and burial benefits. Weekly

 

benefits shall be apportioned as follows:

 

     (a) If the employment which caused the personal injury or

 

death provided more than 80% of the injured employee's average

 

weekly wages at the time of the personal injury or death, the

 

insurer or self-insurer is liable for all of the weekly benefits.

 

     (b) If the employment which caused the personal injury or

 

death provided 80% or less of the employee's average weekly wage at

 

the time of the personal injury or death, the insurer or self-

 


insurer is liable for that portion of the employee's weekly

 

benefits as bears the same ratio to his or her total weekly

 

benefits as the average weekly wage from the employment which

 

caused the personal injury or death bears to his or her total

 

weekly wages. The second injury fund is separately but dependently

 

liable for the remainder of the weekly benefits. The insurer or

 

self-insurer has the obligation to pay the employee or the

 

employee's dependents at the full rate of compensation. The second

 

injury fund shall reimburse the insurer or self-insurer quarterly

 

for the second injury fund's portion of the benefits due the

 

employee or the employee's dependents.

 

     (2) For purposes of apportionment under this section, only

 

wages which that were reported to the internal revenue service

 

shall be considered, and the reports of wages to the internal

 

revenue service are conclusive for the purpose of apportionment

 

under this section.

 

     (3) This section does not apply to volunteer public employees

 

individuals entitled to benefits under section 161(1)(a) 161(1)(d),

 

(e), (f), (g), (h), (i), (j), and (o).

 

     Sec. 625. Each insurer mentioned in section 611 issuing an

 

insurance policy covering worker's compensation in this state shall

 

file with the director, within 30 days after the effective date of

 

the policy, a notice of the issuance of the policy and its

 

effective date. A notice of issuance of insurance, a notice of

 

termination of insurance, or a notice of employer name change may

 

be submitted in writing or by using agency-approved electronic

 

filing and transaction standards and may be submitted by the

 


insurer directly or by the compensation advisory organization of

 

Michigan on behalf of the insurer. Payment shall not be required by

 

the agency or any third party for the use of agency-approved

 

electronic record layout and transaction standards under this act.

 

Time requirements for notices under this act apply whether filed by

 

the insurer or the compensation advisory organization of Michigan.

 

If the policy covers persons who would otherwise be exempted from

 

this act by section 115, the notice shall contain a specific

 

statement to that effect. A notice is not required of any insurer

 

if the policy issued is a renewal of the preceding policy. The

 

insurer, if it refuses to accept any coverage under this act, shall

 

do so in writing.

 

     Sec. 891. (1) To the extent that they are reenacted herein,

 

all the provisions of former Act No. 44 of the Public Acts of 1965

 

shall 1965 PA 44 apply only to personal injuries the date of which

 

occurs occurring on or after September 1, 1965, except as otherwise

 

provided in such that act and except for the amendment to part 2,

 

section 4 of that act, concerning selection of physicians as

 

provided in that act.

 

     (2) In all cases where the date of injury is on or after

 

September 1, 1965, and the employee or his dependents would be

 

entitled to the new maximum weekly benefit rates, such the employee

 

or his dependents shall receive, without application to the bureau,

 

workers' compensation agency, an adjustment to the increased

 

maximum rate as it becomes effective September 1, 1966, or

 

September 1, 1967, for any compensable weeks subsequent to the

 

above dates.

 


House Bill No. 4552 (H-6) as amended February 23, 2012

     (3) This act shall does not affect or impair any right

 

accruing, accrued or acquired or any liability developing or

 

imposed prior to the time this act takes effect, and all such

 

rights and liabilities shall be governed by the provisions of Act

 

No. 10 of the Public Acts of the First Extra Session of 1912, as

 

amended, being sections 411.1 to 417.61 of the Compiled Laws of

 

1948. former 1912 (1st Ex Sess) PA 10. The first adjustment to the

 

maximum rates of weekly compensation provided previously in

 

subsection (f) of section 9 section 9(f) of part 2 of Act No. 10 of

 

the Public Acts of the First Extra Session of 1912, as amended,

 

former 1912 (1st Ex Sess) PA 10, shall remain in effect to the

 

extent provided in such section and the amount of change in the

 

average weekly wage not incorporated in the first adjustment made

 

January 1, 1969 shall be carried forward as provided in such

 

section.

 

     (4) Notwithstanding sections [301(14)] and 401(10), the

 

amendments to this act made by 2011 PA 266 apply to personal

 

injuries and work-related diseases incurred on or after December

 

19, 2011.