HB-5002, As Passed Senate, December 7, 2011

 

 

 

 

 

 

 

 

 

 

 

 

SENATE SUBSTITUTE FOR

 

HOUSE BILL NO. 5002

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1969 PA 317, entitled

 

"Worker's disability compensation act of 1969,"

 

by amending sections 161, 205, 210, 212, 213, 274, 301, 315, 319,

 

331, 353, 354, 358, 360, 361, 381, 401, 625, 801, 835, 836, 837,

 

847, 853, and 862 (MCL 418.161, 418.205, 418.210, 418.212, 418.213,

 

418.274, 418.301, 418.315, 418.319, 418.331, 418.353, 418.354,

 

418.358, 418.360, 418.361, 418.381, 418.401, 418.625, 418.801,

 

418.835, 418.836, 418.837, 418.847, 418.853, and 418.862), section

 

161 as amended by 2002 PA 427, sections 205, 319, 361, and 381 as

 

amended and section 212 as added by 1985 PA 103, sections 210, 213,

 

274, 331, 801, 836, 837, 847, 853, and 862 as amended by 1994 PA

 

271, sections 301, 354, and 401 as amended by 1987 PA 28, section

 

315 as amended by 2009 PA 226, section 358 as added by 1980 PA 357,

 


section 625 as amended by 2002 PA 626, and section 835 as amended

 

by 1996 PA 357, and by adding sections 302, 613, and 659; and to

 

repeal acts and parts of acts.

 

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 which that made

 

the contract, when 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 U.S.C. 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 shall not be are not entitled to

 

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

 

however, this waiver shall does not prohibit such 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 when 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 shall be is entitled to all the benefits of this act

 

when 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 shall be 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 when 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

 

when 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 shall be is entitled

 

to all the benefits of this act when 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 shall not be 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 shall be 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 which that mandates the

 

provision of appropriate worker's compensation for participants and

 

which 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

 

shall be 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.

 

     (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 shall not be 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 shall remain remains in effect until revoked by the

 

employee by giving notice in writing to the carrier. While the

 

exclusion is in effect, section 141 shall 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 which 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 shall remain 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 shall 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. 205. The director shall devote his or her entire time to

 

and personally perform the duties of his or her office and shall

 

engage in no other business or professional activity. He or she may

 

make rules not inconsistent with this act for carrying out the

 

provisions of the act in accordance with Act No. 306 of the Public

 

Acts of 1969, as amended, being sections 24.201 to 24.328 of the

 

Michigan Compiled Laws. the administrative procedures act of 1969,

 

1969 PA 306, MCL 24.201 to 24.328. He or she shall appoint such

 

assistants and employees as may be necessary, who shall be are

 

entitled to necessary travel expenses incurred in the performance

 

of performing official duties subject to the standardized travel

 

regulations of the this state, and such compensation as shall be

 

determined in accordance with applicable civil service rules. where

 

applicable. He or she shall appoint an assistant who shall have

 

charge of the Detroit office of the bureau. He or she shall have

 

has general supervisory control of the bureau agency and all its

 


officers and employees. thereunder. He or she shall have has charge

 

of the assignment of assigning the work of the bureau agency to the

 

assistants , hearing referees, and employees. He or she shall have

 

charge of the docketing and progress of contested cases including

 

the power to order a hearing referee to dismiss without prejudice

 

for lack of progress in the absence of good cause shown, in

 

accordance with rules and procedures established for effecting

 

these purposes. However, cases Cases involving a carrier

 

terminating the voluntary payment of benefits which had been paid

 

voluntarily and cases involving a petition to stop or reduce

 

compensation shall be held within 60 days and take precedence over

 

other cases. and a hearing thereon shall be held within 60 days.

 

The director is authorized to may provide assistance to employers

 

and employees in the resolution of resolving small disputes. He or

 

she shall have has general charge of all administrative functions

 

of the bureau agency and may delegate such the duties, the

 

performance of such administrative functions, and the authority

 

incident thereto.to those duties and functions.

 

     Sec. 210. (1) The qualifications advisory committee, in

 

consultation with the board of magistrates, shall develop a written

 

examination. The examination shall be administered to applicants

 

for the position of worker's compensation magistrate in order to

 

determine the applicant's ability and knowledge with regard to

 

worker's compensation in the following areas:

 

     (a) Knowledge of this act.

 

     (b) Skills with regard to fact finding.

 

     (c) The Michigan rules of evidence.

 


     (d) A basic understanding of human anatomy and physiology.

 

     (2) An applicant for the position of worker's compensation

 

magistrate, including those persons who were employed as hearing

 

referees under this act on or before March 31, 1987, who

 

successfully completes the examination provided for under

 

subsection (1) or who has not less than 5 years experience as an

 

attorney in the field of worker's compensation shall be interviewed

 

by the qualifications advisory committee for the position of

 

worker's compensation magistrate. To meet the requirement of 5

 

years' legal experience as an attorney in the field of worker's

 

compensation, an applicant must document to the qualifications

 

advisory committee a period of time totaling 5 years during which

 

the applicant met 1 of the following criteria:

 

     (a) A significant portion of the applicant's personal practice

 

has been in active worker's compensation trial practice

 

representing claimants or employers.

 

     (b) A significant portion of the applicant's personal practice

 

has been in active worker's compensation appellate practice

 

representing claimants or employers.

 

     (c) Service as a member of the former worker's compensation

 

appeal board or the worker's compensation appellate commission.

 

     (3) The qualifications advisory committee, after completing

 

personal interviews of the eligible applicants, shall determine

 

which of the applicants are considered qualified for the position

 

of worker's compensation magistrate. A person determined to be

 

qualified before this 1994 amendatory act shall continue to be

 

considered qualified after the effective date of this 1994

 


amendatory act. The personal interviews shall be used to determine

 

the applicant's suitability for the position, especially with

 

regard to his or her objectivity.

 

     (4) The governor shall appoint only an applicant determined to

 

be qualified by the qualifications advisory committee as a worker's

 

compensation magistrate for each available position pursuant to

 

section 213.within the Michigan administrative hearing system only

 

an individual who is a member in good standing of the state bar of

 

Michigan and has been an attorney licensed to practice in the

 

courts of this state for 5 years or more.

 

     (5) The department of labor may develop pamphlets to assist

 

those persons who desire to take the examination for worker's

 

compensation magistrate.

 

     Sec. 212. (1) The qualifications advisory committee The

 

executive director of the Michigan administrative hearing system

 

and the chair of the worker's compensation board of magistrates, in

 

consultation, shall annually evaluate the performance of each

 

worker's compensation magistrate. at least once every 2 years. The

 

evaluation shall be based upon at least the following criteria:

 

     (a) The rate of affirmance by the appeal board and the

 

Michigan compensation appellate commission of the worker's

 

compensation magistrate's opinions and orders.

 

     (b) Productivity including reasonable time deadlines for

 

disposing of cases and adherence to established productivity

 

standards.

 

     (c) Manner in conducting hearings.

 

     (d) Knowledge of rules of evidence as demonstrated by

 


transcripts of the hearings conducted by the worker's compensation

 

magistrate.

 

     (e) Knowledge of the law.

 

     (f) Evidence of any demonstrable bias against particular

 

defendants, claimants, or attorneys.

 

     (g) Written surveys or comments of all interested parties.

 

Information obtained under this subdivision shall be is exempt from

 

disclosure under the freedom of information act, Act No. 442 of the

 

Public Acts of 1976, being sections 15.231 to 15.246 of the

 

Michigan Compiled Laws.1976 PA 442, MCL 15.231 to 15.246.

 

     (2) Upon completing an evaluation under this section, the

 

qualifications advisory committee executive director of the

 

Michigan administrative hearing system shall submit a written

 

report including any supporting documentation to the governor

 

director of the department of licensing and regulatory affairs

 

regarding that evaluation, which may include recommendations with

 

regard to 1 or more of the following:

 

     (a) Promotion.Retention.

 

     (b) Suspension.

 

     (c) Removal.

 

     (d) Additional training or education.

 

     (3) The governor shall respond in writing to the committee

 

regarding the action taken in response to the report of the

 

committee.

 

     (3) The governor may remove a magistrate upon recommendation

 

by the director of the department of licensing and regulatory

 

affairs based upon recommendations in a report under subsection (2)

 


or upon other neglect of duties.

 

     Sec. 213. (1) The Consistent with Executive Reorganization

 

Order No. 2011-6, MCL 445.2032, the worker's compensation board of

 

magistrates is established as an autonomous entity in the

 

department of labor. Michigan administrative hearing system. The

 

board shall consist of 30 17 members appointed by the governor with

 

the advice and consent of the senate. The governor shall designate

 

1 of the appointees as the member that will be chairperson. A

 

person shall not be appointed to the board who has not been

 

recommended by the qualifications advisory committee. All members

 

of the board shall be members in good standing of the state bar of

 

Michigan.

 

     (2) The members of the board shall be appointed for terms of 4

 

years. A member who has served for 12 years shall not be

 

reappointed to a new term. A vacancy caused by the expiration of a

 

term shall be filled in the same manner as the original

 

appointment. A member shall not serve beyond the expiration of his

 

or her term. unless the qualifications advisory committee fails to

 

submit a recommendation to the governor before the expiration of

 

the term. A member may be reappointed. A member appointed to fill a

 

vacancy created other than by expiration of a term shall be

 

appointed for the balance of the unexpired term. A member of the

 

board may be removed by the governor for good cause which shall be

 

explained in writing to the worker's compensation magistrate. Good

 

cause for removal shall include, but not be limited to, lack of

 

productivity or other neglect of duties.

 

     (3) The governor may shall designate a member of the board as

 


the chairperson upon a vacancy occurring in that position. The

 

chairperson of the board shall have general supervisory control of

 

and be in charge of the employees members of the board and the

 

assignment and scheduling of the work of the board members.

 

     (4) In the case of an extended leave of absence or disability

 

or a significant increase in caseload, the chairperson executive

 

director of the Michigan administrative hearing system may select

 

temporary magistrates to serve for not more than 6 months in any 2-

 

year period. from a list maintained by the qualifications advisory

 

committee. The list shall be composed of persons who are attorneys

 

licensed to practice in this state and who are former or retired

 

worker's disability compensation magistrates, or former or retired

 

worker's disability compensation hearing referees or administrative

 

law judges. A temporary magistrate selected by the chairperson

 

shall have executive director of the Michigan administrative

 

hearing system has the same powers and duties as an appointed

 

magistrate under this act. The chairperson executive director of

 

the Michigan administrative hearing system may also establish

 

productivity standards that are to be adhered to by employees of

 

the board, the board, and individual magistrates. Each member of

 

the board shall devote full time to the functions of the board.

 

Each member of the board shall personally perform the duties of the

 

office during the hours generally worked by officers and employees

 

of the executive departments of the state.

 

     (5) (4) The chairperson of the board shall serve as

 

chairperson at the pleasure of the governor.

 

     (6) (5) Each member of the board shall receive an annual

 


salary and shall be entitled to receive necessary traveling

 

expenses incurred in the performance of official duties subject to

 

the standardized travel regulations of the state.

 

     (7) (6) The board Michigan administrative hearing system may

 

employ the staff it considers necessary to be able to perform its

 

duties under this act, which may include legal assistants for the

 

purpose of legal research and otherwise assisting the board and

 

individual members of the board.

 

     (8) (7) The board is an independent body with the powers and

 

duties as provided for under this act. The board Michigan

 

administrative hearing system may promulgate rules on

 

administrative hearing procedures for purposes under this act.

 

     (9) (8) The chairperson of the board may assign and reassign

 

worker's compensation magistrates to hear cases at locations in

 

this state.

 

     (10) (9) The department of labor licensing and regulatory

 

affairs shall provide suitable office space for the board of

 

worker's compensation magistrates and the employees of the board.

 

     Sec. 274. (1) The worker's compensation appellate commission

 

is established as an autonomous entity in the department of labor.

 

The commission shall consist of 7 members appointed by the governor

 

with the advice and consent of the senate. The governor shall

 

appoint the initial members of the commission not later than

 

January 1, 1986 and shall designate 1 of the appointees as the

 

member that will be chairperson. The governor shall appoint only a

 

person determined to be qualified by the qualifications advisory

 

committee under section 209. All members of the commission shall be

 


members in good standing of the state bar of Michigan.

 

     (2) The members of the commission shall be appointed for terms

 

of 4 years. A member who has served for 12 years shall not be

 

reappointed to a new term. A vacancy caused by the expiration of a

 

term shall be filled in the same manner as the original

 

appointment. A member shall not serve beyond the expiration of his

 

or her term unless the qualification advisory committee fails to

 

submit a recommendation to the governor before the expiration of

 

the term. A member may be reappointed. A member appointed to fill a

 

vacancy created other than by expiration of a term shall be

 

appointed for the balance of the unexpired term. A member of the

 

commission may be removed by the governor for good cause which

 

shall be explained in writing. Good cause for removal shall

 

include, but not be limited to, lack of productivity or other

 

neglect of duties.

 

     (3) The governor may designate a member of the commission as

 

the chairperson upon a vacancy occurring in that position. The

 

chairperson of the commission shall have general supervisory

 

control of and be in charge of the employees of the commission and

 

the assignment and scheduling of the work of the commission. The

 

chairperson may also establish productivity standards that are to

 

be adhered to by employees of the commission, the commission,

 

individual members of the commission, and panels of the commission.

 

Each member of the commission shall devote full time to the

 

functions of the commission. Each member shall personally perform

 

the duties of the office during the hours generally worked by

 

officers and employees of the executive departments of the state.

 


     (4) The chairperson of the commission shall serve as

 

chairperson at the pleasure of the governor.

 

     (5) Each member of the commission shall receive an annual

 

salary which shall be not less than the salary paid to worker's

 

compensation magistrates or hearing referees of the most senior

 

classification and shall be entitled to necessary traveling

 

expenses incurred in the performance of official duties subject to

 

the standardized travel regulations of the state.

 

     (6) The commission may employ the staff it considers necessary

 

to be able to perform its duties under this act which may include

 

legal assistants for the purpose of legal research and otherwise

 

assisting the commission.

 

     (1) (7) The commission is an independent body with the power

 

and authority to review the Michigan compensation appellate

 

commission created in Executive Reorganization Order No. 2011-6,

 

MCL 445.2032, and housed within the Michigan administrative hearing

 

system, may handle, process, and decide appeals from orders of the

 

director and hearing referees and the orders and opinions of the

 

worker's compensation magistrates as provided for under this act.

 

The commission may promulgate rules on administrative appellate

 

procedure for purposes under this act.

 

     (2) (8) Except as otherwise provided in subsection (9), (3),

 

matters that are to be reviewed by the commission shall be randomly

 

assigned to a panel of 3 members of the commission for disposition.

 

The chairperson of the commission may reassign a matter in order to

 

ensure timely review and decision of that matter. The decision

 

reached by a majority of the assigned 3 members of a panel shall be

 


the final decision of the commission.

 

     (3) (9) Any matter that is to be reviewed by the commission

 

that may establish a precedent with regard to worker's compensation

 

in this state as determined by the chairperson, or any matter which

 

that 2 or more members of the commission request be reviewed by the

 

entire commission, shall be reviewed and decided by the entire

 

commission.

 

     (4) (10) Opinions of the commission shall be in writing. The

 

commission shall provide for the publication of those opinions.

 

     (5) (11) The department of labor licensing and regulatory

 

affairs shall provide suitable office space for the commission and

 

employees of the commission.

 

     Sec. 301. (1) 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. In the case of death resulting from the personal injury to

 

the employee, compensation shall be paid to the employee's

 

dependents as provided in this act. Time of injury or date of

 

injury as used in this act in the case of a disease or in the case

 

of an injury not attributable to a single event shall be is the

 

last day of work in the employment in which the employee was last

 

subjected to the conditions that resulted in the employee's

 

disability or death.

 


     (2) Mental disabilities and conditions of the aging process,

 

including but not limited to heart and cardiovascular conditions ,

 

shall be and degenerative arthritis, are compensable if contributed

 

to or aggravated or accelerated by the employment in a significant

 

manner. Mental disabilities shall be are compensable when if

 

arising out of actual events of employment, not unfounded

 

perceptions thereof, and if the employee's perception of the actual

 

events is reasonably grounded in fact or reality.

 

     (3) An employee going to or from his or her work, while on the

 

premises where the employee's work is to be performed, and within a

 

reasonable time before and after his or her working hours, is

 

presumed to be in the course of his or her employment.

 

Notwithstanding this presumption, an injury incurred in the pursuit

 

of an activity the major purpose of which is social or recreational

 

is not covered under this act. Any cause of action brought for such

 

an injury is not subject to section 131.

 

     (4) As used in this chapter: "disability"

 

     (a) "Disability" means a limitation of an employee's wage

 

earning capacity in work suitable to his or her qualifications and

 

training resulting from a personal injury or work-related disease.

 

A limitation of wage earning capacity occurs only if a personal

 

injury covered under this act results in the employee's being

 

unable to perform all jobs paying the maximum wages in work

 

suitable to that employee's qualifications and training, which

 

includes work that may be performed using the employee's

 

transferable work skills. A disability is total if the employee is

 

unable to earn in any job paying maximum wages in work suitable to

 


House Bill No. 5002 as amended December 7, 2011

 

the employee's qualifications and training. A disability is partial

 

if the employee retains a wage earning capacity at a pay level less

 

than his or her maximum wages in work suitable to his or her

 

qualifications and training. The establishment of disability does

 

not create a presumption of wage loss.

 

     (b) Except as provided in section 302, "wage earning capacity"

 

means the wages the employee earns or is capable of earning at a

 

job reasonably available to that employee, whether or not wages are

 

actually earned. For the purposes of establishing a limitation of

 

wage earning capacity, an employee has an affirmative duty to seek

 

work reasonably available to that employee, taking into

 

consideration the limitations from the work-related personal injury

 

or disease. A magistrate may consider good-faith job search efforts

 

to determine whether jobs are reasonably available.

 

     (c) "Wage loss" means the amount of wages lost due to a

 

disability. The employee shall establish a connection between the

 

disability and reduced wages in establishing the wage loss. Wage

 

loss may be established, among other methods, by demonstrating the

 

employee's good-faith effort to procure work within his or her wage

 

earning capacity. A partially disabled employee who establishes a

 

good-faith effort to procure work but cannot obtain <<   >> work within

 

his or her wage earning capacity is entitled to weekly benefits

 

under subsection (7) as if totally disabled.

 

     (5) To establish an initial showing of disability, an employee

 

shall do all of the following:

 

     (a) Disclose his or her qualifications and training, including

 

education, skills, and experience, whether or not they are relevant

 


to the job the employee was performing at the time of the injury.

 

     (b) Provide evidence as to the jobs, if any, he or she is

 

qualified and trained to perform within the same salary range as

 

his or her maximum wage earning capacity at the time of the injury.

 

     (c) Demonstrate that the work-related injury prevents the

 

employee from performing jobs identified as within his or her

 

qualifications and training that pay maximum wages.

 

     (d) If the employee is capable of performing any of the jobs

 

identified in subdivision (c), show that he or she cannot obtain

 

any of those jobs. The evidence shall include a showing of a good-

 

faith attempt to procure post-injury employment if there are jobs

 

at the employee's maximum wage earning capacity at the time of the

 

injury.

 

     (6) Once an employee establishes an initial showing of a

 

disability under subsection (5), the employer bears the burden of

 

production of evidence to refute the employee's showing. In

 

satisfying its burden of production of evidence, the employer has a

 

right to discovery if necessary for the employer to sustain its

 

burden and present a meaningful defense. The employee may present

 

additional evidence to challenge the evidence submitted by the

 

employer.

 

     (7) If a personal injury arising out of the course of

 

employment causes total disability and wage loss and the employee

 

is entitled to wage loss benefits, the employer shall pay or cause

 

to be paid to the injured employee as provided in this section

 

weekly compensation equal to 80% of the employee's after-tax

 

average weekly wage, but not more than the maximum weekly rate

 


determined under section 355. Compensation shall be paid for the

 

duration of the disability.

 

     (8) If a personal injury arising out of the course of

 

employment causes partial disability and wage loss and the employee

 

is entitled to wage loss benefits, the employer shall pay or cause

 

to be paid to the injured employee as provided in this section

 

weekly compensation equal to 80% of the difference between the

 

injured employee's after-tax average weekly wage before the

 

personal injury and the employee's wage earning capacity after the

 

personal injury, but not more than the maximum weekly rate

 

determined under section 355. Compensation shall be paid for the

 

duration of the disability.

 

     (9) (5) If disability is and wage loss are established,

 

pursuant to subsection (4), entitlement to weekly wage loss

 

benefits shall be determined as applicable pursuant to this section

 

and as follows:

 

     (a) If an employee receives a bona fide offer of reasonable

 

employment from the previous employer, another employer, or through

 

the Michigan employment security commission unemployment insurance

 

agency and the employee refuses that employment without good and

 

reasonable cause, the employee shall be considered to have

 

voluntarily removed himself or herself from the work force and is

 

no longer not entitled to any wage loss benefits under this act

 

during the period of such refusal.

 

     (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 work force and is

 


not entitled to any wage loss benefits under this act.

 

     (c) (b) If an employee is employed and the average weekly wage

 

of the employee is less than that which the employee received

 

before the date of injury, the employee shall receive weekly

 

benefits under this act equal to 80% of the difference between the

 

injured employee's after-tax weekly wage before the date of injury

 

and the after-tax weekly wage which that the injured employee is

 

able to earn earns after the date of injury, but not more than the

 

maximum weekly rate of compensation, as determined under section

 

355.

 

     (d) (c) If an employee is employed and the average weekly wage

 

of the employee is equal to or more than the average weekly wage

 

the employee received before the date of injury, the employee is

 

not entitled to any wage loss benefits under this act for the

 

duration of such that employment.

 

     (e) (d) If the employee, after having been employed pursuant

 

to this subsection for 100 weeks or more loses his or her job

 

through no fault of the employee and the employee is still

 

disabled, the employee shall receive compensation under this act

 

pursuant to the following:as follows:

 

     (i) If after exhaustion of unemployment benefit eligibility of

 

an employee, a worker's compensation magistrate or hearing referee,

 

as applicable, determines for any employee covered under this

 

subdivision, that the employments since the time of injury have not

 

established a new wage earning capacity, the employee shall receive

 

compensation based upon his or her wage at the original date of

 

injury. There is a presumption of wage earning capacity established

 


House Bill No. 5002 as amended December 7, 2011

 

for employments totalling 250 weeks or more.If the employee was

 

employed for less than 100 weeks, the employee shall receive

 

compensation based upon his or her average weekly wage at the time

 

of the original injury.

 

     (ii) The employee must still be disabled as determined pursuant

 

to subsection (4). If the employee is still disabled, he or she

 

shall be entitled to wage loss benefits based on the difference

 

between the normal and customary wages paid to those persons

 

performing the same or similar employment, as determined at the

 

time of termination of the employment of the employee, and the

 

wages paid at the time of the injury.If the employee was employed

 

for 100 weeks or more but less than 250 weeks, then after

 

exhausting unemployment benefit eligibility, a worker's

 

compensation magistrate may determine that the employment since the

 

time of the injury has not established a new wage earning capacity

 

and, if the magistrate makes that determination, benefits shall be

 

based on his or her average weekly wage at the original date of

 

injury. If the magistrate does not make that determination, the

 

employee is presumed to have established a post-injury wage earning

 

capacity and benefits shall not be paid based on the wage at the

 

original date of injury.

 

     (iii) If the employee becomes reemployed and the employee is

 

still disabled, he or she shall then receive wage loss benefits as

 

provided in subdivision (b).If the employee was employed for 250

 

weeks or more, the employee is <<             >> presumed to have

 

established a post-injury wage earning capacity.

 

     (e) If the employee, after having been employed pursuant to

 


this subsection for less than 100 weeks loses his or her job for

 

whatever reason, the employee shall receive compensation based upon

 

his or her wage at the original date of injury.

 

     (6) A carrier shall notify the Michigan employment security

 

commission of the name of any injured employee who is unemployed

 

and to which the carrier is paying benefits under this act.

 

     (7) The Michigan employment security commission shall give

 

priority to finding employment for those persons whose names are

 

supplied to the commission under subsection (6).

 

     (10) (8) The Michigan employment security commission

 

unemployment insurance agency shall notify the bureau agency in

 

writing of the name of any employee who refuses any bona fide offer

 

of reasonable employment. Upon notification to the bureau, agency,

 

the bureau agency shall notify the carrier who shall terminate the

 

benefits of the employee pursuant to subsection (5)(a) (9)(a).

 

     (11) (9) "Reasonable employment", as used in this section,

 

means work that is within the employee's capacity to perform that

 

poses no clear and proximate threat to that employee's health and

 

safety, and that is within a reasonable distance from that

 

employee's residence. The employee's capacity to perform shall not

 

be limited to jobs in work suitable to his or her qualifications

 

and training.

 

     (12) (10) Weekly benefits shall not be are not payable during

 

the period of confinement to a person who is incarcerated in a

 

penal institution for violation of the criminal laws of this state

 

or who is confined in a mental institution pending trial for a

 

violation of the criminal laws of this state, if the violation or

 


reason for the confinement occurred while at work and is directly

 

related to the claim.

 

     (13) (11) A person shall not discharge an employee or in any

 

manner discriminate against an employee because the employee filed

 

a complaint or instituted or caused to be instituted a proceeding

 

under this act or because of the exercise by the employee on behalf

 

of himself or herself or others of a right afforded by this act.

 

     (14) (12) This section shall apply applies to personal

 

injuries and work related diseases occurring on or after June 30,

 

1985.

 

     Sec. 302. As used in chapters 3 and 4, "wage earning capacity"

 

means the wages the employee earns or is capable of earning at a

 

job reasonably available to that employee if the employee is a

 

member of a full paid fire department of an airport run by a county

 

road commission in counties of 1,000,000 population or more or by a

 

state university or college or of a full paid fire or police

 

department of a city, township, or incorporated village employed

 

and compensated upon a full-time basis, a county sheriff or the

 

deputy of the county sheriff, a member of the state police, a

 

conservation officer, a motor carrier inspector of the Michigan

 

public service commission, or any employee of any authority,

 

district, board, or any other entity created in whole or in part by

 

the authorization of 1 or more cities, counties, villages, or

 

townships, whether created by statute, ordinance, contract,

 

resolution, delegation, or any other mechanism, who is engaged as a

 

police officer, or in firefighting or subject to the hazards

 

thereof. For the purposes of establishing a limitation of wage

 


House Bill No. 5002 as amended December 7, 2011

 

earning capacity, an employee has an affirmative duty to seek work

 

reasonably available to that employee, taking into consideration

 

the limitations from the work-related injury or disease. A

 

magistrate may consider good-faith job search efforts to determine

 

whether jobs are reasonably available.

 

     Sec. 315. (1) The employer shall furnish, or cause to be

 

furnished, to an employee who receives a personal injury arising

 

out of and in the course of employment, reasonable medical,

 

surgical, and hospital services and medicines, or other attendance

 

or treatment recognized by the laws of this state as legal, when

 

they are needed. However, an employer is not required to reimburse

 

or cause to be reimbursed charges for an optometric service unless

 

that service was included in the definition of practice of

 

optometry under section 17401 of the public health code, 1978 PA

 

368, MCL 333.17401, as of May 20, 1992 or for a chiropractic

 

service unless that service was included in the definition of

 

practice of chiropractic under section 16401 of the public health

 

code, 1978 PA 368, MCL 333.16401, as of January 1, 2009. An

 

employer is not required to reimburse or cause to be reimbursed

 

charges for services performed by a profession that was not

 

licensed or registered by the laws of this state on or before

 

January 1, 1998, but that becomes licensed, registered, or

 

otherwise recognized by the laws of this state after January 1,

 

1998. Attendant or nursing care shall not be ordered in excess of

 

56 hours per week if the care is to be provided by the employee's

 

spouse, brother, sister, child, parent, or any combination of these

 

persons. After 10 <<28>> days from the inception of medical care as

 


House Bill No. 5002 as amended December 7, 2011

 

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. The

 

employer or the employer's carrier may file a petition objecting to

 

the named physician selected by the employee and setting forth

 

reasons for the objection. If the employer or carrier can show

 

cause why the employee should not continue treatment with the named

 

physician of the employee's choice, after notice to all parties and

 

a prompt hearing by a worker's compensation magistrate, the

 

worker's compensation magistrate may order that the employee

 

discontinue treatment with the named physician or pay for the

 

treatment received from the physician from the date the order is

 

mailed. The employer shall also supply to the injured employee

 

dental service, crutches, artificial limbs, eyes, teeth,

 

eyeglasses, hearing apparatus, and other appliances necessary to

 

cure, so far as reasonably possible, and relieve from the effects

 

of the injury. If the employer fails, neglects, or refuses so to

 

do, the employee shall be reimbursed for the reasonable expense

 

paid by the employee, or payment may be made in behalf of the

 

employee to persons to whom the unpaid expenses may be owing, by

 

order of the worker's compensation magistrate. The worker's

 

compensation magistrate may prorate attorney fees at the contingent

 

fee rate paid by the employee. <<                                  

 

                                                                  

 

                                                                  

 

        >>

 

     (2) Except as otherwise provided in subsection (1), all fees

 


and other charges for any treatment or attendance, service,

 

devices, apparatus, or medicine under subsection (1), are subject

 

to rules promulgated by the workers' compensation agency pursuant

 

to the administrative procedures act of 1969, 1969 PA 306, MCL

 

24.201 to 24.328. The rules promulgated shall establish schedules

 

of maximum charges for the treatment or attendance, service,

 

devices, apparatus, or medicine, which schedule shall be annually

 

revised. A health facility or health care provider shall be paid

 

either its usual and customary charge for the treatment or

 

attendance, service, devices, apparatus, or medicine, or the

 

maximum charge established under the rules, whichever is less.

 

     (3) The director of the workers' compensation agency shall

 

provide for an advisory committee to aid and assist in establishing

 

the schedules of maximum charges under subsection (2) for charges

 

or fees that are payable under this section. The advisory committee

 

shall be appointed by and serve at the pleasure of the director.

 

     (4) If a carrier determines that a health facility or health

 

care provider has made any excessive charges or required

 

unjustified treatment, hospitalization, or visits, the health

 

facility or health care provider shall not receive payment under

 

this chapter from the carrier for the excessive fees or unjustified

 

treatment, hospitalization, or visits, and is liable to return to

 

the carrier the fees or charges already collected. The workers'

 

compensation agency may review the records and medical bills of a

 

health facility or health care provider determined by a carrier to

 

not be in compliance with the schedule of charges or to be

 

requiring unjustified treatment, hospitalization, or office visits.

 


     (5) As used in this section, "utilization review" means the

 

initial evaluation by a carrier of the appropriateness in terms of

 

both the level and the quality of health care and health services

 

provided an injured employee, based on medically accepted

 

standards. A utilization review shall be accomplished by a carrier

 

pursuant to a system established by the workers' compensation

 

agency that identifies the utilization of health care and health

 

services above the usual range of utilization for the health care

 

and health services based on medically accepted standards and

 

provides for acquiring necessary records, medical bills, and other

 

information concerning the health care or health services.

 

     (6) By accepting payment under this chapter, a health facility

 

or health care provider shall be considered to have consented to

 

submitting necessary records and other information concerning

 

health care or health services provided for utilization review

 

pursuant to this section. The health facilities and health care

 

providers shall be considered to have agreed to comply with any

 

decision of the workers' compensation agency pursuant to subsection

 

(7). A health facility or health care provider that submits false

 

or misleading records or other information to a carrier or the

 

workers' compensation agency is guilty of a misdemeanor punishable

 

by a fine of not more than $1,000.00 or by imprisonment for not

 

more than 1 year, or both.

 

     (7) If it is determined by a carrier that a health facility or

 

health care provider improperly overutilized or otherwise rendered

 

or ordered inappropriate health care or health services, or that

 

the cost of the health care or health services was inappropriate,

 


the health facility or health care provider may appeal to the

 

workers' compensation agency regarding that determination pursuant

 

to procedures provided for under the system of utilization review.

 

     (8) The criteria or standards established for the utilization

 

review shall be established by rules promulgated by the workers'

 

compensation agency. A carrier that complies with the criteria or

 

standards as determined by the workers' compensation agency shall

 

be certified by the department.

 

     (9) If a health facility or health care provider provides

 

health care or a health service that is not usually associated

 

with, is longer in duration in time than, is more frequent than, or

 

extends over a greater number of days than that health care or

 

service usually does with the diagnosis or condition for which the

 

patient is being treated, the health facility or health care

 

provider may be required by the carrier to explain the necessity or

 

indication for the reasons why in writing.

 

     Sec. 319. (1) An employee who has suffered an injury covered

 

by this act shall be entitled to prompt medical rehabilitation

 

services. When as a result of the injury he or she is unable to

 

perform work for which he or she has previous training or

 

experience, the employee shall be entitled to such vocational

 

rehabilitation services, including retraining and job placement, as

 

may be reasonably necessary to restore him or her to useful

 

employment. If such services are not voluntarily offered and

 

accepted, the director on his or her own motion or upon application

 

of the employee, carrier, or employer, after affording the parties

 

an opportunity to be heard, may refer the employee to a bureau-

 


approved an agency-approved facility for evaluation of the need

 

for, and kind of service, treatment, or training necessary and

 

appropriate to render the employee fit for a remunerative

 

occupation. Upon receipt of such report, the director may order

 

that the training, services, or treatment recommended in the report

 

be provided at the expense of the employer. The director may order

 

that any employee participating in vocational rehabilitation shall

 

receive additional payments for transportation or any extra and

 

necessary expenses during the period and arising out of his or her

 

program of vocational rehabilitation. Vocational rehabilitation

 

training, treatment, or service shall not extend for a period of

 

more than 52 weeks except in cases when, by special order of the

 

director after review, the period may be extended for an additional

 

52 weeks or portion thereof. If there is an unjustifiable refusal

 

to accept rehabilitation pursuant to a decision of the director,

 

the director shall order a loss or reduction of compensation in an

 

amount determined by the director for each week of the period of

 

refusal, except for specific compensation payable under section

 

361(1) and (2).

 

     (2) If a dispute arises between the parties concerning

 

application of any of the provisions of subsection (1), any of the

 

parties may apply for a hearing before a hearing referee or

 

worker's compensation magistrate, as applicable.A party may appeal

 

an order of the director under subsection (1) to the Michigan

 

compensation appellate commission within 15 days after the order is

 

mailed to the parties.

 

     Sec. 331. The following persons shall be conclusively presumed

 


to be wholly dependent for support upon a deceased employee:

 

     (a) A wife upon a husband with whom she lives at the time of

 

his death, or from whom, at the time of his death, a worker's

 

compensation magistrate shall find the wife was living apart for

 

justifiable cause or because he had deserted her.

 

     (b) A Except as otherwise provided in this section, a child

 

under the age of 16 years, or 16 years or over 16 years of age if

 

physically or mentally incapacitated from earning, is conclusively

 

presumed to be wholly dependent for support upon the parent with

 

whom he or she is living at the time of the death of that parent.

 

In the event of the death of an employee who has at the time of

 

death a living child by a former spouse or a child who has been

 

deserted by such the deceased employee under the age of 16 years,

 

or over if physically or mentally incapacitated from earning, such

 

that child shall be conclusively presumed to be wholly dependent

 

for support upon the deceased employee, even though not living with

 

the deceased employee at the time of death. and in all cases the

 

The death benefit shall be divided between or among the surviving

 

spouse and all the children of the deceased employee, and all other

 

persons, if any, among all persons who are wholly dependent upon

 

the deceased employee, in equal shares. the surviving spouse taking

 

the same share as a child. In all cases mentioned in this section

 

the The total sum due a surviving spouse and his or her own

 

children shall be paid directly to the surviving spouse for his or

 

her own use, and for the use and benefit of his or her own

 

children. If during the time compensation payments shall continue,

 

a worker's compensation magistrate shall find finds that the

 


surviving spouse is not properly caring for such those children,

 

the worker's compensation magistrate shall order the shares of such

 

the children to be thereafter paid to their guardian or legal

 

representative for their use and benefit, instead of to their

 

father or mother. In all cases the sums due to the children by the

 

former spouse of the deceased employee shall be paid to their

 

guardians or legal representatives for the use and benefit of such

 

those children. In all other cases questions of dependency, in

 

whole or in part, shall be determined in accordance with the fact,

 

as the fact may be facts at the time of the injury. Where If a

 

deceased employee leaves a person wholly dependent upon him or her

 

for support, such that person shall be entitled to the whole death

 

benefit and persons partially dependent, if any, shall receive no

 

part thereof, while the person wholly dependent is living. All

 

persons wholly dependent upon a deceased employee, whether by

 

conclusive presumption or as a matter of fact, shall be entitled to

 

share equally in the death benefit in accordance with the

 

provisions of this section. If there is no one wholly dependent or

 

if the death of all persons wholly dependent shall occur occurs

 

before all compensation is paid, and there is but only 1 person

 

partially dependent, such that person shall be is entitled to

 

compensation according to the extent of his or her dependency; and

 

if there is more than 1 person partially dependent, the death

 

benefit shall be divided among them according to the relative

 

extent of their dependency. A person shall not be considered a

 

dependent unless he or she is a member of the family of the

 

deceased employee, or unless such person bears to the deceased

 


employee the relation of widower or widow, lineal descendant,

 

ancestor, or brother or sister.

 

     Sec. 353. (1) For the purposes of sections 351 to 361,

 

dependency shall be determined as follows:

 

     (a) The following shall be conclusively presumed to be

 

dependent for support upon an injured employee:

 

     (i) The wife of an injured employee living with such employee

 

as such wife at the time of the injury.

 

     (a) (ii) A child under the age of 16 years, or 16 years or over

 

said age, if physically or mentally incapacitated from earning,

 

living with his parent at the time of the injury of such that

 

parent.

 

     (b) In all other cases questions of dependency shall be

 

determined in accordance with the fact, as the fact may be facts at

 

the time of the injury, except as provided in subsection (3). No

 

person shall A person shall not be considered a dependent unless he

 

or she is a member of the family of the injured employee, or unless

 

such the person bears to such the injured employee the relation of

 

husband or wife, or lineal descendent, or ancestor or brother or

 

sister. Except as to those a person conclusively presumed to be

 

dependents, no person shall be deemed a dependent who a dependent,

 

a person who receives less than 1/2 of his or her support from an

 

injured employee shall not be considered to be a dependent.

 

     (2) Weekly payments to an injured employee shall be reduced by

 

the additional amount provided for any dependent child or spouse or

 

other dependent when such the child either reaches the age of 18

 

years or after becoming 16 ceases for a period of 6 months to

 


House Bill No. 5002 as amended December 7, 2011

 

receive more than 1/2 of his or her support from such the injured

 

employee, if at such that time he the child is neither physically

 

nor mentally incapacitated from earning; , or when such when the

 

spouse shall be is divorced by final decree from his or her injured

 

spouse; , or when such the child, spouse, or other dependent shall

 

be is deceased.

 

     (3) An increase in payments shall be made for increased

 

numbers of conclusive dependents as defined in this act who were

 

not so dependent at the time of the injury of an employee.

 

     Sec. 354. (1) This section is applicable when applies if

 

either weekly or lump sum payments are made to an employee as a

 

result of liability pursuant to under section 301(7) or (8), 351,

 

361, or 835 with respect to the same time period for which the

 

employee also received or is receiving old-age insurance benefit

 

payments under the social security act, 42 U.S.C. USC 301 to 1397f;

 

payments under a self-insurance plan, a wage continuation plan, or

 

a disability insurance policy provided by the employer; or pension

 

or retirement payments pursuant to under a plan or program

 

established or maintained by the employer. , are also received or

 

being received by the employee. Except as otherwise provided in

 

this section, the employer's obligation to pay or cause to be paid

 

weekly benefits other than specific loss benefits under section

 

361(2) and (3) shall be reduced by these amounts:

     (a) Fifty percent of the amount of the old-age insurance

benefits received or being received under the social security act<<,

chapter 531, 49 Stat. 620. However, if the injured employee has been

receiving old-age insurance benefit payments under the social

security act, chapter 531, 49 Stat. 620, before the date of the

personal injury or work-related disease, then in no event shall the weekly benefits payable after the reduction provided by this

subdivision be less than 50% of the weekly benefits otherwise

payable without the reduction>>.

     (b) The after-tax amount of the payments received or being

received under a self-insurance plan, a wage continuation plan, or

 


House Bill No. 5002 as amended December 7, 2011

 

under a disability insurance policy provided by the same employer

 

from whom benefits under section 301(7) or (8), 351, 361, or 835

 

are received if the employee did not contribute directly to the

 

plan or to the payment of premiums regarding the disability

 

insurance policy. If such the self-insurance plans, wage

 

continuation plans, or disability insurance policies are entitled

 

to repayment in the event of a worker's compensation benefit

 

recovery, the carrier shall satisfy such that repayment out of

 

funds the carrier has received through the coordination of benefits

 

provided for under this section. Notwithstanding the provisions of

 

this subsection, attorney fees shall be paid pursuant to section

 

821 to the attorney who secured the worker's compensation recovery.

 

     (c) The proportional amount, based on the ratio of the

 

employer's contributions to the total insurance premiums for the

 

policy period involved, of the after-tax amount of the payments

 

received or being received by the employee pursuant to a disability

 

insurance policy provided by the same employer from whom benefits

 

under section 301(7) or (8), 351, 361, or 835 are received, if the

 

employee did contribute directly to the payment of premiums

 

regarding the disability insurance policy.

 

     (d) The 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 under section 301(7) or (8), 351, 361, or 835

 

are received, if the employee did not contribute directly to the

 


pension or retirement plan or program. Subsequent increases in a

 

pension or retirement program shall not affect the coordination of

 

these benefits.

 

     (e) The proportional amount, based on the ratio of the

 

employer's contributions to the total contributions to the plan or

 

program, of the after-tax amount of the pension or retirement

 

payments received or being received by the employee pursuant to a

 

plan or program established or maintained by the same employer from

 

whom benefits under section 301(7) or (8), 351, 361, or 835 are

 

received, if the employee did contribute directly to the pension or

 

retirement plan or program. Subsequent increases in a pension or

 

retirement program shall not affect the coordination of these

 

benefits.

 

     (f) For those employers who do not provide a pension plan, the

 

proportional amount, based on the ratio of the employer's

 

contributions to the total contributions made to a qualified profit

 

sharing plan under section 401(a) of the internal revenue code or

 

any successor to section 401(a) of the internal revenue code

 

covering a profit sharing plan which provides for the payment of

 

benefits only upon retirement, disability, death, or other

 

separation of employment to the extent that benefits are vested

 

under the plan.

 

     (2) To satisfy any remaining obligations under section 301(7)

 

or (8), 351, 361, or 835, the employer shall pay or cause to be

 

paid to the employee the balance due in either weekly or lump sum

 

payments after the application of subsection (1).

 

     (3) In the application of subsection (1) any credit or

 


reduction shall occur pursuant to this section and all of the

 

following:

 

     (a) The bureau agency shall promulgate rules to provide for

 

notification by an employer or carrier to an employee of possible

 

eligibility for social security benefits and the requirements for

 

establishing proof of application for those benefits. Notification

 

shall be promptly mailed to the employee after the date on which by

 

reason of age the employee may be entitled to social security

 

benefits. A copy of the notification of possible eligibility shall

 

be filed with the bureau agency by the employer or carrier.

 

     (b) Within 30 days after receipt of the notification of

 

possible employee eligibility the employee shall:

 

     (i) Make application Apply for social security benefits.

 

     (ii) Provide the employer or carrier with proof of that

 

application.

 

     (iii) Provide the employer or carrier with an authority for

 

release of information which shall be utilized by the employer or

 

carrier to obtain necessary benefit entitlement and amount

 

information from the social security administration. The authority

 

for release of information shall be effective for 1 year.

 

     (4) Failure of If the employee fails to provide the proof of

 

application or the authority for release of information as

 

prescribed in subsection (3), shall allow the employer or carrier,

 

with the approval of the bureau to agency, may discontinue the

 

compensation benefits payable to the employee under section 301(7)

 

or (8), 351, 361, or 835 until the proof of application and the

 

authority for release of information is provided. Compensation

 


benefits withheld shall be reimbursed to the employee upon the

 

providing of the required proof of application, or the authority

 

for release of information, or both.

 

     (5) If the employer or carrier is required to submit a new

 

authority for release of information to the social security

 

administration in order to receive information necessary to comply

 

with this section, the employee shall provide the new authority for

 

release of information within 30 days of a request by the employer

 

or carrier. Failure If the employee fails to provide the new

 

authority for release of information, shall allow the employer or

 

carrier, with the approval of the bureau to agency, may discontinue

 

benefits until the authority for release of information is provided

 

as prescribed in this subsection. Compensation benefits withheld

 

shall be reimbursed to the employee upon the providing of the new

 

authority for release of information.

 

     (6) Within 30 days after either the date of first payment of

 

compensation benefits under section 301(7) or (8), 351, 361, or

 

835, or 30 days after the date of application for any benefit under

 

subsection (1)(b), (c), (d), or (e), whichever is later, the

 

employee shall provide the employer or carrier with a properly

 

executed authority for release of information, which shall be

 

utilized by the employer or carrier to obtain necessary benefit

 

entitlement and amount information from the appropriate source. The

 

authority for release of information is effective for 1 year.

 

Failure of the employee to provide a properly executed authority

 

for release of information shall allow allows the employer or

 

carrier with the approval of the bureau agency to discontinue the

 


compensation benefits payable under section 301 (7) or (8), 351,

 

361, or 835 to the employee until the authority for release of

 

information is provided. Compensation benefits withheld shall be

 

reimbursed to the employee upon providing the required authority

 

for release of information. If the employer or carrier is required

 

to submit a new authority for release of information to the

 

appropriate source in order to receive information necessary to

 

comply with this section, the employee shall provide a properly

 

executed new authority for release of information within 30 days

 

after a request by the employer or carrier. Failure of the employee

 

to provide a properly executed new authority for release of

 

information shall allow allows the employer or carrier with the

 

approval of the bureau agency to discontinue benefits under section

 

301(7) or (8), 351, 361, or 835 until the authority for release of

 

information is provided as prescribed in this subsection.

 

Compensation benefits withheld shall be reimbursed to the employee

 

upon the providing of the new authority for release of information.

 

     (7) A credit or reduction under this section shall not occur

 

because of an increase granted by the social security

 

administration as a cost of living adjustment.

 

     (8) Except as provided in subsections (4), (5), and (6), a

 

credit or reduction of benefits otherwise payable for any week

 

shall not be taken under this section until there has been a

 

determination of the benefit amount otherwise payable to the

 

employee under section 301(7) or (8), 351, 361, or 835 and the

 

employee has begun receiving the benefit payments.

 

     (9) Except as otherwise provided in this section, any benefit

 


payments under the social security act, or any fund, policy, or

 

program as specified in subsection (1) which that the employee has

 

received or is receiving after March 31, 1982 and during a period

 

in which the employee was receiving unreduced compensation benefits

 

under section 301(7) or (8), 351, 361, or 835 shall be considered

 

to have created an overpayment of compensation benefits for that

 

period. The employer or carrier shall calculate the amount of the

 

overpayment and send a notice of overpayment and a request for

 

reimbursement to the employee. Failure by the employee to reimburse

 

the employer or carrier within 30 days after the mailing date of

 

the notice of request for reimbursement shall allow allows the

 

employer or carrier with the approval of the bureau agency to

 

discontinue 50% of future weekly compensation payments under

 

section 301(7) or (8), 351, 361 or 835. The compensation payments

 

withheld shall be credited against the amount of the overpayment.

 

Payment of the appropriate compensation benefit shall resume when

 

the total amount of the overpayment has been withheld.

 

     (10) The employer or carrier taking a credit or making a

 

reduction as provided in this section shall immediately report to

 

the bureau agency the amount of any credit or reduction, and as

 

requested by the bureau, agency, furnish to the bureau agency

 

satisfactory proof of the basis for a credit or reduction.

 

     (11) Disability insurance benefit payments under the social

 

security act shall be considered to be payments from funds provided

 

by the employer and to be primary payments on the employer's

 

obligation under section 301(7) or (8), 351, 361, or 835 as old-age

 

benefit payments under the social security act are considered

 


pursuant to this section. The coordination of social security

 

disability benefits shall commence on the date of the award

 

certificate of the social security disability benefits. Any accrued

 

social security disability benefits shall not be coordinated.

 

However, social security disability insurance benefits shall only

 

be so considered if section 224 of the social security act, 42

 

U.S.C. USC 424a, is revised so that a reduction of social security

 

disability insurance benefits is not made because of the receipt of

 

worker's compensation benefits by the employee.

 

     (12) 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.

 

     (13) As used in this section, "after-tax amount" means the

 

gross amount of any benefit under subsection (1)(b), (1)(c),

 

(1)(d), or (1)(e) reduced by the prorated weekly amount which would

 

have been paid, if any, under the federal insurance contributions

 

act, 26 U.S.C. USC 3101 to 3126, 3128, and state income tax and

 

federal income tax, calculated on an annual basis using as the

 

number of exemptions the disabled employee's dependents plus the

 

employee, and without excess itemized deductions. In determining

 

the "after-tax amount" the tables provided for in section 313(2)

 

shall be used. The gross amount of any benefit under subsection

 

(1)(b), (1)(c), (1)(d), or (1)(e) shall be presumed to be the same

 

as the average weekly wage for purposes of the table. The

 

applicable 80% of after-tax amount as provided in the table will be

 

multiplied by 1.25 which will be conclusive for determining the

 


"after-tax amount" of benefits under subsection (1)(b), (1)(c),

 

(1)(d), or (1)(e).

 

     (14) This section does not apply to any payments received or

 

to be received under a disability pension plan provided by the same

 

employer, which plan is in existence on March 31, 1982. Any

 

disability pension plan entered into or renewed after March 31,

 

1982 may provide that the payments under that disability pension

 

plan provided by the employer shall not be coordinated pursuant to

 

this section.

 

     (15) With respect to volunteer fire fighters, volunteer safety

 

patrol officers, volunteer civil defense workers, and volunteer

 

ambulance drivers and attendants who are considered employees for

 

purposes of this act pursuant to section 161(1)(a), the reduction

 

of weekly benefits provided for disability insurance payments under

 

subsection (1)(b) and (c) and subsection (11) may be waived by the

 

employer. An employer that is not a self-insurer may make the

 

waiver provided for under this subsection only at the time a

 

worker's compensation insurance policy is entered into or renewed.

 

     (16) This section shall does not apply to payments made to an

 

employee as a result of liability pursuant to section 361(2) and

 

(3) for the specific loss period set forth therein. It is the

 

intent of the legislature that, because benefits under section

 

361(2) and (3) are benefits which that recognize human factors

 

substantially in addition to the wage loss concept, coordination of

 

benefits should not apply to such those benefits.

 

     (17) The decision of the Michigan Supreme Court in Franks v

 

White Pine Copper Division, 422 Mich 636 (1985) is declared to have

 


been erroneously rendered insofar as it interprets this section, it

 

having been and being the legislative intention not to coordinate

 

payments under this section resulting from liability pursuant to

 

section 301(7) or (8), 351, 361, or 835 for personal injuries

 

occurring before March 31, 1982. It is the purpose of this the

 

amendatory act that added this subsection to so affirm. This

 

remedial and curative amendment shall be liberally construed to

 

effectuate this purpose.

 

     (18) This section applies only to payments resulting from

 

liability pursuant to section 301 (7) or (8), 351, 361, or 835 for

 

personal injuries occurring on or after March 31, 1982. Any

 

payments made to an employee resulting from liability pursuant to

 

section 301(7) or (8), 351, 361, or 835 for a personal injury

 

occurring before March 31, 1982 that have not been coordinated

 

under this section as of the effective date of this subsection

 

shall not be coordinated, shall not be considered to have created

 

an overpayment of compensation benefits, and shall not be subject

 

to reimbursement to the employer or carrier.

 

     (19) Notwithstanding any other section of this act, any

 

payments made to an employee resulting from liability pursuant to

 

section 301(7) or (8), 351, 361, or 835 for a personal injury

 

occurring before March 31, 1982 that have been coordinated before

 

the effective date of this subsection May 14, 1987 shall be

 

considered to be an underpayment of compensation benefits, and the

 

amounts withheld pursuant to coordination shall be reimbursed with

 

interest, within 60 days of the effective date of this subsection,

 

by July 13, 1987, to the employee by the employer or carrier.

 


     (20) Notwithstanding any other section of this act, any

 

employee who has paid an employer or carrier money alleged by the

 

employer or carrier to be owed the employer or carrier because that

 

employee's benefits had not been coordinated under this section and

 

whose date of personal injury was before March 31, 1982 shall be

 

reimbursed with interest, within 60 days of the effective date of

 

this subsection, by July 13, 1987, that money by the employer or

 

carrier.

 

     (21) If any portion of this section is subsequently found to

 

be unconstitutional or in violation of applicable law, it shall not

 

affect the validity of the remainder of this section.

 

     Sec. 358. Net weekly benefits payable under section 351, 361,

 

or lump sum benefits under section 835, shall be reduced by 100% of

 

the amount of benefits paid or payable to the injured employee

 

under the Michigan employment security act, Act No. 1 of the Public

 

Acts of the Extra Session of 1936, as amended, being sections 421.1

 

to 421.67a of the Michigan Compiled Laws, 1936 (Ex Sess) PA 1, MCL

 

421.1 to 421.75, for identical periods of time. and chargeable to

 

the same employer.

 

     Sec. 360. (1) A person who suffers an injury arising out of

 

and in the course of employment as a professional athlete shall be

 

is entitled to weekly benefits only when the person's average

 

weekly wages in all employments at the time of application for

 

benefits, and thereafter, as computed in accordance with section

 

371, are less than 200% of the state average weekly wage.

 

     (2) This section This subsection shall not be construed to

 

prohibit an otherwise eligible person from receiving benefits under

 


section 315, 319, or 361.

 

     (2) A professional athlete who is hired under a contract with

 

an employer outside of this state is exempt from this act if all of

 

the following conditions apply:

 

     (a) The athlete sustains a personal injury arising out of the

 

course of employment while the professional athlete is temporarily

 

within this state.

 

     (b) The employer has obtained worker's compensation insurance

 

coverage under the worker's compensation law of another state that

 

covers the injury in this state.

 

     (c) The other state recognizes the extraterritorial provisions

 

of this act and provides a reciprocal exemption for professional

 

athletes whose injuries arise out of employment while temporarily

 

in that state and are covered by the worker's compensation law of

 

this state.

 

     (3) The benefits and other remedies under the worker's

 

compensation laws of another state are the exclusive remedy against

 

the employer under the conditions in subsection (2). A certificate

 

from the duly authorized officer of another state certifying that

 

the employer is insured in that state and has obtained

 

extraterritorial coverage insuring the employer's professional

 

athletes in this state is prima facie evidence that the employer

 

has obtained insurance meeting the requirements for the exception

 

to coverage under this act under subsection (2).

 

     Sec. 361. (1) While the incapacity for work resulting from a

 

personal injury is partial, the employer shall pay, or cause to be

 

paid to the injured employee weekly compensation equal to 80% of

 


the difference between the injured employee's after-tax average

 

weekly wage before the personal injury and the after-tax average

 

weekly wage which the injured employee is able to earn after the

 

personal injury, but not more than the maximum weekly rate of

 

compensation, as determined under section 355. Compensation shall

 

be paid for the duration of the disability. However, an An employer

 

shall not be is not liable for compensation under section 301(7) or

 

(8), 351, 371(1), or this subsection or 401(5) or (6) for such

 

periods of time that the employee is unable to obtain or perform

 

work because of imprisonment or commission of a crime.

 

     (2) In cases included in the following schedule, the

 

disability in each case shall be considered to continue for the

 

period specified, and the compensation paid for the personal injury

 

shall be 80% of the after-tax average weekly wage subject to the

 

maximum and minimum rates of compensation under this act. for the

 

loss of the following:The effect of any internal joint replacement

 

surgery, internal implant, or other similar medical procedure shall

 

be considered in determining whether a specific loss has occurred.

 

The specific loss period for the loss shall be considered as

 

follows:

 

     (a) Thumb, 65 weeks.

 

     (b) First finger, 38 weeks.

 

     (c) Second finger, 33 weeks.

 

     (d) Third finger, 22 weeks.

 

     (e) Fourth finger, 16 weeks.

 

     The loss of the first phalange of the thumb, or of any finger,

 

shall be considered to be equal to the loss of 1/2 of that thumb or

 


finger, and compensation shall be 1/2 of the amount above

 

specified.

 

     The loss of more than 1 phalange shall be considered as the

 

loss of the entire finger or thumb. The amount received for more

 

than 1 finger shall not exceed the amount provided in this schedule

 

for the loss of a hand.

 

     (f) Great toe, 33 weeks.

 

     (g) A toe other than the great toe, 11 weeks.

 

     The loss of the first phalange of any toe shall be considered

 

to be equal to the loss of 1/2 of that toe, and compensation shall

 

be 1/2 of the amount above specified.

 

     The loss of more than 1 phalange shall be considered as the

 

loss of the entire toe.

 

     (h) Hand, 215 weeks.

 

     (i) Arm, 269 weeks.

 

     An amputation between the elbow and wrist that is 6 or more

 

inches below the elbow shall be considered a hand, and an

 

amputation above that point shall be considered an arm.

 

     (j) Foot, 162 weeks.

 

     (k) Leg, 215 weeks.

 

     An amputation between the knee and foot 7 or more inches below

 

the tibial table (plateau) shall be considered a foot, and an

 

amputation above that point shall be considered a leg.

 

     (l) Eye, 162 weeks.

 

     Eighty percent loss of vision of 1 eye shall constitute the

 

total loss of that eye.

 

     (3) Total and permanent disability, compensation for which is

 


provided in section 351 means:

 

     (a) Total and permanent loss of sight of both eyes.

 

     (b) Loss of both legs or both feet at or above the ankle.

 

     (c) Loss of both arms or both hands at or above the wrist.

 

     (d) Loss of any 2 of the members or faculties in subdivisions

 

subdivision (a), (b), or (c).

 

     (e) Permanent and complete paralysis of both legs or both arms

 

or of 1 leg and 1 arm.

 

     (f) Incurable insanity or imbecility.

 

     (g) Permanent and total loss of industrial use of both legs or

 

both hands or both arms or 1 leg and 1 arm; for the purpose of this

 

subdivision such permanency shall be determined not less than 30

 

days before the expiration of 500 weeks from the date of injury.

 

     (4) The amounts specified in this clause are all subject to

 

the same limitations as to maximum and minimum as above stated. In

 

case of the loss of 1 member while compensation is being paid for

 

the loss of another member, compensation shall be paid for the loss

 

of the second member for the period provided in this section.

 

Payments for the loss of a second member shall begin at the

 

conclusion of the payments for the first member.

 

     Sec. 381. (1) A proceeding for compensation for an injury

 

under this act shall not be maintained unless a claim for

 

compensation for the injury, which claim may be either oral or in

 

writing, has been made to the employer or a written claim has been

 

made to the bureau agency either electronically, as prescribed by

 

the director, or on forms prescribed by the director, within 2

 

years after the occurrence of the injury. In case of the death of

 


the employee, the claim shall be made within 2 years after death.

 

The employee shall provide a notice of injury to the employer

 

within 90 days after the happening of the injury, or within 90 days

 

after the employee knew, or should have known, of the injury.

 

Failure to give such notice to the employer shall be excused unless

 

the employer can prove that he or she was prejudiced by the failure

 

to provide such notice. In the event of physical or mental

 

incapacity of the employee, the notice and claim shall be made

 

within 2 years from the time the injured employee is not physically

 

or mentally incapacitated from making the claim. A claim shall not

 

be valid or effectual for any purpose under this chapter unless

 

made within 2 years after the later of the date of injury, the date

 

disability manifests itself, or the last day of employment with the

 

employer against whom claim is being made. If an employee claims

 

benefits for a work injury and is thereafter compensated for the

 

disability by worker's compensation or benefits other than worker's

 

compensation, or is provided favored work by the employer because

 

of the disability, the period of time within which a claim shall be

 

made for benefits under this act shall be extended by the time

 

during which the benefits are paid or the favored work is provided.

 

     (2) Except as provided in subsection (3), if any compensation

 

is sought under this act, payment shall not be made for any period

 

of time earlier than 2 years immediately preceding the date on

 

which the employee filed an application for a hearing with the

 

bureau.agency.

 

     (3) Payment for nursing or attendant care shall not be made

 

for any period which is more than 1 year before the date an

 


application for a hearing is filed with the bureau.agency.

 

     (4) The receipt by an employee of any other occupational or

 

nonoccupational benefit does not suspend the duty of the employee

 

to comply with this section, except under the circumstances

 

described in subsection (1).

 

     Sec. 401. (1) As used in this chapter, "disability" means a

 

limitation of an employee's wage earning capacity in work suitable

 

to his or her qualifications and training resulting from a personal

 

injury or work related disease. A limitation of wage earning

 

capacity occurs only if a personal injury covered under this act

 

results in the employee's being unable to perform all jobs paying

 

the maximum wages in work suitable to that employee's

 

qualifications and training, which includes work that may be

 

performed using the employee's transferable work skills. A

 

disability is total if the employee is unable to earn in any job

 

paying maximum wages in work suitable to the employee's

 

qualifications and training. A disability is partial if the

 

employee retains a wage earning capacity at a pay level less than

 

his or her maximum wages in work suitable to his or her

 

qualifications and training. The establishment of disability does

 

not create a presumption of wage loss.

 

     (2) As used in this act:chapter:

 

     (a) "Disablement" means the event of becoming so disabled.

 

     (b) "Personal injury" shall include includes a disease or

 

disability which that is due to causes and conditions which that

 

are characteristic of and peculiar to the business of the employer

 

and which that arises out of and in the course of the employment.

 


An ordinary disease of life to which the public is generally

 

exposed outside of the employment is not compensable. 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. Mental disabilities and conditions of the

 

aging process, including but not limited to heart and

 

cardiovascular conditions, and degenerative arthritis shall be

 

compensable if contributed to or aggravated or accelerated by the

 

employment in a significant manner. Mental disabilities shall be

 

compensable when arising out of actual events of employment, not

 

unfounded perceptions thereof, and if the employee's perception of

 

the actual events is reasonably grounded in fact or reality. A

 

hernia to be compensable must be clearly recent in origin and

 

result from a strain arising out of and in the course of the

 

employment and be promptly reported to the employer.

 

     (c) Except as provided in section 302, "wage earning capacity"

 

means the wages the employee earns or is capable of earning at a

 

job reasonably available to that employee, whether or not actually

 

earned. For the purposes of establishing wage earning capacity, an

 

employee has an affirmative duty to seek work reasonably available

 

to that employee, taking into consideration the limitations from

 

the work-related personal injury or disease. A magistrate may

 

consider good-faith job search efforts to determine whether jobs

 

are reasonably available.

 

     (d) "Wage loss" means the amount of wages lost due to a

 

disability. The employee shall establish a connection between the

 


House Bill No. 5002 as amended December 7, 2011

 

disability and reduced wages in establishing the wage loss. Wage

 

loss may be established, among other methods, by demonstrating the

 

employee's good-faith effort to procure work within his or her wage

 

earning capacity. A partially disabled employee who establishes a

 

good-faith effort to procure work but cannot obtain <<   >> work within

 

his or her wage earning capacity is entitled to weekly benefits

 

under subsection (5) as if totally disabled.

 

     (3) To establish an initial showing of disability, an employee

 

shall do all of the following:

 

     (a) Disclose his or her qualifications and training, including

 

education, skills, and experience, whether or not they are relevant

 

to the job the employee was performing at the time of the injury.

 

     (b) Provide evidence as to the jobs, if any, he or she is

 

qualified and trained to perform within the same salary range as

 

his or her maximum wage earning capacity at the time of the injury.

 

     (c) Demonstrate that the work-related injury prevents the

 

employee from performing jobs identified as within his or her

 

qualifications and training that pay maximum wages.

 

     (d) If the employee is capable of performing any of the jobs

 

identified in subdivision (c), show that he or she cannot obtain

 

any of those jobs. The evidence shall include a showing of a good-

 

faith attempt to procure postinjury employment if there are jobs at

 

the employee's maximum wage earning capacity at the time of the

 

injury.

 

     (4) Once an employee establishes an initial showing of a

 

disability under subsection (3), the employer bears the burden of

 

production of evidence to refute the employee's showing. In

 


satisfying its burden of production of evidence, the employer has a

 

right to discovery if necessary for the employer to sustain its

 

burden and present a meaningful defense. The employee may present

 

additional evidence to challenge the evidence submitted by the

 

employer.

 

     (5) If a personal injury arising out of the course of

 

employment causes total disability and wage loss and the employee

 

is entitled to wage loss benefits, the employer shall pay or cause

 

to be paid to the injured employee as provided in this section

 

weekly compensation equal to 80% of the employee's after-tax

 

average weekly wage, but not more than the maximum weekly rate

 

determined under section 355. Compensation shall be paid for the

 

duration of the disability.

 

     (6) If a personal injury arising out of the course of

 

employment causes partial disability and wage loss and the employee

 

is entitled to wage loss benefits, the employer shall pay or cause

 

to be paid to the injured employee as provided in this section

 

weekly compensation equal to 80% of the difference between the

 

injured employee's after-tax average weekly wage before the

 

personal injury and the employee's wage earning capacity after the

 

personal injury, but not more than the maximum weekly rate

 

determined under section 355. Compensation shall be paid for the

 

duration of the disability.

 

     (7) (3) If disability is and wage loss are established,

 

pursuant to subsection (1), entitlement to weekly wage loss

 

benefits shall be determined as applicable pursuant to this section

 

and as follows:

 


     (a) If an employee receives a bona fide offer of reasonable

 

employment from the previous employer, another employer, or through

 

the Michigan employment security commission unemployment insurance

 

agency and the employee refuses that employment without good and

 

reasonable cause, the employee shall be considered to have

 

voluntarily removed himself or herself from the work force and is

 

no longer entitled to any wage loss benefits under this act during

 

the period of such refusal.

 

     (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 work force and is

 

not entitled to any wage loss benefits under this act.

 

     (c) (b) If an employee is employed and the average weekly wage

 

of the employee is less than that which the employee received

 

before the date of injury, the employee shall receive weekly

 

benefits under this act equal to 80% of the difference between the

 

injured employee's after-tax weekly wage before the date of injury

 

and the after-tax weekly wage which that the injured employee is

 

able to earn earns after the date of injury, but not more than the

 

maximum weekly rate of compensation, as determined under section

 

355.

 

     (d) (c) If an employee is employed and the average weekly wage

 

of the employee is equal to or more than the average weekly wage

 

the employee received before the date of injury, the employee is

 

not entitled to any wage loss benefits under this act for the

 

duration of such that employment.

 

     (e) (d) If the employee, after having been employed pursuant

 


to this subsection, for 100 weeks or more loses his or her job

 

through no fault of the employee and the employee is still

 

disabled, the employee shall receive compensation under this act

 

pursuant to the following:as follows:

 

     (i) If after exhaustion of unemployment benefit eligibility of

 

an employee, a worker's compensation magistrate or hearing referee,

 

as applicable, determines for any employee covered under this

 

subdivision, that the employments since the time of injury have not

 

established a new wage earning capacity, the employee shall receive

 

compensation based upon his or her wage at the original date of

 

injury. There is a presumption of wage earning capacity established

 

for employments totalling 250 weeks or more.

 

     (ii) The employee must still be disabled as determined pursuant

 

to subsection (1). If the employee is still disabled, the employee

 

shall be entitled to the wage loss benefits based on the difference

 

between the normal and customary wages paid to those persons

 

performing the same or similar employment as determined at the time

 

of termination of employment of the employee and the wages paid at

 

the time of the injury.

 

     (iii) If the employee becomes reemployed and the employee is

 

still disabled, the employee shall then receive wage loss benefits

 

as provided in subdivision (b).

 

     (e) If the employee, after having been employed pursuant to

 

this subsection for less than 100 weeks, loses his or her job

 

through no fault of the employee, the employee shall receive

 

compensation based upon his or her wage at the original date of

 

injury.

 


House Bill No. 5002 as amended December 7, 2011

 

     (4) A carrier shall notify the Michigan employment security

 

commission of the name of any injured employee who is unemployed

 

and to which the carrier is paying benefits under this act.

 

     (5) The Michigan employment security commission shall give

 

priority to finding employment for those persons whose names are

 

supplied to the commission under subsection (4).

 

     (i) If the employee was employed for less than 100 weeks, the

 

employee shall receive compensation based upon his or her wage at

 

the time of the original injury.

 

     (ii) If the employee was employed for 100 weeks or more but

 

less than 250 weeks, then after the employee exhausts unemployment

 

benefit eligibility, a worker's compensation magistrate may

 

determine that the employment since the time of the injury has not

 

established a new wage earning capacity and, if the magistrate

 

makes that determination, benefits shall be based on the employee's

 

wage at the original date of injury. If the magistrate does not

 

make that determination, the employee is presumed to have

 

established a post-injury wage earning capacity and benefits shall

 

not be paid based on the wage at the original date of injury.

 

     (iii) If the employee was employed for 250 weeks or more, the

 

employee is <<            >> presumed to have established a post-injury

 

wage earning capacity.

 

     (8) (6) The Michigan employment security commission

 

unemployment insurance agency shall notify the bureau agency in

 

writing of the name of any employee who refuses any bona fide offer

 

of reasonable employment. Upon notification to the bureau, agency,

 

the bureau agency shall notify the carrier who shall terminate the

 


benefits of the employee pursuant to subsection (3)(a).(7)(a).

 

     (9) (7) As used in this section, "reasonable employment" means

 

work that is within the employee's capacity to perform that poses

 

no clear and proximate threat to that employee's health and safety,

 

and that is within a reasonable distance from that employee's

 

residence. The employee's capacity to perform shall not be limited

 

to work suitable to his or her qualifications and training.

 

     (10) (8) This section shall apply to personal injuries or work

 

related diseases occurring on or after June 30, 1985.

 

     Sec. 613. If the agency determines that services are covered

 

employment under section 161(1)(n) and the agency received the

 

request on or after the effective date of the amendatory act that

 

added this subsection and before January 1, 2013, the employer

 

shall not be subject to penalties or interest on underpayments or

 

other violations before the date of the determination arising from

 

the misclassification of those services.

 

     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 bureau agency-approved

 

electronic record layout 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 bureau agency or any third party for

 


the use of bureau 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 shall not be is required of any insurer where 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. 659. (1) If the suburban mobility authority regional

 

transportation authority created pursuant to the metropolitan

 

transportation authorities act of 1967, 1967 PA 204, MCL 124.401 to

 

124.426, an authority created by interlocal agreement pursuant to

 

the urban cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501

 

to 124.512, an authority created pursuant to the public

 

transportation authority act, 1986 PA 196, MCL 124.451 to 124.479,

 

a metropolitan council established pursuant to the metropolitan

 

councils act, 1989 PA 292, MCL 124.651 to 124.729, an authority or

 

a municipal corporation that has entered into an intergovernmental

 

contract to provide transportation services pursuant to 1951 PA 35,

 

MCL 124.1 to 124.13, or 1963 PA 55, MCL 124.351 to 124.359, or an

 

authority created pursuant to 1969 PA 55, MCL 124.351 to 124.359,

 

ceases to operate or is dissolved, and a successor agency is not

 

created to assume its assets, liabilities, and perform its

 

functions, and if the authority is authorized to secure the payment

 

of compensation under section 611(1)(a), then the state hereby

 


guarantees the payment of claims for benefits arising under this

 

act against the authority. Payment of claims by the state under

 

this section shall be made from the general fund. The director of

 

the department of technology, management, and budget shall

 

designate a third party administrator to handle claims under this

 

section until the assignment under subsection (3) occurs.

 

     (2) Except as otherwise provided in subsection (3), the third

 

party administrator shall determine in detail as the director of

 

the department of technology, management, and budget may require

 

the amount necessary to pay the claims for benefits for which the

 

state is responsible pursuant to subsection (1). The third party

 

administrator shall be responsible for the processing of these

 

claims and shall be compensated for its services in the same manner

 

as a carrier is compensated for processing the claims of state

 

employees.

 

     (3) The Michigan worker's compensation placement facility

 

shall randomly assign a carrier licensed to write worker's

 

disability compensation insurance to determine in detail as the

 

director of the department of technology, management, and budget

 

may require the amount necessary to pay the claims for benefits for

 

which the state is responsible pursuant to subsection (1). The

 

carrier so assigned is responsible for processing these claims and

 

shall be compensated for its services in the same manner as for

 

processing the claims of state employees.

 

     (4) The state is entitled to a lien that takes precedence over

 

all other liens on its portion of the assets of the authority in

 

satisfaction of the payment of claims for benefits under this

 


section.

 

     (5) This section shall not be construed to permit the use of

 

state funds for the payment of private obligations. Therefore, if

 

an authority created pursuant to 1987 PA 204, MCL 124.401 to

 

124.426; 1967 (Ex Sess) PA 7, MCL 124.501 to 124.512; 1986 PA 196,

 

MCL 124.451 to 124.479; a metropolitan council established pursuant

 

to 1989 PA 292, MCL 124.651 to 124.685; an authority or a municipal

 

corporation that has entered into an intergovernmental contract to

 

provide transportation services pursuant to 1951 PA 35, MCL 124.1

 

to 124.13; or 1963 PA 55, MCL 124.351 to 124.359, delegates to a

 

private employer or contracts with a private employer for the

 

performance of any of the functions permitted under its enabling

 

statute, the director shall not permit the private employer

 

performing these functions to be included under the authorization

 

granted by the director to the authority or other agency to self-

 

insure pursuant to section 611(1)(a).

 

     Sec. 801. (1) Compensation shall be paid promptly and directly

 

to the person entitled thereto and shall become due and payable on

 

the fourteenth day after the employer has notice or knowledge of

 

the disability or death, on which date all compensation then

 

accrued shall be paid. Thereafter compensation shall be paid in

 

weekly installments. Every carrier shall keep a record of all

 

payments made under this act and of the time and manner of making

 

the payments and shall furnish reports, based upon these records,

 

to the bureau agency as the director may reasonably require.

 

     (2) If weekly compensation benefits or accrued weekly benefits

 

are not paid within 30 days after becoming due and payable , in

 


cases where and there is not an ongoing dispute, $50.00 per day

 

shall be added and paid to the worker for each day over 30 days in

 

which the benefits are not paid. Not more than $1,500.00 in total

 

may be added pursuant to this subsection.

 

     (3) If medical bills or a travel allowance are is not paid

 

within 30 days after the carrier has received notice of nonpayment

 

by certified mail , in cases where and there is no ongoing dispute,

 

$50.00 or the amount of the bill due, whichever is less, shall be

 

added and paid to the worker for each day over 30 days in which the

 

medical bills or travel allowance are is not paid. Not more than

 

$1,500.00 in total may be added pursuant to this subsection.

 

     (4) For purposes of rate-making, daily charges paid under

 

subsection (2) shall not constitute elements of loss.

 

     (5) An employer who has notice or knowledge of the disability

 

or death and fails to give notice to the carrier shall pay the

 

penalty provided for in subsection (2) for the period during which

 

the employer failed to notify the carrier.

 

     (6) When weekly compensation is paid pursuant to an award of a

 

worker's compensation magistrate, an arbitrator, the board, the

 

appellate commission, or a court, interest on the compensation

 

shall be paid at the a rate of 10% per annum from the date each

 

payment was due, until paid.calculated in the same manner as

 

interest on a money judgment in a civil action under section

 

6013(8) of the revised judicature act of 1961, 1961 PA 236, MCL

 

600.6013.

 

     (7) By April 1, 2012, the director of the worker's

 

compensation agency shall coordinate with the department of

 


House Bill No. 5002 as amended December 7, 2011

 

technology, management, and budget on the development of

 

comprehensive data and shall file with the secretary of the senate

 

and the clerk of the house of representatives a report making

 

recommendations to the legislature on a system utilizing advanced

 

analytics for the detection and prevention of fraud, waste, and

 

abuse in the worker's compensation system. <<ADDITIONALLY, THE

DIRECTOR SHALL INCLUDE INFORMATION ON THE NUMBER OF CASES FILED,

AND THE NUMBER OF EMPLOYEES WHO HAD BENEFITS REDUCED AS A RESULT

OF A DETERMINATION OF THEIR WAGE EARNING CAPACITY.>>

 

     Sec. 835. (1) After 6 months' time has elapsed from the date

 

of a personal injury, any liability resulting from the personal

 

injury may be redeemed by the payment of a lump sum by agreement of

 

the parties, subject to the approval of a worker's compensation

 

magistrate. If special circumstances are found which in the

 

judgment of the worker's compensation magistrate require the

 

payment of a lump sum, the worker's compensation magistrate may

 

direct at any time in any case that the deferred payments due under

 

this act be commuted on the present worth at 10% per annum to 1 or

 

more lump sum payments and that the lump sum payments shall be made

 

by the employer or carrier. When a proposed redemption agreement is

 

filed, it may be treated as a lump sum application, within the

 

discretion of a worker's compensation magistrate. The filing of a

 

proposed redemption agreement or lump sum application shall not be

 

considered an admission of liability and if the worker's

 

compensation magistrate treats a proposed redemption agreement as a

 

lump sum application under this section, the employer shall be

 

entitled to a hearing on the question of liability.

 

     (2) The carrier shall notify the employer in writing, which

 

may be electronically transmitted, of the proposed redemption

 

agreement not less than 10 business days before a hearing on the

 


proposed redemption agreement is held. The notice shall include all

 

of the following:

 

     (a) The amount and conditions of the proposed redemption

 

agreement.

 

     (b) The procedure available for requesting a private informal

 

managerial level conference.

 

     (c) The name and business phone number of a representative of

 

the carrier familiar with the case.

 

     (d) The time and place of the hearing on the proposed

 

redemption agreement and the right of the employer to object to it.

 

     (3) The worker's compensation magistrate may waive the

 

requirements of subsection (2) if the carrier provides evidence

 

that a good-faith effort has been made to provide the required

 

notice or if the employer has consented in writing to the proposed

 

redemption.

 

     (4) Except as otherwise provided in this subsection, for all

 

proposed redemption agreements filed after December 31, 1983, each

 

party to the agreement shall be liable for a fee of $100.00 to be

 

used to defray costs incurred by the bureau, agency, the worker's

 

compensation board of magistrates, and the worker's compensation

 

appellate commission administering this act, except that in the

 

case of multiple defendants the fee for the party defendant shall

 

be $100.00 to be paid by the carrier covering the most recent date

 

of injury. The bureau agency shall develop a system to provide for

 

the collection of the fee provided for by this subsection. The fee

 

provided by this subsection does not apply to proposed redemption

 

agreements in which the uninsured employer's security fund is a

 


party under section 532.

 

     (5) The fees collected pursuant to subsection (4) shall be

 

placed in the worker's compensation administrative revolving fund

 

under section 835a. Money in the worker's compensation

 

administrative revolving fund shall only be used to pay for costs

 

in regard to the following specific purposes of the bureau, agency,

 

the worker's compensation board of magistrates, and the worker's

 

Michigan compensation appellate commission as applicable:

 

     (a) Education and training.

 

     (b) Case management.

 

     (c) Hearings and claims for review.

 

     (6) Subsections (2) to (5) only apply to proposed redemption

 

agreements filed after December 31, 1983.

 

     Sec. 836. (1) A redemption agreement shall only be approved by

 

a worker's compensation magistrate if the worker's compensation

 

magistrate finds all of the following:

 

     (a) That the redemption agreement serves the purpose of this

 

act, is just and proper under the circumstances, and is in the best

 

interests of the injured employee.

 

     (b) That the redemption agreement is voluntarily agreed to by

 

all parties. If an employer does not object in writing or in person

 

to the proposed redemption agreement, the employer shall be

 

considered to have agreed to the proposed agreement.

 

     (c) That if an application has been filed pursuant to section

 

847 it alleges a compensable cause of action under this act.

 

     (d) That the injured employee is fully aware of his or her

 

rights under this act and the consequences of a redemption

 


agreement.

 

     (2) Parties may stipulate in writing to the determinations in

 

subsection (1). If all parties stipulate in writing to those

 

determinations, the stipulation may serve as a waiver of hearing,

 

and the magistrate may approve the redemption agreement. A

 

magistrate may conduct a hearing on a proposed stipulation.

 

     (3) (2) In making a determination under subsection (1),

 

factors to be considered by the worker's compensation magistrate

 

shall include, but not be limited to, all of the following:

 

     (a) Any other benefits the injured employee is receiving or is

 

entitled to receive and the effect a redemption agreement might

 

have on those benefits.

 

     (b) The nature and extent of the injuries and disabilities of

 

the employee.

 

     (c) The age and life expectancy of the injured employee.

 

     (d) Whether the injured employee has any health, disability,

 

or related insurance.

 

     (e) The number of dependents of the injured employee.

 

     (f) The marital status of the injured employee.

 

     (g) Whether any other person may have any claim on the

 

redemption proceeds.

 

     (h) The amount of the injured employee's average monthly

 

expenses.

 

     (i) The intended use of the redemption proceeds by the injured

 

employee.

 

     (4) (3) The factors considered by the worker's compensation

 

magistrate in making a determination under this section and the

 


responses of the injured employee thereto shall be placed on the

 

record.

 

     (5) (4) An employer shall be considered a party for purposes

 

under this section.

 

     Sec. 837. (1) All redemption agreements and lump sum

 

applications filed under the provisions of section 835 shall be

 

approved or rejected by a worker's compensation magistrate.

 

     (2) The director may, or upon the request of any of the

 

parties to the action shall, review the order of the worker's

 

compensation magistrate entered under subsection (1). In the event

 

of review by the director and in accordance with such rules as the

 

director may prescribe and after hearing, the director shall enter

 

an order as the director considers just and proper. Any order of

 

the director under this subsection may be appealed to the appellate

 

commission within 15 days after the order is mailed to the parties.

 

     (3) Unless review is ordered or requested within 15 days after

 

the date the order of the worker's compensation magistrate is

 

mailed, or distributed electronically, to the parties, the order

 

shall be final.

 

     Sec. 847. (1) Except as otherwise provided for under this act,

 

upon the filing with the bureau agency by any party in interest of

 

an application in writing stating the general nature of any claim

 

as to which any dispute or controversy may have arisen, the case

 

shall be set for mediation or hearing, as applicable. An

 

application may be submitted electronically. A worker's

 

compensation magistrate shall hear a case that is set for hearing.

 

     (2) For cases in which an application for a hearing under this

 


section is filed after March 31, 1986, the The worker's

 

compensation magistrate, in addition to a written order, shall file

 

a concise written opinion stating his or her reasoning for the

 

order including any findings of fact and conclusions of law. The

 

order and opinion shall be part of the record of the hearing. The

 

order and opinion may be filed and distributed electronically.

 

     (3) If the agency or the Michigan administrative hearing

 

system determines that a case may be resolved by mediation, the

 

case may be mediated by the parties. If the matter is not resolved

 

by the mediation, the case shall be set for hearing.

 

     Sec. 853. Process and procedure under this act shall be as

 

summary as reasonably may be. The director, worker's compensation

 

magistrates, arbitrators, and the board shall have the power to

 

Michigan compensation appellate commission may administer oaths,

 

subpoena witnesses, and to examine such parts of the books and

 

records of the parties to a proceeding as relate to questions in

 

dispute. A subpoena signed by an attorney of record in the action

 

has the force and effect of an order signed by the worker's

 

compensation magistrate or arbitrator associated with the hearing.

 

Any witness who refuses to obey a subpoena, who refuses to be sworn

 

or testify, or who fails to produce any papers, books, or documents

 

touching any matter under investigation or any witness, party, or

 

attorney who is guilty of any contempt while in attendance at any

 

hearing held under this act may be punished as for contempt of

 

court. An application for this purpose may be made to any circuit

 

court within whose jurisdiction the offense is committed and for

 

which purpose the court is given jurisdiction.

 


     Sec. 862. (1) A claim for review filed pursuant to section

 

859, 859a, 860, 861, or 864(11) shall does not operate as a stay of

 

payment to the claimant of 70% of the weekly benefit required by

 

the terms of the award of the worker's compensation magistrate or

 

arbitrator. Payment shall commence as of the date of the worker's

 

compensation magistrate's or arbitrator's award, and shall continue

 

until final determination of the appeal or for a shorter period if

 

specified in the award. Benefits accruing prior to the award shall

 

be withheld until final determination of the appeal. If the weekly

 

benefit is reduced or rescinded by a final determination, the

 

carrier shall be is entitled to reimbursement in a sum equal to the

 

compensation paid pending the appeal in excess of the amount

 

finally determined. Reimbursement shall be paid upon audit and

 

proper voucher from the second injury fund established in chapter

 

5. If the award is affirmed by a final determination, the carrier

 

shall pay all compensation which has become due under the

 

provisions of the award, less any compensation already paid.

 

Interest shall not be paid on amounts paid pending final

 

determination. Payments made to the claimant during the appeal

 

period shall be is considered as accrued compensation for purposes

 

of determining attorneys' fees under the rules of the

 

bureau.agency.

 

     (2) A claim for review filed pursuant to section 859a or

 

864(11) of a case for which an application under section 847 is

 

filed after March 31, 1986 shall does not operate as a stay of

 

providing reasonable and necessary medical benefits required by the

 

terms of the award. Medical benefits shall be provided as of the

 


date of the award and shall continue until final determination of

 

the appeal or for a shorter period if specified in the award.

 

Benefits accruing prior to the award shall be withheld until final

 

determination of the appeal. If the benefit amount is reduced or

 

rescinded by a final determination, the carrier shall be reimbursed

 

for the amount of the expenses incurred in providing the medical

 

benefits pending the appeal in excess of the amount finally

 

determined. Reimbursement shall be paid upon audit and proper

 

voucher from the general fund of the state. If the award is

 

affirmed by a final determination, the carrier shall provide all

 

medical benefits which that have become due under the provisions of

 

the award, less any benefits already provided for. Interest shall

 

not be paid on amounts paid pending final determination.

 

     Enacting section 1. Sections 209, 211, 215, 223, and 364 and

 

chapter 7 of the worker's disability compensation act of 1969, 1969

 

PA 317, MCL 418.209, 418.211, 418.215, 418.223, 418.364, and

 

418.700 to 418.751, are repealed.

 

     Enacting section 2. This amendatory act applies to injuries

 

incurred on or after its effective date.