HB-5002, As Passed House, November 2, 2011
SUBSTITUTE FOR
HOUSE BILL NO. 5002
[A bill to amend 1969 PA 317, entitled
"Worker's disability compensation act of 1969,"
by amending sections 210, 212, 213, 230, 274, 301, 315, 319, 331, 353,
354, 360, 361, 381, 401, 625, 801, 835, 836, 837, 847, and 853 (MCL
418.210, 418.212, 418.213, 418.230, 418.274, 418.301, 418.315, 418.319,
418.331, 418.353, 418.354, 418.360, 418.361, 418.381, 418.401,
418.625, 418.801, 418.835, 418.836, 418.837, 418.847, and 418.853),
sections 210, 213, 274, 331, 801, 836, 837, 847, and 853 as amended
by 1994 PA 271, section 212 as added and sections 319, 361, and 381
as amended by 1985 PA 103, section 230 as amended by 2002 PA 566,
sections 301, 354, and 401 as amended by 1987 PA 28, section 315 as
amended by 2009 PA 226, section 625 as amended by 2002 PA 626, and
section 835 as amended by 1996 PA 357; and to repeal acts and parts of
acts.]
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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.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 department
of licensing and regulatory affairs shall 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
appellate commission of the worker's compensation magistrate's
opinions and orders.
(b) Productivity including reasonable time deadlines for
disposing of cases.
(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 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 department
of licensing and
regulatory affairs shall submit a written report including any
supporting documentation to the governor regarding that evaluation
which may include recommendations with regard to 1 or more of the
following:
(a) Promotion.
(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.
Sec. 213. (1) The worker's compensation board of magistrates
is
established as an autonomous entity in the department of labor.
licensing
and regulatory affairs. 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 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 of the board and the assignment
and scheduling of the work of the board. In the case of an extended
leave of absence or disability, the chairperson 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 the same powers and duties as an appointed magistrate
under this act. The chairperson 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.
(4) The chairperson of the board shall serve as chairperson at
the pleasure of the governor.
(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.
(6) The board may employ the staff it considers necessary to
House Bill No. 5002 (H-2) as amended November 1, 2011
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.
(7) The board is an independent body with the powers and
duties as provided for under this act. The board may promulgate
rules on administrative hearing procedures for purposes under this
act.
(8) The chairperson of the board may assign and reassign
worker's compensation magistrates to hear cases at locations in
this state.
(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. 230. (1) Except as otherwise provided in this section, the following records are confidential and exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246:
(a) Records submitted by an individual employer or a
group of employers to the bureau worker's compensation agency in support of an application for
self-insured status in the manner provided in section 611.
(b) Information concerning the injury of and benefits
paid to an individual worker. This includes, but is not limited to, all forms,
records, and reports filed with or maintained by the bureau worker's compensation agency concerning the injury of or benefits paid
to a worker.
(c) Worker's disability compensation insurance policy
information submitted to the bureau worker's compensation agency by an individual employer or group of
employers in accordance with section 615 or a notice of issuance of a policy
submitted to the bureau worker's compensation agency by an insurer in accordance with section 625.
(2) The bureau worker's compensation agency may release, disclose, or publish
information described in subsection (1) under the following circumstances:
(a) In the case of subsection (1)(a), (b), or (c), the
bureau worker's
compensation agency may
disclose or publish aggregate information for statistical or research purposes
so long as it is disclosed or published in such a way that the confidentiality
of information concerning individual workers and the financial records of
individual employers or self-insured employers or insurers is protected. The bureau
worker's
compensation agency may also
release individual records to a recognized academic or scholarly institution
for research House Bill No. 5002 (H-2)as amended November 1, 2011
purposes if it is provided with sufficient assurance that the outside individual or agency will preserve the confidentiality of information concerning individual workers and the financial records of individual self-insured employers.
(b) In the case of subsection (1)(b), the bureau worker's compensation agency may release information to another
governmental agency if the governmental agency provides the bureau worker's compensation agency with sufficient assurance that it will
preserve the confidentiality of the information. The other agency may use this
information to determine the eligibility of an individual for benefits provided
or regulated by that agency. The bureau worker's compensation agency or another agency may disclose the
information if it determines that the individual is receiving benefits to which
he or she is not entitled as the result of receiving more than 1 benefit at the
same time.
(c) Except as otherwise provided, information disclosed in accordance with subdivision (a) or (b) shall continue to be exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(d) In the case of subsection (1)(b), the bureau worker's compensation agency may release individual records to a
nonprofit health care corporation, as defined in section 105 of the nonprofit
health care corporation reform act, 1980 PA 350, MCL 550.1105, for the sole
purpose of determining financial liability for the payment of benefits provided
by the corporation. Any information provided to the nonprofit health care
corporation shall be confidential, as provided in section 406 of the nonprofit
health care corporation reform act, 1980 PA 350, MCL 550.1406. In a dispute
over who assumes liability for the payment of benefits for a particular claim,
the nonprofit health care corporation shall initiate payment of benefits
pending resolution of the dispute.
(e) In the case of subsection (1)(c), in response to a
request that pertains to a specific employer and includes the employer's
address and the date of injury of the claim for which the information is
requested, the bureau worker's compensation agency may disclose the name and address of the insurer that,
according to the records of the bureau, worker's compensation agency, provided coverage on the date of injury,
but shall not disclose the effective date or expiration date of the policy.
(3) The confidentiality provided for in subsection (1)
does not apply to records maintained by the bureau worker's compensation agency that are part of or directly related to a
contested case. For the purposes of this subsection, a matter shall be
considered a contested case when it is the subject of a request for a formal
hearing before the director or an application filed in accordance with section
847.
(4) Any employee is entitled to inspect and obtain a
copy of any record maintained by the bureau worker's compensation agency concerning himself or herself. Any
employer is entitled to inspect and obtain a copy of any record maintained by
the bureau worker's
compensation agency concerning
itself.
(5) The confidentiality provided for in subsection (1)(a) does not apply to the records of a self-insured employer that becomes unable to
House Bill No. 5002 (H-2)as amended November 1, 2011
pay benefits under this act due to insolvency or declaration of bankruptcy.
(6) This section does not limit the power of a court of law to subpoena records relevant to a matter pending before it.
(7) Notwithstanding this section, the bureau worker's compensation agency shall release information to the IV-D
agency in accordance with section 4 of the office of child support act, 1971 PA
174, MCL 400.231 to 400.239. 400.234. As used
in this subsection, "IV-D agency" means that term as defined in
section 2 of the support and parenting time enforcement act, 1982 PA 295, MCL
552.602.
(8) a carrier that receives information indicating or giving reason to believe that a claim for benefits under this act has been filed by an undocumented alien may report that information to the federal bureau of investigation or the federal immigration and customs enforcement. If either the federal bureau of investigation or the federal immigration and customs enforcement verifies that the claimant is an undocumented alien, the worker's compensation agency shall be notified and the carrier may discontinue payment of all compensation and medical benefits to that alien.]
Sec.
274. (1) The worker's Michigan
compensation appellate
commission is established as an autonomous entity in the department
of
labor. licensing and
regulatory affairs. 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.
(7) The commission is an independent body with the power and
authority to review the 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.
(8) Except as otherwise provided in subsection (9), 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.
(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 2
or more members of the commission request be reviewed by the entire
commission, shall be reviewed and decided by the entire commission.
(10) Opinions of the commission shall be in writing. The
commission shall provide for the publication of those opinions.
(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 covered
under this act is compensable if it causes, contributes to, or
aggravates pathology in a manner that is medically distinguishable
from the employee's prior condition. 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, including
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.
(b) "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. 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. Wage loss may be established, among other methods, by
demonstrating the employee's reasonable, good-faith effort to
procure work suitable to his or her wage earning capacity. The
employee shall establish a connection between a work injury and
reduced wages in establishing the wage loss.
(5) To establish an initial showing of disability and wage
loss, 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 and wage loss 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 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, or if the employee is terminated from reasonable
employment for fault of the employee, 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 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 average weekly wage before the date of injury
and
the after-tax average 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.
(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.
(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.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 conclusively 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.
(12)
This section shall apply to personal injuries and work
related
diseases occurring on or after June 30, 1985.
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 45 days from the inception of medical care as
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. Attorney fees related to medical
expenses are chargeable to either the employee or the medical
provider, or both, but are not chargeable to the employer or
carrier.
(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 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
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 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.
(b) The after-tax amount of the payments received or being
received under a self-insurance plan, a wage continuation plan, or
under a disability insurance policy provided by the same employer
from whom benefits under section 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 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 eligible to receive at
normal retirement age, pursuant to a plan or program established or
maintained by the same employer from whom benefits under section
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 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 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 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 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 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 the employer or carrier with the approval of the bureau
agency to discontinue the compensation benefits payable under
section 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 the employer or carrier with the approval
of
the bureau agency to discontinue benefits under section 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 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 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 the employer or carrier with
the
approval of the bureau agency
to discontinue 50% of future
weekly compensation payments under section 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 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
This section does not require an employee to apply for early
federal social security old-age insurance benefits or to apply for
early or reduced pension or retirement benefits to avoid a
reduction in wage loss 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 recognize human factors
substantially in addition to the wage loss concept, coordination of
benefits should not apply to such 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 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 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 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 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. 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 employer
shall
not be is not liable for compensation under section 351,
371(1),
or this subsection 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 joint replacement surgery,
implant, or other 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. The establishment of disability
does not create a presumption of wage loss.
(2) As used in this act:
(a) "Disablement" means the event of becoming so disabled.
(b) "Personal injury" shall include a disease or disability
which is due to causes and conditions which are characteristic of
and peculiar to the business of the employer and which 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. Mental disabilities and conditions of the aging
process, including but not limited to heart and cardiovascular
conditions, 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.
(3)
If disability is and wage
loss are established, pursuant
to
subsection (1), entitlement to
weekly wage loss benefits shall
be determined 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 or the employee is terminated from reasonable
employment for fault of the employee, 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 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.
(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.
(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.
(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 conclusively presumed to have established a post-injury
wage earning capacity.
(4) (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).
(5) (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.
(6) (8)
This section shall apply to
personal injuries or work
related diseases occurring on or after June 30, 1985.
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 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. 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.
House Bill No. 5002 (H-2) as amended November 1, 2011
(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 file with the secretary of the senate and the clerk of the
house of representatives A report making recommendations to the
legislature on the detection and prevention of fraud, waste, and abuse
in the worker's compensation system.]
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
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 Except as
provided in section 837(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 both parties stipulate in writing to those
determinations, the stipulation shall serve as a waiver of hearing,
and the magistrate may approve the redemption agreement.
(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 or a
stipulation filed under section 836 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 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.
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
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.
Enacting section 1. Sections 209 and 211 of the worker's
disability compensation act of 1969, 1969 PA 317, MCL 418.209 and
418.211, are repealed.