September 22, 2011, Introduced by Reps. Jacobsen, Bumstead, Jenkins, Damrow, Price, Lund, Agema, Pscholka, Lori, Olson, Shaughnessy, LaFontaine, Muxlow, MacGregor, Rendon and Zorn and referred to the Committee on Commerce.
A bill to amend 1969 PA 317, entitled
"Worker's disability compensation act of 1969,"
by amending sections 301, 315, 331, 353, 354, 360, 361, and 801
(MCL 418.301, 418.315, 418.331, 418.353, 418.354, 418.360, 418.361,
and 418.801), sections 301 and 354 as amended by 1987 PA 28,
section 315 as amended by 2009 PA 226, sections 331 and 801 as
amended by 1994 PA 271, and section 361 as amended by 1985 PA 103,
and by adding section 306; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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. Personal injury includes a
disease or disability that is due to causes and conditions that are
characteristic of and peculiar to the business of the employer and
that arise out of and in the course of employment. 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. An
ordinary disease of life to which the public is generally exposed
outside of the employment is not compensable. 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. Mental disability
not caused by physical trauma is compensable only if it results
from greater mental stress and tension than the day-to-day mental
stress and tension that all employees experience in similar
employment. A hernia is compensable only if it is of recent origin,
results from a strain arising out of and in the course of the
employment, and is promptly reported to the employer.
(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" act:
(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 historical 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 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
historical 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, whether or not actually earned.
(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.
(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) (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 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.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) 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 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).
(8)
The Michigan employment security commission unemployment
insurance agency shall notify the bureau in writing of the name of
any employee who refuses any bona fide offer of reasonable
employment. Upon notification to the bureau, the bureau shall
notify the carrier who shall terminate the benefits of the employee
pursuant
to subsection (5)(a) (7)(a).
(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.
(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. Weekly benefits are not payable during the period of
imprisonment following sentencing for a crime, if the employee is
unable to obtain employment or perform work because of that
imprisonment.
(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. 306. (1) For 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 and the deputies of the county sheriff, members of the
state police, conservation officers, and motor carrier inspectors
of the Michigan public service commission, "personal injury" shall
be construed to include respiratory and heart diseases or illnesses
resulting from those diseases that develop or manifest themselves
while the individual is in active service and that result from
performing duties in the course of employment.
(2) Respiratory and heart diseases or illnesses resulting from
those diseases as described in subsection (1) are considered to
arise out of and in the course of employment in the absence of
evidence to the contrary.
(3) As a condition precedent to filing an application for
benefits and subject to section 354(12), the claimant, if he or she
is described in subsection (1), shall first apply for, and do all
things necessary to qualify for, any pension benefits to which he
or she, or his or her decedent, may be entitled. If a final
determination is made that pension benefits shall not be awarded,
then the presumption of "personal injury" as provided in subsection
(2) applies. The employer or employee may request 2 copies of the
determination denying pension benefits, 1 copy of which may be
filed with the bureau.
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 90 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.
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,
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 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 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 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 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
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 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 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 the amount of any credit or reduction, and as requested
by the bureau, furnish to the bureau 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 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 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 excepted from the provisions
of 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 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 loss has occurred. The disability 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. 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 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 rate of 10% per annum from the date each
payment
was due, until paid.calculated
in the same manner as
provided for a money judgment in a civil action under section
6013(8) of the revised judicature act of 1961, 1961 PA 236, MCL
600.6013(8).
Enacting section 1. Chapter 4 of the worker's disability
compensation act of 1969, 1969 PA 317, MCL 418.401 to 418.441, is
repealed.