HOW DISABLED DO I HAVE TO BE?

Until 1982, the Act itself did not contain a definition of disability. For injuries occurring before March 31, 1982 (and before May 15, 1987), your attorney can explain how those injuries are treated under the old case law.

Our current definition of disability arises out of 1987 amendments to the Act. Section 301(4) and 401(1) of the Workers’ Disability Compensation Act now  defines “disability” as “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.”   Interpretation of this definition of disability applicable to injuries suffered after May 15, 1987 has created a great deal of controversy which has not yet ended.

In the Sington decision in May of 2002, a Michigan Supreme Court majority, composed mostly of Engler appointees, held that a worker is not entitled to wage loss benefits unless he or she can show that there is no job he or she can obtain or perform within his or her qualifications and training that pays at his or her maximum wage earning capacity.

It’s not entirely clear what the Supreme Court will insist an injured worker must prove in order to meet their new standard.  Physician testimony regarding a worker’s inability to do activities earning maximum wages within his or her qualifications and training will be important. An injured worker’s testimony regarding unsuccessful efforts to secure employment within his or her qualifications and training will also help.

The Michigan Supreme Court ruled in 2008 that it is not enough for an injured worker to testify that he or she cannot do prior jobs; there must be a persuasive demonstration that a worker cannot perform or obtain any work at their maximum wage earning capacity. The Court said a worker can prove that through an unsuccessful job search or by hiring a vocational expert witness familiar with the job market. You should talk with us about what you need to do to satisfy the Michigan Supreme Court's new standard.

In recent years, it should also be noted that the Engler Workers’ Compensation Appellate Commission had been denying benefits to workers where the employer argues that workers are suffering wage loss for reasons other than work injuries.  If a worker is also suffering from non-work related medical conditions or was subsequently fired for, e.g., missing work, the Commission has denied benefits.  In the 2000 Supreme Court case of Russell v Whirlpool, it should have been made clear that an employer can not fire a disabled worker (at least within the first 100 weeks of a return to work following an injury) and then  deny benefits claiming that the cause of the wage loss was the discharge and not the disability.  Because some magistrates have denied benefits to workers who have both work-related and non work related disabilities, it is  important  that an employee’s physician document that the work injury is the reason, or at least a reason, that the worker is off work.

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