WHAT IF MY EMPLOYERS FINDS ME A JOB WITHIN MY RESTRICTIONS?
In Michigan, payment of disability wage loss benefits now depends upon an employee’s inability to return to work paying maximum wages within one’s qualifications and training. Michigan employers have the opportunity and right to find work for their injured employees within their restrictions so as to avoid payment of benefits. If an employee receives a bona fide offer of reasonable employment within that employee’s restrictions and a reasonable distance from his or her residence, and the employee refuses the job without good cause, the employee forfeits his or her right to benefits. You may hear the expression “favored work” which is usually and originally used to describe “odd lot” jobs created or modified just to fit within the workers’ restrictions in order to bring the worker back to work. Employees must accept such jobs or risk denial of benefits.
You may know firsthand that employers and insurance companies sometimes harass injured workers in Michigan by forcing them to work in jobs outside their restrictions and in jobs which endanger or aggravate their condition. Although this behavior is illegal and intolerable, it goes on nevertheless. Employees should consult with their trusted personal physician to determine whether or not they should return to new or different work. Of course, it is never recommended that a worker should return to work at a job that will cause injury or harm. If a worker can at least try to do the work offered by his employer, it at least shows that he or she is making a real effort at recovery and recuperation.
In general, if a worker returns to a job but finds himself or herself unable to continue because of their disability, benefits are supposed to resume. For post-1982 injuries, if a disabled worker is back on the job for less than 100 weeks and loses work for “whatever reason,” there is a presumption that the worker did not establish a new “wage-earning capacity” and workers’ compensation benefits should be re-activated. If the disabled worker has returned for more than 250 weeks, there is a presumption that the worker did establish a new wage earning capacity that the worker will be assumed to earn in calculating benefits. You should talk with an attorney in our office if you are dealing with this issue, particularly if you have the impression your employer is giving you work within your restrictions now but is plotting to terminate you in the future.
The Engler Appellate Commission denied benefits to workers who were fired by employers who subjectively believed they had ‘just cause’ to fire the workers. Workers who missed time because of their work injuries and were discharged according to company attendance policies were being denied workers’ compensation benefits by Engler’s Appellate Commission. The Supreme Court’s 2000 Russell decision should have ended this practice. This area of the law is complicated: a worker really needs to consult with one of the attorneys in our firm if faced with this situation.
It should also be pointed out that beginning with Sobotka v Chrysler, a decade ago, some employers and insurance companies have argued that weekly benefits can be reduced to partially disabled workers if these workers have the theoretical abstract ability to perform some work some where somehow in the economy, even though no one has actually offered the disabled person a job. Braddock v Bellrose Inc., 1994 Mich ACO 2319, 7 MIWCLR 1440 (1994).
A majority on the Michigan Supreme Court rejected this approach in 1994 and again in 1997, but some insurance companies continue to rehash the same argument in hopes that they will ultimately prevail in front of a pro-business Michigan Supreme Court that is willing to ignore the intent of the Legislature and seventy years of case law. In recent years, employers and insurance companies have hired vocational rehabilitation counselors to testify at trial about lousy paying jobs the witness found in the want-ads or on the Internet as proof that there is still work available that the injured worker can perform and that the existence of such work means the disabled person’s benefits should cease or be reduced. In 2006, the Appellate Commission is taking the clear position that only real jobs that are really available or offered are relevant to the determination of entitlement to benefits. We don’t know however if or how the Michigan Supreme Court intends to rewrite the law in this area.
Finally, between 1997 and 2002, the old Engler-appointed Appellate Commission occasionally reduced benefits if it could be shown that an injured worker was “avoiding work” pursuant to a footnote in a case that was later overruled. Some employers and insurance companies would hire vocational consultants would tell workers that they have to send out hundreds of resumes, apply at McDonald’s or whatever, and then cut off benefits when the employee didn’t go begging for work. Although this pathetic version of so-called vocational rehabilitation does not comply with the Workers’ Compensation statute or standing executive orders, the Engler Appellate Commission would punish an injured worker’s “failure to cooperate” by reducing or cutting off benefits. The Granholm Appellate Commission has been more reasonable.
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