The Flint Journal & Genesee County Bar Association's "Ask the Attorney"

MACDONALD, FITZGERALD & MACDONALD, P.C

Q. My doctor told me to stay off work while I recover from surgery, but my employer's insurance company is telling me I must apply for new jobs in order to receive a workers' compensation check. Is this right?

A. Since the passage of the Workers' Compensation Act in 1912–until a Michigan Supreme Court ruling several weeks ago-- an injured worker, off from work, could be awarded weekly benefits if the worker and the treating doctor stated that the worker could not perform his previous work because of a work injury. Several weeks ago, a majority of Michigan Supreme Court Justices (those appointed by former Governor Engler, including Cliff Taylor who is up for re-election in November), invented a new rule not contained in the statute that most injured workers must now meet in order to receive weekly benefits. The Court invented a new requirement that most injured workers must demonstrate an inability to obtain work within one's qualifications and training and demonstrate that by unsuccessfully searching and applying for dozens of jobs or by spending hundreds or thousands of dollars by hiring a so-called "vocational expert" to testify that the worker can not obtain work within one's qualifications and training due to the injury. Off-of-work injured workers living in doctors' offices or on strong narcotic pain medications are not in a great position to engage in an extensive job search or in great financial shape to hire a pseudo-expert in order to collect a weekly comp check. This decision is cruel to injured workers and needs to be overturned by the Michigan Legislature. In the meantime, every injured worker attempting to receive, or currently receiving, workers' compensation benefits should consult with a lawyer specializing in workers’ compensation to develop additional strategies to secure or protect their benefits. (Note: Michigan voters removed Justice Taylor from office in November 2008, but this new rule has yet to be overturned by the Michigan Legislature or the new Michigan Supreme Court.)

Atty. Robert J. MacDonald
--August 2008 column