Bill Text: MI SB1079 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Worker's compensation: benefits; requirements regarding wage earning capacity; modify. Amends secs. 301, 313, 354, 355, 361, 371, 401 & 891 of 1969 PA 317 (MCL 418.301 et seq.) & repeals secs. 302 & 431 of 1969 PA 317 (MCL 418.302 & 418.431).
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-11-07 - Referred To Committee On Labor [SB1079 Detail]
Download: Michigan-2023-SB1079-Introduced.html
SENATE BILL NO. 1079
A bill to amend 1969 PA 317, entitled
"Worker's disability compensation act of 1969,"
by amending sections 301, 313, 354, 355, 361, 371, 401, and 891 (MCL 418.301, 418.313, 418.354, 418.355, 418.361, 418.371, 418.401, and 418.891), sections 301, 354, 361, and 401 as amended by 2011 PA 266, sections 313, 355, and 371 as amended by 1982 PA 32, and section 891 as amended by 2012 PA 83; 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 must be paid compensation as provided in this act. A personal injury under this act is compensable if work causes, contributes to, or aggravates pathology in a manner so as to create a pathology that is medically distinguishable from any pathology that existed prior to the injury. In the case of death resulting from the personal injury to the employee, compensation shall must 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 for a disease or in the case of an injury not attributable to a single event 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 and degenerative arthritis, are compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities are compensable 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 the employee's 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 the employee's working hours, is presumed to be in the course of his or her the employee's 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 and any cause of action brought for such an the injury is not subject to section 131.
(4) As used in this chapter:
(a) "Disability" means a limitation of an employee's wage earning capacity in work suitable to his or her the employee's 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 employee being unable to perform all jobs paying the maximum wages or obtain 1 or more jobs in work that the employee performed before or at the time of the personal injury and that is suitable to that the employee's qualifications and training. , which includes 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) Except as provided in section 302, "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 wages are actually earned. For the purposes of establishing a limitation of wage earning capacity, an employee has an affirmative duty to seek work reasonably available to that employee, taking into consideration the limitations from the work-related personal injury or disease. A magistrate may consider good-faith job search efforts to determine whether jobs are reasonably available.
(b) (c) "Wage loss" means the amount of reduced wages lost due connected to a disability. The employee shall must establish a connection between the disability and reduced wages in establishing the wage loss. Wage loss may be established, among other methods, by demonstrating the employee's good-faith effort to procure work within his or her wage earning capacity. A partially disabled employee who establishes a good-faith effort to procure work but cannot obtain work within his or her wage earning capacity is entitled to weekly benefits under subsection (7) as if totally disabled.wage loss to receive weekly wage loss benefits. If the employee establishes a connection between disability and wage loss, other factors that contribute to the employee's wage loss do not affect the payment or amount of wage loss benefits due the employee.
(5) To establish an initial showing of disability, 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 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.
(5) (7) If Except as otherwise provided in subsection (7) and section 311, if a personal injury arising out of the course of employment causes total results in disability and connected to wage loss and the injured employee is entitled to wage loss benefits, the does not receive wages in any week after the injury, the employer shall pay or cause to be paid to the injured employee as provided in this section weekly compensation for each week the injured employee did not receive wages that is 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 must be paid for the duration of the disability.
(6) (8) If Except as otherwise provided in subsection (7) and section 311, if a personal injury arising out of the course of employment causes partial results in disability and connected to wage loss and the employee is entitled to wage loss benefits, receives wages in any week after the personal injury, the employer shall pay or cause to be paid to the injured employee as provided in this section weekly compensation that is equal to 80% of the difference between the injured employee's after-tax average weekly wage before the personal injury and the injured employee's wage earning capacity after-tax actual weekly wage paid for each week the injured employee received wages after the personal injury, but not more than the maximum weekly rate determined under section 355. Compensation shall must be paid for the duration of the disability.
(7) (9) If disability and wage loss are established, entitlement to weekly wage loss benefits shall must be determined as applicable pursuant to under this section and as follows:
(a) If an employee receives a bona fide offer of reasonable employment from the previous employee's employer, another employer, or through the Michigan unemployment insurance agency and the employee refuses that employment without good and reasonable cause, the employee shall be is considered to have voluntarily removed himself or herself the employee from the work force workforce and is not entitled to any wage loss benefits under this act during the period of refusal. The employee's employer has the burden of proof of establishing that the employee received a bona fide offer of reasonable employment.
(b) If an employee is terminated from reasonable employment for fault of the employee, the employee is considered to have voluntarily removed himself or herself from the work force and is not entitled to any wage loss benefits under this act.
(c) If an employee is employed and the 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 that the injured employee earns after the date of injury, but not more than the maximum weekly rate of compensation, as determined under section 355.
(b) (d) If an employee is employed and the average weekly wage of the employee earns a wage in a week that 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 that week of that employment.
(c) Except as otherwise provided in this subdivision, if an employee, after being employed under this subsection for less than 100 weeks, loses the employee's job, the employee's personal injury is conclusively presumed to result in disability connected to wage loss, unless the employee's employer establishes that the employee's willful and serious misconduct resulted in the termination of the employee's employment.
(d) If the presumption under subdivision (c) does not apply and the employee, after being employed under this subsection, loses the employee's job, proof of work-related disability connected to wage loss is a question of fact.
(e) If the employee, after having been employed pursuant to this subsection 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 as follows:
(i) 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) 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 was employed for 250 weeks or more, the employee is presumed to have established a post-injury wage earning capacity.
(8) (10) The Michigan unemployment insurance agency shall notify the agency in writing of the name of any employee who refuses any bona fide offer of reasonable employment. Upon notification to the agency, the agency shall notify the carrier who shall that must terminate the benefits of the employee pursuant to under subsection (9)(a).(7)(a).
(9) (11) "Reasonable employment", as used in this section, means work that is within the an employee's capacity to perform that poses no clear and proximate threat unreasonable risk to that employee's health and safety, and that is within a reasonable distance from that the employee's residence. The employee's capacity to perform shall must not be limited to jobs in work suitable to his or her the employee's qualifications and training.
(10) (12) Weekly benefits 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.
(11) (13) A person or entity 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 the employee or others of a right afforded by this act.
(12) (14) This section applies to personal injuries and work related diseases occurring on or after June 30, 1985.
Sec. 313. (1) As used in this act, "after-tax average weekly wage" means average weekly wage as defined in section 371 reduced by the prorated weekly amount which that would have been paid under the federal insurance contributions act, 26 U.S.C. USC 3101 to 3126, 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. Effective January 1, 1982, and each January 1 thereafter, the applicable federal and state laws in effect on the preceding July 1 shall must be used in determining the after-tax weekly wage.
(2) Each December 1, the director shall publish tables of the average weekly wage and 80% of after-tax average weekly wage that are to be in effect on the following January 1. These tables shall be are conclusive for the purpose of converting an average weekly wage into 80% of after-tax average weekly wage.
(3) The tables described under subsection (2) that were published for the year in which an employee's injury occurred must be used to calculate the injured employee's after-tax average weekly wage, wage loss, or amount of benefits to be coordinated under this act.
Sec. 354. (1) This section applies if either weekly or lump sum payments are made to an employee as a result because of liability under section 301(7) 301(5) or (8), (6), 351, or 835 with respect to during the same time period for which the employee also received or is receiving old-age insurance benefit payments under the social security act, 42 USC 301 to 1397f; payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer ; or under a pension or retirement payments under a plan or program established or maintained by the employer. 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 must be reduced by these the following amounts:
(a) Fifty percent of the amount of the old-age insurance benefits received or being received under the social security act, chapter 531, 49 Stat. Stat 620. However, if the injured employee has been receiving old-age insurance benefit payments under the social security act, chapter 531, 49 Stat. Stat 620, before the date of the personal injury or work-related disease, then in no event shall the weekly benefits payable after the reduction provided by this subdivision must not be less than 50% of the weekly benefits otherwise payable without the reduction.
(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 301(7) 301(5) or (8), (6), 351, 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 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 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 must 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 301(7) 301(5) or (8), (6), 351, or 835 are received, if the employee did contribute directly to the payment of premiums regarding the disability insurance policy.
(d) 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 currently eligible to receive if the employee has suffered total and permanent disability and has reached full retirement age, pursuant to a plan or program established or maintained by the same employer from whom benefits under section 301(7) 301(5) or (8), (6), 351, 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 do 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 301(7) 301(5) or (8), (6), 351, 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 do not affect the coordination of these benefits.
(f) For those employers who that 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, 26 USC 401, or any successor to section 401(a) of the internal revenue code, 26 USC 401, covering a profit sharing plan which that 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 301(7) 301(5) or (8), (6), 351, 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 must occur pursuant to under this section and all of the following:
(a) The agency shall promulgate rules to provide for notification by an employer or carrier to an employee of possible eligibility for social security Social Security benefits and the requirements for establishing proof of application for those benefits. Notification shall be The employer or carrier shall promptly mailed mail the notification to the employee after the date on which by reason of age the employee may be entitled to social security Social Security benefits. A copy of the notification of possible eligibility shall must be filed with the agency by the employer or carrier.
(b) Within Not more than 30 days after receipt of the notification of possible employee eligibility the employee shall:
(i) Apply for social security 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 that the employer or carrier must use to obtain necessary benefit entitlement and amount information from the social security administration. Social Security Administration. The authority for release of information shall be is effective for 1 year.
(4) If the employee fails to provide the proof of application or the authority for release of information as prescribed in subsection (3), the employer or carrier, with the approval of the agency, may discontinue the compensation benefits payable to the employee under section 301(7) 301(5) or (8), (6), 351, or 835 until the proof of application and the authority for release of information is provided. Compensation benefits withheld shall must be reimbursed to the employee upon providing 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 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 not more than 30 days of after a request by the employer or carrier. If the employee fails to provide the new authority for release of information, the employer or carrier, with the approval of the agency, may discontinue benefits until the authority for release of information is provided as prescribed in this subsection. Compensation benefits withheld shall must be reimbursed to the employee upon providing the new authority for release of information.
(6) Within Not more than 30 days after either the date of first payment of compensation benefits under section 301(7) 301(5) or (8), (6), 351, 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 must use 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 allows the employer or carrier with the approval of the agency to discontinue the compensation benefits payable under section 301 (7) 301(5) or (8), (6), 351, or 835 to the employee until the authority for release of information is provided. Compensation benefits withheld shall must 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 not more than 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 allows the employer or carrier with the approval of the agency to discontinue benefits under section 301(7) 301(5) or (8), (6), 351, 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 must not occur because of an increase granted by the social security administration 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 301(7) 301(5) or (8), (6), 351, 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) 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 301(7) 301(5) or (8), (6), 351, or 835 shall be are 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 allows the employer or carrier with the approval of the agency to discontinue 50% of future weekly compensation payments under section 301(7) 301(5) or (8), (6), 351, or 835. The compensation payments withheld shall must be credited against the amount of the overpayment. Payment of the appropriate compensation benefit shall resume resumes 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 agency the amount of any credit or reduction, and as requested by the agency, furnish to the agency satisfactory proof of the basis for a credit or reduction.
(11) Disability insurance benefit payments under the social security act shall be are considered to be payments from funds provided by the employer and to be primary payments on the employer's obligation under section 301(7) 301(5) or (8), (6), 351, or 835 as old-age benefit payments under the social security act are considered pursuant to under this section. The coordination of social security Social Security disability benefits shall commence begins on the date of the award certificate of the social security Social Security disability benefits. Any accrued social security Social Security disability benefits shall must not be coordinated. However, social security Social Security disability insurance benefits shall only be so considered if section 224 of the social security act, 42 USC 424a, is revised so that a reduction of social security 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 An employee is not required to apply for early federal social security 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) (c), (d), or (e) reduced by the prorated weekly amount which that would have been paid, if any, under the federal insurance contributions act, 26 USC 3101 to 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" 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 (c), (d), or (e) is 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 must be multiplied by 1.25 which will be conclusive for determining the "after-tax amount" after-tax amount of benefits under subsection (1)(b), (1)(c), (1)(d), or (1)(e).(c), (d), or (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 must not be coordinated pursuant to under this section.
(15) With respect to volunteer fire fighters, firefighters, 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 under 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 does not apply to payments made to an employee as a result of liability pursuant to under section 361(2) and (3) for the specific loss period set forth therein. described in section 361(2) and (3). It is the intent of the legislature that, because benefits under section 361(2) and (3) are benefits that recognize human factors substantially in addition to the wage loss concept, coordination of benefits should not apply to those benefits.
(17) The decision of the Michigan Supreme Court supreme court in Franks v White Pine Copper Division, 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 301(7) 301(5) or (8), (6), 351, or 835 for personal injuries occurring before March 31, 1982. It is the purpose of the amendatory act that added this subsection to so affirm. This remedial and curative amendment shall must be liberally construed to effectuate this purpose.
(18) This section applies only to payments resulting that result from liability pursuant to under section 301 (7) 301(5) or (8), (6), 351, or 835 for personal injuries occurring that occur on or after March 31, 1982. Any payments made to an employee resulting that result from liability pursuant to under section 301(7) 301(5) or (8), (6), 351, or 835 for a personal injury occurring that occurred before March 31, 1982 that have not been coordinated under this section as of the effective date of this subsection shall must not be coordinated, shall are not be considered to have created an overpayment of compensation benefits, and shall are 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 that result from liability pursuant to under section 301(7) 301(5) or (8), (6), 351, or 835 for a personal injury occurring that occurred before March 31, 1982 that have been coordinated before May 14, 1987 shall be are considered to be an underpayment of compensation benefits, and the employer or carrier shall reimburse the amounts withheld pursuant to coordination shall be reimbursed with interest, 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 must be reimbursed with interest, 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. 355. (1) The maximum weekly rate shall must be adjusted once each year annually in accordance with the increase or decrease in the average weekly wage in covered employment, as determined by the Michigan employment security commission.
(2) Effective January 1, 1982, and each January 1 thereafter , until the first January 1 after the effective date of the 2024 amendatory act that amended this section, the maximum weekly rate of compensation for injuries occurring within that year shall must be established as 90% of the state average weekly wage as of the prior June 30, adjusted to the next higher multiple of $1.00.
(3) Effective the January 1 after the effective date of the 2024 amendatory act that amended this section, and each January 1 thereafter, the maximum weekly rate of compensation for injuries occurring within that year must be established as 100% of the state average weekly wage as of the prior June 30, adjusted to the next higher multiple of $1.00.
(4) (3) For the purpose of computing the supplemental benefit under section 352, the state average weekly wage for any injury year shall must be the average weekly wage in covered employment determined by the Michigan employment security commission for the 12 months ending June 30 of the preceding year.
Sec. 361. (1) An employer is not liable for compensation under section 301(7) 301(5) or (8), (6), 351, 371(1), or 401(5) 401(3) or (6) (4) for periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime.incarceration because of a criminal conviction.
(2) In cases included in the following schedule, the disability in each case shall be is considered to continue for the period specified, and the compensation paid for the personal injury shall be is 80% of the after-tax average weekly wage subject to the maximum and minimum rates of compensation under this act. The effect of any internal joint replacement surgery, internal implant, or other similar medical procedure shall must be considered in determining whether a specific loss has occurred. The specific loss period for the loss shall be is 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 is considered to be equal to the loss of 1/2 of that thumb or finger, and compensation shall be is 1/2 of the amount above specified.
The loss of more than 1 phalange shall be is considered as the loss of the entire finger or thumb. The amount received for more than 1 finger shall must 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 is considered to be equal to the loss of 1/2 of that toe, and compensation shall be is 1/2 of the amount above specified.
The loss of more than 1 phalange shall be is 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 is considered a hand, and an amputation above that point shall be is 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 is considered a foot, and an amputation above that point shall be is considered a leg.
(l) Eye, 162 weeks.
Eighty percent loss of vision of 1 eye shall constitute constitutes the total loss of that eye.
(m) Serious and permanent scarring or disfigurement to the face or head, 52 weeks.
(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 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.Severe and permanent impairment of function not responsive to treatment because of 1 of the following:
(i) A neurocognitive disorder.
(ii) A traumatic or stress-related disorder.
(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm. ; for For the purpose of this subdivision, such permanency shall be is 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 must 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 must begin at the conclusion of the payments for the first member.
Sec. 371. (1) The weekly loss in wages referred to in this act shall consist of the percentage of the average weekly earnings of the injured employee computed according to this section as fairly represents the proportionate extent of the impairment of the employee's earning capacity in the employments covered by this act in which the employee was working at the time of the personal injury. The weekly loss in wages shall be fixed as of the time of the personal injury, and determined considering the nature and extent of the personal injury. The Except as otherwise provided in this act, the compensation payable, when added to the employee's wage earning capacity earned weekly wage after the personal injury in the same or other employments, shall must not exceed the employee's average weekly earnings at the time of the injury.
(2) As used in this act, "average weekly wage" means the weekly wage earned by the an employee at the time of the employee's injury in all employment, inclusive of overtime, premium pay, and cost of living adjustment, and exclusive of any fringe or other benefits which that continue during the disability. Any Except as otherwise provided in this subsection, any fringe or other benefit which that does not continue during the disability shall be is included for purposes of determining an employee's average weekly wage to the extent that the inclusion of the fringe or other benefit will not result in a weekly benefit amount which that is greater than 2/3 of the state average weekly wage at the time of injury. If an employee's health insurance, dental insurance, or both do not continue during the disability, the value of the health insurance, dental insurance, or both must be included in the calculation of the employee's average weekly wage regardless of whether the calculation results in an amount that is greater than 2/3 of the state average weekly wage at the time of injury. The average weekly wage shall be is determined by computing the total wages paid in the highest paid 39 weeks of the 52 weeks immediately preceding the date of injury, and dividing by 39.
(3) If the an employee worked less than 39 weeks in the employment in which the employee was injured, the average weekly wage shall be is based upon on the total wages earned by the employee divided by the total number of weeks the employee actually worked. For purposes of this subsection, only those weeks in which work is performed shall be are considered in computing the total wages earned and the number of weeks actually worked.
(4) If an employee sustains a compensable injury before completing his or her the employee's first work week, the average weekly wage shall be is calculated by determining the number of hours of work per week contracted for by that employee multiplied by the employee's hourly rate, or the weekly salary contracted for by the employee.
(5) If the hourly earning earnings of the an employee cannot be ascertained, or if the pay has not been designated for the work required, the wage, for the purpose of calculating compensation, shall must be taken to be the usual wage for similar services if the services are rendered by paid employees.
(6) If there are special circumstances under which the average weekly wage cannot justly be determined by applying subsections (2) to (5), an average weekly wage may be computed by dividing the aggregate earnings during the year before the injury by the number of days when work was performed and multiplying that daily wage by the number of working days customary in the employment, but not less than 5.
(7) The average weekly wage as determined under this section shall must be rounded to the nearest dollar.
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 the employee's 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 employee being unable to perform all jobs paying the maximum wages or obtain 1 or more jobs in work that the employee performed before or at the time of the personal injury and that is suitable to that the employee's qualifications and training. , which includes 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.
(2) As used in this chapter:
(a) "Disablement" means the event of becoming so disabled.
(b) "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 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. A personal injury under this act is compensable if work causes, contributes to, or aggravates pathology in a manner so as to create a pathology that is medically distinguishable from any pathology that existed prior to the injury. Mental disabilities and conditions of the aging process, including, but not limited to, heart and cardiovascular conditions, and degenerative arthritis shall be are compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be are 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.
(c) Except as provided in section 302, "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, taking into consideration the limitations from the work-related personal injury or disease. A magistrate may consider good-faith job search efforts to determine whether jobs are reasonably available.
(c) (d) "Wage loss" means the amount of reduced wages lost due connected to a disability. The employee shall must establish a connection between the disability and reduced wages in establishing the wage loss. Wage loss may be established, among other methods, by demonstrating the employee's good-faith effort to procure work within his or her wage earning capacity. A partially disabled employee who establishes a good-faith effort to procure work but cannot obtain work within his or her wage earning capacity is entitled to weekly benefits under subsection (5) as if totally disabled.wage loss to receive weekly wage loss benefits. If the employee establishes a connection between disability and wage loss, other factors that contribute to the employee's wage loss do not affect the payment or amount of wage loss benefits due the employee.
(3) To establish an initial showing of disability, 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 postinjury employment if there are jobs at the employee's maximum wage earning capacity at the time of the injury.
(4) Once an employee establishes an initial showing of a disability under subsection (3), 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.
(3) (5) If Except as otherwise provided under subsection (5) and section 311, if a personal injury arising out of the course of employment causes total results in disability and connected to wage loss and the injured employee is entitled to wage loss benefits, does not receive wages in any week after the injury, the employer shall pay or cause to be paid to the injured employee as provided in this section weekly for each week the injured employee did not receive wages that is compensation equal to 80% of the injured employee's after-tax average weekly wage, but not more than the maximum weekly rate determined under section 355. Compensation shall must be paid for the duration of the disability.
(4) (6) If Except as otherwise provided under subsection (5) and section 311, if a personal injury arising out of the course of employment causes partial results in disability and connected to wage loss and the employee is entitled to wage loss benefits, receives wages in any week after the personal injury, the employer shall pay or cause to be paid to the injured employee as provided in this section weekly compensation that is equal to 80% of the difference between the injured employee's after-tax average weekly wage before the personal injury and the injured employee's wage earning capacity after-tax actual weekly wage paid for each week the injured employee received wages after the personal injury, but not more than the maximum weekly rate determined under section 355. Compensation shall must be paid for the duration of the disability.
(5) (7) If disability and wage loss are established, entitlement to weekly wage loss benefits shall must be determined as applicable pursuant to under this section and as follows:
(a) If an employee receives a bona fide offer of reasonable employment from the previous employee's employer, another employer, or through the Michigan unemployment insurance agency and the employee refuses that employment without good and reasonable cause, the employee shall be is considered to have voluntarily removed himself or herself the employee from the work force workforce and is no longer entitled to any wage loss benefits under this act during the period of refusal. The employer has the burden of proof of establishing that the employee received a bona fide offer of reasonable employment.
(b) If an employee is terminated from reasonable employment for fault of the employee, the employee is considered to have voluntarily removed himself or herself from the work force and is not entitled to any wage loss benefits under this act.
(c) 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 that the injured employee earns after the date of injury, but not more than the maximum weekly rate of compensation, as determined under section 355.
(b) (d) 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 that week of that employment.
(e) If the employee, after having been employed pursuant to this subsection, 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 as follows:
(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 presumed to have established a post-injury wage earning capacity.
(c) If an employee, after being employed under this subsection for less than 100 weeks, loses the employee's job, the employee's personal injury is conclusively presumed to result in disability connected to wage loss, unless the employee's employer establishes that the employee's willful and serious misconduct resulted in the termination of the employee's employment.
(d) If the presumption under subdivision (c) does not apply and the employee, after being employed under this subsection, loses the employee's job, proof of work-related disability connected to wage loss is a question of fact.
(6) (8) The Michigan unemployment insurance agency shall notify the agency in writing of the name of any employee who refuses any bona fide offer of reasonable employment. Upon notification to the agency, the agency shall notify the carrier who shall terminate the benefits of the employee pursuant to under subsection (7)(a).(5)(a).
(7) (9) As used in this section, "reasonable employment" means suitable work that is within the an employee's qualifications, training, and capacity to perform that poses no clear and proximate threat unreasonable risk 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 must not be limited to work suitable to his or her the employee's qualifications and training.
(8) (10) This section shall apply applies to personal injuries or work related diseases occurring on or after June 30, 1985.
Sec. 891. (1) To the extent that they are reenacted herein, all the provisions of former 1965 PA 44 apply only to personal injuries occurring on or after September 1, 1965, except as otherwise provided in that act and except for the amendment to part 2, section 4 of that act, concerning selection of physicians as provided in that act.
(2) In all cases where the date of injury is on or after September 1, 1965, and the employee or his employee's dependents would be entitled to the new maximum weekly benefit rates, the employee or his employee's dependents shall receive, without application to the workers' compensation agency, an adjustment to the increased maximum rate as it becomes effective September 1, 1966, or September 1, 1967, for any compensable weeks subsequent to the above dates.
(3) This act does not affect or impair any right accruing, accrued or acquired or any liability developing or imposed prior to the time this act takes effect, and all such rights and liabilities shall be are governed by the provisions of former 1912 (1st Ex Sess) PA 10. The first adjustment to the maximum rates of weekly compensation provided previously in section 9(f) of part 2 of former 1912 (1st Ex Sess) PA 10 , shall remain remains in effect to the extent provided in such section, and the amount of change in the average weekly wage not incorporated in the first adjustment made January 1, 1969 shall be is carried forward as provided in such section.
(4) Notwithstanding sections 301(14) 301(12) and 401(10), 401(8), the amendments to this act made by 2011 PA 266 apply to personal injuries and work-related diseases incurred on or after December 19, 2011.
(5) Notwithstanding sections 301(12) and 401(8), the amendments to this act made by the amendatory act that added this subsection apply to personal injuries and work-related diseases incurred on or after the effective date of the amendatory act that added this subsection.
Enacting section 1. Sections 302 and 431 of the worker's disability compensation act of 1969, 1969 PA 317, MCL 418.302 and 418.431, are repealed.
