HB 5002– Insurance Companies and Big Business Work to Gut Michigan Workers’ Comp Laws

Please note that this handout addresses HB 5002 as of 11/1/2011. Significant changes may be made to the bill. It is important that the Michigan House of Representatives and Senate hear from concerned workers, not just big business, during the legislative process.

1) To be found “disabled”, the employee must show he or she is unable to perform ALL jobs paying the maximum wage in work suitable to that employee’s qualifications and training.

Example: An injured forklift driver is on a 10 pound restriction. He is no longer able to do his job as a forklift driver with this restriction. 10 years ago he worked as a car salesman and made more money than he made as a forklift driver. Since he is qualified to do work that pays more than his forklift job, he must apply and be rejected for all available salesperson jobs that pay equal or more than the forklift job before being found “disabled”.

2) If an employee is unable to perform any job paying the maximum wage, but is still capable of earnings at a pay level less (whether or not actually earned), then his or her workers’ compensation benefits are paid at a lower amount because the employee remains “capable” of earning some wages.

Example: An injured laborer who earned $400 a week in wages receives a meager $255.54 in workers’ compensation benefits. After his injury he remains able to work as a telemarketer which pays minimum wage. Based on his ability to earn these wages, his workers’ compensation benefit will be reduced to $46.75 per week.

3) Unless an employee is disabled from all jobs, the employee has a duty to look for work within his or her restrictions and qualifications.

Example: A warehouse worker suffers a work accident where his legs are crushed by a hi-lo. He is now in a wheelchair and no longer able to do his job as a warehouse worker or any other jobs that pay his maximum wages. In order for him to get any workers’ compensation, he must look and apply for jobs within his limitations. For example, he may be able to do work as a greeter or as a telemarketer. He must demonstrate that he is looking for these jobs regardless of pay, the number of hours, or whether they are union jobs. It does not matter if the person has been found disabled by the Social Security Administration.

4) In order for an employee to show disability and wage loss, he or she must disclose qualifications and training, provide evidence of jobs he or she is qualified to do, and demonstrate that the work injury prevents him from doing any of the jobs within his or her qualifications and training that pay maximum wages. The employee must show a good-faith attempt to obtain work. Once an employee establishes disability and wage loss, the employer may present evidence to refute this.

Example: A janitor is a 35 year employee for his company. He suffered a spinal injury when he fell from a ladder. His fall resulted in a herniated disc in his low back. He was taken from his place of employment to the emergency room by ambulance and required spinal surgery. Before he can get his workers’ compensation benefits, he must disclose information about all of his past jobs, his education, training, military service, and must show that his injury prevents him from being able to do his job as a janitor and also past jobs.

5) If an injured employee returns to light work and loses the job through “no fault” of the employee, he or she will receive workers’ compensation benefits. If it is determined that the employee was at fault for losing the job, then no workers’ compensation benefits will be paid.

Example: The law presently states that if an injured employee loses his or her job for “whatever reason” within the first 100 weeks of light work, his or her benefits would be paid. Imagine a factory worker who suffers a back injury and the company doctor puts her on restrictions of lifting no more than 10 pounds. The same day as her injury, she is placed on a production line where she has to lift and package 8 pound parts. She leaves and goes home during the shift because of severe pain and the side effects of pain medication. She tried to tell the supervisor but she was unable to locate him. The next day she is fired for leaving the shift. Her employer denies her workers compensation wage loss benefits because she was “at fault” for losing her job.

6) Employee must treat with the employer’s doctor for the first 45 days.

Example: The law presently states that an injured worker must treat with the employer’s doctor for only the first 10 days of treatment. Increasing the time requirement to 45 days is a problem. Imagine a worker who suffers a serious neck injury. He goes to the company doctor who diagnoses a strain, prescribes Ibuprofen, and sends him back to work. The worker begins having shooting pain and weakness down his shoulders and arms. He is so concerned about these symptoms that on the 35th day after his injury he goes to his longtime family doctor. His doctor orders an MRI, which is done on day 36. The MRI reveals a large herniated disc causing spinal cord impingement. His doctor sends him to a neurosurgeon who does emergency spinal surgery on day 37. The employer’s workers’ compensation insurance company refuses to pay for the family doctor’s bill, the MRI bill, the neurosurgeon’s bill, the hospital’s bill, and the anesthesiologist’s bill. Since the employee got this treatment recommended by his family doctor before day 45, none of these services are covered by workers’ compensation. What if this person does not have other health insurance? He would personally be responsible for over $20,000 in medical bills related to his work injury and the spinal surgery.

7) 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.

Example: A 62 year old cashier is walking into work and she slips on ice in the parking lot. She injures her knee and undergoes a total knee replacement surgery. After the surgery is done, her employer’s workers’ compensation insurance company refuses to pay for it arguing that she had pre-existing arthritis in the knee. The cost of the surgery was $15,000. She has no other insurance so she has to hire an attorney to get the bill paid. After her attorney take the deposition of her doctor and she goes through a trial, she wins her case and the workers’ compensation insurance company must pay the medical bill. Unfortunately, she has to pay out of her pocket $1,500 in legal costs for the deposition and $4,050 in attorney fees.

8) The employer may offset workers’ compensation benefits by retirement or pension benefits even if the employee is not currently receiving those benefits.

Example: An injured employee is over the age of 65, and she could retire and receive her pension if she wished. However, she does not wish to retire, but instead, would like to return to work after she recovers from her injury. Even though this worker chooses not to take retirement and does not receive any of her pension, her workers’ compensation is reduced due to the pension.

McCroskey Law strongly opposes HB 5002. We encourage everyone to tell their State senators and representatives that HB 5002 is bad for Michigan and Michigan’s workers. If you have additional questions about workers’ compensation law and HB 5002, contact McCroskey Law today.