1998 OPINION #226
STATE OF MICHIGAN
WORKERS’ COMPENSATION APPELLATE COMMISSION
MICHAEL B. PAQUIN,
PLAINTIFF,
V
DOCKET #89-0546
AZCO-HENNES AND
HOME INSURANCE COMPANY,
DEFENDANTS.
REMAND FROM MICHIGAN SUPREME COURT.
JAMES W. PERRY FOR PLAINTIFF,
JOSEPH J. ZIMMERMAN FOR DEFENDANTS.
OPINION
WYSZYNSKI, COMMISSIONER
This matter returns to the Appellate Commission on
remand from the Michigan Supreme Court. The Commission, at 1992 ACO #364, reversed the
decision of Magistrate Judd R. Spray, mailed June 19, 1989, awarding plaintiff continuing benefits
for a partial disability. In an unpublished decision released March 3, 1995, the Court of Appeals
reversed the Commission and remanded “for entry of an order affirming the magistrate’s award and
for determination of appropriate weekly compensation and medical benefits. In computing the weekly
benefits, the WCAC shall take into account the wages plaintiff earned in subsequent employment and
the WCAC shall give appropriate consideration to Sobotka [v Chrysler Corp, 447 Mich 1 (1994)].”
The Supreme Court, in an October 1, 1996 order, held
“the application for leave to appeal in abeyance pending its decisions in Haske v Transport Leasing,
Inc (Docket No. 10244) and Bailey v Leoni Township (Docket No. 103299).” The Court issued its
decision in Haske v Transport Leasing, Inc Indiana, 455 Mich 628 (1997), on July 31, 1997. By
order dated November 25, 1997, the Court modified the decision of the Court of Appeals to require
the application of its decision in Haske.
Both parties have filed supplemental briefs with the
Commission. Plaintiff asserts that pursuant to the decision in Haske, supra, he is disabled and is
entitled to benefits since he has experienced a reduction in wage earning capacity. Plaintiff alleges
that defendants unilaterally terminated paying the 70% benefits during the entire pendency of the
appeal and that defendants are therefore subject to a $1500 penalty pursuant to §801 of the Act.
Defendants argue plaintiff is not disabled and suffers no loss of wage earning capacity. Defendants
further argue that the Court of Appeals misinterpreted the Sobotka, supra, decision and the
Commission should therefore reaffirm its original decision in this matter and that the Court of Appeals
neglected to address the properly raised issue that plaintiff’s claim should be barred during the time
he pursued a career as a corrections officer with no restrictions.
The pertinent facts were summarized by the Court of
Appeals:
Plaintiff was a structural iron worker. On July 8, 1987, while plaintiff
was employed by Azco-Hennes, a three-foot-high stack of steel Ibeams fell against his legs, severally [sic] lacerating the left lower leg.
The injury produced permanent nerve damage, muscle atrophy, loss
of sensation and scaring in [sic] that leg. Because his left leg became
weak and unstable, plaintiff was no longer able to work on structural
steel off the ground, but could do whatever iron-working jobs that
were available to him on the ground. Plaintiff quit work with AzcoHennes because of his bad leg. He then went to work for another
steel contractor in May 1988 but was forced to leave that work after
surgery in December 1988 and did not return to work thereafter in the
steel business. On January 27, 1989, ten days after trial of plaintiff’s
worker’s disability compensation claim, he began work as a
corrections officer for the Michigan Department of Corrections.
In awarding benefits for a partial disability, the
magistrate held:
Plaintiff is unable to work to work as a high steel connector, his area
of expertise and specialty, as a result of his injury. He is still able to
work as an ironworker, but he is now limited in the jobs he can do.
It is for this reason that he is found to have a limitation of his wage
earning capacity.
The very heart of this case involves the application of
the definition of disability set forth in MCL 418.301(4). This definition has now been interpreted by
the Supreme Court in Haske, supra. According to the Supreme Court, a claimant is entitled to
benefits when he or she demonstrates an actual wage loss attributable to a work-related injury. Wage
loss is proven when a claimant “demonstrates that, as a consequence of work-related injury or
2
disease, he has suffered a reduction in his earning capacity.” 455 Mich at 634. The Court went on
to summarize the rule for compensability as follows:
In application, these basic principles operate to require that an
employee must establish (1) a work-related injury, (2) subsequent loss
in actual wages, and (3) a causal link between the two. Proof of the
three elements will establish that an employee can no longer perform
at least a single job within his qualifications and training, thus
satisfying the first sentence of subsection 301(4), and that he has
suffered a loss in wages, satisfying the second sentence of subsection
301(4). [Footnote omitted.] Consistent with the language of
subsection 301(4) proofs sufficient to permit the magistrate to find
that the subsequent wage loss is attributable to the work-related injury
establish a compensable disability. Absence of residual earning
capacity is not part of the threshold definition of disability.²
² Absent postinjury employment establishing a new wage-earning capacity
benefits levels are not to be reduced by the proportionate impairment of residual
wage-earning capacity.
When we apply this standard to the facts before us, we
must conclude that plaintiff has met the test. He has proven (1) a work-related injury which prevents
him from performing at least one job, that of high steel connector, within his qualifications and
training, resulting in (2) a wage loss which (3) was caused by the work-related injury. Thus we must
affirm the magistrate’s finding of partial disability. Based upon stipulations, he awarded benefits at
the rate of $391 per week.
MCL 418.301(5)(b) provides:
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 aftertax weekly wage before the date of injury and the after-tax weekly
wage which the injured employee is able to earn after the date of
injury, but not more than the maximum weekly rate of compensation,
as determined under section 355.
Pursuant to §301(5)(b), and the Court of Appeals
statement in its unpublished March 3, 1995 opinion that “subsequent employment will affect the
amount of plaintiff’s weekly compensation benefit pursuant to MCL 418.361(1); MSA
17.237(361)(1) and Sobotka v Chrysler Corp, 447 Mich 1; 523 NW2d 454 (1994)”, we modify the
3
decision of Magistrate Spray, mailed June 19, 1989, to indicate that in addition to a credit for benefits
previously paid and coordination of benefits pursuant to Section 354 of the Act, defendants are
entitled to a credit for wages subsequently earned by plaintiff.
Commissioners Kent and Garn concur.
James Edward Wyszynski, Jr.
James J. Kent
Marten N. Garn
4
Commissioners
STATE OF MICHIGAN
WORKERS’ COMPENSATION APPELLATE COMMISSION
MICHAEL B. PAQUIN,
PLAINTIFF,
V
DOCKET #89-0546
AZCO-HENNES AND
HOME INSURANCE COMPANY,
DEFENDANTS.
This matter returns to the Appellate Commission on
remand from the Michigan Supreme Court by order dated November 25, 1997. The Commission
previously reversed the decision of Magistrate Judd R. Spray, mailed June 19, 1989, awarding
plaintiff continuing benefits for a partial disability. By order dated March 3, 1995, the Court of
Appeals reversed the Commission and remanded for entry of an order affirming the magistrate’s
award and for determination of appropriate weekly compensation and medical benefits. The
Commission has considered the record and the briefs of counsel, and believes that the decision of the
magistrate should be modified. Therefore,
IT IS ORDERED that the decision of the magistrate
is modified to indicate that in addition to a credit for benefits previously paid and coordination of
benefits, defendants are entitled to a credit for wages subsequently earned by plaintiff.
James Edward Wyszynski, Jr.
James J. Kent
Marten N. Garn
Commissioners