Worker’s compensation law in Michigan gives various advantages to the employer and its insurance company. An injured worker needs to know how to comply with all of the legal requirements in order to win their case.
Employers and insurers often do not inform an injured worker of their worker’s compensation rights. Michigan law requires them to do so, but they do not. I have heard many excuses given to an injured worker by their employer, such as, “We do not do worker’s compensation,” or, “You have a pre-existing condition so your aggravation at work cannot be worker’s compensation.” Know your rights! Any injury, or aggravation of a pre-existing condition, which occurs while working is a potential worker’s compensation injury. Injuries can be due to a specific event, or ongoing exposure to an activity or environment. Michigan law may entitle you to a combination of wage loss, medical, and vocational retraining/rehabilitation benefits.
Insist on making a written report of your injury. Promptly tell a supervisor, manager, or HR representative that you want to file a written worker’s compensation report about your injury. If your employer refuses to do so, contact your attorney or the Worker’s Compensation Agency in Lansing, Michigan, to file your own report. You are required to give “notice” of your injury to the employer within 90 days, and generally must “claim” the need for payment of a wage loss, medical, or vocational benefit within 2 years.
The employer can control your medical care for the first 28 days after it learns of your injury. It probably will send you to its work clinic, where the doctors will be inclined to get you back to work as soon as possible. You have the right to choose your own doctor beginning the 29th day, but most employers and insurers will not tell you that. If you give written notice to the employer or insurer of the doctors you want to treat with, all reasonable and necessary treatment rendered by your treaters is supposed to be paid. You can go to your own doctor during days 1-28, but those bills may not have to be reimbursed. Be sure to explain to your treaters how your conditions are related to your work activities. The employer or insurer may offer to have a nurse case manager accompany you to your medical appointments, but I usually discourage this – such people often try to interfere with your doctor’s method of treatment, and report confidential information back to the employer or insurer who uses this information to attack your claim for benefits.
The injured worker must make a “good faith” effort to look for work. The ultimate question in a Michigan worker’s compensation case is whether the worker has suffered an impairment in their ability to earn the amount of wages they were earning at the time of injury (including benefits). Michigan law now provides that, even if a worker can prove they have a work-related medical injury, they still may not be entitled to wage loss benefits if they do not make a good faith effort to look for work which is arguably within their current capabilities. If you have not returned to work with your employer, you must document your search for other employment, and should start doing so as soon as you start missing work due to your injury. You are not required to obtain other work, but you must show that you are looking for work. The “good faith” requirement means that you cannot sabotage a job application by emphasizing your restrictions initially, although you can share your limitations when asked if you are able to perform all essential functions of a job. I recommend applying for at least 5-10 jobs per week, a task made easier by online employment sites. If you have to go to trial, you should retain a vocational expert who can testify in support of your job search efforts and diminished wage earning capacity.
Employers and insurers are not subject to any penalty if they refuse to voluntarily pay you the benefits you deserve. They are not required to have a “good faith” reason for denying your case. You often will receive a “Notice of Dispute” form from the employer or its insurer which informs you that your benefits are not going to be paid. Even if benefits initially are paid voluntarily, the employer or insurer will continue to look for ways to dispute your case, including sending you to an “independent medical examination” with a doctor of their choice. You can combat this by having your evidence ready as soon as possible: promptly start going to your choice of doctors and making a good faith effort to look for work arguably within your current capabilities. Also, if your worker’s compensation benefits are disputed, continue to get treatment through any medical insurance you may have, and apply for any short term or long term disability benefits offered through your employer. Your medical insurance company, and STD and LTD providers, will ask you if your disability is work-related. Rather than saying yes or no, tell them that the issue currently is being disputed. Once worker’s compensation benefits are disputed, the only way to insure that you get the worker’s compensation benefits you deserve is to file a worker’s compensation lawsuit.
Know the medical requirements for establishing a compensable condition. Any degree of contribution by work activities to an injury typically qualifies for potential worker’s compensation benefits. But mental conditions, and conditions of the aging process such as osteoarthritis, require a significant contribution from work in order to qualify. Also, a very important more recent development in the law is that the injured worker’s medical expert must be able to demonstrate an objective pathological change in condition compared to the worker’s condition prior to the injury. An increase only in symptoms no longer can win your case. As a result, objective testing such as x-rays, MRIs, EMGs, and MMPIs; and objective clinical findings such as muscle spasm, trigger points, decreased reflexes, and positive straight leg raising tests, have assumed increased importance in proving your case.
By following these strategies, injured workers in Michigan still can win the worker’s compensation benefits they deserve. But the road to that victory can be complicated and intimidating. It is best travelled with a veteran Michigan worker’s compensation attorney. Your typical Michigan attorney fee agreement in this area of law is contingent, which means that you will not owe any fee unless the attorney wins your case either through settlement or trial.