Bill Text: MI HB5786 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Worker's compensation; benefits; percentage of compensation paid to full-time law enforcement officers and full-time firefighters for personal injuries; increase to 100%. Amends secs. 301, 321, 355, 361 & 401 of 1969 PA 317 (MCL 418.301 et seq.).
Spectrum: Slight Partisan Bill (Republican 4-2)
Status: (Introduced - Dead) 2020-05-20 - Bill Electronically Reproduced 05/20/2020 [HB5786 Detail]
Download: Michigan-2019-HB5786-Introduced.html
HOUSE BILL NO. 5786
May 19, 2020, Introduced by Reps. Berman,
Mueller, Yaroch, Wozniak, Chirkun and Garrett and referred to the Committee
on Commerce and Tourism.
A bill to amend 1969 PA 317, entitled
"Worker's disability compensation act of 1969,"
by amending sections 301, 321, 355, 361, and 401 (MCL 418.301, 418.321, 418.355, 418.361, and 418.401), sections 301, 361, and 401 as amended by 2011 PA 266, section 321 as amended by 1994 PA 271, and section 355 as amended by 1982 PA 32.
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 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 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 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 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 working
hours, is presumed to be in the course of his or her 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 cause of action brought for such an 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 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 being unable to perform all jobs paying the maximum wages in work
suitable to that 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.
(c) "Wage loss"
means the amount of wages lost due to a disability. The employee shall
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.
(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.
(7) If Except as otherwise provided in this subsection, if a
personal injury arising out of the course of employment causes total disability
and wage loss and the employee is entitled to wage loss benefits, the employer
shall pay or cause to be paid to the injured employee as provided in this
section weekly compensation equal to 80% of the employee's after-tax average
weekly wage, but not more than the maximum weekly rate determined under section
355. If a personal injury arising out of
the course of employment causes total disability and wage loss and the employee
is entitled to wage loss benefits, the employer shall pay or cause to be paid
to the injured employee as provided in this section weekly compensation equal
to the employee's after-tax average weekly wage if the employee was at the time
of the injury a full-time law enforcement officer or a full-time firefighter. Compensation
shall be paid for the duration of the disability.
(8) If Except as otherwise provided in this subsection, if a
personal injury arising out of the course of employment causes partial disability
and wage loss and the employee is entitled to wage loss benefits, the employer
shall pay or cause to be paid to the injured employee as provided in this
section weekly compensation equal to 80% of the difference between the injured
employee's after-tax average weekly wage before the personal injury and the
employee's wage earning capacity after the personal injury, but not more than
the maximum weekly rate determined under section 355. If a personal injury arising out of the course of employment causes
partial disability and wage loss and the employee is entitled to wage loss
benefits, the employer shall pay or cause to be paid to the injured employee as
provided in this section weekly compensation equal to the difference between
the injured employee's after-tax average weekly wage before the personal injury
and the employee's wage earning capacity after the personal injury if the
employee was at the time of the injury a full-time law enforcement officer or a
full-time firefighter. Compensation shall be paid for the
duration of the disability.
(9) If disability and
wage loss are established, entitlement to weekly wage loss benefits shall be
determined as applicable pursuant to this section and as follows:
(a) If an employee
receives a bona fide offer of reasonable employment from the previous 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 considered to have voluntarily removed himself or herself
from the work force and is not entitled to any wage loss benefits under this
act during the period of refusal.
(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 Except as otherwise provided in this subdivision, 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. If an employee is employed and the
weekly wage of the employee is less than that which the employee received
before the date of the injury, the employee shall receive weekly benefits under
this act equal to 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 if the employee was at the time
of the injury a full-time law enforcement officer or a full-time firefighter.
(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 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 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.
(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 terminate the benefits of the employee
pursuant to subsection (9)(a).
(11) "Reasonable employment", as used in this
section, means work that is within the employee's capacity to perform that poses
no clear and proximate threat 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 not be limited to jobs in work suitable to his or her
qualifications and training.
(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.
(13) A person 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 or others of a
right afforded by this act.
(14) This section applies to personal injuries and work
related diseases occurring on or after June 30, 1985.
Sec. 321. (1) If Except as otherwise provided in subsection (2), if death
results from the personal injury of an employee, the employer shall pay, or
cause to be paid, subject to section 375, in 1 of the methods provided in this
section, to the dependents of the employee who were wholly dependent upon the
employee's earnings for support at the time of the injury, a weekly payment
equal to 80% of the employee's after-tax average weekly wage, subject to the
maximum and minimum rates of compensation under this act, for a period of 500
weeks from the date of death. If at the expiration of the 500-week period any
such wholly or partially dependent person is less than 21 years of age, a
worker's compensation magistrate may order the employer to continue to pay the
weekly compensation or some portion thereof until the wholly or partially
dependent person reaches the age of 21. If the employee leaves dependents only
partially dependent upon his or her earnings for support at the time of injury,
the weekly compensation to be paid shall be equal to the same proportion of the
weekly payments for the benefit of persons wholly dependent as 80% of the
amount contributed by the employee to the partial dependents bears to the
annual earnings of the deceased at the time of injury.
(2)
This subsection applies to an employee who at the time of the injury was a
full-time law enforcement officer or a full-time firefighter. If death results
from the personal injury of an employee, the employer shall pay, or cause to be
paid, subject to section 375, in 1 of the methods provided in this section, to
the dependents of the employee who were wholly dependent upon the employee's earnings
for support at the time of the injury, a weekly payment equal to the employee's
after-tax average weekly wage, subject to the minimum rates of compensation
under this act, for a period of 500 weeks from the date of death. If at the
expiration of the 500-week period any such wholly or partially dependent person
is less than 21 years of age, a worker's compensation magistrate may order the
employer to continue to pay the weekly compensation or some portion thereof
until the wholly or partially dependent person reaches the age of 21. If the
employee leaves dependents only partially dependent upon his or her earnings
for support at the time of injury, the weekly compensation to be paid shall be
equal to the same proportion of the weekly payments for the benefit of persons
wholly dependent as equal to the amount contributed by the employee to the
partial dependents bears to the annual earnings of the deceased at the time of
injury.
Sec. 355. (1) The maximum weekly rate shall be
adjusted once each year 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, the maximum weekly rate of compensation
for injuries occurring within that year shall 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) For the purpose of
computing the supplemental benefit under section 352, the state average weekly
wage for any injury year shall 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.
(4) The maximum weekly rate established under this section does not apply to an employee who was at the time of the personal injury a full-time law enforcement officer or a full-time firefighter.
Sec. 361. (1) An employer is not liable for
compensation under section 301(7) or (8), 351, 371(1), or 401(5) or (6) for
periods of time that the employee is unable to obtain or perform work because
of imprisonment or commission of a crime.
(2) In cases included in
the following schedule, the disability in each case shall be considered to
continue for the period specified, and except as otherwise provided in this subsection, the
compensation paid for the personal injury shall be 80% of the after-tax average
weekly wage subject to the maximum and minimum rates of compensation under this
act. The compensation paid for the
personal injury shall be equal to the after-tax average weekly wage if the
employee was at the time of the injury a full-time law enforcement officer or a
full-time firefighter. The effect of any internal joint
replacement surgery, internal implant, or other similar medical procedure shall
be considered in determining whether a specific loss has occurred. The specific
loss period for the loss shall be 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 considered to be equal to the
loss of 1/2 of that thumb or finger, and compensation shall be 1/2 of the
amount above specified.
The loss of more than 1
phalange shall be considered as the loss of the entire finger or thumb. The
amount received for more than 1 finger shall 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 considered to be equal to the loss of 1/2 of that
toe, and compensation shall be 1/2 of the amount above specified.
The loss of more than 1
phalange shall be 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 considered a
hand, and an amputation above that point shall be 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
considered a foot, and an amputation above that point shall be considered a
leg.
(l) Eye, 162 weeks.
Eighty percent loss of vision of 1 eye shall constitute the
total loss of that eye.
(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.
(g) Permanent and total loss of industrial use of both legs
or both hands or both arms or 1 leg and 1 arm; for the purpose of this
subdivision such permanency shall be 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 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
begin at the conclusion of the payments for the first member.
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 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 being unable to perform all jobs paying the maximum wages in work
suitable to that 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 compensable if contributed to
or aggravated or accelerated by the employment in a significant manner. Mental
disabilities shall be 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.
(d) "Wage loss"
means the amount of wages lost due to a disability. The employee shall
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.
(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.
(5) If Except as otherwise provided in this subsection, if a
personal injury arising out of the course of employment causes total disability
and wage loss and the employee is entitled to wage loss benefits, the employer
shall pay or cause to be paid to the injured employee as provided in this
section weekly compensation equal to 80% of the employee's after-tax average
weekly wage, but not more than the maximum weekly rate determined under section
355. If a personal injury arising out of
the course of employment causes total disability and wage loss and the employee
is entitled to wage loss benefits, the employer shall pay or cause to be paid
to the injured employee as provided in this section weekly compensation equal
to the employee's after-tax average weekly wage if the employee was at the time
of the injury a full-time law enforcement officer or a full-time firefighter. Compensation
shall be paid for the duration of the disability.
(6) If Except as otherwise provided in this subsection, if a
personal injury arising out of the course of employment causes partial disability
and wage loss and the employee is entitled to wage loss benefits, the employer
shall pay or cause to be paid to the injured employee as provided in this
section weekly compensation equal to 80% of the difference between the injured
employee's after-tax average weekly wage before the personal injury and the
employee's wage earning capacity after the personal injury, but not more than
the maximum weekly rate determined under section 355. If a personal injury arising out of the course of employment causes
partial disability and wage loss and the employee is entitled to wage loss
benefits, the employer shall pay or cause to be paid to the injured employee as
provided in this section weekly compensation equal to the difference between
the injured employee's after-tax average weekly wage before the personal injury
and the employee's wage earning capacity after the personal injury if the
employee was at the time of the injury a full-time law enforcement officer or a
full-time firefighter. Compensation shall be paid for the
duration of the disability.
(7) If disability and
wage loss are established, entitlement to weekly wage loss benefits shall be
determined as applicable pursuant to this section and as follows:
(a) If an employee
receives a bona fide offer of reasonable employment from the previous 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 considered to have voluntarily removed himself or herself
from the work force and is no longer entitled to any wage loss benefits under
this act during the period of refusal.
(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 Except as otherwise provided in this subdivision, 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. 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 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 if the employee was at the time of the
injury a full-time law enforcement officer or a full-time firefighter.
(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 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.
(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 subsection (7)(a).
(9) As used in this section, "reasonable
employment" means work that is within the employee's capacity to perform
that poses no clear and proximate threat 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 not be limited to work suitable to his or
her qualifications and training.
(10) This section shall apply to personal injuries or work
related diseases occurring on or after June 30, 1985.
Enacting section 1. This amendatory act is retroactive and applies to personal injuries that occur after March 9, 2020.
