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01/27/15 | RULES CHANGES

The Michigan Administrative Hearing System (MAHS) department issued new rules governing hearings and appeals.  Lacey & Jones can provide unique expert advice concerning the rules with the addition of former Chairman Greg Przybylo.  Greg co-authored the Michigan Compensation Appellate Commission (MCAC) rules and advised the MAHS department regarding the magistrate rules.  His unique perspective will afford our clients the best counsel regarding all workers’ compensation matters.


01/27/15 | DISMISSAL OF APPEALS- FAILURE TO PAY 70% BENEFITS

The MCAC recently issued a five page order dismissing a case for failure to pay 70% benefits during the pendency of an appeal.  However, Lacey & Jones successfully obtained an order excusing 70% benefits in Williamson v General Motors, 2012 ACO #94, a decision authored by our newest attorney, Greg Przybylo.  Greg can offer you unparalleled advice regarding the 70% benefit payment obligation or any other workers’ compensation issue that may arise.


11/20/14 | PATENTS AND TRADEMARKS

Lacey and Jones is available to address your intellectual property needs. J. Patrick O’Neill is registered to practice before the United States Patent and Trademark Office. He can assist with all issues involving trademarks, patent searches and prosecutions of patents.


07/24/14 | PAUL VAN HARTESVELDT July 29, 1926 – July 18, 2014

It is with great sadness that we announce the passing of one of our retired senior partners, Paul Van Hartesveldt. Paul will be greatly missed by Lacey & Jones.


07/07/14 | APPLICABILITY OF THE MICHIGAN NO-FAULT ACT TO OFF ROAD VEHICLES

In Gividen v Bristol West Ins. Co., et al, ___ Mich App ___ (2014) a panel of the Michigan Court of Appeals reviewed a trial court finding that a plaintiff was entitled to personal protection benefits (PIP) arising out of an accident between two off road vehicles (ORV).

Plaintiff was seriously injured while operating an ORV which collided with a modified Jeep.  The Jeep had been modified to where it was no longer designed for travel upon public highways.  Plaintiff claimed PIP benefits under the policy covering the Jeep and the carrier denied benefits.  The trial court determined that the modified Jeep was an ORV that was excluded from the No-Fault Act, but still found plaintiff entitled to benefits under the language of the insurance policy covering the Jeep, which did not exclude an ORV as a covered auto.  The Court of Appeals disagreed, finding that the trial court made the proper determination that the Jeep was an ORV and, therefore, excluded from the application of the No-Fault Act, but erred in awarding plaintiff PIP benefits.  As the ORV was excluded from the No-Fault Act, the fact that the policy did not expressly exclude ORVs from coverage was irrelevant.  As the accident did not involve a motor vehicle, plaintiff was not entitled to PIP benefits under the No-Fault Act. 

 


03/30/14 | SUPREME COURT TO CONSIDER "SCOPE" OF GOVERNMENT'S LIABILITY UNDER MOTOR VEHICLE EXCEPTION AND NO-FAULT INSURANCE ACT

On April 3, 2014, the Michigan Supreme Court was to hear oral argument in the case of Hannay v. MDOT, Supreme Court Case No. 146763, to address whether a plaintiff can recover economic and non-economic benefits damages under the No-Fault Act in an action against the state of Michigan for injuries received in an automobile accident involving a State of Michigan Department of Transportation snow plow.  The Governmental Tort Liability Act (GTLA) allows a claimant to recover for “bodily injury” and “property” damages, only, for injuries received as the result of the negligent operation of a government-owned motor vehicle. The No-Fault Act allows a motorist injured in an automobile accident to recover economic and non-economic damages under certain circumstances.  The Court of Appeals ruled the government was required to pay these other types of damages.  On March 21, 2014, the Court adjourned oral argument in Hannay and granted reconsideration of an application filed in the case of Hunter v. Sisco, et al., Supreme Court Case No. 147335 to consider whether noneconomic damages can be awarded under the No-Fault Act in an action against governmental entities sued under the motor vehicle exception of the GTLA.  The two cases were consolidated and oral argument will now be presented in both cases in the Court’s next term.

Lacey & Jones, LLP submitted an amicus curiae brief on behalf of the Michigan Townships Association, Macomb County, Oakland County and Wayne County in the Hannay case.  The outcome of these cases is likely to affect both No-Fault insurers as well as governmental entities in their future liability and risk apportionment.


01/02/14 | PREMISES LIABILITY - CONSTRUCTIVE NOTICE

The Michigan Court of Appeals recently released an opinion for publication addressing the issue of notice regarding a premises liability action.
 
In Grandberry-Lovette v Garascia, ___ Mich App ___ (2014) released January 2, 2014, the plaintiff fell walking up the steps of a porch when bricks became loose and crumbled under her feet.  The defendant, the owner of the premises, had repaired loose bricks on the porch steps approximately one year earlier, but not on the same step involved in the accident.

The crux of the plaintiff’s premises liability action was based upon the defendant’s failure to properly inspect the premises for dangerous conditions.  The defendant moved for summary disposition and asserted the alleged defect was latent and not visible on casual inspection.  The defendant alternatively argued that had the defect been visible, the condition would have been open and obvious.  The trial court agreed and the plaintiff appealed. 

The appeal centered upon the issue of constructive notice.  The fundamental nature of the defense argument was that the duty of care owed by a premises owner is essentially the same as an invitee’s personal duty of care, which only requires a casual inspection to discover latent defects on the premises.  The Court of Appeals disagreed and acknowledged that the standard of care a possessor of land must utilize is not one and the same with the personal duty of an invitee.  While an invitee is only required to make a casual inspection of the surroundings to ascertain the presence of any open and obvious dangers, a landowner owes a greater level of care to protect invitees from hazards an invitee is not expected to find, such as latent dangers.


03/31/13 | PRINS V. MICHIGAN STATE POLICE II - COURT OF APPEALS REMANDS TO CONSIDER REASONABLENESS OF ATTORNEY FEES AWARD FOR STATE POLICE VIOLATION OF FOIA

This case has been up to the Supreme Court, which changed its mind on review, and then down again.  The issue addressed in the first Court of Appeals opinion concerned the date the 180-day appeal period begins to run from denial of a FOIA request.

 

The circuit court ruled the date of receipt by the government agency triggered the period.  The Court of Appeals reversed, holding that the date of the postmarked response denying the request was the trigger date.  This rendered the plaintiff’s appeal timely.  The Supreme Court initially granted the Michigan State Police’s application for leave to appeal, but then vacated that order in January of 2012.

 

This opinion by the Court of Appeals addresses a second appeal by the plaintiff concerning the important issue of calculating “reasonable attorney” fees that can be awarded for a governmental entity’s arbitrary and capricious denial of a FOIA request.

The Court here, in a published opinion, remands to the circuit court, commanding an analysis of that issue pursuant to the Supreme Court’s guidance in Smith v. Khouri, 481 Mich. 519, 526-533 (2008).  The Court here concludes the list of factors enunciated in Smith, and as found in Rule 1.5(a) of the Michigan Rules of Professional Conduct, applies as well to the question of attorney fees in FOIA cases.

 

The important take away from this case, Smith, and others that address the statutory award of attorney fees is that the “reasonableness” calculation is left to the discretion of the trial court judge and can be “more” or “less” than that being requested by the attorneys submitting the bill to the court.

 

Here is the opinion:  Prins v. MSP II.opn


03/31/13 | COURT OF APPEALS REJECTS PLAINTIFF'S PREMISES LIABILITY CLAIM

In this otherwise unremarkable “slip and fall” case, the Court of Appeals neatly illustrates the insufficiency of speculation and conjecture about the cause of an alleged injury suffered by the plaintiff in the defendant’s store.

In Fedrick v. KMart Corp. et al.,  Unpublished Opinion of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307816), the plaintiff alleged she injured herself when she slipped and fell in the automotive supply aisle of the defendant’s retail store.  By way of allegation, she linked the cause of her fall to either (1) a new chemical used by the cleaning company to wax the floor in the aisle making it exceedingly slippery, and/or (2) an unknown substance spilled from one of the many automotive products on the shelves.  The plaintiff presented no linking evidence that either of these circumstances directly caused the alleged slippery condition, and therefore, her alleged fall.

 

The Court of Appeals correctly affirms the trial court’s dismissal of the plaintiff’s case.  Citing to the bellwether decision Skinner v. Square D Co., 445 Mich. 153, 164-165 (1994), the Court of Appeals panel neatly summarizes the requirement that in order for a case to move forward to trial on the basis of allegations, there must be a causal linkage between the alleged catalyst for the incident and the actual happening of that incident, the latter of which serves as the basis for seeking damages.  At pages 2 and 3 of the opinion, the Court cites the language from Skinnersupra, and concludes that while the plaintiff presented “different plausible explanations” for why the floor may have been slippery, i.e., the use of a new cleaning product by the store's floor cleaning contractor, or a spill from an automotive product, she presented no evidence to support the conclusion that either of these alleged incidents actually resulted in, i.e., caused, her fall.  There was no evidence presented regarding the chemicals used by the cleaning company and no evidence presented that a foreign substance was on the floor at the time of her alleged fall.

 

Quoting Skinnersupra, the Court notes:  ”[A] conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference.  There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only….  The crucial factor is that “‘if [the] evidence lends equal support to inconsistent conclusions or is equally consistent with contradictory hypotheses, negligence is not established.”  Slip Op. at 2 (emphasis in original), citing Skinnersupra at 166-167.

 

Without evidence that the cleaning company actually did use a “new” chemical substance , or evidence (such as staining on the plaintiff’s clothing, a report of a clean up at the location after the plaintiff’s fall, etc.) that there was in fact a foreign substance on the floor at the time of the plaintiff’s fall, which led to a condition of the floor making it any more slippery or hazardous than previously, plaintiff will fail to carry her burden to survive a summary motion brought pursuant to MCR 2.116(C)(10).  See also MCR 2.116(G)(5).


03/31/13 | MICHIGAN COMPENSATION APPELLATE COMMISSION PROVIDES SIGNIFICANT GUIDANCE ON PLAINTIFF'S BURDEN OF PROOF TO DEMONSTRATE INABILITY TO FIND WORK

Lacey & Jones, LLP recently secured a decision from the Michigan Compensation Appellate Commission, which significantly addresses a plaintiff’s burden of proof under step four of Stokes v. Chrysler Corp, LLC, 481 Mich. 266 (2008).

 

In Barclay v. General Motors Corp., 2013 ACO # 1, the Commission details the necessary proofs a plaintiff must meet to carry his or her burden to prove disability and entitlement to wage loss. 

 

According to the Commission’s decision, first, the vocational experts are now going to have to provide a more complete list of jobs an individual has the transferable skills to perform within certain sets of restrictions.  The “universe of jobs” “list” referred to, according to this opinion, “will never change, and as such, serves as a foundation for future disagreements about disability and wage loss.”

 

Second, the Commission concludes a claimant’s ability to work fluctuates with a person’s physical condition.

Third, the Commission notes: “[T]he next step further concentrate[s] the job list to those jobs that are: 1) suitable to the plaintiff’s qualifications and training; 2) within plaintiff’s work related restrictions; and additionally 3) available to plaintiff. This step routinely involves vocational surveys and plaintiff directed job searches. This step is glaringly missing from the analyses. To adequately address this step the magistrate must consider fluctuations in the evidence for the entire time of the claimed disability. For example, a vocational expert may perform a job market survey that only examines the job market during a specific week. Or, as in this case, plaintiff may exhibit varying degrees of tenacity when looking for work. Again those fluctuations alter the list of jobs that are available. Only once plaintiff proves that no suitable restriction-compliant jobs are available in the magistrate order full benefit.

 

Under this analysis, it is unlikely that an individual will be receiving full benefits if he or she can work.  It also requires more of vocational experts from both sides.

Here is the opinion:  2013 ACO # 1


03/31/13 | INSURER LOSES DECLARATORY JUDGMENT ACTION AFTER POSING ONLY ONE REASON FOR OPERATION OF CRIMINAL ACTS EXCLUSION AT SUMMARY DISPOSITION STAGE

This case demonstrates the importance of having experienced coverage counsel analyze and apply all potential theories of coverage, including exclusions, at the defense stage of proceedings to determine coverage obligations in a declaratory judgment action.

The plaintiff in the underlying lawsuit was shot by the defendant insured during a hunting incident.  The shooting was clearly an accident, as the hunter (stupidly, if not criminally) fired at a flash of white he thought was a deer he flushed out while walking around a field at dusk.

The insurer insured the defendant under a homeowner’s policy.  The insurer filed a declaratory judgment action seeking to avoid coverage.  It raised the “criminal acts” exclusion, while conceding an occurrence.  The exclusionary language excluded coverage for “a criminal act or omission” or for “an act or omission, criminal in nature”.  However, the insurer only plead that the insured had violated MCL 750.235(1), which made it a misdemeanor to maim or injure “another person by discharging a firearm pointed or aimed intentionally but without malice at another person….”  This was the only basis relied on by the insurer to seek a declaration that coverage should be excluded by the policy’s criminal acts exclusion.

The trial court concluded that the elements of this specific intent statute were not satisfied because the defendant in the underlying suit testified he did not know he was shooting at a person.  Therefore, the trial court ruled the insurer owed coverage to the defendant insured for defense and potential indemnity to the plaintiff in the underlying lawsuit.

On appeal, the Court of Appeals (Fitzgerald, Meter, and M.J. Kelly) affirmed.  It points out, more than once, that the insurer failed to plead or assert any other grounds for exclusion under the policy.  The insurer’s singular reliance on whether or not MCL 750.235(1) had been violated and the trial court’s disposition of that issue, was all the Court of Appeals could assess on appeal.

 

This case demonstrates the importance of having coverage counsel assess all possible avenues concerning coverage obligations, including whether or not and to what extent any of the coverage provisions, i.e., occurrence, claim, etc., and any exclusion (or any other exclusions) might be satisfied, or apply, respectively.

 

It also demonstrates the importance of exploring whether other potential facts implicate the broader language of the criminal acts exclusion.  Certainly, it appears that “an act or omission, criminal in nature”, which the exclusion included, casts a wider net than the simple “specific intent” statute that the insurer here attempted to prove had been violated.  Criminal negligence, reckless endangerment, recklessness, and a host of other general criminal acts come to mind when considering the exclusion’s precise language.

 

The opinion is here:  Auto Club v. Kondziolka, et al.


03/31/13 | COURT OF APPEALS CONSTRUES SIDEWALK UNDER HIGHWAY EXCEPTION TO INCLUDE NON-ADJACENT HIKE / BIKE PATH NOT WITHIN RIGHT OF WAY OF ROADWAY

This recent Court of Appeals opinion seems to skirt the definition of “sidewalk” within the meaning of the highway exception to governmental immunity in MCL 691.1402, and the definition provided in MCL 691.1401(e).  Hernandez v. Twp. of Clinton, Unpublished Decision of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307683).

 

The plaintiff was injured when his bike tire struck a hole in an asphalt-paved pathway that followed a parkway, but which was separated therefrom by a 30-foot wide grass median / neutral area.  The Court of Appeals panel cites the rule, established by the cases of Stabley v. Huron-Clinton Metropark, 228 Mich. App. 357 (1998) and Hatch v. Grand Haven Twp., 461 Mich. 457 (2000) that in order to be considered a “highway” within the meaning of the highway exception, the sidewalk “must be (1) a path designed for pedestrian use, (2) usually paved, (3) running alongside and adjacent to a public road, and (4) within the right of way of that road.”  See Slip. Op. at 4 (emphasis added).

 

The Court of Appeals ruled that the plaintiff met his burden to plead in avoidance of immunity by the allegations.  However, the rule is that retained sovereign immunity is broadly conferred and the statutory exceptions thereto are strictly or narrowly construed.  The emphasized element above, that the sidewalk, to be considered within the exception sufficient to invoke the government’s duty, must be “within the right of way of [the] road” to which it is adjacent does not appear to be fulfilled in this case.  Only by a broad, rather than narrow, construction of the exception could a pathway separated from the true right of way of a “highway” by a 30 foot grass margin be considered a “sidewalk” within the exception.

This panel’s decision is suspect in light of the interpretive requirements applicable to the exceptions to governmental immunity.

Here is the opinion: Hernandez v. Township of Clinton


03/31/13 | COURT OF APPEALS DENIES MEDICAL SERVICE PROVIDER'S CLAIM AGAINST NO-FAULT INSURER TO RECOVER FOR SERVICES RENDERED TO PLAINTIFF

In a published opinion, Michigan Head & Spine Institute, P.C. v. State Farm Mutual Automobile Insurance Co., ___ Mich. App. ___ (2013) (Docket No. 307253), the Michigan Court of Appeals reversed the trial court’s decision, which would have allowed a medical service provider (Michigan Head and Spine) to recover against State Farm for services rendered to the plaintiff, who was injured in an auto accident, because the plaintiff had signed a release with State Farm in which she agreed not to seek recovery for future medical services provided.

The plaintiff was injured in an auto accident.  She received personal insurance protection (PIP) benefits, including medical services, which were paid by State Farm.  She settled with State Farm and executed a release, in which she discharged and/or disclaimed any future PIP benefits related to treatment received for her injuries.  After she signed the release, the plaintiff treated with Michigan Head and Spine, which then sought recovery from State Farm.

The trial court denied a summary disposition motion by State Farm and allowed MH&S to proceed against it on theories of contract and recovery of no-fault PIP benefits.  The Court of Appeals reversed, holding that the plaintiff’s release bound MH&S from seeking recovery on any theory.

This is a published opinion, which illustrates the importance for medical service providers to affirm the availability of insurance before treating a plaintiff.  The ruling of the case applies both to no-fault insurers, and other insurers, such as workers’ compensation carriers, that might be liable for payment for medical services on the basis of an injury.

Read the opinion here:  Michigan Head and Spine v. State Farm


02/04/13 | NO-FAULT ECONOMIC DAMAGES ARE RECOVERABLE UNDER THE GOVERNMENTAL TORT LIABILITY ACT

The Michigan Court of Appeals recently addressed the issue of economic damages under the Michigan Governmental Tort Liability Act (MGTLA).  In Hannay v Department of Transportation, an opinion issued on January 17, 2013, the Court of Appeals affirmed a jury verdict awarding excess wage loss and services pursuant to the Michigan No-Fault Act against a governmental agency.

In Hannay Plaintiff sustained serious personal injuries in a motor vehicle accident when a snow plow operated by the Department of Transportation ran a stop sign and struck Plaintiff’s vehicle.  Plaintiff filed suit against the governmental agency under the MGTLA.  As this matter arose out of a motor vehicle accident, the No-Fault Act was also applicable.  The No-Fault Act allows for economic damages consisting of wage loss and services incurred beyond three years from the date of the accident.  After trial, the jury awarded Plaintiff non-economic damages for serious impairment of a body function, as well as economic damages for excess wage loss and services.  Defendant appealed the economic damages portion of the verdict.

On appeal, Defendant argued that excess wage loss and services were not allowable as damages under the MGTLA, as the language of the statute only provides for damages for bodily injury and/or property damage.  In support of this argument, Defendant cited the Michigan Supreme Court’s decision in Wesche v Mecosta Co. Rd. Comm., 480 Mich 75 (2008) wherein the plaintiff’s spouse was not entitled to receive damages for loss of consortium under the MGTLA.  In a unanimous opinion the Hannay Court found Wesche to be inapplicable determining that a loss of consortium claim was a separate, independent cause of action.  The spouse in Wesche had not sustained a bodily injury which formed the basis of her claim.  Unlike the loss of consortium claim in Wesche, Plaintiff’s cause of action in Hannay was based upon her own personal injury and the excess wage loss and services were elements of damage associated with the cause of action.  Therefore, the Court of Appeals held that excess wage loss and services were recoverable under the MGTLA as an element of damages for personal injury. 

The Court of Appeals has made the distinction between a cause of action and elements of damages.  The MGTLA provides for damages arising out of a cause of action for bodily injury.  Economic damages are elements of bodily injury recoverable under the No-Fault Act.  Damages for bodily injury as provided in the MGTLA encompass the economic damages allowable under the No-Fault Act for claims arising out of motor vehicle accidents. 


09/20/12 | LACEY & JONES RECEIVES FAVORABLE RULING FROM COURT OF APPEALS APPLYING STOKES V. CHRYSLER AND ADDRESSING SUFFICIENCY OF EMPLOYMENT RELATIONSHIP

In Angel v. A1 South, LLC et al., an unpublished decision of the Michigan Court of Appeals, dated September 6, 2012 (Docket No. 295015),  a 2-1 decision after remand from the Supreme Court, the Court of Appeals wholly affirmed the Workers’ Compensation Appellate Commission’s (WCAC) finding that Plaintiff failed to meet his burden of proving disability under the Michigan Supreme Court’s decision in Stokes v. Chrysler LLC, 481 Mich. 266 (2008). 

Plaintiff filed a claim for benefits for a knee injury incurred during tryouts for Defendant’s hockey team.  Defendant argued Plaintiff was not employed during the tryout period and, alternatively, that Plaintiff had not satisfied the definition of disability established by Stokes.  The magistrate disagreed on both points, finding a work-related disability and granting Plaintiff an open award of benefits.  The decision was appealed to the WCAC which held that Plaintiff had established an employment relationship but that Plaintiff failed to prove a compensable disability under Stokes.  The Court of Appeals denied an Application for Leave to Appeal filed by Plaintiff, but the case was ultimately twice-remanded by the Supreme Court with instructions to hear the merits of Plaintiff’s appeal and Defendant’s cross-appeal on the employment relationship issue.

The Court of Appeals reasoned that although Plaintiff disclosed his qualifications and training, he did not present evidence of available jobs in light of his qualifications and training, or jobs he was unable to attain despite his qualifications and training.  This did not rise to the level of proofs sufficient for Plaintiff to prove disability.

The Court’s majority, over Judge Fort-Hood’s dissent, also found in favor of Defendants on the cross-appeal that there was no employment relationship, analyzing Plaintiff’s tryout period, during which he was injured, under a “contract for hire” analysis.  The majority concluded that Plaintiff was not injured under a contract of hire because the promise to reimburse his expenses for attending the tryout fell short of the payment of wages.  Thus, the Court reversed the WCAC’s decision that there was an employment relationship sufficient to invoke the obligation to pay workers’ compensation benefits.

This case serves as good post-Stokes illustration of how the criteria from that decision should be applied.  Moreover, the opinion also provides pertinent analysis regarding the ability of a claimant to establish an “employment relationship” that will be applicable to many other factual situations.


09/19/12 | DENNIS ZACHARSKI NAMED IN "SUPER LAWYERS" BUSINESS EDITION 2012

Lacey & Jones is pleased to announce that one of the firm’s partners has been recently recognized.  Dennis Zacharski has again been named in “Super Lawyers” in the 2012 Business Edition. Mr. Zacharski specializes in the defense of personal injury litigation and chairs the litigation department at Lacey & Jones.


09/17/12 | LACEY & JONES, LLP APPELLATE ATTORNEY CARSON J. TUCKER IN LAWYER'S WEEKLY FOR MICHIGAN SUPREME COURT VICTORY

Carson J. Tucker, who recently joined the firm and heads up the Appellate Practice and Legal Research Group, was recognized on the front page of the September 3, 2012 Michigan Lawyers Weekly, vol. 26, No. 44, for his representation of Suburban Metropolitan Area Transportation Authority (SMART) in a case in which the Supreme Court reversed a Court of Appeals decision against SMART.  After the Court of Appeals issued its unfavorable decision, Mr. Tucker took over the case and filed an Application for Leave to Appeal.  The Supreme Court granted oral argument on the application and Mr. Tucker briefed the case and in March of 2012 presented oral argument to the Supreme Court.  The Court’s decision reversed the Court of Appeals, which had ruled Plaintiff’s third-party common-law tort claims against SMART could go forward despite the fact that the Plaintiff failed to provide written notice of her intention to bring such a claim within 60 days as required by MCL 124.419.  The opinion finally clarifies an issue that has been involved in litigation for the past decade.


03/12/12 | SUMMARY OF WORKERS' COMPENSATION REFORM BILL

On December 19, 2011, Governor Snyder signed the workers’ compensation reform bill. Technically, it is known as 2011 PA 266, which is enrolled house bill #5002. It went into effect on December 19, 2011. In general, it applies to injuries occurring on and after that date.

The types of changes made in the new legislation can be divided into two broad categories: substantive changes and procedural changes. In general, the substantive changes are codifications of favorable Supreme Court case law and “corrections” of other cases and prior legislative inconsistencies. The procedural changes are changes to streamline and modernize the statute.

Read More


11/04/11 | MICHIGAN SUPREME COURT RELEASES PARTIAL DISABILITY ORDERS

The Michigan Supreme Court has recently released three important orders regarding partial disability benefits in Michigan.  First, here is some background.

The partial disability provision of the Michigan’s workers’ compensation statute, as well as certain case law, require magistrates to calculate the appropriate partial weekly rate of compensation to those claimants who are deemed “partially disabled.”  Whenever a partially disabled claimant is working post-injury at a lesser paying job, there is little controversy in calculating the appropriate partial rate.  But when a partially disabled claimant is not working at all post-injury, the point becomes more controversial.  The statute states that partial disability payments are to be calculated on the basis of what the claimant is “able to earn” post- injury, not what the claimant is actually earning. And, certain case law has made clear that “able to earn” is not limited to actual wages earned but rather, requires consideration of the claimant’s capacity to earn whether that capacity is being exercised or not.

You might recall that three years ago in Lofton v AutoZone, Inc, 482 Mich 1005 (2008), the Supreme Court reiterated that the partial rate calculation is required to be based on the claimant’s capacity to earn, regardless of whether that capacity is being exercised or not.  Lofton tended to be ignored by many practitioners and magistrates as an aberration.

It is now clear that the Michigan Supreme Court does not consider Lofton to be an aberration. 

In Umphrey v General Motors Corp, 489 Mich 978 (2011), the Supreme Court – with only one dissent – said that a Lofton partial disability evaluation is “required” and if “the plaintiff is only partially disabled then a calculation of wage loss benefits must be made… and the WCAC should in that event modify the plaintiff’s award accordingly.” (emphasis added).

Similarly, in Harder v Castle Bluff Apartments 489 Mich 951 (2011), the Court stated that Lofton“applies at all times to partially disabled workers.” (emphasis added).   And, in Vrooman v Ford Motor Company 489 Mich 978 (2011), the Court – again over only one dissent – returned the case to the magistrate for a partial disability evaluation, citing Lofton and Harder.

From these orders it is now quite clear that the Supreme Court meant what it said in Lofton, namely: the partial disability calculation is required when a claimant is determined to be only partially disabled. 


11/02/11 | MEDICARE UPDATE - RECENT ANNOUNCEMENTS FROM MEDICARE SECONDARY PAYER RECOVERY CONTRACTOR (MSPRC)

The Medicare Secondary Payer Recovery Contractor (MSPRC) protects Medicare’s interest by recovering payments Medicare made that were the responsibility of another entity. The agency is authorized to do so under the Medicare Secondary Payer Act. The payments recovered are those that Medicare believes are the responsibility of liability insurance and/or workers’ compensation insurance. MSPRC recently announced that it has contracted with Group Health Incorporated to perform MSPRC duties which include issuing Conditional Payment Letters. These are the letters that outline Medicare’s lien. The phone number and mailing address for MSPRC remain the same.

Approximately two weeks after an injury is reported to the Coordination of Benefits Center (COBC), MSPRC will issue a “Rights and Responsibilities” (RAR) letter. MSPRC will then automatically generate a Conditional Payment Letter (CPL) within 65 days from the date on the RAR letter.

We recommend that MSPRC be contacted by telephone approximately one month after reporting the injury to be sure that the appropriate authorization forms have been added to the Medicare file. This follow up call to MSPRC is the best way to ensure that MSPRC will process the case correctly.

MSPRC has also announced the availability of a Self Service Information Feature. This automated service provides the most current demand and Conditional Payment amounts as well as the date the CPL was issued. However, if the CPL has not been received within the 65 day time frame, we recommend that an MSPRC customer service representative be contacted for follow-up.


10/29/11 | DENNIS ZACHARSKI NAMED IN "MICHIGAN SUPER LAWYERS" AND GERALD (JERRY) MARCINKOSKI NAMED IN "BEST LAWYERS IN AMERICA"

Lacey & Jones is pleased to announce that two of the firm’s partners have been recently recognized.  Dennis Zacharski has again been named in “Michigan Super Lawyers” for 2011 and “DBusiness Top Lawyers” for 2011, and Gerald (Jerry) Marcinkoski has again been recognized in “Best Lawyers in America” for 2012. Mr. Zacharski specializes in the defense of personal injury litigation while Mr. Marcinkoski practices workers’ compensation appellate law.


06/30/10 | MEDICARE SET-ASIDE ARRANGEMENTS (MSA)

When an individual receives workers’ disability compensation, no-fault benefits, and/or tort damages in addition to Medicare benefits, the workers’ disability compensation benefits, no-fault benefits, and/or tort recovery are by law considered to be primary benefits. Medicare benefits are secondary. In order to protect Medicare’s secondary payer status, parties to a settlement may be required to set aside sufficient funds for all future medical services related to the injury that would otherwise be reimbursable by Medicare. This procedure is called a Medicare Set-aside Arrangement (MSA).

Centers for Medicare & Medicaid Services (CMS) has taken the position that when there is a failure to consider and protect its interests in a settlement, Medicare may seek recovery from those obligated to make the payment or protect Medicare’s interest. This includes the defendant employer, insurance carrier, and third-party administrator. Medicare may also impose penalties on offenders.

Michael R. Sugar, Of Counsel to Lacey & Jones LLP, is experienced in the preparation and submission of the Medicare Set-aside Arrangements. Mr. Sugar is available to provide counsel during the settlement process and beyond. His services include preparation and submission of a timely and realistic proposal for review and approval by Medicare. He will follow the submission until approval by Medicare is obtained, the settlement is finalized, and the Set-aside Arrangement is funded. His will also determine whether any past conditional payments made by Medicare will need to be repaid.

For further information, please contact Mr. Sugar at (248) 283-0770 or msugar@laceyjones.com or Marianne Melton at (248) 283-0768 or mmelton@laceyjones.com.




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