When I visit clients in the hospital or they come limping in with the help of family members, we spend a lot of time going over their injuries and necessary treatment. But even though the worker’s injuries can be very serious, the worker may still not receive wage loss benefits unless he is found to be disabled under the Workers Disability Compensation Act (WDCA). MCL 418.401.
‘Disabled’ is defined as a limitation of the worker’s ability to earn wages suitable to his or her qualifications and experience resulting from the injury at work.
‘Wage earning capacity’ means the wages the employee earns or is capable of earning from a job reasonably available to the employee whether or not they are actually earned.
‘Wage loss’ is defined as “a connection between the disability and reduced wages. The statute goes on to state that “wage loss may be established, among other methods, by demonstrating the employee’s good-faith effort to procure work.”
Even though the worker’s injuries and physical limitations must be taken into consideration, the determination that someone is ‘disabled’ is really not a medical question, but an economic one.
To establish that a worker is disabled, the burden rests on the worker to prove the following elements at trial:
1. The worker must disclose all his work-related experience, qualifications and training that he had regardless if they are relevant to the work he was performing when he sustained his injuries.
When the worker is providing the information about jobs he performed in the past, it is essential that he provides the current wages paid for that employment in order to establish the maximum wages paid for that job.
2. The worker must establish the broadest variety of categories of jobs he was able to perform at the time he sustained his injuries.
These categories could include jobs that the worker has never performed but would have been capable of doing prior to the immediate injury event. By necessity, it includes jobs that do not require skill or education that the employee would be overqualified for. It would include positions that the employ could learn on the job.
The worker’s attorney is likely to hire a vocational expert for this step since the employee would not be qualified to determine or testify to his own his transferable work skills. The vocational expert would also be qualified to testify to the maximum wages for the variety of jobs the employee could perform and give important forecasts as to where certain jobs may exist in the national and regional economy regarding step 4 below.
3. The determination must be made whether the injury prevents the worker from performing the jobs identified as a result of the first two steps. The magistrate must consider the entire period the employee was out of work.
Although a doctor may restrict the employee from specific physical activities, it is up to the vocational expert to show how this eliminates categories of jobs that are available.
Evidence that the employee is receiving social security disability insurance benefits or other types of disability benefits will not result in a finding of that the employee is disabled unless it is equivalent to the process described in the statute.
4. If there is a determination that the worker can perform one or more jobs in the variety of categories, it must be decided whether he can obtain such jobs.
The supreme court has held that there must be a “substantial job market” for a type of position in the local economy to demonstrate the employee still had a wage-earning capacity. Travel, equipment, or other types of job-related expenses can make such jobs unfeasible. The burden continues to be on the employee to show he made a good faith attempt to procure employment at the maximum wage-earning capacity.
If the employer did not offer the employee reasonable employment after the injury, evidence that the employee made a good faith effort to find employment without result can be very helpful.
Should the employee satisfy all steps at trial, the burden shifts to the employer to refute the employee’s evidence.
WHAT THIS MEANS IS THAT THE EMPLOYEE MUST BE LOOKING FOR WORK WITHIN THE RESTRICITONS HE RECIEVES FROM HIS PHYSICIAN TO REMAIN ELIGIBLE FOR WAGE LOSS BENEFITS!!!