The Building Tradesman Newspaper

Monday, November 21, 2011

House OKs stricter,‘phantom’ standards for workers comp

By Marty Mulcahy, Editor

LANSING – The long list of anti-worker legislation adopted this year by state Republican lawmakers got a little longer on Nov. 2, as the Michigan House passed a bill which reforms the workers’ compensation system in Michigan.

And by “reform” we mean that Republicans made it extremely difficult for injured workers in Michigan to obtain fair compensation for temporary or permanent time off due to an on-the-job injury.

House Bill 5002 slashes benefits by subtracting earnings that a worker could have earned – “phantom wages” as one attorney put it – from an injured worker’s benefits, regardless of that worker’s ability to find a job.  The bill also gives even more power to employers to dictate where an injured worker can seek treatment.

Michigan AFL-CIO President Karla Swift said passage of the bill “will create devastating changes to a workers compensation law that has been one of the best in the nation, with lower costs than other states in the Midwest and across the country.”

House Bill 5002 was adopted 59-49, with four Republicans joining the entire slate of Democrats in voting no. The bill now goes to the Senate, where Majority Leader Randy Richardville (R-Monroe) said he expects the bill to be taken up after Thanksgiving, but before the end of the year. He told Gongwer News Service that he didn’t know if the Senate would significantly amend the measure.

As we’ve reported, Michigan workers compensation attorneys have been sounding the alarm about this legislation for the past several months. House Bill 5002 introduces a new, higher standard for injured workers to receive benefits, involving “wage-earning capacity.” In short, if an injured worker has the capacity to perform a different job during his disability – even if there is no such job available – his benefit is reduced or perhaps unavailable.

“In plain English,” said a letter by Southfield attorney Marshall Lasser to organized labor leaders, “this means if a skilled worker earning $1,200 per week gets an injury which disables him permanently, but he is able flip hamburgers at Burger King for $400 a week, his workers compensation is reduced by 1/3 – even though he applies for 50 jobs and can=t get hired.”

The legislation also gives employers the choice of which doctor will treat the injured worker through the first 45 days of treatment. If the injured worker doesn’t like that doctor, or if the health care facility where he’s being treated or the medications he’s being given aren’t working – well, he has rights under this legislation.


Here’s what House Bill 5002 says:

“After 45 days from the inception of medical care as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician.

“The employer or the employer’s carrier may file a petition objecting to the named physician selected by the employee and setting forth reasons for the objection. If the employer or carrier can show cause why the employee should not continue treatment with the named physician of the employee’s choice, after notice to all parties and a prompt hearing by a worker’s compensation magistrate, the worker’s compensation magistrate may order that the employee discontinue treatment with the named physician or pay for the treatment received from the physician from the date the order is mailed.”

“What this means,” Lasser writes, “is that the employer=s insurance company gets to: choose the doctor who treats you; choose the hospital where you=re treated; decide whether you need surgery; decide what medications you get, and decide what restrictions you have when you return to work. That=s cruel.  That=s un-American.”

House Bill 5002’s sponsor, Rep. Bradford Jacobson (R-Oxford), said the bill will put state Supreme Court rulings (made by a court which has leaned conservative for years) into law to eliminate the need for litigation in many cases.

“Michigan’s workers’ compensation law has been causing confusion for business owners and employees for too long,” Jacobson said, “and these changes will eliminate that confusion and help reduce the need for court cases to settle workers’ comp claims.”

The Michigan AFL-CIO said Michigan has announced reductions in workers compensation rates for next year by an average of 7.4 percent – the 12th time in the past 16 years that rates have dropped.

“Michigan’s Workers Compensation System clearly isn’t broken,” Swift said. “This latest attack on injured workers by politicians still unwilling to create good jobs in the state shows that something isn’t working in Lansing. Sadly, instead of addressing the real problems we face in Michigan, including the devastating jobs crisis, politicians are looking to the same greedy CEOs and big banks that shipped out our jobs and wrecked the economy for answers. Attacks like House Bill 5002 only worsen Michigan’s economic problems, leaving families few resources when hurt on the job.”