FATAL SHOOTING BY CO-WORKER ON EMPLOYER’S PREMISES NOT WORK RELATED

The following is a summary of an interesting decision issued at the trial level in July.

A member of the Workers’ Compensation Board of Magistrates, Magistrate Beatrice Logan, issued an opinion in the matter of Williams v Park Family Healthcare PC on 7/11/16.  In that case, the Ms. Williams was fatally shot on the employer’s premises by a maintenance worker.  The maintenance worker worked in the building and had a previous romantic relationship with Ms. Williams.  Magistrate Logan held that the fatal shooting did not arise out of the course of Ms. Williams’ employment. 

In finding that the fatal shooting did not arise out of the employment, Magistrate Logan relied upon the following factual findings: 

• The      assailant’s use of keys to obtain entrance to Ms. Williams’s workplace was      not the result of employment-related special knowledge;
• Ms.      Williams and the assailant did not have a work relationship; and
• The      employer did not engender, exacerbate or facilitate a previous romantic      relationship between Ms. Williams and the assailant. 

Therefore, Magistrate Logan found that the fatal shooting of Ms. Williams on the employer’s premises was not compensable under the Workers’ Disability Compensation Act. 

We have subsequently learned that plaintiff sought a finding that the fatal shooting did NOT arise in the course of employment so that the 3 surviving children would not be precluded by the exclusive remedy provision from pursuing a death case against the employer based on negligent failure to provide a safe work place.  The DEFENDANT has appealed the decision.

The full text of the decision can be found at the following link: http://w2.lara.state.mi.us/ADMS/File/ViewDmsDocument/12986

If you have any questions or would like to discuss the ramifications of this case, please contact us at your convenience.

ANTICIPATED EXERCISE OF WORKERS’ COMPENSATION RIGHTS CANNOT BE A BASIS FOR A RETALIATION CLAIM

In the case of Vaughn v Vanguard Concrete Coating, Inc, an unpublished Michigan Court of Appeals Decision (Case No. 326305, May 19, 2016), the court decided the question of whether the employee, Mr. Vaughn, had been wrongfully terminated by his employer, Vanguard Concrete Coating, Inc., in retaliation for protected activities under the Michigan Workers’ Disability Compensation Act.

On January 6, 2014, the employee was working for the employer when he felt dizzy and hurt his back, after which he went home early and then went to the hospital. He took 2 days off of work and returned to work on January 10. While working that day, one of his co-workers heard him say something about suing the employer, and also heard him encourage another worker to slow down his work. The employer was informed of the worker’s comments and confronted the worker. The worker initially denied making the comments, but did not deny making them after the employer asked the co-worker to repeat the comments he heard the worker make. After this conversation, the worker was suspended, and after further communication, his employment ended on January 16, 2014. The worker then sued the employer, claiming that he was terminated in retaliation for protected activities under the workers’ compensation statute.

During the course of the Circuit Court litigation, both the employer and the employee filed motions for summary disposition. They asked the court to decide the legal issue based upon undisputed facts presented to the court. The Circuit Court granted the employer’s motion and denied plaintiff’s motion, dismissing plaintiff’s case. In an unpublished, per curium opinion, a 3-member panel of the Court of Appeals affirmed the Circuit Court’s dismissal of plaintiff’s case. The court held that plaintiff’s later statement, upon his return to work, referencing suing the employer in the future, was not evidence of a protected activity. The court held that an anticipated exercise of rights under the workers’ compensation statute cannot be a basis for a claim of retaliation. Therefore, the court held plaintiff had failed to meet his burden of proof to demonstrate that he had exercised a right under the workers’ compensation statute for which the employer could have retaliated against plaintiff. Plaintiff had not actually pursued a workers’ compensation claim. He had merely said something about suing the employer to a co-worker.

Unpublished opinions of the Court of Appeals are not precedential. However, they provide guidance on how one panel of the Court of Appeals has decided one, fact-specific, issue.

If you have any questions or would like to discuss the court’s holding in this case, please contact us at your convenience.

Thank you!

Len Hickey & John Combs

Hickey Combs PLC

3358 Eagle Run Dr., NE, Ste. 100

Grand Rapids, MI 49525

Phone:  (616) 364-2550

Fax:  (616) 364-2551

website:  www.hickeycombs.com

06/24/16

COORDINATION OF DISABILITY PENSION ALLOWED AFTER

AMENDMENT OF COLLECTIVE BARGAINING AGREEMENT

            In a recent unanimous opinion, the Michigan Supreme Court essentially held that an employer and union could negotiate away a retiree’s previously bargained for right not to have his weekly workers’ compensation wage loss benefit reduced by coordination of the employer funded disability pension he had been receiving for several years. Arbuckle v General Motors LLC (Case no. 151277, issued July 15, 2016).

            Plaintiff had worked for General Motors since July of 1969. On June 20, 1991, he sustained a work-related back injury. Effective May 1, 1993, plaintiff began receiving a total and permanent disability pension from General Motors. Following his retirement later that month, plaintiff filed a petition seeking workers’ compensation benefits for his work-related disability. In February 1995, a magistrate found plaintiff partially disabled and granted him an open award of benefits at a weekly compensation rate of $362.78.

            The 1990 Collective Bargaining Agreement (CBA) between General Motors and the United Auto Workers Union (UAW) contained a provision by which General Motors agreed not to coordinate statutory workers’ compensation benefits with contractual disability pension benefits for its employees.

            Between 1990 and 2003, General Motors and UAW negotiated new CBAs at 3 or 4-year intervals. Each CBA replaced its predecessor. Each CBA contained a provision by which General Motors agreed not to coordinate statutory workers’ compensation benefits with contractual disability pension benefits for its employees.

            Things changed in September 2007 when General Motors and the UAW agreed to a formula by which General Motors would use disability pension benefits to reduce workers’ compensation benefits. However, coordination was allowed only “for employees who are injured and retire on or after October 1, 2007 . . ..” Thus, the provision did not apply to plaintiff. In 2009, because of the severe economic downturn and General Motors’ impending bankruptcy, General Motors and the UAW amended the 2009 CBA to provide that “all retirees who retired prior to January 1, 2010, regardless of their date of retirement or injury” would be subject to benefit coordination consistent with the 2007 formula.

            On November 16, 2009, General Motors advised plaintiff by letter that, effective January 1, 2010, his weekly workers’ compensation wage loss benefit would be partially reduced by coordinating plaintiff’s disability retirement pension.

            After a hearing, a Workers’ Compensation Magistrate held that General Motors was prohibited from reducing plaintiff’s workers’ compensation benefits by his disability pension benefits because plaintiff had never agreed to coordination and there was no evidence establishing that the UAW had the authority to bargain on behalf of plaintiff following his retirement.

            The Michigan Compensation Appellate Commission reversed the judgement of the magistrate, holding that regardless of the UAW’s authority to bind retirees, defendant was permitted to coordinate plaintiff’s disability pension benefit under Murphy v City of Pontiac 221 Mich App 639; 561 NW2d 882 (1997). Alternatively, the MCAC held that coordination was proper because any right plaintiff had to uncoordinated benefits as part of the 1990 CBA had expired effective November 15, 1993.

            The Michigan Court of Appeals granted plaintiff’s Application for Leave to Appeal and reversed the decision of the MCAC, and remanded the case for further proceedings. Defendant appealed to the Michigan Supreme Court.

            In lieu of granting General Motors’ Application for Leave to Appeal, the Supreme Court reversed the judgement of the Court of Appeals and reinstated the MCAC’s Order allowing General Motors to coordinate plaintiff’s workers’ compensation benefits with his disability pension benefits. The Supreme Court held that neither the 1990 CBA nor any subsequent agreements created an unalterable right to uncoordinated benefits for life. The Court further reasoned as follows:

They instead evinced the parties’ intent to reserve the power to amend plaintiff’s right to uncoordinated benefits on termination or earlier amendment of the agreements. Under a proper reading of the relevant agreements and the application of federal substantive law, [General Motors’] subsequent coordination of plaintiff’s workers’ compensation benefits with his disability pension benefits did not violate the terms of plaintiff’s disability pension plan, nor did it violate MCL 418.354.

Slip Opinion at 20-21.

The Supreme Court disagreed with plaintiff’s assertion that the UAW was not authorized to negotiate coordination of his disability pension after he had retired from active employment. The Court held that, under Federal law, the specific language of the CBA in effect at the time of plaintiff’s retirement did not create in plaintiff a vested right to uncoordinated workers’ compensation benefits. The Court noted that, under Federal law, a union may represent and bargain for already-retired employees with respect to non-vested benefits. The Court held that, under Federal law, that because the right to uncoordinated benefits established by the 1990 CBA was subject to an express durational limit, the right to uncoordinated benefits had not vested and, therefore, the UAW could subsequently represent plaintiff in negotiating the eventual reversal of the agreement not to coordinate disability retirement pension benefits. Therefore, the change in the 2009 CBA, allowing coordination of the disability pension benefits, allowed coordination of the pension benefits under MCL 418.354.

            The Supreme Court’s unanimous opinion was written by Justice Joan Larsen and issued on July 15, 2016.

Subject: Efficacy of Treating Chronic Low Back Pain With Opioid Analgesics

6/14/16

Dear Friends and Colleagues,

The results of research summarized in an article in JAMA Internal Medicine, “Avoiding Opioid Analgesics for Treatment of Chronic Low Back Pain”, by Jane C Balantyne, MD, FRCA, suggest what many involved with work related back injuries have suspected for some time.  The article concludes that, for people with chronic low back pain, “opioid analgesics provide modest short-term pain relief but the effect is not likely to be clinically important within guideline recommended doses.”  (Emphasis added.)  The article goes on to note that “[e]vidence on long-term efficacy is lacking.”

If you are interested in reading more, the link for the article is:  http://jama.jamanetwork.com/article.aspx?articleID=2528194.

Please share this email with others who might be interested in this information.

Thank you!

Len Hickey and John Combs