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Worker Frequently Asked Questions

The answers provided are not meant to be a substitute for legal advice. 

 

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How much will I be paid while on workers' compensation, and when can I expect a check? 

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My employer isn't making a claim for me, how do I do it myself? 

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My adjuster wants me to look for work even though I still have restrictions and can't return to my regular job. Do I have to do this? 

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I was recently sent for an "Independent Medical Evaluation" (IME) by my insurance adjuster. The IME doctor's restrictions are much different than the ones I have from my own doctor. Which ones do I follow? How can I get a copy of the IME report? 

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How long do I have to turn in a claim? Who do I report my claim to? What if I work a late shift? 

·      

Can I find out if my employer has workers' compensation insurance? 

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My employer told me not to file a claim, and that they would pay for all the bills. This isn't happening and now the bills are coming to my home. What do I do? 

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What is a "Wage Earning Capacity Evaluation"? 

·      

My nurse case manager doesn't seem to have my best interests in mind. Can I request a new one, or deny their assistance altogether? 

·      

When and where am I covered? 

·      

Must the work cause my injury? 

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Am I covered when I am traveling? 

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Is every injury that happens at work covered? 

·      

What about recreational and social activities? 

·      

What if the work is only one of the causes of my injury? 

·      

Are gradual injuries and occupational diseases covered? 

·      

Who is entitled to receive disability benefits? 

·      

I can show that I was hurt at work. Is that all I need to be eligible for weekly benefits? 

·      

How do I show that I have suffered a wage loss? 

·      

That seems complicated; how do I prove my entitlement to benefits? 

·      

What benefits can I receive? 

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When and for how long are my benefits paid? 

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How are my wage-loss benefits calculated? 

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How is my average weekly wage determined? 

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Are my fringe benefits included in the calculations? 

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How do you determine 80 percent of the after-tax value of my wages? 

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Are there any maximums and minimums for my benefits? 

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Must I pay income tax on my workers' compensation benefits? 

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Are my workers' compensation benefits affected by other benefits I receive? 

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What if I am working for more than one employer at the time of my injury? 

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What medical benefits am I entitled to receive? 

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How is the doctor chosen? 

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Can I refuse a particular medical treatment and still collect my benefits? 

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How are my medical bills handled? 

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I really want to go back to work but need some training to learn new job skills that accommodate my limitations. What rights do I have to vocational rehabilitation? 

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Must I participate in vocational rehabilitation? 

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Are vocational rehabilitation benefits offered to me automatically? 

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Is vocational rehabilitation important? 

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Should I try to return to work even if I am not completely recovered? 

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Must my employer offer me a job? 

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Must I accept any offer of a job? 

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What if the offered job pays less? 

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What if I don't think I can do the job that is offered? 

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Does the job have to be the same as the one I was previously doing? 

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What happens if I return to work but I cannot continue to do the job? 

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Are my workers' compensation claim records open to the public? 

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Does my time off work while receiving workers' compensation benefits count against my Family Medical Leave Act (FMLA) leave entitlement?

 

Q.

How much will I be paid while on workers' compensation, and when can I expect a check?

A.

In most cases, wage loss benefits are calculated by taking the average of the highest 39 weeks of the last 52 weeks of gross wages prior to injury. This is your Average Weekly Wage (AWW). Generally you should receive 80% of the after-tax value of your AWW. In certain circumstances, the value of discontinued fringe benefits such as the cost of health insurance, employer contributions to a pension plan, and vacation and holiday pay may be included in determining the AWW. Your first check is due and payable on the 14th day of disability. However, a benefit check is not considered late until 30 days after the due date. After receiving your first check, you should be paid your benefit on a weekly basis.

 

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Q.

My employer isn't making a claim for me, how do I do it myself?

A.

You can simply go to our website and print form WC-117, "Employee's Report of Claim." Or you can contact the agency via phone and request the form be mailed to you. The agency will process the form upon receipt, and notify the employer and their insurance company that a claim has been filed. 

 

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Q.

My adjuster wants me to look for work even though I still have restrictions and can't return to my regular job. Do I have to do this?

A.

Yes, you should always remember that your main objective is to return to work as quickly and safely as possible. Essentially, if you have the ability to do some type of work after your injury, you have a duty to look for available work, and make a "good faith effort" at obtaining those jobs. If you need assistance with your job search, you may be entitled to vocational rehabilitation services.

 

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Q.

I was recently sent for an "Independent Medical Evaluation" (IME) by my insurance adjuster. The IME doctor's restrictions are much different than the ones I have from my own doctor. Which ones do I follow? How can I get a copy of the IME report?

A.

You have a right to follow the advice of your personal physician. However, your employer or insurance carrier also has a right to follow the IME recommendations. The options in this case would be to:

  • Follow your doctor's restrictions. The consequence of this may be a suspension of benefits.
  • Show the IME report to your physician for feedback and an opinion that can be sent to the insurance company.
  • If safely possible, try to report to work utilizing the IME restrictions.

 
If you desire a copy of the IME report, you may make a written request to the insurance carrier. You should receive a complete and correct copy of the report within 15 days of your request.

 

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Q.

How long do I have to turn in a claim? Who do I report my claim to? What if I work a late shift?

A.

Your company should have a process for you to follow for reporting injuries. Once an injury occurs however, you should report the incident within 90 days, usually to your supervisor or human resources department. Again, follow your company's reporting procedure. If you have a repetitive-type injury, the date of injury would be the date of diagnosis.

 

You have up to 2 years after the occurrence of the injury to make a claim with your employer or through the agency.

 

If you work 2nd or 3rd shift, your company should have a procedure in place for reporting injuries if the business office is closed.

 

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Q.

Can I find out if my employer has workers' compensation insurance?

A.

There are two ways to find this information:

  • Visit the agency website and click on "Insurance Coverage Lookup" located in the menu on the right side of the home page.
  • Call the Workers' Compensation Agency's main number at 888-396-5041 and choose the option for locating insurance coverage.
 

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Q.

My employer told me not to file a claim, and that they would pay for all the bills. This isn't happening and now the bills are coming to my home. What do I do?

A.

In cases like these, there are several reasons why the employer may be faltering on their commitment to pay for your claim, or to initiate a claim with their insurance company. We advise employees to file form WC-104A with the agency to initiate a formal mediation hearing in order to determine whether all parties are fulfilling their responsibilities under the Workers' Disability Compensation Act.

 

The medical service provider can also file for a hearing using form WC-104B. In this process, the mediation hearing is between the provider and the employer. 

 

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Q.

What is a "Wage Earning Capacity Evaluation"?

A.

This is a different type of evaluation than one that is done for vocational rehabilitation purposes. Although this type of evaluation is generally performed by a vocational rehabilitation professional, and is a one-time assessment of your previous work history, qualifications, and training, it is performed in order to determine your current wage earning capacity at reasonably available jobs in your area.
 

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Q.

My nurse case manager doesn't seem to have my best interests in mind. Can I request a new one, or deny their assistance altogether?

A.

Nurse case managers are advocates of proper medical care and treatment, and are tasked with coordinating the activities of medical professionals, community agents, funding sources, client and family for the goal of achieving maximum functional outcomes. Bottom line: their job is to help you return to work as quickly and safely as possible. They can be tremendous advocates for your safe return to work.

 

However, the Workers' Disability Compensation Act does not address nurse case management services. If you feel that the nurse case manager is not managing the process as outlined above, you should first attempt to discuss your concerns with the case manager directly. If this is not helpful, you have the right to request a new case manager, or deny further case management assistance entirely. 
 

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Q.

When and where am I covered?

A.

Workers' compensation is designed to provide benefits to workers whose injuries "arise out of and in the course of the employment." In the majority of cases it is obvious whether an injury happened at work. Injuries may occur anytime of the day or night. There are, however, many times when the relationship between the job and the injury will be questioned.

 

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Q.

Must the work cause my injury?

A.

Yes the work must be the cause of the disability. If you simply come down with the flu while on the job, you are probably not entitled to workers' compensation benefits. The work must somehow be the cause of the disability.

 

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Q.

Am I covered when I am traveling?

A.

Generally speaking, if you are injured on the way to or from work, your injury is not covered. If, however, you are on your employer's premises when injured, then you are covered. If your job or assignment requires you to travel, you are covered while traveling. However, if the injury occurs while you have deviated from the business travel, your injury may not be covered. 
 

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Q.

Is every injury that happens at work covered?

A.

The courts have recognized that a certain amount of horseplay is to be expected on most jobs and that if a worker is injured as a result of such horseplay, that injury is compensable. The courts have also held, however, that there is a limit to this situation. If you are injured as a result of your "intentional and wilful misconduct," you are not entitled to benefits. The courts have held that if an injury results from a violation of a rule which is clearly announced and regularly enforced by the employer, the worker is not entitled to workers' compensation benefits.

 

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Q.

What about recreational and social activities?

A.

Section 301(3) of the Act provides that if an injury results from an activity, "the major purpose of which is social or recreational," it is not covered under the Act. If you are injured during a company picnic or office Christmas party, your injury is probably not covered. This may, however, depend upon specific circumstances. For example, a salesperson who was entertaining prospective clients at an event might be covered.
 

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Q.

What if the work is only one of the causes of my injury?

A.

The work does not have to be the only cause. It may be enough if the work causes, contributes to, or aggravates a condition which results in disability. Some of us can lift 200 pounds without any difficulty. Some of us, however, would severely hurt our back if we lifted much less. The law does not make this distinction. If a person does something at work that causes him or her to become disabled, the worker may be entitled to benefits. It does not matter if there was some pre-existing weakness or if the worker was born with some condition that made him or her more susceptible to injury. This is an old principle of law that has been applied by the courts to all kinds of damage actions, including workers' compensation.

 

There are some special rules for certain conditions. In cases of heart disease, mental disabilities, and conditions of the aging process, you must prove that the employment aggravated or accelerated your condition in a significant manner. In cases of mental disability, the condition must be caused by actual events of employment. You are not entitled to benefits if you simply imagined something at work which caused the disability.
 

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Q.

Are gradual injuries and occupational diseases covered?

A.

Both are covered under the Act. By way of example: if Mary Smith did not hurt her back by a single incident but her back gradually became painful as the result of lifting over and over, day after day, she may still be entitled to workers' compensation benefits. This is what the law calls "an injury not attributable to a single event."

 

Another special category is occupational diseases. At first no diseases were covered by the Act. Then only listed diseases were covered. Then all occupational diseases were covered but certain special conditions were laid down for the payment of compensation benefits in occupational disease cases. Most of those have been gradually taken out of the law.

 

Section 431 of the Act provides that if a worker "wilfully and falsely represents in writing that he has not previously suffered from the disease which is the cause of the disability or death," the employer is not responsible for workers' compensation benefits. There is no similar provision relating to specific injuries.

 

There are certain occupational diseases (and now injuries in certain industries) that are treated specially. Silicosis was a very frequent disease among foundry workers. When occupational diseases began to be covered by the law, there was concern that the foundry industry would go out of business if they had to pay full compensation. Accordingly the law was changed to provide special protection under those circumstances.

 

Under the present law, if you suffer from certain dust diseases or receive an injury while performing certain work in the logging industry, you receive exactly the same benefits as if the injury had occurred in some other way, but your employer receives special protection. After the first 104 weeks or the first $25,000, whichever is greater, weekly benefits are paid by your employer but your employer is reimbursed from a special fund to which all Michigan employers contribute.
 

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Q.

Who is entitled to receive disability benefits?

A.

For specific injuries, Section 301 of the Workers' Disability Compensation Act states:

(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.

For occupational diseases, Section 401 of the Workers' Disability Compensation Act states:

(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.

Section 373 of the Act contains a special definition of disability for retirees. A person is considered a retiree if he or she is receiving a pension or retirement benefit (but not a disability pension) that was paid for by the employer. To be disabled, a retiree must prove that he or she is unable "to perform work suitable to the employee's qualifications, including training or experience."
 

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Q.

I can show that I was hurt at work. Is that all I need to be eligible for weekly benefits?

A.

Michigan is a "wage loss compensation" state. Establishment of an injury or occupational disablement is only the first step. You must show that the disability has caused a loss of wage earning capacity. The amount of compensation received will be directly related to the amount of wage loss which will take into account any residual wage earning capacity.

§301(4)(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.

§401(2)(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.

 

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Q.

How do I show that I have suffered a wage loss?

A.

The Workers' Disability Compensation Act is very specific on how this is done:

 

§301(4)(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.

 

§401(2)(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.

 

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Q.

That seems complicated; how do I prove my entitlement to benefits?

A.

For specific injuries, Section 301(5)-(9) indicates:

 

(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 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. Compensation shall be paid for the duration of the disability.

 

(8) 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. 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 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.

 

(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.

 

For occupational injuries, Section 401(3)-(7) indicates:

 

(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 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. Compensation shall be paid for the duration of the disability.

 

(6) 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. 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 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.

 

(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.

 

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Q.

What benefits can I receive?

A.

The workers' compensation law provides a strict limit on the benefits that you can receive as the result of a job-related injury. You can only receive certain specified l) wage loss benefits, 2) medical benefits, and 3) rehabilitation benefits.
 

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Q.

When and for how long are my benefits paid?

A.

Section 311 of the Act provides that no compensation is paid for an injury which does not last for at least one week. If your disability lasts beyond one week, you are entitled to benefits as of the eighth day after your injury. If your disability continues for two weeks or longer, then you are entitled to be paid compensation for the first week of disability from the date of disablement.

 

Benefits continue so long as you are disabled. This could be for the rest of your life. Benefits are reduced 5 percent each year beginning with the year of your 65th birthday. This reduction continues until you are 75 years of age. At that time benefits have been reduced to 50 percent. They continue at that level for the rest of your life. (This 5 percent reduction only applies if you are not receiving social security benefits and is not subject to coordination.)

 

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Q.

How are my wage-loss benefits calculated?

A.

In the ordinary case, a worker receives 80 percent of the after-tax value of his or her wage loss. It does not matter whether the worker is totally or partially disabled. Benefits are based on the wage loss and set at 80 percent of the after-tax value of the loss. (Total and permanent disability is a special category for which additional benefits may be paid.) With the 2011 amendments to the Act, a partially disabled worker's weekly wage loss benefit can be reduced by their residual wage earning capacity.

 

Thus if you are unable to work, a determination would be made of your average weekly wage before your injury and you would be paid benefits equal to 80 percent of the after-tax value of that amount. If you return to work and because of your injury receive wages less than your average weekly wage, you would receive benefits equal to 80 percent of the after-tax value of the difference (partial wage loss). If you have not returned to work but retain the ability to do some work for wages even if not actually working, your weekly wage loss benefit would be reduced to take into account the post injury wage earning capacity.

 

Prior to 1982, the basic rate of benefits was two-thirds of the worker's gross average weekly wages rather than 80 percent of the after-tax value of his or her wages. When this law was changed, it was also provided that if the two-thirds formula subject to the 1981 maximum limitation would result in a higher rate, the worker is entitled to receive that rate. The tables published by the agency for calculating the compensation rate indicate when this situation applies. The agency provides a free down-loadable program to accurately calculate weekly wage loss benefit rates.

 

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Q.

How is my average weekly wage determined?

A.

The provisions dealing with the average weekly wage are found in Section 371 of the Act. The basic method of calculation provides that the average weekly wage is based on the highest 39 of the last 52 weeks before the injury.

 

If you received a wage of $500 per week for each week for the last year before the injury, there is no problem. Your average weekly wage is $500.

 

If you worked for each of the 52 weeks before the injury but earned a different rate for each of those weeks, we would look at the 39 highest weeks. We would then determine your average by taking the total wages for those 39 weeks and dividing them by 39.

 

If you worked less than 39 weeks during the year prior to your injury, we divide the total earnings by the number of weeks you actually worked. Weeks in which no work was performed are not included in this calculation. Thus if you worked for only 30 weeks during the year prior to your injury and earned a total of $9,000, your average weekly wage would be $300 ($9,000 divided by 30).

 

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Q.

Are my fringe benefits included in the calculations?

A.

Under certain circumstances the value of fringe benefits may be included in determining your average weekly wage. Fringe benefits include things such as the cost of health insurance, employer contributions to a pension plan, and vacation and holiday pay. Sometimes when a worker is injured, the company continues to provide fringe benefits. There is nothing in the law that requires the company to do this.

 

However, if benefits are not continued, then you have suffered a greater loss of income. The value of fringe benefits that are not continued is added to the value of the cash wages to determine your average weekly wage; however, there is a limit. Fringe benefits cannot be used to raise the benefit to more than two-thirds of the state average weekly wage.

 

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Q.

How do you determine 80 percent of the after-tax value of my wages?

A.

The agency publishes tables that do this for you. Many factors are included in this calculation including the tax filing status, the number of dependents, and the state and federal tax rates. For each year since 1982 the agency has published a table which translates a given average weekly wage into an amount equal to 80 percent of the after-tax value of that wage earned. The law provides that the determinations made by this table are conclusive and binding upon the parties. The agency provides a free down-loadable program to accurately calculate weekly wage loss benefit rates.

 

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Q.

Are there any maximums and minimums for my benefits?

A.

Yes. The law provides that the maximum rate of benefits is 90 percent of the state average weekly wage for the year prior to the injury. You cannot receive benefits higher than this amount regardless of how high your earnings might have been.

 

For the ordinary injury there is no minimum benefit. However, if you suffer a specific loss you are entitled to a minimum benefit equal to 25 percent of the state average weekly wage. The same applies if you are totally and permanently disabled. In the case of death, the dependents of a deceased worker are entitled to a minimum benefit equal to 50 percent of the state average weekly wage.

 

A listing of the state average weekly wage and the various percentages can be found on State Average Weekly Wage & Maximum Benefit Amounts from 1982-Present.

 

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Q.

Must I pay income tax on my workers' compensation benefits?

A.

Generally you do not. Workers' compensation benefits are not subject to either state or federal income tax. Sometimes, however, when benefits have been delayed for a long period of time and an employer or insurance company pays a worker interest in addition to the workers' compensation benefits, those payments of interest may be subject to both state and federal income tax.

 

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Q.

Are my workers' compensation benefits affected by other benefits I receive?

A.

Section 354 provides for the coordination or reduction of workers' compensation benefits to the extent the worker receives other benefits paid for by the employer. Thus if you receive, or are entitled to receive, sick and accident benefits, pension benefits, or other similar benefits, your workers' compensation rate will be reduced by the after-tax value of other benefits.

 

Social security benefits are paid 50 percent by the employer and 50 percent by the worker. Accordingly there is a 50 percent reduction for old age retirement social security benefits. For injuries incurred on or after December 19, 2011, if the injured employee has been receiving old-age insurance benefit payments under the social security act, chapter 531, 49 Stat. 620, before the date of the personal injury or work-related disease, then in no event shall the weekly benefits payable after the reduction provided by this subdivision be less than 50 percent of the weekly benefits otherwise payable without the reduction.

 

Social security disability benefits can be reduced if an individual receives workers' compensation. Accordingly there is no reduction in Michigan workers' compensation for social security disability benefits.

 

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Q.

What if I am working for more than one employer at the time of my injury?

A.

If you are employed by more than one employer at the time of injury, your earnings from both employers are added together to calculate your average weekly wage. Your benefits are based on the total wages from all employments covered by the Workers' Disability Compensation Act. If the job in which you were injured accounts for more than 80 percent of your wages, that employer is responsible for all the benefits owing. If, however, that employer was responsible for less than 80 percent of your wages, it pays the entire benefits but is reimbursed a proportional amount by the Second Injury Fund. Note that Section 358 also provides for a reduction in the amount of workers' compensation benefits when unemployment benefits are received from the Unemployment Insurance Agency.

 

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Q.

What medical benefits am I entitled to receive?

A.

Section 315 of the Workers' Disability Compensation Act entitles you to all reasonable and necessary medical care. This includes medical, surgical, and hospital services, dental services, crutches, hearing apparatus, chiropractic treatment and nursing care. The responsibility to provide medical care continues indefinitely so long as the need for the care is related to the industrial injury.

 

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Q.

How is the doctor chosen?

A.

During the first 28 days starting when the care begins, your employer has the right to select the medical care providers. After that, you are free to change doctors if you wish. In order to change, however, you must notify your employer of your desire to change and provide the name of the physician you select.

 

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Q.

Can I refuse a particular medical treatment and still collect my benefits?

A.

In certain circumstances, if you refuse medical treatment or fail to follow medical advice, you may lose the right to continuing benefits. The courts, however, are reluctant to apply this principle and it must be a very serious case before it is applied.

 

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Q.

How are my medical bills handled?

A.

Your medical providers should send their bills directly to your employer or its insurance carrier. The provider will be paid in accord with the Workers' Compensation Health Care Services cost containment rules. If for some reason you pay the doctor (or other provider including pharmacy) directly out of your pocket, you are entitled to full reimbursement by your employer or insurance company.

 

The law provides that medical providers such as doctors and hospitals cannot charge more than the amount specified in a fee schedule. If they attempt to charge more, the insurance company will pay only the maximum allowed by the schedule. The provider is not allowed to collect the difference from you. More information about the workers' compensation health care rules is available on the Health Care Services Division's website  or by calling 517-322-1980.

 

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Q.

I really want to go back to work but need some training to learn new job skills that accommodate my limitations. What rights do I have to vocational rehabilitation?

A.

Section 319 of the Act provides that you have a right to vocational rehabilitation benefits. Vocational rehabilitation can include a whole variety of things. It might simply mean that your employer makes some minor change in your prior job station so that you can return to the work in spite of some continuing problem. It might mean that an outside rehabilitation counselor will work with your employer and you to aid in your return to work at the same job or a similar job with the same employer.

 

It might mean that a vocational rehabilitation agency, either a state agency or private agency, will help you find a job with some other employer.

 

It might involve short-term training to help you find a new job, or in some unusual circumstances, long-term re-education. In the appropriate circumstance, an employer can be required to provide up to two years of vocational rehabilitation services.

 

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Q.

Must I participate in vocational rehabilitation?

A.

Both sides of the case have an entitlement to vocational rehabilitation efforts. In certain circumstances, if the company offers vocational rehabilitation services and you refuse to cooperate, wage loss benefits can be terminated.

 

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Q.

Are vocational rehabilitation benefits offered to me automatically?

A.

As with medical benefits, in most cases your employer will offer to provide rehabilitation services and will pay the rehabilitation agency directly. If these services are not offered, you can request them from your employer or seek assistance from the agency.

 

If disputes arise concerning rights or responsibilities for vocational rehabilitation, you or your employer can file an application with the agency and a hearing will be scheduled before a representative of the director.

 

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Q.

Is vocational rehabilitation important?

A.

Vocational rehabilitation is very important. Returning you to work should be the ultimate goal of everyone concerned with workers' compensation. You are certainly better off to be back on the job and earning wages, and your employer is better off to have a day's work in return for wages rather than to pay you workers' compensation benefits for being off the job. All of the research about rehabilitation points to two things. One, rehabilitation efforts are most likely to be successful if they begin early; and two, the most likely avenue of successful rehabilitation is a return to work with the same employer.

 

Many progressive employers are implementing an entire system of disability management. Under such a program they do everything they can to bring you back to productive work as soon after the injury as possible.

 

Effective disability management can lower costs for employers and reduce the suffering of injured workers at the same time. More information about disability management is available from the Vocational Rehabilitation Division at (517) 322-1721.

 

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Q.

Should I try to return to work even if I am not completely recovered?

A.

In most cases of work-related injuries, the most desirable result is your return to work. Indeed in the vast majority of cases the worker gets better and goes back to work and that is the end of the case. Even if you are not completely recovered, it is to the advantage of both you and your employer for you to return to a job that you can safely perform.

 

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Q.

Must my employer offer me a job?

A.

The law does not require your employer to offer you a job. Most enlightened employers, however, try to make work available for their injured employees whenever they can. First of all, there is a money factor. An employer is better off to have an individual on the job doing work in return for wages than to have the individual at home receiving workers' compensation. Accordingly although there is no legal requirement that an employer offer work, it is financially better off if it does.

 

Even more important, it must be remembered that everyone is better off if the worker goes back to work as soon as possible. Most men and women in our society recognize their responsibility to perform work in return for their wages. Most people want to go back to the job as soon as they can. Most people who have worked and supported themselves and/or their families feel uncomfortable when they are not able to work. If they remain in that unhappy and uncomfortable state longer than is necessary, it becomes harder and harder for them to go back to their jobs.

 

Many employers in Michigan are finding that disabilities are shorter and the costs lower if they are willing to go out of their way in helping their injured employees get back to the job. Sometimes this requires making a small change in the person's work station. Sometimes it requires moving some people around in order to find a job the person can do. Some employers even create special "transitional workshops" for injured employees to work in temporarily. Whatever it takes, most people find that the sooner an employee can get back to the job, the better off everyone is.

 

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Q.

Must I accept any offer of a job?

A.

If your employer or anyone else offers you a job which you can reasonably handle, you must accept the job or face the loss of benefits. Sections 301(9)(a) and 401(7)(a) provide that if a previous employer, another employer, or the Michigan Unemployment Insurance Agency makes an offer of "reasonable employment," you must accept the job or lose benefits. Sections 301(11) and 401(9) provide that "reasonable employment" is work that you can perform, poses no clear and proximate threat to your health, and is within a reasonable distance from your residence. Reasonable employment is not limited to work suitable to your qualifications and training.

 

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Q.

What if the offered job pays less?

A.

If the job that is offered is a lower paying job, you should still accept the job but you will continue to receive workers' compensation benefits based upon the difference in wages.

 

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Q.

What if I don't think I can do the job that is offered?

A.

Disputes often arise concerning whether or not a worker can do the job that is offered. This is a question that can only be answered in individual cases and often requires the expert opinion of a doctor. Of course, you should never do a job that will cause injury or harm. In general, however, you are always better off to try a job that is offered. If you try the job and you are unable to do it, your benefits should continue or resume; but if you refuse to even try the job, your employer is likely to challenge your right to receive continuing benefits.

 

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Q.

Does the job have to be the same as the one I was previously doing?

A.

The job offered does not have to be at the same skill or pay level that you were doing. However, if it is a lower paying job, you will continue to receive benefits based upon the difference in the wages at the new job and the job where you were injured.

 

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Q.

What happens if I return to work but I cannot continue to do the job?

A.

If you return to a job, try it and find you are unable to do it, your benefits should be resumed. Of course, in some cases, there may be disputes over whether you really tried and whether the job was too hard for you to do.

 

If you return to work for a period of time and then leave, the question of whether benefits resume depends upon whether or not the new work established a wage-earning capacity. That, in turn, depends upon several factors including l) how long you continued to work after returning, 2) the nature of the work performed, and 3) the reasons for leaving work.

 

Generally if you returned for less than 100 weeks, it is most likely that the work will not establish a wage-earning capacity. If you returned for between 100 and 250 weeks, the work may or may not have established a wage-earning capacity. If the return was for more than 250 weeks, the work probably will have established the wage-earning capacity.

 

The nature of the work is also a factor. If the work is a "favored job" especially created for you, it probably will not establish a wage-earning capacity. On the other hand, if it is a job regularly performed by other workers, it probably will establish a wage-earning capacity.

 

Finally, if you leave the job for reasons beyond your control, the payment of benefits is more likely to be resumed. If, however, you voluntarily leave the job, your benefits will probably not resume.

 

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Q.

Are my workers' compensation claim records open to the public?

A.

In general, they are not open to the public, in accordance with the Workers' Disability Compensation Act (WDCA) and the Michigan Freedom of Information Act (FOIA). These Acts stipulate that records relating to the claim of an individual worker and financial information concerning self-insured employers are confidential.

There are some exceptions to this confidentiality. Records of contested cases are public records. If an application for a formal hearing, either before a magistrate or the director, has been filed, the records relating to that case are open to the public, with some exceptions as noted by the WDCA and the FOIA. The agency also has the authority to provide information concerning confidential records to other governmental agencies and, under certain circumstances, to research organizations.

 

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Q.

Does my time off work while receiving workers' compensation benefits count against my Family Medical Leave Act (FMLA) leave entitlement?

A.

It can. FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and your employer properly notifies you in writing that the leave will be counted as FMLA leave.

 

The federal Family and Medical Leave Act (FMLA), signed into law on February 5, 1993 requires employers to give employees 12 weeks of unpaid leave for births, adoptions, and family illness.

 

The FMLA contains the following key provisions:

  • employers must have 50 or more employees within a 75 mile radius;
  • employees must have been employed for 12 months;
  • employers are required to maintain health care coverage during the leave;
  • on completion of the leave, the employees are entitled to return to the same job or to an equivalent job;
  • the employee must give 30 days' notice when the need for the leave is foreseeable;
  • employers can exempt the highest paid 10 percent of the work force.

For more information on the Family Medical Leave Act, please refer to the US Department of Labor website at US Department of Labor elaws - FMLA Advisor, or phone 1-866-487-2365.

 

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