By Donna Motley, Vice President of Claims

Finally, as promised, the Workers’ Compensation Courts are now open for “in person” business! Any way you look at it, this is a good thing! Over the last one and one-half years, the Workers’ Compensation Courts were still conducting business, but like everyone else in the business world, communication was via telephone or (computer) Zoom. While I can’t necessarily speak for Plaintiffs, I can tell you the Defense side of Workers’ Compensation is happy with the re-opening. It will take a while to get cases back “on track” but so far everyone in the litigation field seems anxious to get back to work.

There were multiple drawbacks to Zoom meetings in that the Workers’ Compensation magistrates, employees of the State of Michigan, did not have the most current equipment with which to conduct business. Not to mention, the Workers’ Compensation Magistrates are older and not the most computer literate. The last 18 months was a learning curve for all of us, including the Magistrates. With their hearts in the right place, the Magistrates did the best they could. One major difference last year was the process of Facilitating a case, the injured worker was not part of the process. Typically the injured worker has to appear in Court to answer any possible questions the Magistrate may want to ask. Similar to appearing in person for a doctor appointment, appearing in person for your Court date can speak volumes. Afterall, the injured worker is the one seeking financial restitution, shouldn’t they be part of the process. Being able to read body language is an advantage to in person hearings. If an injured worker were to appear for their hearing date utilizing crutches and we have video of the same injured worker square dancing . . . the price of settlement just went down significantly. I’ve been in Court when the injured worker will start talking and unless reigned in by their attorney, offers unsolicited and damaging information. Workers’ Compensation hearings are “on the record” and recorded – there is no taking back what has already been said.

Workers’ Compensation settlements are based on the injured workers’ weekly benefit rate multiplied by weeks, months or years. As predicted, the cases in which I have been involved to date, plaintiff attorneys are adding an additional year of alleged lost wages to their settlement number because they chose to do nothing over the last 18 months. This can increase the settlement value of a case exponentially. The maximum weekly benefit rate for 2020 is $934.00; 2/3 of the State Average Weekly Wage for 2020 (on which weekly benefits are determined) is $691.40. As an example, a weekly benefit rate of $500 multiplied by 52 weeks would be an additional $26,000 ADDED to a settlement. Litigation typically settles after 2 years, adding an additional year would make the demand $78,000 as opposed to $52,000. We take the position that a lot of the existing litigation could have been settled prior to or during the last 18 months, hence the last 18 months should not be considered “accrued” for settlement purposes, merely because the plaintiff’s attorney took an extended vacation. Additionally, during 2020 the Workers’ Compensation Agency was of the opinion that an injured worker was not “required” to look for work during a pandemic – even though there were available jobs within their experience, skills and training and the Workers’ Compensation Act endorses a return to work.

On the plus side, there are currently an abundance of employment opportunities for those that want to work. A defense tool that we use is called a Wage Earning Capacity. We hire an expert to look for actual, available jobs for which the injured worker is qualified to perform, within their restrictions, at the same or similar rate of pay to that of the job on which the employee was injured; as proof there is no wage loss. If anyone says they can’t find a job in this economy, they just aren’t trying. If an injured worker collected or is collecting Unemployment benefits, Workers’ Compensation is allowed to take a 100% off-set against the weekly comp rate.

Workers’ Compensation Magistrates are appointed by the Governor of the State. The most recent appointees were practicing plaintiff attorneys. We have an uphill battle. But at least the Courts are open and maybe we can now settle some of the cases that have been lingering. It will be interesting to see how it all plays out. We will keep you posted!