Defined (Chapter 7 of Worker’s Compensation in Michigan)
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Chapter 7: Disability Defined
Edward M. Welch Jr.Daryl C. Royal, Daryl C. Royal Attorney at Law

The 1987 Definition of Disability
The 2011 Amendments
The Current Standard of Disability
Partial Disability
Medical Inadvisability

I.   Introduction

§7.1   The current definition of disability has developed over time, the result of complex and often contradictory caselaw and amendatory legislation. An examination of how we got to where we are today can be helpful in understanding the current definition, a discussion of which begins in §7.8.

It should be noted that a finding of disability is not the end of the analysis. Disability does not itself entitle an injured worker to benefits. There must also be a loss of wages for a worker to be entitled to benefits, except in the case of an amputation or other “specific loss.” See §§11.7–11.8. This wage loss must be connected to the work-related injury or disease, and this concept is not as simple as it may sound. See §7.16.

Chapter 8 discusses various ways in which subsequent events can affect a disabled worker’s entitlement to benefits. Two of them are particularly relevant with regard to this discussion of disability. If a worker refuses an offer of reasonable work, benefits stop. See §§8.5–8.17. In addition, if a worker returns to work for a period of time and then leaves, that work may establish a wage-earning capacity, which in turn reduces the individual’s right to benefits. See §§8.18–8.28. However, employers may sometimes reduce a claimant’s benefits by virtue of postinjury wage-earning capacity, whether or not he or she has actually returned to work. See §§7.17 and 7.18.

II.   Disability Before 1987

A. Disability Before 1982

§7.2   Surprisingly, before 1982, the Worker’s Disability Compensation Act did not explicitly define disability. As a result, the courts looked to the predecessor to what is now Section 371(1) for guidance, looking to language referencing impairment of the employee’s earning capacity in the employments in which that employee was working at the time of the personal injury. See Foley v Detroit United RR, 190 Mich 507, 515, 157 NW 45 (1916). This became the standard in the absence of anything more definitive.

The statute’s focus on the work the employee was doing at the time of his or her injury led to a distinction between skilled employment and unskilled employment (which also came to be known as “common labor”).

A skilled worker was totally disabled if unable to perform the specific skilled job he or she had performed before an injury occurred, even if he or she remained fully capable of working in another field. MacDonald v Great Lakes Steel Corp, 274 Mich 701, 265 NW 776 (1936). On the other hand, an unskilled laborer was totally disabled only if unable to perform any kind of work within the general field of common labor and partially disabled if unable to perform some but not all of the jobs in the general field of common labor. Miller v S Fair & Sons, 206 Mich 360, 171 NW 380 (1919).

B. Disability Between 1982 and 1987

§7.3   Effective January 1, 1982, the legislature for the first time incorporated into the Act a definition of disability, adding Section 301(4), which then read, “As used in this chapter, ‘disability’ means a limitation of an employee’s wage-earning capacity in the employee’s general field of employment resulting from a personal injury or work related disease.” Although the statutory definition was amended again effective May 14, 1987, the court of appeals held that this amended definition did not apply to those injured before its effective date. Turrentine v GMC, 198 Mich App 572, 499 NW2d 411 (1993).

The new language was so similar to that used in various court decisions over the years that it could be forcefully argued that the legislature merely intended to codify the already-existing definition of disability discussed in §7.2. In fact, the author of this language has indicated that no change was intended. See Gillman, The Rise and Fall of Reasonableness: Favored Employment in Michigan Workers’ Compensation, 1 Cooley L Rev 177, 206 (1982).

However, in Wright v Vos Steel Co, 205 Mich App 679, 517 NW2d 880 (1994), the court of appeals held that the 1982 amendments eliminated the distinction between skilled and unskilled work.