Michigan Supreme Court Releases Partial Disability Orders By Gerald (Jerry) Marcinkoski Executive Secretary, MSIA The Michigan

Supreme Court has recently released three important orders regarding partial disability benefits in Michigan. First, here is some background. The partial disability provision of Michigans workers compensation statute, as well as certain case law, requires magistrates to calculate the appropriate partial weekly rate of compensation to those claimants who are deemed partially disabled. Whenever a partially disabled claimant who is working post-injury at a lesser paying job, there is little controversy in calculating the appropriate partial rate. But, when a partially disabled claimant is not working at all post-injury, the point becomes more controversial. The statute says partial disability payments are to be calculated on the basis of what the claimant is able to earn post injury, not what the claimant is actually earning. And, certain case law has made clear that able to earn is not limited to actual wages earned but rather requires consideration of the claimants capacity to earn whether that capacity is being exercised or not. You might recall that three years ago in a case Lofton v AutoZone, Inc., 482 Mich 1005 (2008), the Supreme Court reiterated that the partial rate calculation is required to be based on the claimants capacity to earn, regardless of whether that capacity is being exercised or not. Lofton tended to be ignored by many practitioners and magistrates as an aberration. It is now clear that the Michigan Supreme Court does not consider Lofton to be an aberration. In Umphrey v General Motors Corp, 489 Mich 978 (2011) the Supreme Court over only one dissent said that a Lofton partial disability evaluation is required and if the plaintiff is only partially disabled then a calculation of wage loss benefits must be made and the WCAC should in that event modify the plaintiffs award accordingly. (emphasis added). Similarly in Harder v Castle Bluff Apartments 489 Mich 951 (2011), the Court said Lofton applies at all times to partially disabled workers. (emphasis added). And, in Vrooman v Ford Motor Company 489 Mich 978 (2011), the Court again over only one dissent returned the case to the magistrate for a partial disability evaluation citing Lofton and Harder. From these orders it is now quite clear that the Supreme Court meant what it said in Lofton, namely: the partial disability calculation is required where a claimant is determined to be only partially disabled.