RECENT CASESBY: GERALD (JERRY) MARCINKOSKI, EXECUTIVE SECRETARY OF MSIA, ANDATTORNEY AT LACEY & JONESSUPREME COURT

The Supreme Court has not released any opinions in workers’ compensation casesrecently. However, the Supreme Court has issued a substantive order in a workers’ compensationcase and two other combined cases have been orally argued and remain pending before the Court.Relevance of Income TaxesIn

Loos v J.B. Installed Sales, Inc

., 775 NW2d 139 (2009), the Supreme Court ina 4-3 order reversed the judgment of the Court of Appeals and the Workers’ CompensationAppellate Commission and reinstated the magistrate’s decision. The magistrate had held that the plaintiff was not an employee but, instead, an independent contractor based largely upon incometax records. Those income tax records disclosed that plaintiff had not been paid wages (W2income) but rather received non-employee compensation (Form 1099 income). The SupremeCourt said such records are directly relevant to the question of employee status and the AppellateCommission and Court of Appeals improperly reversed the magistrate who had relied upon suchrecords.Justice Cavanagh concurred in part and dissented in part. Justice Cavanaghagreed that tax records are relevant, but would have deferred to the fact finding by the AppellateCommission to the effect that plaintiff was an employee. Chief Justice Kelly and JusticeHathaway joined in Justice Cavanagh’s statement.Injuries Occurring Outside of Michigan

On December 9, 2009, the Supreme Court heard oral argument in two cases insuccession addressing that provision of the Act which addresses compensation for injuriesoccurring outside of Michigan, MCL 418.845. The two cases are:

Bezeau v Palace Sports Entertainment, Inc.

and

Brewer v A.D. Transport Express, Inc.

The Court’s forthcomingdecision in these cases will address the twists and turns in § 845 in terms of recent case lawchanges, as well as the 2009 amendment to § 845. The amendment provides that Michigan cannow assert jurisdiction if the plaintiff is a resident of Michigan at the time of the injury

thecontract of hire is made in Michigan.

COURT OF APPEALS

There are again no published Court of Appeals’ opinions in workers’ compensationcases since our last newsletter through the time this is submitted. There have been threeunpublished opinions released, however. Unpublished opinions are not precedent, but can be usedas guidance.

Scope of Administrative Appellate Review/Injury on Premises

Mularczyk v Daimco Contracting, Inc.

CA No. 289140, unpublished decisionreleased January 26, 2010, the Court disagreed with the Appellate Commission’s reversal of themagistrate’s open award. The substantive issue in the case was whether plaintiff suffered an injuryon the employer’s premises. The magistrate he had when he arrived 15-20 minutes early for work at a construction site. The Appellate Commission reversed, however, concluding there was noevidence at all to support plaintiff’s contention that he fell on employer premises.The Court of Appeals agreed with the Appellate Commission that plaintiff offeredno evidence to support a finding that defendant

owned

the property where he fell, but the Court said plaintiff had offered evidence that the place where he fell was located on the construction site where

his work was to be performed. The Court noted plaintiff’s evidence that at the spot of the fall therewas a porta-potty, a buried silk fence, and banding straps, all of which related to plaintiff’sconstruction work. As a result, the Court concluded that the Appellate Commission wrongfullydisplaced the magistrate’s fact finding because it had the requisite support.Idiopathic FallIn

Harris v General Motors Corp

CA No. 285426, unpublished decision released November 24, 2009, the Court of Appeals affirmed the Appellate Commission’s and Magistrate’sdecision denying death benefits to the survivors of an employee who had died from a head injurywhen he fell in the men’s bathroom in the employer’s plant.The sole relevant issue was whether the decedent’s fall was work related or an“idiopathic” fall attributable to some cause personal to the decedent. The Magistrate found the latter and, after the Commission affirmed, the Court of Appeals granted leave and agreed. In so doing, theCourt reviewed the present state of the law with respect to injuries of unknown or idiopathic origin.The Court said in pertinent part:An injury of an unknown or idiopathic origin is not compensable simply because it occurred while the employee was in the course of employmenton the employer’s premises.

Ruthoff v Tower Holding

(OnReconsideration, 261 Mich App 613, 618; 684 NW2d 888 (2004);

Hill v Faircloth Mfg Co.

245 Mich App 710, 717; 630 NW 2d 640 (2001);

McClain v Chrysler Corp

, 138 Mich App 723, 730; 360 NW 2d 284 (1984);

Ledbetter

, supra at 334. An injury does not “arise out of” employmentunder MCL 418.301(1) “unless some casual relationship exists between awork-related event and the disabling injury.”

Ruthoff, supra

at 618. As ageneral rule an injury does “not arise out of employment where the predominant cause of the harm was attributable to personal factors and thecircumstances of the employment did not significantly add to the risk of harm.”

Ruthoff supra

at 619. In

Ledbetter

, this Court explained:In personal risk cases, including idiopathic fall situations, the sole fact thatthe injury occurred on the employer’s premises does not supply enough of aconnection between the employment and the injury. Unless some showing