By Ronald W. Ryan
Mr. Cuddington’s work injury.
On October 25, 2012 the Court of Appeals issued an opinion, for publication, in the matter of Cuddington v United Health Services, Inc. (Court of Appeals docket number 303249). In that matter, the plaintiff was injured in an automobile accident while in the course and scope of his employment on January 7, 2009. He immediately reported the incident to Robert and Rebecca Daniels, officers of his corporate employer, who came to the accident scene.
The next morning, the plaintiff experienced difficulty getting out of bed and decided to seek medical attention. Plaintiff called Robert Daniels and reported that he was sore from the accident. Robert told Plaintiff that he should see a doctor. However, Rebecca Daniels then picked up the telephone and told Plaintiff that he needed to get to work and that if he didn’t get to work he would be fired because he did not call in before his shift. Plaintiff continued to insist that he was very sore and wanted to see his doctor.
Plaintiff ultimately did not come to work but saw his doctor. He was terminated for not calling in sick before the start of his shift. He subsequently filed a lawsuit for retaliatory discharge pursuant to the Worker’s Disability Compensation Act (“Act”) MCL § 418.301(13). Plaintiff alleged that he exercised a right protected under the Act by seeking medical treatment for a work-related injury, and that his employer violated the act when it terminated him in retaliation for exercising that right.
The pertinent part of the Act provides as follows:
A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.
The Trial Court Dismisses the Relation Lawsuit
The Employer filed a motion for summary disposition with the trial court arguing that the Plaintiff could not sustain his retaliatory discharge claim based merely on the intent to claim worker’s compensation benefits in the future. The trial court granted the Employer’s motion and dismissed Plaintiff’s case finding that there was, “no indication here that Plaintiff was fired in retaliation for his worker’s compensation claim. Plaintiff did not even file his claim until after he’d been terminated.” The trial court reasoned that the retaliatory discharge portion of the Act provides an employee with protection from retaliatory discharge only after the employee first files a claim or institutes a proceeding to assert a right afforded by the Act. Due to the fact that Plaintiff had not filed a worker’s compensation claim prior to being discharged, the trial court held that he did not have a cause of action for retaliatory discharge.
The Court of Appeals Reverses
The Michigan Court of Appeals disagreed and reversed the holding of the trial court. The Court of Appeals reasoned that, by alleging that his employment was terminated because he exercised a right afforded him under the Act (the right to seek medical services for a work-related injury), Plaintiff had pled a cognizable retaliation claim under MCL § 418.301(13). The Court of Appeals also found that the evidence supported the Plaintiff’s allegation that he was terminated after suffering a work-related injury and after he had expressed a need for medical services to his employer. The Court of Appeals held that, “Because MCL 418.301(13) contemplates that an employee may pursue a retaliation claim arising from the exercise of this right, the trial court improperly granted summary disposition to the defendant.”
Not a Race to the Courthouse
The Michigan Court of Appeals did not want to create a race to the courthouse doors. The Court of Appeals recognized that the last phrase of the applicable statute carried a significant importance. That last phrase of MCL § 418.301(13) provides, “… or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.” The statute provides that an employee is protected from discharge or other forms of discrimination when he files a complaint or exercises rights afforded by the workers compensation act. Those rights are threefold: the right to receive wage loss benefits, the right to seek medical services, and the right for vocational rehabilitation. The Court reasoned that, by adding that last phrase to the statute, the legislature recognized that an employer could circumvent the goals of the Act by firing an employee before the employee had an opportunity to formally initiate workers compensation proceedings: “Had the statute failed to include the final alternative clause, the result would be a ‘foot race,’ with the winner being determined by the event to first occur-either the firing of the employee or the filing of a claim with the worker’s compensation board.”
A Delicate Application of the Law
However, the Court of Appeals was cautious in its application of the law to this claim of retaliation. There is binding precedent which precludes a retaliatory discharge claim that is premised upon an employee’s anticipation of a future claim for benefits. The Court of Appeals reasoned that its conclusion was consistent with this binding precedent because the Plaintiff in this case had exercised his right for medical services (a right of afforded to him by the Act) before his employer terminated or otherwise discriminated against him.
The Court concluded:
“We hold that filing a petition for workers compensation benefits is not a prerequisite to all retaliatory discharge claims under MCL 418.301(13). Rather, an employee who exercises a right afforded under the act and is subsequently terminated or discriminated against in retaliation may maintain an action. Furthermore, the Act affords an employee the right to seek medical services, when needed, for work-related injuries. In this case, the trial court erred in holding that summary disposition was appropriate based on plaintiff’s failure to prove that he was terminated in retaliation for filing a petition for worker’s compensation benefits.”
Lessons for Employees
In the event of a work-related injury, it would behoove an employee to immediately make a verbal (if not written) statement to their employer that he or she intends to seek all benefits under the Worker’s Disability Compensation Act.
Lessons for Employers
Termination in light of a work-related injury is a delicate matter. There is an immediate desire, especially among small business employers, to terminate employment and fill a vacant position once an employee cannot return to work, even for a short period of time. But, can the vacancy be filled without a termination? Lost time incurred by key employees or by employees who have numerous and repeated medical issues, is often met with suspicion, doubt, and frustration on behalf of the employer. Cooler heads must prevail.
In the case outlined above there is an indication that Rebecca Daniels rushed to terminate the Plaintiff. It is important to adhere to a consistent discipline policy when an employee misses his or her shift. Anytime an employee asserts his or her workers compensation rights, termination or any other adverse employment action should not follow. Employers are encouraged to file an Employer’s Notice of Injury and turn the claim over to the insurance carrier. Admittedly, and more often, employers are choosing to resolve small lost time claims out of their own pockets in order to avoid a negative experience ratio in their insurance premiums. Even then, employers should be slow to terminate.
In closing, work injuries and termination are a potential, flammable combination. What’s worse is there may be no insurance coverage when an employee prevails on such a claim. Extreme caution is advised.