Michigan Court of Appeals; Docket No. 211687; Published
Judges Jansen, Saad, and Gage; 2-1 (with Judge Jansen dissenting)
Official Michigan Reporter Citation: 240 Mich App 507; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Work Loss Benefits: Relevance of Wage Continuation Benefits [§3107(1)(b)]
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Workers Disability Compensation Act (MCL 418.1, et seq.)
CASE SUMMARY:
In this 2-1 published Opinion by Judge Saad, Judge Jansen dissenting, the Court of Appeals held that plaintiff was not entitled to receive wage loss benefits for a period of approximately one year following his automobile accident because the plaintiff had continued to accept workers' compensation wage loss benefits from his employer for the same period following the automobile accident for a work-related disabling injury that had occurred approximately four years before the accident.
The Court of Appeals held that under the circumstances, by continuing to accept workers' compensation disability benefits in the period following the automobile accident, the plaintiff effectively admitted that his continuing inability to work was attributable to his prior industrial accident, and therefore, was not as a result of the automobile accident, thus precluding wage loss benefits under section 3107( 1 )(b) of the No-Fault Act.
Plaintiff was injured in a work-related accident in July, 1991, which caused injury to his neck at the C4, C5 and C6 levels. As a result of these injuries, he was deemed entitled to receive workers' compensation benefits in the amount of $350.83 per week. Approximately four years later, on April 3,1995, while he was still on leave from work and receiving workers' compensation benefits, plaintiff was injured in a motor vehicle accident that resulted in a "hangman's fracture" of his neck at the C2 and C3 levels, causing him to be placed in a halo.
Plaintiff alleges that the injuries in the automobile accident were the reason why he was unable to return to work until May, 1996. He thus claimed no-fault benefits from the period of time from April, 1995 until May, 1996. In spite of these allegations, however, the plaintiff continued to accept workers' compensation benefits after the automobile accident until May, 1996, when he returned to work.
In affirming the trial court's denial of benefits, the Court of Appeals held that although plaintiff claimed that the automobile accident occurred days before he would have returned to work, the fact that he continued to accept workers' compensation disability benefits resulted in an admission that his disability was attributable to the industrial accident rather than to the automobile accident. The court held:
"Here, plaintiff asserts that the automobile accident occurred just days before he would have returned to work. However, plaintiff continued to accept workers' compensation benefits for the industrial accident in the period following the April 1995 automobile accident through the date he returned to work in May 1996. If plaintiff had recovered from the industrial accident, his workers' compensation benefits should have terminated the day he would have returned to work but for the automobile accident. However, plaintiff continued to accept the benefits for over a year. By continuing to receive the workers' compensation benefits during this period, plaintiff effectively admitted that his disability was attributable to the industrial accident rather than to the automobile accident. Plaintiff cannot represent to his employer that he is entitled to workers' compensation disability benefits because of the industrial accident, and simultaneously represent to his no-fault insurer that he is entitled to no-fault wage loss benefits due to an automobile accident. Consequently, as a matter of law plaintiff cannot demonstrate the expectation of any income he would have received but for the accident."
In support of its ruling, the Court of Appeals relied upon MacDonald v State Farm Mutual Insurance Company, 419 Mich 146 (1984), in which the Supreme Court had denied no-fault benefits that plaintiff claimed for a period of time following a heart attack that occurred two weeks after the automobile accident that had previously disabled him. The Supreme Court in MacDonald, supra, held that because the plaintiff would have been unable to work following his heart attack, even if he had not been involved in the automobile accident, he was not entitled to no-fault wage loss benefits for that period of time following his heart attack. The Court of Appeals also distinguished this case from Brashear v DAIIE, 144 Mich App 667 (1985) and Spencer v Hartford Accident & Indemnity Company, 179 Mich App 389 (1989), as those cases were situations in which the employers had continued payment of wages, either as a "gratuity" or pursuant to a collective bargaining agreement. In those cases, it was held that such payments did not preclude payment of no-fault benefits, as the plaintiff in both those cases could show that they were not earning wages because automobile-related injuries prevented them from working. Here, by accepting workers' compensation benefits, plaintiff was deemed to concede that his work place injuries would have prevented him from returning to work after the automobile accident.
In her dissent, Judge Jansen said that the plaintiff had presented sufficient documentary evidence from physicians who had examined the plaintiff to raise a material factual dispute regarding whether, but for the automobile accident, he would have returned to work. The injuries are different and can be attributable to their specific events. Further, the examining physicians had indicated that plaintiffs work-related injuries had "almost fully abated" and plaintiff was getting ready to return to work under light duty post-surgical restrictions when he was involved in the automobile accident.
