Michigan Court of Appeals; Docket No. 133472; Published
Judges Holbrook, Jr., Griffin, and Marilyn Kelly; 2-1 (with Judge Griffin, Dissenting)
Official Michigan Reporter Citation: 195 Mich App 286; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Work Loss Benefits: Calculation of Benefits [§3107(1)(b)]
Work Loss Benefits: Loss of Earning Capacity [§3107(1)(b)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 published Opinion authored by Judge Marilyn Kelly with Judge Griffin dissenting, the Court of Appeals held that where the injured plaintiff was unable to return to her former job because the position had been filled during her automobile accident disability, and where she then obtained new employment at a lower rate of pay from which she then later voluntarily resigned, plaintiff was entitled to continue receiving work loss benefits after the voluntary resignation, with those benefits calculated based upon the wage differential between her pre-accident employment and her post-accident employment.
After plaintiff was injured and disabled from her employment, she remained off work for approximately five months during which time she received work loss benefits. A permanent replacement filled her position during her absence, and she continued to receive work loss benefits until she began work for a new employer six months after she was released to return to work. Since her wages in the new position were lower than her former employment, plaintiff contended that Hartford was liable for 85% of the difference in pay between the two jobs. The Court of Appeals affirmed the ruling of the circuit court that Hartford was responsible for this wage differential after plaintiff returned to her new job. On appeal, plaintiff contended that the circuit court erred in refusing to make Hartford responsible for paying any work loss benefits after plaintiff became voluntarily unemployed through her resignation. At issue was whether plaintiff should continue to receive the same wage differential payment as she was receiving following commencement of her new job.
The Court of Appeals, in reversing the circuit court, held that it was error to classify plaintiff’s work loss claim as a loss of earning capacity rather man loss of actual earnings. While recognizing that subsequent events which are independent and intervening may break the necessary chain of causation, the Court of Appeals held that, unlike the situation in MacDonald v State Farm Insurance Company, 419 Mich 146 (1984) and similar cases where the plaintiff’s would have earned no wages after the intervening events (heart attack, incarceration, etc.), here the plaintiff sustained work loss due to her injuries. Plaintiff was forced to take the new job because of her accident-related injuries. The court rejected the argument of Judge Griffin that plaintiff’s decision not to work was a cause independent and intervening from the accident. Continuation of the work loss benefits based upon the pay differential did not reward the plaintiff for quitting, and it also did not reward the defendant for the happenstance that plaintiff’s new job did not work out.
