Michigan Court of Appeals; Docket No. 77198; Published
Judges Hood, Beasley, and Marutiak; Unanimous
Official Michigan Reporter Citation: 140 Mich App 310; Link to Opinion 
STATUTORY INDEXING:
Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]
State Workers Compensation Benefits [§3109(1)]
TOPICAL INDEXING:
Workers Disability Compensation Act (MCL 418.1, et seq.)
CASE SUMMARY:
This unanimous Opinion by Judge Hood seems to be directly contrary to the decision in Deppmeier v Associated Truck. In the case at bar, the court held that "specific loss" workers' compensation benefits received by plaintiff as a result of the loss of an eye in an automobile accident are properly set off against no-fault wage loss benefits pursuant to the government benefits subtraction provisions of §3109(1). Citing Jarosz v DAIIE (Item No. 702), the court held that "income replacement remains the major function of the specific loss benefits," and therefore, the benefits are paid for the same purpose as no-fault benefits, thus entitling the no-fault insurer to claim a setoff. However, the court also noted that even though a claimant of specific loss benefits is not required to show a specific earning impairment, it is more accurate to conclude that the specific loss injuries enumerated in §361 of the Workers' Comp Act create "a conclusive presumption of loss of earning capacity" Consistent with that characterization is the fact that specific loss benefits are payable even if the worker returns to work.
[Author's Comment: It is respectfully submitted that the analysis employed in this case may be in conflict with the rationale of several previous decisions which have analyzed the character of no-fault work loss benefits (Gerardi [Item No. 176], Nawrocki [Item No. 194] and Struble [Item No. 247]). In those cases, the Court of Appeals held that no-fault work loss benefits are not payable for a loss of earning capacity. Rather, no-fault benefits only compensate for an actual loss of earnings. In the Kuty decision above, the court focuses on the fact that workers' comp specific loss benefits are payable, at least in part, for a loss of earning capacity. If that is so, then under the analysis employed in the earlier no-fault cases, they are fundamentally dissimilar to wage loss benefits. Under that analysis, no setoff should have been permitted.]
