You Be The Judge

Thank you to everyone who sent in their answers to our “You be the Judge” article. There was a lot of good analysis in your responses. When evaluating this scenario, there are two main legal frameworks that we have to apply. First, we have to address if the Plaintiff’s injury arose out of and occurred within the course of her employment. Second, we have to address if this case would properly be viewed as a “going to and coming from” scenario.
Arising out of / In the course of employment

If an injury is to be compensable, an employee must suffer an injury “arising out of and in the course of employment.” MCL 418.301(1). However, not every injury that occurs in the course of a Plaintiff’s employment is an injury that arises out of their employment. Ledbetter v Michigan Carton Company, 74 Mich. App 330.     

To show that an injury arises out of employment, a causal connection with the work to be performed must be established. Specifically, as noted in Graham v Somerville Construction Company, 336 Mich. 359., “The causative danger must be peculiar to the work and not common to the neighborhood.  It must be incidental to the character of the business.” Another portion of the opinion in Graham states “the connection between employment and the injury must be one that follows as a natural incident to the employment, be connected with it, and not the result of risk disassociated therefrom.” Therefore, we would argue that an accident involving a motor vehicle and a pedestrian is not a “natural” incident to Plaintiff’s employment, and would more properly be seen as a result of “risk disassociated therefrom.” We would also argue that the “causative danger” of being struck by an automobile in a public street is not “peculiar” to the Plaintiff’s employment. Any person who was at the same intersection as the Plaintiff at the same moment would have been injured by this automobile, regardless of their profession or employer. We believe that there is no reasonable basis on which to conclude that Plaintiff’s occupation caused her to be more likely to be struck by an automobile.
Going to / Coming from Injuries

As indicated in the seminal case of Stark v L.E. Myers Company, 58 Mich. App. 439, injuries that occur to an employee while going to and from work are not compensable. However, as is almost always the case, there are exceptions to this general rule.

The court in Stark provided four factors that can send a non-compensable “going to and coming from” case into the realm of compensability, specifically: (1) whether the employer paid for or furnished the employee’s transportation; (2) whether the injury occurred during working hours; (3) whether the employer derived a special benefit from the employee’s activities; or (4) whether the employment subjected the employee to excessive traffic exposure risk. 

Within the facts provided, there is no evidence that Plaintiff’s employer paid for her transportation. Although this factor has caused much litigation by itself, it is unlikely that even if Plaintiff was being reimbursed for mileage, as many attorneys are, she would be able to satisfy this factor.  

As noted in many of your responses, Plaintiff was not extremely early in arriving at the courthouse. Therefore, it could reasonably be held that the injury occurred during working hours.

Similar to cases involving employer furnished transportation, there is a whole set of case law dealing with the “special benefit” factor. Based on these facts however, there is no evidence that Plaintiff was doing anything beyond what would normally be expected of her on any given day. Therefore, any benefit the employer received based on her conduct was simply that of an employee trying to be on time for their daily work responsibilities, which hopefully is not enough to be considered “special.”

Lastly, there is no case law that establishes precisely what constitutes “excessive traffic risk.” There is, however, case law establishing that even an employee who travels over one-hundred-and-forty miles per day on interstate highways is not exposed to excessive traffic risk. In fact, the case involving those facts was Stark. Therefore, it is safe to say that, despite her injuries, Plaintiff was not exposed to excessive traffic risk at the time of her injury.

Given the instant facts, Plaintiff may only prevail on one of the four factors provided in Stark, and this is unlikely to be enough for her to prevail in showing that her situation was not a typical “going to and coming from” injury. Ultimately, Plaintiff was injured while walking across a public street, after having left a public parking lot, and although she was in route to a work assignment, there is no evidence that her employer directed her to be precisely where she was at the time she was injured. Plaintiff herself chose the parking lot and public sidewalk route to the courthouse on her own.

Within the responses we received, about 85% of the answers correctly identified this as a non-compensable injury.

Further, we can now safely say that our analysis was correct because this “hypothetical” was in fact based on a case our firm has been litigating. Shortly after our Quarterly was published, the presiding Magistrate in this case held that Plaintiff’s injury was non-compensable under the Michigan Worker’s Disability Compensation statute. The Magistrate found that Plaintiff failed to prove that the injury sustained did “arise out of and in the course of” her employment.  Further, the Magistrate did apply the above-described analysis and held that Plaintiff failed to establish any exceptions to the general rule regarding “going to and coming from” injuries. Although Hanba & Lazar was able to secure victory at the Magistrate level, we do expect an appeal given that a fairly large amount of benefits were in fact paid by Plaintiff’s auto no-fault carrier before the onset of this litigation.  

We will be reaching out to our contest winner(s) later this week. 
 Submitted by Jonathan Rea,

Please leave us comments/questions. If there is a topic that you would like to see discussed in this Quarterly, please let us know. Comments and questions can be directed to Jonathan Rea at



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The Hanba Lazar Quarterly Update November 2017


H&L Quarterly - November 2017

Growing Our Ranks
Hanba & Lazar added to its team in September by hiring a new associate, Aaron Majorana. Aaron has experience in employment law, and his prior firm specialized in claims involving the Elliott-Larsen Civil Rights Act, Family and Medical Leave Act, and Whistleblower’s Protection Act. Aaron has also worked on cases involving wrongful death, personal injury, no-fault, probate, and family law. Outside of work, Aaron was recently married and spends time running, cycling, and volunteering at his local church.  

You be the Judge
It’s time to go (back) to law school. Take a look at the below hypothetical question, wrack your brain for the best answer, and send us your response at After our experienced judges evaluate the responses, the winner will receive a special something, courtesy of Hanba & Lazar.

Lawyer leaves her home in the early morning, as she is to cover a hearing for the benefit of her client in a Detroit courtroom. Although the commute is a mere twenty-eight miles, she leaves earlier than necessary in case she encounters traffic snafoos, given Detroit’s economic resurgence.

Traffic proves not to be problematic and she arrives at the public parking lot adjacent to the courthouse with forty-five minutes to spare.

She exits her vehicle taking both file and purse, walks completely across the public parking lot, whereupon she travels easterly on the public sidewalk. Upon arriving at the crosswalk intersection (which is governed by an automated traffic control system) she awaits the appropriate signal allowing pedestrians to cross in the paint-striped zone marked for pedestrian use.

When the traffic control signal advises that she is to cross, she takes approximately four steps into the public street when she, most unfortunately, is struck by a motor vehicle which has in fact disobeyed the traffic signal.

The impact causes severe fractures to the ankle, tibia, and fibula of her left leg. She is taken by ambulance to the nearest hospital, whereupon triage is performed. She never enters the courthouse or the courtroom due to the motor vehicle accident.

Is this a compensable, work-related injury under Michigan law?

Return of the 20 Factor Test
Hanba & Lazar recently scored a victory in a case involving over $350,000 in liability. The case involved Christopher Parshall, who was working as a mechanic, and suffered several fractures when his legs were run over by a truck. Benefits were paid by Plaintiff Acuity Insurance Company under a no-fault auto policy. Plaintiff later sought recoupment of benefits paid under the no-fault policy from Defendant. The parties agreed that the sole issue was whether or not Plaintiff was an employee at the time he sustained his injury.

Over the course of a multi-day trial, extensive testimony was given and a great deal of documentary evidence was entered into the record. Among the facts Hanba & Lazar presented on behalf of Defendant were that Mr. Parshall never applied for a job with Defendant, was never trained by Defendant, and was only paid $400 per week, which is far below the normal wage for mechanics working with Defendant. Mr. Parshall was not given a W-2 from Defendant, and when Mr. Parshall applied for auto no-fault benefits, he indicated that he believed himself to be an independent contractor. Magistrate Lisa Woons authored an 89-page opinion, and she applied the 20 Factor Test found within the Worker’s Disability Compensation Act at MCL § 418.161(1)(n). Although the Magistrate’s opinion doesn’t necessarily indicate which of the factors weighed most heavily on her decision, she did hold that Mr. Parshall was an independent contractor at the time of his injury. Therefore, Plaintiff was not entitled to reimbursement from Defendant. Given the large figures involved in this matter, we do expect Plaintiff to appeal the Magistrate’s decision.
Bringing Liability Home
Early in October, the country was rocked by news of a mass shooting at a concert in Las Vegas. Many of the concert attendees emerged as heroes, including those who helped injured people to safety. Among them were the estimated 200 off-duty California police officers who rushed into action when the shooting began. In the subsequent weeks, many of those police officers have returned home and sought worker’s compensation benefits and even long-term medical care based on their injuries and the trauma they endured. However, these men and women are now finding themselves in the middle of a legal battle over what type of duty, if any, a city has to pay their off-duty police officers if they are involved in an out-of-state emergency. Some of the California police officers have already had their worker’s compensation claims denied. California law appears to be unclear on the issue, although one California state lawmaker has already proposed legislation requiring the state to pay benefits in these types of situations.  

Here in Michigan, there is no “Good Samaritan” law requiring that individuals assist others in need. Further, there is no statutory provision in the Worker’s Compensation Act that directly addresses the issue. In fact, Hanba & Lazar is currently involved in litigation that involves a very similar scenario. As part of our defense, we have relied in part on a Michigan Supreme Court decision that indicates “It may be stated generally that the phrase ‘out of and in the course of employment’ embraces only accidents which happen to a servant while he is engaged in the discharge of some function or duty which is authorized to undertake, and which is calculated to further, directly or indirectly, the master’s business.” Sichterman v Kent Storage Co., 217 Mich. 364 (1922). If this reasoning is applied, it appears that individuals who take it upon themselves to act while off-duty, or in another state, will have a difficult time receiving benefits. While we cannot say for certain how this matter would play out in Michigan, we will have the chance to see how it plays out in California over the coming months.
Digging Too Deep
When Plaintiff takes the stand in the course of a trial, their credibility can make or break their case. Hanba & Lazar was recently reminded of that fact, when Plaintiff Derek Reynolds claimed he suffered an injury to the left side of his upper back while shoveling asphalt out of a paver. Eventually, Plaintiff was diagnosed with a fracture of the spinous process at C7 and T11. Beyond teaching lessons about credibility, this case was also a good example of how even the scariest-sounding terms, such as “spinal fracture”, may not be as ominous as they appear at first blush. The spinous process is simply a piece of bone that projects off the posterior of each vertebra, and although it serves as the attachment point for muscles and ligaments, it does not play any role in actually protecting the spinal cord. Therefore, any fracture to this portion of the vertebrae does not necessarily endanger any nerve structures.

After protracted settlement negotiations, Plaintiff would not settle his case for a reasonable amount, and the matter proceeded to trial. Although there were of course legal and medical arguments made at the time of trial, presiding Magistrate Slater's opinion included blistering statements regarding the Plaintiff’s credibility, which was in fact the focus of his opinion. Based on what the Magistrate perceived as a lack of credible testimony from Plaintiff, he was awarded no additional wage loss benefits (he was paid for less than two weeks after the alleged injury), and Plaintiff’s medical benefits were cut off as of the date of Defendant’s Independent Medical Exam. These amounts pale in comparison to the Plaintiff’s settlement demand and even the facilitation award.
Submitted by Jonathan Rea,

Please leave us comments/questions. If there is a topic that you would like to see discussed in this Quarterly, please let us know. Comments and questions can be directed to Jonathan Rea at



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The Hanba Lazar Quarterly Update July 2017


H&L Quarterly - July 2017

In a fairly unusual occurrence, the Michigan Court of Appeals recently issued two opinions directly addressing issues that are frequently seen in the Worker's Compensation arena. While only one of the decisions will have a binding effect after being published, we are glad to see that Worker's Compensation issues are still being litigated, so that we may have clarity on these issues going forward.  

Just in Time
The Defendant employer in Walrath v. Witzenmann USA LLC, (Mich. Ct. App. June 8, 2017), secured a worker’s compensation insurance policy effective January 1, 2014. However, Defendant missed their May 1, 2014 premium payment, and was put on notice that their coverage would be cancelled, which did in fact occur on May 29, 2014.  

Plaintiff employee was injured a few weeks later, on June 14, 2014. When Defendant attempted to file a claim on Plaintiff’s behalf, they learned that their policy had been cancelled. Shortly thereafter, Defendant sent their insurance company a premium payment and their policy was reinstated with “no lapse in coverage.” Plaintiff’s claim was opened and they did receive wage loss and medical benefits.

Once Plaintiff found out that Defendant didn’t have a policy in effect on the injury date, they sued in circuit court for negligence. Filing a tort claim is an option available to an employee if their employer violated that Act by not having insurance coverage. Therefore, if Defendant violated the terms of the Act's coverage provision, MCL 418.611(1)(b), the Plaintiff’s tort action in circuit court could proceed. This section of the Act requires that an employer “secure the payment of compensation . . . by insuring against liability.”

Both the circuit court and the Court of Appeals held that the statute does not in fact require an employer to have coverage, but requires that they “secure the payment of compensation.” The fact that the Defendant was uninsured on the Plaintiff’s injury date does not change the fact that subsequent efforts by Defendant made sure that the Plaintiff was paid compensation according to the Act. Therefore, Defendant did not violate the terms of the Act and was not liable for any tort claims. This decision is set to be published by the Court of Appeals in the near future. 

Fight For Your Fringes
Plaintiff employee in Heine v. Mach 1 Global Servs., (Mich. Ct. App. Apr. 25, 2017) sued Defendant employer over unpaid “earnings” after they were terminated from employment. Plaintiff argued that the money they were entitled to constituted wages, which were still owed even after their employment ended. Defendant argued that the money constituted a fringe benefit and would no longer be owed to Plaintiff. 

Many of the legal arguments made in this matter revolved around the language of the employment contract between the parties. One of the lower courts held that there was significant confusion in the contract regarding how the disputed earnings were classified. The lower courts ultimately reasoned that the earnings in question weren’t paid until 45 to 90 days after the end of each fiscal quarter, so they constituted wages and not fringe benefits.

The Court of Appeals took a much different approach, and almost entirely relied on the Payment of Wages and Fringe Benefits Act (PWFBA), MCL 408.471. This law gives a fairly clear and workable standard as to difference between a fringe and wages. As stated in the PWFBA:

(e) “Fringe Benefits” means compensation due an employee pursuant to a written contract or written policy for holiday, time off for sickness or injury, time off for personal reasons or vacation, bonuses, authorized expenses incurred during the course of employment, and contributions made on behalf of an employee.

(f) “Wages” means all earnings of an employee whether determined on the basis of time, task, piece, commission, or other method of calculation for labor or services except those defined as fringe benefits under subdivision (e) above.

Instead of addressing arguments over the employment contract’s language, or the timing of payments, or the parties’ understanding as to how the earnings were classified, the Court of Appeals simply held that the earnings fell under the definition of “fringe benefits” within the PWFBA. Therefore, Plaintiff was no longer entitled to receive these types of payments after ending employment with Defendant.

Submitted by Jonathan Rea,

Please leave us comments/questions. If there is a topic that you would like to see discussed in this Quarterly, please let us know. Comments and questions can be directed to Jonathan Rea at



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The Hanba Lazar Quarterly

Yes, can you believe it? It's April already. As we are putting this Quarterly together, spring is definitely in the air and opening day at Comerica Park is just around the corner. With our Firm's mission of helping you manage your employment risks, our legal team has put together a number of articles in this edition that will guide you and your organization to make appropriate risk management decisions. Our article regarding evidence based medicine is just a start to the educational information that our law firm will be presenting to you as the reality of evidence based medicine unfolds. On behalf of the Firm, I thank you for taking the time to review our Quarterly, and as always, we strongly encourage your questions and comments.

Asking the Right Questions
Most employers are aware that certain topics are forbidden during the hiring process. An applicant's age, health, and religion are a few of the prominent areas that employers would do well to avoid while interviewing a candidate. It is important to remember that the rules surrounding illegal questioning of applicants not only applies during in-person interviews, but during online communication, including emails.

Questions regarding an applicant's employment history, vocational skills, prior employers, previous job duties and responsibilities, and compensation are topics that remain acceptable as part of the hiring process. However, when asking an applicant about their vocational, academic, and professional training, employers should refrain from seeking exact attendance dates, as this may lead to gathering information about the applicant's age.

Applicants may be posed questions regarding whether they are legally authorized to work in the U.S. However, further questions regarding an applicant's country of citizenship and whether they are a naturalized U.S. citizen are likely unlawful questions if posed outside of the applicant's I9 process.

Physical restrictions are another area in which employers should be very thoughtful about what questions they ask, and how they ask them. Employers can ask applicants if they are able to perform the essential functions of the position they are seeking, with or without reasonable accommodation. It would be wise to provide the applicant a detailed job description, so that the applicant will have in-depth knowledge about what the position requires, while answering such a question.

Perhaps most important to remember in this Digital Age is the fact that employers would do well to avoid performing online research of applicants. While a quick Facebook search of an applicant may be very tempting, it is quite likely that doing so will result in the employer discovering information that they would be prohibited from collecting as part of the interviewing process.

Often, employers believe that if an applicant brings up a topic, it is not a problem to continue the conversation, even if that topic is something the employer is not allowed to ask about. This is not a good idea. Even if an applicant willfully discloses protected information, employers should not further engage the subject or ask questions along those lines. Any such discussion could increase an employer's potential liability.

Criminal records are another area where employers should pay special attention. It is permissible for an employer not to hire an applicant based upon their criminal record, but such a decision must occur as part of a thoughtful and case-by-case evaluation of each applicant. Many companies have blanket statements which disqualify applicants automatically based on felonies or even misdemeanors in the recent past. Such general rules are likely unlawful. An example of a permissible non-hire occurs when the open position requires the applicant to work as a cashier, but they've previously been convicted of theft. This would be a sufficient basis for an employer to disqualify the applicant from that position based on their prior criminal conviction. An example of a wrongful non-hire would be for the same cashier applicant to be denied employment based solely on the fact that they have a DUI conviction.

All of the above suggestions are aimed at helping employers avoid a "failure to hire" complaint being filed by an applicant. These complaints arise when applicants who weren't in fact hired allege that they were qualified to perform the job they applied for, but the employer did not hire them for some illegal or impermissible reason.

Source: Michigan Lawyers' Weekly, 3/21/16. 
Submitted by Jonathan T. Rea

Rumblings of Reform
Recent events in other parts of the country have attorneys and employers in Michigan taking notice. The Association for Responsible Alternatives to Workers' Compensation, also known as ARAWC, is a group started by Texas attorney Bill Minick, which is focused on creating nationwide change in the very foundation of the workers' compensation system. At the heart of ARAWC's philosophy is the idea that employers should be able to opt-out of state-regulated workers' compensation plans, and instead, be able to draft and implement their own plans. Although ARAWC doesn't make the identity of their members public, it does appear that major retailers, including Walmart, are represented within its ranks.

Unsurprisingly, Texas was the first state to allow companies to opt-out of the state-provided system, and Oklahoma quickly followed suit. However, just a few weeks ago, the Oklahoma law was declared unconstitutional by the state Workers' Compensation Commission, likely non-binding precedent. ARAWC doesn't appear to have been discouraged by the events in Oklahoma, as their website indicates they have focused their attention to making changes in South Carolina and Tennessee. The activities of ARAWC also seem to have caught the attention of the federal government. National Public Radio and ProPublica have reported that the opt-out provisions in Texas and Oklahoma are being examined by the U.S. Department of Labor to determine whether they are violative of federal law.

Proponents of the changes argue that an opt-out provision can cut an employer's costs while maintaining desirable outcomes for injured workers. This idea is, at least partially, based on the assumption that a private workers' compensation system could improve on the current system by increasing efficiency and creating faster resolutions of claims. Of course, there is no universal consensus on the potential of an employer-specific benefit system. Some believe that allowing employers to opt-out will fundamentally affect the basic underpinning of our current system, i.e. that employees give up their right to sue their employers for work-related injuries in exchange for a chance to plead their case within the confines of the state administrative system. This assertion is not without merit. In Texas, the only state currently dealing with these issues, employees do retain the right to sue their employer for negligence. Both sides do seem to agree on one thing, however: if an employer were able to opt-out of the state workers' compensation system, there would likely be increased contact between the employer and employee after an injury, wherein neither side would likely need legal representation to come to a resolution. Therefore, it appears then that an essential consideration for any state considering an opt-out provision would be how to balance the value of lowering employer costs while not eliminating an employee's access to the legal system.

Whether Michigan is a target for possible changes appears to be purely speculative at this time. What is certain is that those on both sides of this issue will be monitoring any developments with great interest.

Source: Michigan Lawyers' Weekly, 3/14/16
Submitted by Jonathan T. Rea

Disciplining Employees for Work Rule Violations While Avoiding Retaliation Claims Under the WDCA
When an injured worker violates a work rule, his employer is placed in a precarious position. Disciplinary action taken against an employee, especially when that employee has filed a claim for workers’ compensation benefits, can raise the specter of retaliation under the WDCA. In these instances, an employer might be less willing to discipline an employee, creating a tenuous precedent. The inconsistent application of work rules and policies can have future legal repercussions. For instance, if an employee is injured because he violated a work rule by not wearing safety goggles, and was not reprimanded by his employer for violating that work rule, that employer has undermined its ability to pursue an intentional misconduct defense implicating the same rule in the future. See e.g. Allen v National Twist Drill and Tool, 324 Mich 660 (1949), compare with Shepard v Brunswick Corp, 36 Mich App 307 (1971). So how can an employer enforce its work rules while minimizing its exposure to retaliation claims?

The Michigan Court of Appeals recently decided McCoy v Laurel Health Care, unpublished opinion per curiam of the Court of Appeals, issued January 21, 2016 (Docket No. 323423). Although this decision is unpublished and holds no precedential value, it signals that the Court of Appeals is still applying the prevailing legal test to retaliation issues.

In McCoy, Plaintiff worked as a CNA. Plaintiff was a good worker, but had repeated attendance issues; he received 37 written warnings for being absent or tardy over the course of 7 years. Plaintiff’s repeated absenteeism and tardiness was a violation of the employer’s attendance policy, and he was eventually placed on a 90-day probation. Plaintiff was warned he would be terminated for a violation within his probation period. Later that same month, Plaintiff injured his knee in the course of his employment, filed a workers’ compensation claim, and later returned to work with restrictions. After an unexcused absence within the probation period, Plaintiff was terminated. Plaintiff brought a claim for unlawful retaliation under the WDCA, essentially arguing that he had been terminated for filing a workers’ compensation claim.

The Court of Appeals, reviewing a motion for summary disposition, cited Cuddington v United Health Servs, 298 Mich App 264, 275 (2012) which sets out the test for retaliation:

To establish a prima facie case of retaliation under the WDCA, an employee who has suffered a work-related injury must present evidence: (1) that the employee asserted a right to obtain necessary medical services or actually exercised that right, (2) that the employer knew that the employee engaged in this protected conduct, (3) that the employer took an employment action adverse to the employee, and (4) that the adverse employment action and the employee's assertion or exercise of a right afforded under MCL 418.315(1) [establishing an employer's duties under the WDCA] were causally connected.

The Court of Appeals explained that a temporal relationship, by itself, does not demonstrate a causal connection between Plaintiff’s termination and his receiving workers’ compensation benefits. The Plaintiff in McCoy, and in any retaliation case, has a burden to overcome the presumption created by an employer’s neutral explanation for disciplining an employee. In this case, Plaintiff failed to rebut that presumption. Other than occurring contemporaneously, no connection was drawn between Plaintiff’s termination and his claim for workers’ compensation benefits.

Therefore, to prevail on a claim for retaliation, an employee must show a causal connection between his discipline and his workers’ compensation claim. If an employer documents work rule violations, and enforces it work rules consistently and on a good faith basis, employees will have a difficult time meeting their burden of proof and convincing the fact-finder that the discipline rendered was causally related to the employee’s exercise of his rights. Employers should feel comfortable administering their work rules on a good faith basis, without the fear of being liable under a retaliation claim. Proper record-keeping and consistent enforcement of work rules are essential to avoiding legal liability in this area.

Submitted by Brian A. Zielinski

Evidence-Based Medicine and its Application to Workers' Compensation
Evidence Based Medicine (EBM), first proposed by physicians and medical educators in the 1980s, is a uniform method of addressing questions of medical treatment. Although widely relied on by physicians, EBM is just beginning to emerge in workers’ compensation systems. EBM seeks to create treatment guidelines, informed by medical research, for treating specific medical conditions.

Applied to California’s workers’ compensation system for example, EBM has been used create presumptive treatment guidelines that can only be rebutted by a “preponderance of the evidence establishing that a variance from the guidelines reasonably is required to cure and relieve the employee from the effects of his or her injury. Cal Lab Code § 4604.5. These guidelines were designed “to assist providers by offering an analytical framework for the evaluation and treatment of injured workers . . . for all injured workers diagnosed with industrial conditions. Id.

Proponents of EBM argue that it supports treatment based on objective knowledge arising from high-quality evidence produced in randomized; double-blind; peer-reviewed medical studies, rather than based on a doctor’s own intuition or inference. Opponents of EMB argue that such a system interferes with the doctor-patient relationship, and restricts physicians that treat patients with unique conditions, medical histories, and circumstances.

Multiple studies have shown that workers’ compensation claims following evidence-based guidelines have shorter durations and lower medical costs. In fact, California’s adoption of EBM was a response to the rising cost of medical treatment.

At this point, it is clear the application of EBM to workers’ compensation systems can have a significant impact on the cost of medical treatment and value of workers’ compensation claims. Hanba & Lazar is currently preparing a seminar on this topic that we plan to conduct later this year.

Submitted by Brian A. Zielinski
A Cautionary Tale for Careful Drafting of Non-Competes
The Michigan Court of Appeals issued an unpublished decision on February 16, 2016 in the case of Mid Michigan Medical Billing Service, Inc. v Lindsey A. Williams.

This case involved the language used in Mid Michigan’s employment handbook and agreement. Mid Michigan provides medical billing services in Flint. Williams was the office manager for over a decade and oversaw client relations. In May 2013, Williams voluntarily left her employment with Mid Michigan to start her own medical billing business from her home. One of Williams’s clients was a former client of Mid Michigan. Mid Michigan had an employee handbook and agreement that prevented employees during employment, and for 12 months following, from directly or indirectly being involved with or engaging in, or contributing his/her knowledge to any work which is competitive with a service provided by Mid Michigan. The non-compete agreement was limited to a geographical boundary of 50 miles from Mid Michigan’s Flint office; and in time for 12 months. Likewise, the agreement provided that employees were prohibited from obtaining employment from any contracted clients or previously contracted clients of Mid Michigan either during or after termination.

Mid Michigan brought suit for a preliminary injunction and Williams admitted that she was providing medical billing services for one of Mid Michigan’s former clients. The trial court found that a temporary injunction was warranted but Williams objected and asked the court to determine the reasonableness of the ban against soliciting Mid Michigan’s past and present clients. The trial court failed to rule on the merits and issued a permanent injunction, ordering Williams to pay damages and enjoining her from 1) engaging in any conduct competitive with a service provided by Mid Michigan within 50 miles of Mid Michigan’s principal place of business for a period of one year; and 2) from obtaining employment, either directly or indirectly, from any current or previously contracted client of Mid Michigan regardless of geographical scope or duration.

Williams appealed the order arguing that the trial court must first determine the reasonableness of a noncompetition agreement before enforcing it; and that the handbook provision, which prohibited her from performing any work for any of Mid Michigan’s past or current clients is unreasonable to the extent that its duration and geographic reach are unlimited. The Court of Appeals agreed that the provision was unreasonable.

The Court of Appeals determined that a court must assess the reasonableness of a noncompetition clause if a party has challenged enforceability. Likewise, the issue in interpreting noncompetition provisions is whether the provisions protect the employer’s “reasonable competitive business interests.” The Court acknowledged that noncompetition agreements are disfavored as restraints on commerce and are only enforceable to the extent that they are reasonable. MCL 445.774a(1) codifies this rationale and provides that these agreements must be reasonable in their duration, geographical area, and type of employment or line of business. The court is empowered, by statute, to limit an agreement to render it reasonable in light of the circumstances in which it was made.

While the company had a legitimate interest in protecting itself from an employee who, by virtue of her position, had the access and ability to appropriate client list data, it was unreasonable to permanently prohibit Williams from pursuing employment opportunities, directly or indirectly, from any current or previously contracted client of Mid Michigan. The Court found that the restraint was much broader than necessary to protect Mid Michigan and functioned as a restraint on Mid Michigan’s current and former clients to choose a service provider. The Court noted that a provision like this that prohibits a former employee from acquiring employment with a former or current client encompasses an ever-growing number of clients and could extend indefinitely. As a result, that clause was patently unreasonable and unenforceable as written.

This case illustrates that seemingly careful drafting may indeed violate the basic rule of non-competition agreements: reasonableness. By drafting the provision to include all previous and current clients and not giving a definite time duration, the provision became unreasonable on its face. Remember, that these agreements must be reasonable in time, geographical scope, and line or type of employment/business.

Submitted by Stephen A. Cooley

Social Media Policies - Get on Board!
There is no question that social media has become an important part of our daily lives and that includes the workplace. Its use as a marketing tool to improve the reach, frequency, and impact of a marketing strategy is well-documented. However, problems do frequently arise with this new medium and these problems result in potential employer liability exposure. Some typical examples of potential issues involve business defamation, leaks of confidential information, and harassment of co-workers.

However, drafting a social media policy must be a carefully-considered task. Any attempts to ban or infringe upon the ability of employees to engage in “concerted activity” related to collective bargaining, wages, and working conditions is likely to increase the company’s risk exposure under the National Labor Relations Act.

Likewise, employers should be cognizant that Michigan has passed legislation known as the “Internet Privacy Protection Act,” MCL 37.271 et seq. which prohibits an employer from requesting an employee or job applicant to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account; and prohibits the employer from discharging, disciplining, failing to hire, or otherwise penalizing an employee or applicant for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account. There are some exceptions to this prohibition as well, including conducting an investigation to ensure compliance with applicable laws or prohibitions against work-related employee misconduct.

Social media may also facilitate harassment amongst co-workers. This phenomenon is known as “cyberbullying.” This harassment may be based on a protected class status, or may be sexual in nature. In an age where employees often “friend” or “follow” one another, some seemingly benign conversations can quickly escalate into harassment claims. The great danger, of course, with these communications is that they effectively memorialize the content and the commenter, complete with date stamps, and make proving such claims vastly easier.

Social media policies should also prohibit the dissemination of confidential information. Whether the disclosure is a short YouTube video of a new product, a Snapchat of a new facility, or a Facebook post referencing a new big client, these breaches can have disastrous effects upon the company. Best practices caution to include this type of dissemination in the company’s social media policy, along with potential social media infringements of copyright and trademark owners’ rights.

Submitted by Stephen A. Cooley

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