Fundamental Distinction Between “Medically Distinguishable” Injuries Under Section 301(1) and “Significant Manner Contribution” Test Under MCL 418.301(2) Under Workers Disability Compensation Act Yet

by Carson Tucker
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There is a confusion among the Workers’ Compensation Board of Magistrates and, in some cases, in the Michigan Compensation Appellate Commission (the Commission) between the proper prima facie injury analysis required of a plaintiff under MCL 418.301 when dealing with the range of types of “preexisting conditions”.

Part of this confusion is semantics, i.e., many magistrates and some Commission panels assume that a pre-existing condition is a pre-existing injury (covered solely by the “medically distinguishable” analysis under MCL 418.301(1)) and others assume a pre-existing condition is a “condition of the aging process” (covered solely by the “significant manner contribution” test under MCL 418.301(2)).

This causes conflation (at best) in the analysis of whether or not and to what extent a plaintiff has proved a compensable, work-related injury under MCL 418.301 of the Workers Disability Compensation Act.

Where it is assumed that a pre-existing condition is a pre-existing injury, the “medically distinguishable” test and the jurisprudence interpreting MCL 418.301(1) comes into play, only. In such cases, a true pre-existing injury is subjected to the “medically distinguishable” test to determine whether and to what extent a plaintiff can prove a “medically distinguishable” injury.

This is an unfortunately fungible concept in terms of interpretation by the Board of Magistrates (in most cases) and the Commission (in some cases) of the jurisprudence interpreting § 301(1) and § 301(2), but it seems clear to me the Supreme Court has put to rest any notion that aggravation of the exact pre-existing injury qualifies as a “medically distinguishable” injury under 301(1).

One way I know this, is the fact that the new statutory language clarifies it. If the new statutory provision were applicable to these cases, there would be no doubt about the analysis of a plaintiff’s claimed injury when he or she has a preexisting injury, because the Legislature incorporated the proper analysis from Rakestraw v. General Dynamics Land Systems, Inc. and Fahr v. General Motors Corporation, 978 Mich. 922 (2007) into the new legislation. As of December 2011, the relevant sentence of MCL 418.301(1) reads:

A personal injury under this act is compensable if work causes, contributes to, or aggravates pathology in a manner so as to create a pathology that is medically distinguishable from any pathology that existed prior to the injury.

[MCL 418.301(1) (emphasis added).]

The emphasized language cannot be understated. Clearly, the Legislature maintained the orientation established by the Court in Rakestraw, supra, distinguishing prior pathology from any new pathology, and stating that no compensable injury can be proved with a showing only of the former. Only by meeting the burden of proving the latter, a new and distinct pathology – not the former, a mere change or worsening of the prior pathology, nor even an aggravation of symptoms arising therefrom – can the claimant demonstrate the existence of a personal injury, proper, arising out of andin the course of employment. MCL 418.301(1); Rakestraw, supra. See also Hill v. Faircloth Mfg. Co., 245 Mich. App. 710 (2001) (arising out of and in the course of are separate requirements and both must be demonstrated before an injury is compensable; the injury, to be compensable, must be because of the work, i.e., arise out of and occur during the work, i.e., in the course of). The requirement explained in Hill, supra, to satisfy this conjunctive requirement in § 301(1) was retained by Rakestraw, supra, for pre-existing condition / pre-existing injury cases, and was further retained, and strengthened, when the Legislature codified Rakestraw in December of 2011.

The confusion is compounded when the Board of Magistrates (in most cases) and the Commission (in some cases) conflates the § 301(1) “medically distinguishable” analysis with the § 301(2) “significant manner” test also developed by appellate jurisprudence to determine whether the plaintiff has proved a § 301(1) injury or a § 301(2) injury. You will notice the Board of Magistrates (and sometimes medical or other experts) continually referring to whether work contributed in a significant manner to make an injury medically distinguishable from a pre-existing injury. Sounds good, but this is wrong.

It is also wrong when the discussion of a § 301(2) injury (a condition of the aging process) is subjected to language that makes it seem the party or the court is trying to apply a “medically distinguishable” analysis to the pre-existing condition of the aging process and to also fit that into the “significant manner” test of § 301(2).

From a technical legal practitioner’s standpoint, the easiest way to identify this up front and make sure there is no conflation is to consider whether a preexisting condition is simply a condition that is the result of a prior, acute, work- or non-work-related injury. If a prior acute injury occurre

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Carson Tucker
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