Lockridge v. State Farm Mutual Automobile Insurance

Jansen, P.J.

(dissenting). I respectfully dissent and would reverse the trial court’s ruling.

Defendant moved for partial summary disposition regarding the work-loss benefits claim, contending that plaintiff’s continued acceptance of worker’s compensation disability benefits until May 1996, well after the automobile accident, constituted an admission on his behalf that he continued to be disabled because of his work-related injury. The trial court granted the motion, essentially ruling that plaintiff had suffered no wage loss because he was collecting worker’s compensation disability benefits and had not attempted to return to work at the time of the automobile accident, and because he continued to receive worker’s compensation disability benefits after the accident.

MCL 500.3107(l)(b); MSA 24.13107(l)(b) provides that work-loss benefits are available for “loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured.” Our Supreme Court has made clear that work-loss benefits compensate the injured person for income that person would have received but for the accident. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 645; 513 NW2d 799 (1994), citing MacDonald v State Farm Mut Ins Co, 419 Mich 146, 152; 350 NW2d 233 (1984); see also Popma v Auto Club Ins Ass’n, 446 Mich 460, 472; 521 NW2d 831 (1994) (work-loss benefits replace income that a claimant would have earned had the claimant not *519been injured). Further, work-loss benefits are not necessarily restricted to a plaintiff’s wage at the time of the accident. Id. “Work-loss benefits are meant primarily to provide claimants with simple income insurance and are intended to compensate claimants approximately dollar for dollar for the amount of wages lost because of the injury or disability.” Id.

The trial court erred in ruling that plaintiff suffered no “wage loss” because he was collecting worker’s compensation disability benefits. Receipt of worker’s compensation disability benefits does not preclude plaintiff from recovering work-loss benefits under subsection 3107(l)(b). In Brashear v DAIIE, 144 Mich App 667; 375 NW2d 785 (1985), this Court held that “work loss” as utilized in subsection 3107(l)(b) includes situations in which an injured employee loses time from work that the employee would have performed had he not been injured, even where the employer continues the employee’s wages under a formal wage-continuation plan or as a gratuity. In Brashear, the plaintiff was injured in an automobile accident, was completely off work for nearly four months, and then returned to work on a part-time basis for the following three months. During that period, however, the employer paid the plaintiff his salary because of “good will.” This Court determined that the plaintiff was still entitled to work-loss benefits under subsection 3107(l)(b) because.the statute defines work loss as “loss of income from work an injured person would have performed ... if he or she had not been injured.” (Emphasis added.) Similarly, in Spencer v Hartford Accident & Indemnity Co, 179 Mich App 389, 392; 445 NW2d 520 (1989), this Court held that the plaintiff was entitled to work-loss bene*520fits under subsection 3107(l)(b) even where the plaintiff was receiving his wages under a formal wage-continuation plan (collective bargaining agreement). Thus, contrary to the majority’s assertion, I would find that Brashear and Spencer are directly relevant and controlling here.

Accordingly, the trial court’s ruling that plaintiff suffered no wage loss because he received, and continued to receive, worker’s compensation disability benefits is an error of law. Plaintiff is entitled to receive work-loss benefits under subsection 3107(l)(b), even where he received worker’s compensation disability benefits.

In a somewhat different twist, defendant also argues, and the trial court agreed, that plaintiff’s acceptance of worker’s compensation disability benefits after the automobile accident constitutes an admission on his part of a work-related disability that precludes a claim for work-loss benefits under § 3107. In this regard, the trial court ruled that “by continuing to receive worker’s comp, Plaintiff, regardless of the reason that he continued to stay out on comp for several more months, Plaintiff is saying to General Motors that he has a work related injury which doesn’t allow him to return.”

Defendant relies on Williams v DAIIE, 169 Mich App 301; 425 NW2d 534 (1988), to support its contention in this regard. In Williams, the plaintiff suffered an initial on-the-job injury in 1968, and suffered subsequent on-the-job injuries in 1980 and 1981. In July 1982, the plaintiff’s doctor released the plaintiff for return to work with certain restrictions. The plaintiff’s employer did not have a position available with the work restrictions. In August 1982, while on medical *521disability leave, the plaintiff injured his neck in an automobile accident and in June 1983 the plaintiff complained of neck pain. However, the plaintiffs treating physician attributed the June 1983 neck pain to the 1968 work injury, and not the 1982 automobile accident. This Court affirmed the grant of summary disposition under MCR 2.116(C)(10) in favor of the defendant, stating that the pleadings, affidavits, and depositions did not raise any genuine issue of material fact with respect to whether, but for the automobile accident, the plaintiff would have returned to work. This Court noted that the plaintiffs own doctor attributed his continued neck pain to the 1968 work injury and not to the automobile accident and that the plaintiffs disability was the result of a work-related injury. This Court also noted that the plaintiff never produced a letter he claimed he received from his employer indicating that he could return to work. Williams, supra, pp 304-305.

I believe that, unlike the plaintiff in Williams, plaintiff in the present case has set forth sufficient documentary evidence to raise a material factual dispute regarding whether, but for the automobile accident, he would have returned to work. First, the injuries are different and can be attributable to their specific events. The medical records show that the work-related injury involved injury to and ultimately surgery (cervical spinal fusion) to C4, C5, and C6 of plaintiffs neck. The automobile accident involved a hangman’s fracture to C2 and C3 of plaintiff’s neck. A June 8, 1995, letter from John M. Commet, D.O., to Dr. William Moore indicates that shortly after plaintiff was evaluated by Dr. Moore, “it was felt that an evaluation by a work hardening program would be a bene*522fit for us to help determine [plaintiff’s] capabilities.” However, after that evaluation by Dr. Moore, plaintiff was involved in the automobile accident. Another letter dated September 6, 1995, from Michael G. Sperl, M.D., to the Flint area worker’s compensation center, indicates that plaintiff’s “symptomatology” relating to his July 1991 work-related injury and subsequent January 1994 surgery “had almost fully abated,” and plaintiff was then “getting ready to return to work under light duty post surgical restrictions when he was involved in an April, 1995 motor vehicle accident.” Importantly, Dr. Sperl’s letter states:

The patient’s primary clinical finding today is in relationship to a history of a[n] April, 1995 motor vehicle accident which has resulted in a nonwork related C2 fracture. The patient is at this point and time totally and functionally limited. I do not feel that he could resume his prior employment duties as described. His present level of disability is directly related to the motor vehicle accident and not to the July, 1991 work related incident. The patient does require appropriate medical follow-up given this C2 fracture as he has not yet reached the point of maximum medical improvement.

Finally, a letter from Richard J. Kovan, M.D., to Dr. Commet, dated February 14, 1996, states that plaintiff was due to return to work two days after he was involved in the automobile accident.

In the present case, because there is evidence that plaintiff would have returned to work two days after the automobile accident occurred but for the fact that the automobile accident did occur, plaintiff may be entitled to work-loss benefits under subsection 3107(l)(b) of the no-fault act. This is a factual dispute that a trier of fact will have to resolve. Accordingly, *523there being a material factual dispute regarding whether but for the automobile accident plaintiff would have returned to work, summary disposition was improperly granted in favor of defendant.

I would reverse and remand for further proceedings.