Retaliation and the Workers' Comp Act: What Is Protected?

Tuesday, November 6, 2012 | 0

Michigan's Workers' Disability Compensation Act protects workers from a retaliatory discharge for filing a claim or exercising a right afforded by the statute. Courts have interpreted the act as not prohibiting a discharge under this provision where the employer fires an employee for an anticipated future filing of a claim. So just what is protected?

The Michigan Court of Appeals addressed the scope of the protection in Cuddington v. United Health Services, Inc. The trial court had granted summary disposition because the plaintiff asserted his protected conduct was seeking medical treatment for a work-related injury. The trial court agreed with the defendant that the plaintiff was not covered because he did not file a claim for benefits until after he was terminated. The court stated that no claim was filed prior to the termination.

The Court of Appeals reversed. The court noted that the statute requires employers to furnish medical services to an employee injured in the course of his or her employment and further establishes a procedure for workers to receive benefits for such injuries. As a result, the court stated it necessarily follows that the act affords a right to seek reasonable, needed medical services. 

The employee bears the burden of proving he or she needed medical services following a workplace injury. Where an employee asserts a claim based on circumstantial evidence, the claim is examined under the McDonnell Douglas/Burdine burden-shifting framework.

Because summary disposition was granted before the parties explored the issue of causation in discovery, the court stated further factual development is needed. The record supports that defendant knew of the injury and that plaintiff exercised a right to seek medical services. The defendant's requirement that plaintiff report to work regardless of the injury and the professed need for medical services supports an inference of causation, even though the defendant claimed the termination was for failure to timely call in an absence.

The court stated that a plaintiff who brings a claim premised on the exercise of a right afforded by the statute, such as seeking medical services, must show that the right was exercised before the employer terminated or otherwise discriminated against the employee. The court stressed that its holding was consistent with the line of cases holding a termination before a claim is filed is outside the scope of protection of the non-retaliation provision.

Whether or not intended, the court's decision sets up a race between the employer and employee. If an employer, upon hearing of a workplace injury, terminates an employee before that employee seeks medical attention or files a claim, the non-retaliation provision of the statute does not apply, even though the employer is motivated by concern over the employee's anticipated use of the act. If the employee informs his or her employer that he or she is invoking the right to seek medical treatment for a work-related injury, the non-retaliation provision applies. The focus is on timing, and not intent. Amazing.

John Holmquist is owner of Holmquist Employment Law in Troy, Mich., which represents employers in labor and workers' compensation law matters. This column was reprinted with his permission from his Michigan Employment Law Connection blog.