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  • In Michigan, workers' disability compensation benefits are an injured worker's exclusive remedy against his or her employer for damages arising out of the injury. However, this does not prevent an injured worker from seeking damages from a third party, under certain circumstances. If the work injury was caused under circumstances that create a legal liability of someone other than the employer, the injured worker may receive workers' disability compensation benefits from the employer, and still enforce his or her legal rights against the third party. However, the employer is entitled to repayment or credit for monies that it has paid, subject to payment of their fair share of the attorney fees and other costs of the third party case. If an injured worker does not start a case against the third party within one year, the employer has the right to do so in his or her name.
  • Automobile Negligence. If an individual is injured in a motor vehicle accident in the course of his or her employment, he or she may be entitled to some benefits under the No-Fault Act and under workers' disability compensation, as long as there are no duplicate benefits. Generally, workers compensation benefits are "primary." In other words, an individual receives workers' disability compensation benefits first. If no-fault benefits exceed workers' disability compensation benefits, the worker may recover the remaining amount from the appropriate no-fault carrier. If the no-fault carrier has paid benefits prior to a determination that the individual should have received workers' disability compensation benefits, the no-fault carrier receives reimbursement for any workers' compensation benefits paid.
  • Product Liability. If an employee is injured due to a defective product, the individual may have a products liability claim, in addition to a workers' disability compensation claim. Defective products fall into two categories. A product can be defective if it was designed in a way not fit for the intended purpose. A properly designed product can still be defective, however, if for instance in the manufacturing process a defect in the product should occur. The statute of limitations for a product liability case in Michigan is three (3) years. Recently, the Michigan legislature enacted tough limitations on product liability claims as part of the so-called Tort Reform (Tort Deform).
  • Premises Liability. If the work related injury occurs while the employee is on the premises of someone other than his or her employer, there may be a third party liability claim against the owner/occupier of those premises. The liability of the possessor of the premises, however, depends on what duty is owed. For instance, to a business invitee, a possessor has a duty to exercise ordinary care to protect the invitee from unreasonable risks of injury that are known to the possessor or that should have been known in the exercise of ordinary care. There is a three (3) statute of limitations in Michigan concerning premises liability cases.
  • Medical Malpractice. Occasionally, an injured worker's disability or impairment may be prolonged because of the medical care received. If that is the case, then there is the possibility that the physician may have liability for the additional damage/impairment caused, but only if the physician was at fault. Just because there are complications or a less than hoped for result, it does not follow that the physician is necessarily at fault. Medical malpractice cases ordinarily carry two (2) year statute of limitations in Michigan. There is also a very stringent prior written notice requirement. The health professional or health facility must receive prior written notice of intent to file a claim 182 days before the action is commenced.
  • Intentional Tort. Although under the Michigan Workers' Disability Compensation Law an employee is not allowed to sue his or her employer for anything other than workers' disability compensation benefits for a work related injury, there is one significant exception. MCLA 418.131 provides for an exception to the exclusive remedy that if the employer has engaged in an intentional tort. For these purposes, an intentional tort exists only when the employee is injured as a result of a deliberate act of the employer and the employer specifically intended the injury. By statute, an employer is deemed to have intended to injure the employee if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. This issue of whether or not an employer's act is intentional is a question for the court and not for the jury. Interestingly, in the recently rejected workers' disability compensation bill (House Bill 5105 in 1995), business interests through the Republican Party tried to prevent employees from suing employers even when they actually intended to injure their employee! House Bill 5105 did not pass. Were it not for valiant efforts on the parts of many injured workers and their friends, House Bill 5105 would have become part of the onslaught of Governor Engler's total Tort Reform.
  • Unlawful Discharge.
    • In Michigan, most employees are employees at will. This means that an employee may leave their employment at any time, and an employer may terminate an employee's employment at any time, provided that they do not illegally discriminate against the employee. The typical types of such unlawful terminations are based on discrimination of either age, national origin, religion, sex or race. Generally, if an employee thinks that they have been terminated for a discriminatory reason, they should contact the EEOC office to file a complaint. The EEOC office will conduct an investigation and prepare a report. Thereafter, the employee may seek civil action. Under MCLA 418.301(11), it is also illegal for an employer to discriminate against an employee because the employee has filed a complaint or instituted or caused to be instituted a proceeding under the Workers' Disability Compensation Act or even because of the exercise of the employee's rights afforded by the Act.
    • Employees of unionized employers, however, have added protection in addition to the statutory discrimination laws. Unionized employees are not "employees at will". Generally, their collective bargaining agreements contain language that only allows termination of employment for "just cause". Without such "just cause" contractual language available to "at will" employees, they are too easily discharged after work injuries. Employers terminate the employment of injured workers using all sorts of excuses. Unfortunately, the non-unionized employee does not have access to the grievance/arbitration process to assert "unjust cause"