HB-4552, As Passed House, February 29, 2012

SUBSTITUTE FOR

HOUSE BILL NO. 4552

A bill to amend 1969 PA 317, entitled

"Worker's disability compensation act of 1969,"

by amending sections 161, 372, 625, and 891 (MCL 418.161, 418.372,

418.625, and 418.891), sections 161 and 625 as amended by 2011 PA

266 and section 372 as added by 1980 PA 357.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 161. (1) As used in this act, "employee" means:

(a) A person in the service of the state, a county, city,

township, village, or school district, under any appointment, or

contract of hire, express or implied, oral or written. A person

employed by a contractor who has contracted with a county, city,

township, village, school district, or the state, through its

representatives, shall not be considered an employee of the state,

county, city, township, village, or school district that made the

contract, if the contractor is subject to this act.

(b) Nationals of foreign countries employed pursuant to

section 102(a)(1) of the mutual educational and cultural exchange

act of 1961, Public Law 87-256, 22 USC 2452, shall not be

considered employees under this act.

or fire departments, or their dependents, in municipalities or

villages of this state providing like benefits, may waive the

provisions of this act and accept like benefits that are provided

by the municipality or village but are not entitled to like

benefits from both the municipality or village and this act. ;

~~however,~~ However, this waiver does not prohibit those employees or

their dependents from being reimbursed under section 315 for the

medical expenses or portion of medical expenses that are not

otherwise provided for by the municipality or village. This act

shall not be construed as limiting, changing, or repealing any of

the provisions of a charter of a municipality or village of this

state relating to benefits, compensation, pensions, or retirement

independent of this act, provided for employees.

(d) On-call members of a fire department of a county, city,

village, or township shall be considered to be employees of the

county, city, village, or township, and entitled to all the

benefits of this act if personally injured in the performance of

duties as on-call members of the fire department whether the on-

call member of the fire department is paid or unpaid. On-call

members of a fire department of a county, city, village, or

township shall be considered to be receiving the state average

weekly wage at the time of injury, as last determined under section

355, from the county, village, city, or township for the purpose of

calculating the weekly rate of compensation provided under this act

except that if the member's average weekly wage was greater than

the state average weekly wage at the time of the injury, the

member's weekly rate of compensation shall be determined based on

the member's average weekly wage.

(e) On-call members of a fire department or an on-call member

of a volunteer underwater diving team that contracts with or

receives reimbursement from 1 or more counties, cities, villages,

or townships is entitled to all the benefits of this act if

personally injured in the performance of their duties as on-call

members of a fire department or as an on-call member of a volunteer

underwater diving team whether the on-call member of the fire

department or the on-call member of the volunteer underwater diving

team is paid or unpaid. On-call members of a fire department shall

be considered to be receiving the state average weekly wage at the

time of injury, as last determined under section 355, from the fire

department for the purpose of calculating the weekly rate of

compensation provided under this act except that if the member's

average weekly wage was greater than the state average weekly wage

at the time of the injury, the member's weekly rate of compensation

shall be determined based on the member's average weekly wage. On-

call members of a volunteer underwater diving team shall be

considered to be receiving the state average weekly wage at the

time of injury, as last determined under section 355, from the fire

department for the purpose of calculating the weekly rate of

compensation provided under this act except that if the member's

average weekly wage was greater than the state average weekly wage

at the time of the injury, the member's weekly rate of compensation

shall be determined based on the member's average weekly wage.

(f) The benefits of this act are available to a safety patrol

officer who is engaged in traffic regulation and management for and

by authority of a county, city, village, or township, whether the

officer is paid or unpaid, in the same manner as benefits are

available to on-call members of a fire department under subdivision

(d), upon the adoption by the legislative body of the county, city,

village, or township of a resolution to that effect. A safety

patrol officer or safety patrol force when used in this act

includes all persons who volunteer and are registered with a school

and assigned to patrol a public thoroughfare used by students of a

school.

(g) A volunteer civil defense worker who is a member of the

civil defense forces as provided by law and is registered on the

permanent roster of the civil defense organization of the state or

a political subdivision of the state shall be considered to be an

employee of the state or the political subdivision on whose

permanent roster the employee is enrolled if engaged in the

performance of duty and shall be considered to be receiving the

state average weekly wage at the time of injury, as last determined

under section 355, from the state or political subdivision for

purposes of calculating the weekly rate of compensation provided

under this act.

(h) A volunteer licensed under section 20950 or 20952 of the

public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who

is an on-call member of a life support agency as defined under

section 20906 of the public health code, 1978 PA 368, MCL

333.20906, shall be considered to be an employee of the county,

city, village, or township and entitled to the benefits of this act

if personally injured in the performance of duties as an on-call

member of a life support agency whether the on-call member of the

life support agency is paid or unpaid. An on-call member of a life

support agency shall be considered to be receiving the state

average weekly wage at the time of injury, as last determined under

section 355, from the county, city, village, or township for

purposes of calculating the weekly rate of compensation provided

under this act except that if the member's average weekly wage was

greater than the state average weekly wage at the time of the

injury, the member's weekly rate of compensation shall be

determined based on the member's average weekly wage.

(i) A volunteer licensed under section 20950 or 20952 of the

public health code, 1978 PA 368, MCL 333.20950 and 333.20952, who

is an on-call member of a life support agency as defined under

section 20906 of the public health code, 1978 PA 368, MCL

333.20906, that contracts with or receives reimbursement from 1 or

more counties, cities, villages, or townships is entitled to all

the benefits of this act if personally injured in the performance

of his or her duties as an on-call member of a life support agency

whether the on-call member of the life support agency is paid or

unpaid. An on-call member of a life support agency shall be

considered to be receiving the state average weekly wage at the

time of injury, as last determined under section 355, from the life

support agency for the purpose of calculating the weekly rate of

compensation provided under this act except that if the member's

average weekly wage was greater than the state average weekly wage

at the time of the injury, the member's weekly rate of compensation

shall be determined based on the member's average weekly wage.

(j) If a member of an organization recognized by 1 or more

counties, cities, villages, or townships within this state as an

emergency rescue team is employed by a state, county, city,

village, or township within this state as a police officer, fire

fighter, emergency medical technician, or ambulance driver and is

injured in the normal scope of duties including training, but

excluding activation, as a member of the emergency rescue team, he

or she shall be considered to be engaged in the performance of his

or her normal duties for the state, county, city, village, or

township. If the member of the emergency rescue team is not

employed by a state, county, city, village, or township within this

state as a police officer, fire fighter, emergency medical

technician, or ambulance driver, and is injured in the normal scope

of duties, including training, as a member of the emergency rescue

team, he or she shall be considered to be an employee of the team.

For the purpose of securing the payment of compensation under this

act, on activation, each member of the team shall be considered to

be covered by a policy obtained by the team unless the employer of

a member of the team agrees in writing to provide coverage for that

member under its policy. Members of an emergency rescue team shall

be considered to be receiving the state average weekly wage at the

time of injury, as last determined under section 355, from the team

for the purpose of calculating the weekly rate of compensation

provided under this act except that if the member's average weekly

wage was greater than the state average weekly wage at the time of

the injury, the member's weekly rate of compensation shall be

determined based on the member's average weekly wage. As used in

this subdivision, "activation" means a request by the emergency

management coordinator appointed pursuant to section 8 or 9 of the

emergency management act, 1976 PA 390, MCL 30.408 and 30.409, made

of and accepted by an emergency rescue team.

(k) A political subdivision of this state is not required to

provide compensation insurance for a peace officer of the political

subdivision with respect to the protection and compensation

provided by 1937 PA 329, MCL 419.101 to 419.104.

(l) Every person in the service of another, under any contract

of hire, express or implied, including aliens; a person regularly

employed on a full-time basis by his or her spouse having specified

hours of employment at a specified rate of pay; working members of

partnerships receiving wages from the partnership irrespective of

profits; a person insured for whom and to the extent premiums are

paid based on wages, earnings, or profits; and minors, who shall be

considered the same as and have the same power to contract as adult

employees. Any minor under 18 years of age whose employment at the

time of injury is shown to be illegal, in the absence of fraudulent

use of permits or certificates of age in which case only single

compensation shall be paid, shall receive compensation double that

provided in this act.

(m) Every person engaged in a federally funded training

program or work experience program that mandates the provision of

appropriate worker's compensation for participants and that is

sponsored by the state, a county, city, township, village, or

school district, or an incorporated public board or public

commission in the state authorized by law to hold property and to

sue or be sued generally, or any consortium thereof, shall be

considered, for the purposes of this act, to be an employee of the

sponsor and entitled to the benefits of this act. The sponsor is

responsible for the provision of worker's compensation and shall

secure the payment of compensation by a method permitted under

section 611. If a sponsor contracts with a public or private

organization to operate a program, the sponsor may require the

organization to secure the payment of compensation by a method

permitted under section 611.

(n) Every person performing service in the course of the

trade, business, profession, or occupation of an employer at the

time of the injury, if the person in relation to this service does

not maintain a separate business, does not hold himself or herself

out to and render service to the public, and is not an employer

subject to this act. On and after January 1, 2013, services are

employment if the services are performed by an individual whom the

Michigan administrative hearing system determines to be in an

employer-employee relationship using the 20-factor test announced

by the internal revenue service of the United States department of

treasury in revenue ruling 87-41, 1 C.B. 296. An individual for

whom an employer is required to withhold federal income tax is

prima facie considered to perform service in employment under this

act. If a business entity requests the Michigan administrative

hearing system to determine whether 1 or more individuals

performing service for the entity in this state are in covered

employment, the Michigan administrative hearing system shall issue

a determination of coverage of service performed by those

individuals and any other individuals performing similar services

under similar circumstances.

(o) An individual registered with the state of Michigan

verification system described in 42 USC 247d-7b shall be considered

an employee of the state of Michigan when engaged in the

performance of duties or services as a registrant, or when training

to provide those duties or services, except if another employer

provides coverage for that individual specifically for duties and

services arising from registration with this state. That individual

shall be considered to be receiving the state average weekly wage

at the time of injury or death, as last determined under section

355, from the state of Michigan for purposes of calculating the

weekly rate of compensation provided under this act, except that if

the individual's average weekly wage was greater than the state

average weekly wage at the time of injury or death the individual's

weekly rate of compensation shall be determined based upon the

individual's weekly average wage. The state of Michigan shall

exercise all the rights and obligations of an employer and carrier

as provided for under this act.

(2) A policy or contract of worker's compensation insurance,

by endorsement, may exclude coverage as to any 1 or more named

partners or the spouse, child, or parent in the employer's family.

A person excluded pursuant to this subsection is not subject to

this act and shall not be considered an employee for the purposes

of section 115.

(3) An employee who is subject to this act, including an

employee covered pursuant to section 121, who is an employee of a

limited liability company of not more than 10 members and who is

also a manager and member, as defined in section 102 of the

Michigan limited liability company act, 1993 PA 23, MCL 450.4102,

and who owns at least a 10% interest in that limited liability

company, with the consent of the limited liability company as

approved by a majority vote of the members, or if the limited

liability company has more than 1 manager, all of the managers who

are also members, except as otherwise provided in an operating

agreement, may elect to be individually excluded from this act by

giving a notice of the election in writing to the carrier with the

consent of the limited liability company endorsed on the notice.

The exclusion remains in effect until revoked by the employee by

giving notice in writing to the carrier. While the exclusion is in

effect, section 141 does not apply to any action brought by the

employee against the limited liability company.

(4) An employee who is subject to this act, including an

employee covered pursuant to section 121, who is an employee of a

corporation that has not more than 10 stockholders and who is also

an officer and stockholder who owns at least 10% of the stock of

that corporation, with the consent of the corporation as approved

by its board of directors, may elect to be individually excluded

from this act by giving a notice of the election in writing to the

carrier with the consent of the corporation endorsed on the notice.

The exclusion remains in effect until revoked by the employee by

giving a notice in writing to the carrier. While the exclusion is

in effect, section 141 does not apply to any action brought by the

employee against the corporation.

(5) If the persons to be excluded from coverage under this act

pursuant to subsections (2) to (4) comprise all of the employees of

the employer, those persons may elect to be excluded from being

considered employees under this act by submitting written notice of

that election to the director upon a form prescribed by the

director. The exclusion shall remain in effect until revoked by

giving written notice to the director.

Sec. 372. (1) If an employee was engaged in more than 1

employment at the time of a personal injury or a personal injury

resulting in death, the employer in whose employment the injury or

injury resulting in death occurred is liable for all the injured

employee's medical, rehabilitation, and burial benefits. Weekly

benefits shall be apportioned as follows:

(a) If the employment which caused the personal injury or

death provided more than 80% of the injured employee's average

weekly wages at the time of the personal injury or death, the

insurer or self-insurer is liable for all of the weekly benefits.

(b) If the employment which caused the personal injury or

death provided 80% or less of the employee's average weekly wage at

the time of the personal injury or death, the insurer or self-

insurer is liable for that portion of the employee's weekly

benefits as bears the same ratio to his or her total weekly

benefits as the average weekly wage from the employment which

caused the personal injury or death bears to his or her total

weekly wages. The second injury fund is separately but dependently

liable for the remainder of the weekly benefits. The insurer or

self-insurer has the obligation to pay the employee or the

employee's dependents at the full rate of compensation. The second

injury fund shall reimburse the insurer or self-insurer quarterly

for the second injury fund's portion of the benefits due the

employee or the employee's dependents.

(2) For purposes of apportionment under this section, only

wages ~~which~~ that were reported to the internal revenue service

shall be considered, and the reports of wages to the internal

revenue service are conclusive for the purpose of apportionment

under this section.

(3) This section does not apply to ~~volunteer public employees~~

individuals entitled to benefits under section ~~161(1)(a)~~ 161(1)(d),

(e), (f), (g), (h), (i), (j), and (o).

Sec. 625. Each insurer mentioned in section 611 issuing an

insurance policy covering worker's compensation in this state shall

file with the director, within 30 days after the effective date of

the policy, a notice of the issuance of the policy and its

effective date. A notice of issuance of insurance, a notice of

termination of insurance, or a notice of employer name change may

be submitted in writing or by using agency-approved electronic

filing and transaction standards and may be submitted by the

insurer directly or by the compensation advisory organization of

Michigan on behalf of the insurer. Payment shall not be required by

the agency or any third party for the use of agency-approved

electronic record layout and transaction standards under this act.

Time requirements for notices under this act apply whether filed by

the insurer or the compensation advisory organization of Michigan.

If the policy covers persons who would otherwise be exempted from

this act by section 115, the notice shall contain a specific

statement to that effect. A notice is not required of any insurer

if the policy issued is a renewal of the preceding policy. The

insurer, if it refuses to accept any coverage under this act, shall

do so in writing.

Sec. 891. (1) To the extent that they are reenacted herein,

all the provisions of former ~~Act No. 44 of the Public Acts of 1965~~

~~shall~~ 1965 PA 44 apply only to personal injuries ~~the date of which~~

~~occurs~~ occurring on or after September 1, 1965, except as otherwise

provided in ~~such~~ that act and except for the amendment to part 2,

section 4 of that act, concerning selection of physicians as

provided in that act.

(2) In all cases where the date of injury is on or after

September 1, 1965, and the employee or his dependents would be

entitled to the new maximum weekly benefit rates, ~~such~~ the employee

or his dependents shall receive, without application to the ~~bureau,~~

workers' compensation agency, an adjustment to the increased

maximum rate as it becomes effective September 1, 1966, or

September 1, 1967, for any compensable weeks subsequent to the

above dates.

House Bill No. 4552 (H-6) as amended February 23, 2012

(3) This act ~~shall~~ does not affect or impair any right

accruing, accrued or acquired or any liability developing or

imposed prior to the time this act takes effect, and all such

rights and liabilities shall be governed by the provisions of ~~Act~~

~~No. 10 of the Public Acts of the First Extra Session of 1912, as~~

~~amended, being sections 411.1 to 417.61 of the Compiled Laws of~~

~~1948.~~ former 1912 (1st Ex Sess) PA 10. The first adjustment to the

maximum rates of weekly compensation provided previously in

~~subsection (f) of section 9~~ section 9(f) of part 2 of ~~Act No. 10 of~~

~~the Public Acts of the First Extra Session of 1912, as amended,~~

former 1912 (1st Ex Sess) PA 10, shall remain in effect to the

extent provided in such section and the amount of change in the

average weekly wage not incorporated in the first adjustment made

January 1, 1969 shall be carried forward as provided in such

section.

(4) Notwithstanding sections [301(14)] and 401(10), the

amendments to this act made by 2011 PA 266 apply to personal

injuries and work-related diseases incurred on or after December

19, 2011.