Lansing

Southfield

Grand Rapids

313 S. Washington Square

28411 Northwestern Highway – Suite 500

1700 E. Beltline NE – Suite 200

Lansing MI 48933

Southfield MI 48034

Grand Rapids MI 49525

Detroit

Holland

St. Joseph

333 W. Fort Street – Suite 1400

151 Central Avenue – Suite 260

800 Ship Street – Suite 105

Detroit MI 48226

Holland MI 49423

St. Joseph MI 49085

Walter S. Foster

1878-1961

Richard B. Foster

1908-1996

Theodore W. Swift

1928-2000

John L. Collins

1926-2001

Jean G. Schtokal

Brian G. Goodenough

Matt G. Hrebec

Scott H. Hogan

Ray H. Littleton, II

Jack L. Van Coevering

Anna K. Gibson

Michael C. Zahrt

Gilbert M. Frimet

Paul D. Yared

Stephen W. Smith

Brett R. Schlender

Nicolas Camargo

Mark T. Koerner

Warren H. Krueger, III

Sarah J. Gabis

Amanda Afton Martin

Steven J. Tjapkes

Taylor A. Gast

Rachel G. Olney

Tyler J. Olney

Robert A. Hamor

Richard C. Kraus

Benjamin J. Price

Michael R. Blum

Jonathan J. David

Andrew C. Vredenburg

Jack A. Siebers

Julie I. Fershtman

Todd W. Hoppe

Jennifer B. Van Regenmorter

Thomas R. TerMaat

Frederick D. Dilley

David R. Russell

Michael A. Cassar

Hilary J. McDaniel Stafford

Emily R. Wisniewski

Amanda J. Dernovshek

Lydia H. Kessler

Brandon M. H. Schumacher

Alexander J. Thibodeau

Cody A. Mott

Deanna Swisher

Patricia J. Scott

Thomas R. Meagher

Douglas A. Mielock

Scott A. Chernich

Paul J. Millenbach

Dirk H. Beckwith

Brian J. Renaud

Lynwood P. VandenBosch

Lawrence Korolewicz

James B. Doezema

Anne M. Seurynck

John P. Nicolucci

Michael D. Homier

David M. Lick

Nicholas M. Oertel

Alicia W. Birach

Adam A. Fadly

Michael J. Liddane

Ryan E. Lamb

Clifford L. Hammond

Matthew S. Fedor

Andrea Badalucco

John W. Mashni

Stefania Gismondi

Allison M. Collins

Leslie A. Dickinson

Julie L. Hamlet

Webb A. Smith

Scott A. Storey

Alaina M. Nelson

Caroline N. Renner

Joseph B. Gale

Charles A. Janssen

Charles E. Barbieri

James B. Jensen, Jr.

Scott L. Mandel

Michael D. Sanders

Brent A. Titus

Sydney T. Steele

Joel C. Farrar

Ashley A. Poindexter

DeVaughn J. Swanson

Kaitlyn E. Manley

Laura J. Genovich

Karl W. Butterer, Jr.

Mindi M. Johnson

Mark J. DeLuca

Thomas K. Dillon

Robert A. Easterly

Writer's Direct Phone: 248.785.4721

Fax: 248.538.2082

Reply To: Southfield

E-Mail: ABirach@fosterswift.com

July 7, 2021

David Campbell

Workers' Disability Compensation Agency

2501 Woodlake Circle

Okemos, MI 48864

Dear Mr. Campbell:

Re:

Proposed Changes to Administrative Rules for Workers' Disability Compensation General Rules

and Workers’ Compensation Board of Magistrates General Rules

We reviewed the letters prepared by the Michigan Association of Justice and Michigan Self-Insurers’

Association. We are satisfied that the negotiated language resolves all of the issues we addressed at the

public hearing held on July 7, 2021 on the proposed changes to the Workers’ Disability Compensation

General Rules rule set and Workers’ Compensation Board of Magistrates rule set with the exception of

our issues noted with R 408.41b and c and R 418.91(1)(d)(ii) and (iii) .

R 408.41b and 408.41c

Proposed rules 408.41b and 408.41c are inconsistent with the Worker’s Disability Compensation Act

(“WDCA”). The proposed rules require a notice of election to be excluded under section 161(4)(5) of

the act shall be reported to the agency on form WC-337.

Requiring the filing of a form WC-337 for exclusions under section 161(4) is inconsistent with Section

161(4) in a number of respects including, the notice requirement, its application to different types of

business entities, and the requirement that the employees being exempted represent all of the employees

of the company.

David Campbell

July 7, 2021

Page 2

Section 161(4) sets forth what is required for an employee of a corporation to be individually excluded

from coverage under the WDCA. Section 161(4) states,

“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.”

There is no requirement in Section 161(4) that notice of the election be provided to the agency. The

only notice requirement is that notice of the election be provided to the carrier.

Further, R 408.41b states, “[t]he employer shall further certify that all employees are eligible to be

excluded under section 161(2) or 161(3) of the act.” This is impossible by the very wording of the

WDCA. Section 161(4) applies solely to employees of corporations, Section 161(2) applies solely to

employees of partnerships, and Section 161(3) applies solely to employees of limited liability

companies. It is impossible for a corporation to certify that all of its employees are eligible to be

excluded under Sections 161(2) or (3) as required by the rule because employees of a corporation are

only eligible for exclusion under Section 161(4).

If it is determined that the notice of election referred to in Section 161(4) must comply with R 408.41b,

it would render Section 161(4) entirely invalid since compliance is impossible based on the language.

R 408.41b also requires the employer certify “the employees signing the exclusion comprise all of the

employees of the employer.” There is no requirement in Section 161(4) that all employees signing the

exclusion comprise all of the employees of the employer. Section 161(4) requires the consent of the

corporation itself as approved by the board of directors. There is no requirement that each employee

sign the exclusion and such a requirement would likely be an impractical burden and entirely

unreasonable in many circumstances.

Additionally, the Form WC-337 specifically states, at the bottom, that the authority for the Form is

“Workers’ Disability Compensation Act 418.161(5).”

To cure this issue, we propose removing 161(4) from proposed rules 408.41b and c so that the rules only

require a notice of election to be excluded under section 161(5) be reported to the agency on the form

WC-337, or its electronic equivalent.

David Campbell

July 7, 2021

Page 3

R 418.91(1)(d)(ii) and (iii)

The proposed rule 418.91(1)(d)(ii), includes a requirement that a vocational consultant report include a

job description outlining “all of” the functional requirements of the job. We recommend “all of” be

stricken as the vocational expert may not know “all of” the functional requirements. We propose R

418.91(1)(d)(ii) read as follows, “[a] job description outlining the functional requirements of the job that

are available.”

With respect to proposed rule 418.91(1)(d)(iii), the current wording is overly broad. We suggest

amending the language to read as follows, “[a]ny other pertinent information reasonably necessary to

apply for the employment.”

Sincerely,

FOSTER SWIFT COLLINS & SMITH PC

Alicia W. Birach

Brian G. Goodenough

Michael D. Sanders

We recommend the following changes to the proposed Board of Magistrate Rules. With

these changes below, and with our recommended changes to the proposed Agency Rules, we

believe these rules will provide a practical framework for the administration of the Michigan

Workers’ Disability Compensation Act. We believe these rules, with our recommended

revisions, will protect the interests of injured workers while minimizing the costs to Michigan

businesses and insurance companies. These rules, as modified by our recommendations, will

strike a reasonable balance among all stakeholders in laying out rules to apply the current

Michigan workers’ compensation statute.

1.

Rule 9(4) needs two technical fixes related to the duties to respond to subpoenas. As

drafted, only a “party” needs to respond to a subpoena, when clearly that was not

intended. Documents often need to be obtained by parties from non-parties, including but

not limited to medical providers. Also, the proposed rule requires the recipient of a

subpoena to send a copy of all documents requested to all parties in the litigation. A

recipient of a subpoena should not be burdened with that requirement, and we not believe

the drafters of the rule intended this. It appears the drafters inadvertently conflated the

duties of the recipient of the subpoena, and the duties of the party subpoenaing the

records once that party has obtained a copy. We recommend instead the following

language:

(4) The recipient of a subpoena shall immediately do either of the following:

(a) Provide a complete copy of the records to the requesting party.

(b) Make the records reasonably available to the requesting party for copying.

After a requesting party has obtained a copy of subpoenaed records, that party shall

promptly provide a copy to all other parties.

2.

With respect to the proposed Discovery Rule 11(1)(a) and (b) and Rule 17(2)(b), as

employers and carriers are required to produce copies of medical reports prepared by

defense medical examiners and all treating medical records must be exchanged, it only

seems fair that injured workers and their attorneys be required to produce copies of

reports prepared by medical examiners retained by an employee. If an employee has a

right to have a defense medical examination report admitted into evidence, an employer

and carrier should have a similar right to place an employee medical examination report

into evidence. The recommended language below fixes that, and makes it clear that the

failure to complete Form 105A and Form 105B should not be subject to Section 222 and

its sanctions. If the employer is no longer in existence, it also cannot be reasonably

expected to complete a Form 105B.

Page 1 of 5

Rule 11. (1) Discovery provided in sections 222, 301, 401, and 853 of the act, MCL 418.222,

418.301, 418.401, and 418.853, and applicable caselaw, must be available under the

supervision of the magistrate as set forth in this rule.

(a) The claimant shall provide the information and records required pursuant to section

222(3) of the act, MCL 418.222, a completed WC-105A, and copies of reports from medical

examiners requested by the employee or his or her attorney within 30 days of receipt.

(b) The employer or carrier shall provide information and records required pursuant to

sections 385 and 222(2) of the act, MCL 418.385 and 418.222, and a completed WC-105B,

except where the employer is no longer active and there is no representative available to

complete the form.

Rule 17(2)(b) A report of an independent medical examiner under Section 385 of the act,

MCL 418.385, shall be admitted into evidence if offered by the injured employee. A report

by an independent medical examiner requested by the injured employee or his or her

attorney must be admitted into evidence if offered by the defendant.

3.

Also in the Discovery Rule at Rule 11(1)(f), we recommend another change. The rule

requires a party, upon request, to produce various records but the general terms in the

proposed rules refer to just employer and personnel records, while the list that follows in

the rule includes non-privileged claims records. The recommended change makes the text

of the rule consistent internally. The recommendation below also makes it clear that a

party must, upon request, produce various records, and that it is not really appropriate for

the responding party to pick and choose what records to send based upon their perception

of what is relevant and what is not. It is the magistrate’s role to determine what evidence

is relevant and admissible, not opposing counsel’s.

(f) If not already provided by the employer pursuant to subdivision (1)(b) of this rule,

employers, carriers, and claims administrators shall, upon written request, provide a

complete copy of all employment, personnel and claims records of the employee in their

possession, including, but not limited to, electronically stored or communicated

information. Records must include, but are not limited to, all of the following:

4.

We recommend two minor changes at Rule 11(1)(g) related to defense medical

examinations. We believe doctorate level psychologists ought be included in the

definition of physician for purposes of conducting defense examinations in mental

disability cases. We also recommend replacing the word ‘limit’ with ‘determine’ in

describing a magistrate’s power to determine how a defense medical examination is

conducted. Our recommended language is as follows:

Page 2 of 5

Upon request, an employee shall submit to an examination by a physician or

surgeon authorized to practice medicine in this state. The term ‘physician’ as used

in this rule shall be interpreted to include psychologists who satisfy the

requirements of MCL 333.18223 and MCL 333.1100(c) (11). The magistrate may

determine the time, place, manner, conditions, and scope of the examination.

5.

We recommend a change to Rule 11(1)(h) regarding how a vocational interview pursuant

to Stokes is conducted. The intent of the Director’s Rules Committee was to permit the

current practice of employees attending these vocational interviews with their attorneys

consistent with the Michigan Constitution. A comma in the noticed rules is missing from

the proposed and noticed rules, which with the missing comma, would require an

attorney to secure permission of a magistrate and show good cause in order to be allowed

to represent his or her client at a Stokes interview. This was not the intent of the Rules

Committee. We recommend this language instead:

The employee may appear with a person of the employee’s choosing. The employee

may record the interview at the employee’s expense with the consent of the opposing

party or by order of the magistrate for good cause shown.

6.

We recommend several changes to Rule 13 dealing with the joint final pretrial

conference. Our recommended changes make it clearer that material protected by

attorney-client privilege need not be exchanged or disclosed at the joint final pretrial, but

may be offered into evidence thereafter. Our recommended revisions reinforce the intent

that any joint final pretrial order should not act as a straightjacket or trap for the unwary,

and that the parties should have the ability to address new issues or offer newly obtained

or discovered evidence either not anticipated in the pretrial order, or for strategical trial or

appellate reasons not raised until after proofs are completed, or the Magistrate’s

Order/Opinion has been written. The workers’ compensation statute provides that process

shall be as summary as reasonably may be. Not every case may be efficiently adjudicated

with the use of a joint final pretrial order. We also recommend that the use of such an

order not be mandatory. Our proposed changes are underlined below:

Rule 13. (1) Records or other exhibits of any kind that any party intends to offer as

evidence in the proceeding shall be exchanged between the parties no later than 14 days

before the JFPTC. After the parties have gathered and exchanged the existing medical and

other evidence, upon stipulation of the parties or at the discretion of the magistrate, there

must be a JFPTC with the magistrate regarding admissibility of evidence or any other

preliminary matters.

(2) The parties may prepare and file a joint final pre-trial statement that lists issues for

adjudication, stipulations, and any potential witnesses and exhibits, other than materials

subject to attorney-client privilege, that the parties intend to submit into evidence at the

Page 3 of 5

time of trial. This will not constitute a waiver of any issue, witness testimony, or exhibit not

specifically raised or listed should a statement be submitted.

(3) Any objections to the proposed witnesses and exhibits shall be made by the parties and

ruled upon by the magistrate. Upon finding that a proposed exhibit under this rule is not

authentic or was created specifically for purposes of the litigation, the magistrate may

exclude the proposed exhibit. Any decision on any objections is subject to R 418.90(5) and

(6).

(4) All admissible exhibits must be listed in a JFPTO, except as provided in subsection (2) or

(7) or R14(6), and admitted at the time of trial.

(5) After the completion of the JFPTC, the magistrate shall place the case on the trial

docket and assign a trial date. The magistrate may schedule a subsequent JFPTC if

necessary.

(6) The parties are bound by the stipulations listed on the JFPTO unless modified or

withdrawn for good cause shown. If a stipulation is modified or withdrawn, the party

proposing the stipulation may offer additional evidence, including testimony necessitated by

the withdrawal or modification.

(7) The parties must be entitled to necessary rebuttal evidence and witnesses, including

materials subject to attorney-client privilege, not listed on the JFPTO at the time of trial.

(8) While a case is pending on the trial docket, the parties may attempt to cure or remedy

any objections raised by the opposing party at the JFPTC. The magistrate may make

subsequent rulings as to admissibility once the parties have had the opportunity to cure or

remedy any objections raised.

(9) At the discretion of the magistrate, a case may be returned to the case development

docket after being placed on the trial docket if the circumstances require, to allow further

development.

7.

We recommend modifying Rule 14(6) to make it more clear that parties can offer

additional evidence beyond that listed on a joint final pretrial statement or order, as some

evidence may be privileged, not yet obtained or newly discovered, or strategically are not

offered until appropriate during trial. Our recommendation we think allows more

practical flexibility.

(6) Unless provided in accord with R 418.92 and R 418.93, all records or other exhibits of

any kind that any party intends to offer as evidence in the proceeding must be exchanged

between the parties no later than 14 days before the JFPTC. This will not preclude

admission at trial of any additional records or exhibits, and does not constitute preclusion of

records or exhibits not in the possession of either party, or newly discovered relevant

evidence from being admitted.

Page 4 of 5

July 7, 2021

/s/ Dawn M. Drobnich______________________________________

Dawn M. Drobnich

Executive Secretary, Michigan Self-Insurers’ Association

/s/ Donald H. Hannon___________________________________

Donald H. Hannon

AV-rated Workers’ Compensation Defense Attorney for 40 Years

Associate Member—Michigan Self-Insurers’ Association

/s/ Robert J. MacDonald _______________________________________

Robert J. MacDonald

Past President Michigan Association for Justice

Co-Author, Worker’s Compensation in Michigan: Law & Practice

/s/Richard L. Warsh __________________________________________

Richard L. Warsh

Past President, Michigan Association for Justice

Page 5 of 5

Michigan Office of Administrative Hearings and Rules

Administrative Rules Division

611 West Ottawa Street; 2^ndFloor, Ottawa Building

Lansing, MI 48933

Phone: (517) 335-2484; Email: MOAHR-Rules@michigan.gov

JCAR AGENCY REPORT/PACKAGE 2019-

130 LE

1. List names of newspapers in which the notice of public hearing was published

and publication dates:

Ann Arbor News Daily Edition June 13, 2021

Detroit Legal News June 17, 2021

The Mining Journal June 18, 2021

2. List of the name and agency representative(s) attending public hearing:

Jack Nolish, WDCA Director

Deb Outwater, WDCA Executive Secretary

David Campbell, WDCA Agency Division Director

Kris Kloc, WDCA Medical Claims Analyst

3. Persons submitting comments of support:

Jayson Chizick for Worker’s Compensation Section of the Michigan State Bar

Association.

Michigan Self-Insurers Ass’n and Michigan Ass’n for Justice Ad Hoc Stakeholder

advisory group.

Don Hannon, Associate Member Michigan Self-Insurer’s Association

Dawn Drobnich, Executive Secretary, Michigan Self-Insurers’ Association

Richard Warsh, Past President, Michigan Association for Justice

Robert MacDonald, Past President, Michigan Association for Justice

Alicia W. Birach: Foster, Swift, Collins & Smith.

Dyke VanKoevering: General Counsel, Insurance Alliance of Michigan.

4. Persons submitting comments of opposition:

No comments of opposition

Name &

Organization

Comments

Made At:

(Public

Comments

Rule Number

& Citation

Changed

Agency Rationale for

Rule Change

Hearing or

Written)

Revised: 12-21-20

1) Dawn

Drobnich

Written

Rule 9(4) needs two technical

fixes related to the duties to

respond to subpoenas. As

drafted, only a “party” needs to

respond to a subpoena, when

clearly that was not intended.

Discovery Rule 11(1)(a) and (b)

and Rule 17(2)(b), as employers

and carriers are required to

produce copies of medical

reports prepared by defense

medical examiners and all treating

medical records must be

§418.89(4)

Rule 9(4)

Clarified who responds to

a subpoena and what must

be provided.

2) Dawn

Drobnich

§418.91(1)(a)

Clarification of wording to

facilitate exchange of

medical reports in cases.

Rule 11(1)(a) &

(b)

exchanged, it only seems fair that

injured workers and their

attorneys be required to produce

copies of reports prepared by

medical examiners retained by an

employee.

3) Dawn

Written

The proposed changes

§418.91(1)(d)(ii)& Clarification of wording to

Drobnich

R18.91(1)(d)(ii) to require a

(iii)

make sure appropriate

information about job

requirements is provided.

vocational report to include "a job

description outlining the functional

requirements of the job that are

available" and the proposed

change to R418.91(1)(d)(iii) that

would require defendants to

produce "any other pertinent

information reasonably necessary

to apply for the employment." We

think Defendants should be

Rule

11(1)(d)(ii,iii)

producing the information that can

be obtained from prospective

employers so that employees have

a meaningful opportunity to

understand the job requirements,

and a meaningful way to apply for

the jobs. The recommended

changes to the rule should suffice--

-The proposed rule 418.91(1)(d)(ii),

includes a requirement that a

vocational consultant report

include a job description outlining

“all of” the functional requirements

of the job. With respect to proposed

rule 418.91(1)(d)(iii), the current

wording is overly broad.

4) Dawn

Drobnich

Written

The rule requires a party, upon

request, to produce various records

but the general terms in the

§418.91(f)

Wording change to clarify

which records must be

provided to the employee.

Rule 11(1)(f),

proposed rules refer to just

employer and personnel records,

while the list that follows in the rule

includes non-privileged claims

records.

2

5) Dawn

Drobnich

Written

We believe doctorate level

§418.91(1)(g)

Rule11(1)(g)

Added description of

qualifications for a

psychologist to be

included in the list of

available specialists for

employee evaluation.

Clarification of who may

accompany employee

during evaluation.

psychologists ought be included in

the definition of physician for

purposes of conducting defense

examinations in mental disability

cases. We also recommend

replacing the word ‘limit’ with

‘determine’ in describing a

magistrate’s power to determine

how a defense medical examination

is conducted.

6) Dawn

Drobnich

Written

A comma in the noticed rules is

missing from the proposed and

noticed rules, which with the

missing comma, would require an

attorney to secure permission of a

magistrate and show good cause in

order to be allowed to represent his

or her client at a Stokes interview.

§418.91(1)(h)

Rule 11(1)(h)

Corrected punctuation

error.

7) Dawn

Drobnich

Our recommended changes make it §418.93

clearer that material protected by

Clarification of process for

exchange of evidence prior

to trial; admissibility of

later acquired evidence;

admissibility of evidence

initially classified as

privileged; admissibility of

undisclosed rebuttal

evidence.

attorney-client privilege need not

be exchanged or disclosed at the

joint final pretrial, but may be

offered into evidence thereafter.

Our recommended revisions

Rule 13

reinforce the intent that any joint

final pretrial order should not act as

a straight jacket or trap for the

unwary, and that the parties should

have the ability to address new

issues or offer newly obtained or

discovered evidence either not

anticipated in the pretrial order, or

for strategical trial or appellate

reasons not raised until after proofs

are completed, or the Magistrate’s

Order/Opinion has been written.

It is not clear that parties can offer

additional evidence beyond that

listed on a joint final pretrial

8) Dawn

Drobnich

Written

§418.94(6)

Rule 14(6)

Clarification of

admissibility of evidence

not available at the time of

the joint pre-trial

statement or order, as some

evidence may be privileged, not yet

obtained or newly discovered, or

strategically are not offered until

appropriate during trial.

Discovery Rule 11(1)(a) and (b)

and Rule 17(2)(b), as employers

and carriers are required to

produce copies of medical

conference order.

9) Dawn

Drobnich

§418.97(2)(b)

Rule 17(2)(b)

Language changed to

provide of admission

medical reports by both

parties.

reports prepared by defense

medical examiners and all treating

medical records must be

exchanged, it only seems fair that

injured workers and their

attorneys be required to produce

3

copies of reports prepared by

medical examiners retained by an

employee.

10) Jayson

Chizick

Hearing

Commenting in support of the

proposed rule set.

2019-130-LE

N/A

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