I argued this case in July before the Court of Appeals. The decision, although split 2-1, with Judge Saad concurring in the result only, reversed an Appellate Commission decision which, after two prior remands, suddenly concluded that the magistrates never had jurisdiction to consider GM’s argument that Plaintiff was not entitled to workers’ compensation benefits based on a 1980 “open award” entered “until further order” because GM had never filed a petition to stop.
Judge Beckering wrote the lead opinion, in favor of GM, finding that GM did not have to file a “petition to stop”. Plaintiff had returned to work for GM, but that order remained extant. Plaintiff was working, apparently in a non-restricted position (or limited by nature to his restrictions) as a “chipper” (a seniority job), subsequent to his return after the 1980 “open award”, and did not stop working until he took a disability retirement in 2005. He then filed a claim for workers’ compensation benefits claiming multiple dates of injury, including the 1980 injury. Defendants challenged plaintiff’s entitlement to benefits, including the 1980 award, claiming, with respect to that award that he established a new wage earning capacity.
The majority opinion concludes that the last Commission decision finding that this issue had never been addressed and that therefore plaintiff was still entitled to benefits based on the 1980 award was error. The Court however remands for a proper consideration of 1980 law to the issue of whether Plaintiff had established a new wage-earning capacity, which would have prevented him from receiving benefits anyway. Judge Beckering thoroughly details the necessary factual support for the argument that Plaintiff did, in fact, establish a new wage earning capacity; discussing Plaintiff’s post-return wage, the surveillance that was done showing Plaintiff lifting 150 pounds, when his restriction was 40, and doing many other things he had testified he was unable to do. Beckering also highlights the total lack of credibility found by the magistrates as to Plaintiff’s testimony. The remand is requiring a presentation of proofs in regard to whether under 1980 law Plaintiff had established a new wage-earning capacity and was not, therefore, entitled to benefits.
Judge Saad concurred in the “result only”.
Judge Gleicher dissented. She would have affirmed. Her conclusion is that GM was in fact required to file a petition to stop because the 1980 award was entered until further order.
See the opinion here: Ulin COA
Amicus Curious 