Question: Can someone return to work and still receive wage loss benefits?
The answer is yes if they did not earn as much as they did when they were injured. The Michigan statute provides in Section 301(5) the if the employee's average weekly wage is less than that received before the injury, the benefits payable to the employee are 80% of the difference before the employee's "after-tax weekly wage before the date of injury and the after-tax weekly wage" the the employee is able to earn after the injury.
However if the employee stays at that new job paying the lower wage longer than 250 weeks (5 years) then the law presumes that the earning capacity has been restored and wage loss benefits arguably should end. Michigan is a "wage loss" state which means that wage loss benefits are paid based upon an employee's ability or capcity to earn. An employer can establish a new wage earning capacity after the court considers four factors:
(1) the severity of the injury;
(2) the severity of the disability resulting from the injury:
(3) the nature of the reasonable employment performed by the employee; and
(4) the reasons for the loss of reasonable employment.
In Kuzma v. Great Lakes Beverage (unpublished, July 22, 2004, Michigan Court of Appeals Docket No. 245734) the Court of Appeals held that where an employee had returned to work, but had to work with a helper to perform job functions that he is now unable to perform as a result of his injury, and that the helper was paid from his wages, and that he needs assistance in performing what is normally a one-person job, that the defendant employer had not demonstrated that the employee established a new wage earning capacity.