359424
Mich. Ct. App.Feb 16, 2023Background:
- In June 2017 plaintiff Scott Wittenberg fell ~30 feet while working as a rigger on a job coordinated by Bulldog Onsite Solutions and suffered head and other injuries.
- Bulldog hired Wittenberg in 2016; Bulldog directed his work, paid him, could discipline/fire him and provided equipment; Wittenberg sometimes held himself out as an independent contractor and was paid on 1099 forms.
- Bulldog’s insurer paid workers’ compensation benefits to Wittenberg for medical care after the accident (payments documented through at least August–September 2017).
- Wittenberg sued Bulldog (negligence and gross negligence) in 2020; Bulldog moved for summary disposition under MCR 2.116(C)(10) asserting the WDCA exclusive-remedy bars the tort claims.
- The trial court granted summary disposition, finding Wittenberg was an employee (applying the economic‑reality test) and that his acceptance of workers’ compensation benefits placed him within the WDCA exclusive-remedy—this ruling was appealed.
- The Court of Appeals reversed and remanded, holding the trial court applied the wrong legal test for employee status and erred in treating receipt of benefits as dispositive.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper test to determine WDCA "employee" status | Wittenberg argues the court must apply the statutory definition in MCL 418.161(1)(l) and (n) (he is an independent contractor) | Bulldog argued the economic‑reality test shows Wittenberg was its employee | Court: trial court erred using economic‑reality test; remanded to apply MCL 418.161(1)(l) then (n) per Drob; (l) satisfied (implied contract), (n) left for trial court to decide |
| Whether receipt/payment of workers’ compensation bars tort suit | Wittenberg: accepting benefits does not automatically invoke WDCA exclusive remedy | Bulldog: acceptance of benefits places Wittenberg inside WDCA exclusive‑remedy | Court: acceptance/payment alone is not determinative; trial court erred to grant dismissal on that basis |
Key Cases Cited
- Drob v. SEK 15, Inc., 334 Mich. App. 607 (Mich. Ct. App.) (holding WDCA employee status is determined by MCL 418.161(1) framework and discussing application of subsections (l) and (n))
- Reed v. Yackell, 473 Mich. 520 (Mich. 2005) (discussing WDCA purpose and statutory employee definition)
- Allen v. Garden Orchards, Inc., 437 Mich. 417 (Mich. 1991) (holding payment/acceptance of compensation does not automatically bar tort claims under WDCA)
- Auto-Owners Ins. Co. v. All Star Lawn Specialists Plus, Inc., 497 Mich. 13 (Mich. 2014) (explaining that all criteria of MCL 418.161(1)(n) must be satisfied for employee status)
- El-Khalil v. Oakwood Healthcare, Inc., 504 Mich. 152 (Mich. 2019) (summary disposition standard and that MCR 2.116(C)(10) tests factual sufficiency)