Stivers v DiamlerChrysler Corp., 2007 ACO #214
This matter came before Magistrate Sloss on October 12, 2004 and December 7, 2004. Magistrate Sloss granted the Plaintiff an open award. However, in making his decision, the magistrate excluded the testimony of the Defendant's expert witness, vocational consultant, Mr. Hostetler.
The Defendant appealed and the WCAC remanded this matter to the magistrate with instructions that the magistrate consider the testimony of the vocational expert.
The Commission, citing Carnoskes v Aetna Ind., 2004 ACO #376, emphasized that the claimant's testimony is a vital element to consider in the Sington analysis with vocational testimony as a helpful guide to the magistrate in some cases.
On remand, the magistrate explained that he believed that the Commission found that his exclusion of Mr. Hostetler's testimony to be proper, and that the matter was actually remanded for consideration of Mr. Hostetler's testimony as a lay witness.
The Defendant filed its brief on remand, seeking a second remand, stating that the magistrate did not comply with the remand directives set forth by the Commission.
The Commission fired back, "while it is true that the Commission in its October 4, 2006, Order did not use the magic words "expert testimony" and we did not specifically tell the magistrate that he abused his discretion in excluding the testimony of Mr. Hostetler as expert testimony sua sponte, such was our unstated intent."
The Commission cites the Court of Appeals decision in Stokes which takes the position that vocational testimony is expert testimony, especially where the claimant's qualifications and training are concerned.
The Commission remanded this matter once again to the magistrate to consider the testimony of the vocational consultant as expert testimony.
