In Stokes v. Daimler Chrysler Corporation, 2006 ACO 24, the Appellate Commission challenged the definition of disability set forth by the Supreme Court in the case of Sington v. Daimler Chrysler Corporation, 467 Mich 144 (2002). The Stokes opinion allowed a claimant to establish a disability by proving the inability to perform the job that pays at the maximum earning level, instead of proving the inability to perform all jobs within his qualifications, training and experience. Further, the commission in Stokes effectively placed the burden on the employer to prove that the claimant is not disabled, and that there is work available within the claimant’s qualifications and training that he is capable of performing. Surprisingly, the commission also noted that the claimant had no obligation to look for work.

Perhaps one of the most startling aspects of the commission’s decision in Stokes was the determination that pretrial discovery is not available in the workers’ compensation arena. The commission held that once the claimant proved the inability to perform the job at maximum wages, the employer had the burden to prove the claimant was not disabled. Thus, if there was work available in the ordinary marketplace, the commission would not allow the defendant an opportunity, prior to the time of trial, to obtain pertinent discovery information to establish same.

Fortunately, the employer in Stokes did file an expedited Application for Leave to Appeal directly to the Michigan Supreme Court. The law firm of Bleakley, Cypher, Parent, Warren & Quinn also filed an Amicus Curiae Brief in support of the employer’s appeal in the Stokes’ case.

SUPREME COURT ORDER

By order dated June 1, 2006, the Supreme Court STAYED the Appellate Commission’s decision in Stokes. In other words, enforcement of the Stokes’ decision upon currently pending cases has been temporarily suspended, pending further review of the case on appeal. In that vein, the Supreme Court has further ordered the Court of Appeals to grant defendant’s Application for Leave to Appeal, and issue a decision before October 1, 2006.

Lastly, the Supreme Court explicitly indicated that the case of Bogetta v. Burroughs Corporation, 368 Mich. 600 (1962), remains controlling authority. Bogetta stands for the proposition that there is pretrial discovery, in appropriate circumstances, in the workers’ compensation arena.

What does this mean to cases currently pending? It is anticipated that any case currently pending before the Board of Magistrates will not utilize the Stokes’ decision or any rule of law articulated therein. Thus, for the time being, the claimant will once again have the burden of proving the inability to perform all jobs within his qualifications, training and experience.

With respect to appeals currently pending before the Appellate Commission or cases that have been remanded to the Board of Magistrates in light of the Stokes’ decision, it is anticipated that those cases will be held in abeyance pending an order from the Court of Appeals.

The Supreme Court’s order is a strong indication that it considers the Appellate Commission’s decision in Stokes inconsistent with the court’s definition of disability in Sington, as well as pretrial discovery rules in the workers’ compensation arena.

We will continue to keep you apprised of all developments as they occur regarding the Stokes decision and the ever-illusive definition of disability. If you have any questions regarding this decision or any other issue, please do not hesitate to contact any of the attorneys at Bleakley, Cypher, Parent, Warren & Quinn.