WORKERS’ COMPENSATION ALERT

TO:                Our Clients and Friends

FROM:           Bleakley, Cypher, Parent, Warren & Quinn, P.C.

RE:                 Michigan Supreme Court Order Regarding Stokes

DATE:            April 17, 2007

            By Order dated April 13, 2007, the Michigan Supreme Court has taken further action in the case of Stokes v. Daimler Chrysler Corporation, 467 Mich 144 (2002).  Specifically, Application for Leave to Appeal from the Court of Appeals judgment dated October 26, 2006, was granted by the Michigan Supreme Court.

            You will recall that the Michigan Court of Appeals in its decision dated October 26, 2006, addressed the definition of disability and the application of the standard of disability set forth by the Supreme Court in the case of Sington v Daimler Chrysler Corporation.  The Court of Appeals decision reaffirmed that an employee must establish a loss of maximum earning capacity in all jobs within one’s qualifications, training and experience to establish a compensable disability.  Moreover, the Court of Appeals explained that qualifications and training is not limited to only the jobs performed in the past or on an employee’s resume, but rather includes any job the injured employee could actually perform upon hiring.  In that respect the Court of Appeals indicated that a “transferable skill” analysis is relevant when determining and employee’s qualifications and training.  The Court of Appeals in particular explained that a transferable skill may yield credible testimony that there is actual employment the employee is capable of performing upon hiring regardless of whether the employee ever performed the job before.

            With respect to burden of proof, the Court of Appeals in Stokes reiterated that the employee has the burden or proof to establish a compensability and an employee may establish a prima facia case of disability by producing evidence of a work-related injury, and that the injury has caused an inability to perform all jobs which the employee has held up until the time of injury, and that there are no real jobs in the marketplace consistent with the plaintiff’s qualifications, training, i.e. past jobs that the plaintiff was able to perform. 

            While transferable skills are part of the analysis, the majority of the Court of Appeals held that the plaintiff need not establish an inability to perform all work within one’s transferable skills. 

            The Supreme Court by Order dated April 13, 2007, has specifically requested that the parties address the burden-shifting analysis described by the Court of Appeals, which appears to relieve the plaintiff of the burden of proving that he was disabled from all jobs within his qualifications and training.

            It appears the Supreme Court is particularly interested in the Court of Appeals reasoning that indicates transferable skills are part of the disability analysis yet a plaintiff does not have to prove the inability to perform jobs within one’s transferable skills to achieve a compensable disability.

            It is anticipated that oral arguments will be scheduled following the supplemental briefing deadlines issued by the Supreme Court of June 8, 2007. 

            As always Bleakley, Cypher, Parent, Warren & Quinn, P.C., will continue to keep you apprised of all developments with respect to the Stokes decision, the definition of disability and all other case law developments.  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.