WORKERS’ COMPENSATION ALERT

TO:                 Our Clients and Friends

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

RE:                 Sington Overruled?

            On January 26, 2006, the Workers’ Compensation Appellate Commission issued an en banc 101 page decision in Stokes v. Daimler Chrysler Corporation, 2006 ACO#24.  The Stokes’ decision deals squarely with the definition of disability and the proofs necessary to establish a compensable disability. 

            Since the Michigan Supreme Court overruled Haske v. Transport Leasing, Inc., Indiana, 455 Mich 626 (1997), and redefined disability in the case of Sington v. Daimler Chrysler Corporation, 467 Mich 144 (2002), the Court’s definition of disability has been the topic of much debate.  As you will recall, in Sington the Supreme Court explained that the mere inability to perform one particular job because of a work-related injury would not constitute a disability.  Further, the Supreme Court explained that it is entirely possible to suffer a work-related injury and not suffer a compensable disability.  The two are not interchangeable. 

            In an attempt to further enunciate the definition of disability set forth by the Supreme Court in Sington, the Appellate Commission issued the Stokes decision en banc.  (Meaning all five appellate commissioners took part in the decision).  Ultimately Stokes was decided along party lines, with Governor Granholm’s three recent appointees (all of whom are former plaintiff’s attorneys) constituting the majority and Commissioners Przybylo and Kent dissenting. 

            The majority and controlling opinion in Stokes, authored by Commissioner Granner Ries, appears to roll back the clock and ignore the Supreme Court’s edict in Sington that an employee, in order to prove disability, must establish by a preponderance of the evidence the inability to perform all jobs within the employee’s qualifications, training, and experience that pay maximum wages.

            The Stokes’ decision appears to resurrect the old definition of disability set forth in the 1997 case of Haske. The Commission would allow the plaintiff to establish a compensable disability by proving the inability to perform the job that pays the maximum wage. 

            Stokes would then shift the burden to the employer to prove the existence of additional jobs that the claimant is capable of performing.  The majority opinion seems to ignore the court’s holding in Sington that the inability to perform a single job that he or she performed at the maximum wage does not satisfy the definition of disability.  Additionally, the majority opinion has held that the employee has no burden to mitigate damages or look for employment after an injury.

            Essentially, the majority opinion allows that if a claimant can establish the inability to perform the job that pays the maximum wage, he or she has established a disability and the burden then shifts to the employer to prove that the claimant is not disabled, i.e. that there are jobs within the claimant’s qualifications, training, and experience that pay at maximum wages.

            With respect to work suitable to the claimant’s qualifications, training, and experience, the controlling opinion appears to limit the use of “transferable skills analysis” and would instead focus only upon jobs that the claimant has performed in the past to evaluate whether any work is available in the ordinary marketplace. 

            The dissent argued that the controlling opinion rendered meaningless the Sington mandate that the plaintiff prove the inability to perform all jobs within one’s qualifications and training before a compensable disability would be established.  Ultimately, the dissent contended that the court should consider any work suitable to the plaintiff’s qualifications and training when assessing disability and that the plaintiff had the burden of proof regarding same.

Wage loss?

            With regard to wage loss and the issue of residual earning capacity, the controlling opinion indicates that the plaintiff need not carry the burden of establishing a work-related wage loss, but rather the employer would carry the burden of establishing that the claimant did not establish a wage loss.  The employer would purportedly need proof that the claimant is “able to earn” wages, in work within his or her qualifications and training, and that the work must be tied to work that the claimant actually performed in the past.

Discovery?

            With respect to discovery, the controlling opinion explicitly finds that there is no discovery in the workers’ compensation arena.  Specifically, the commission has indicated that the magistrate has no authority to order a Sington face-to-face wage earning capacity evaluation.  Any exchange of information between a vocational expert and the employer will have to be done through other means, as the plaintiff apparently does not have to provide any information regarding qualifications, training, and experience until the time of trial.

            As dissenting Commissioner Przybylo indicates, the controlling opinion offers several changes that are inconsistent with Sington and other Supreme Court decisions.  With respect to discovery, the dissenting commissioners would follow the Supreme Court’s decision in Bogetta v. Burroughs, Corp., 368 Mich 600 (1962), which articulates the principal that the Workers’ Disability Compensation Act permits discovery in limited circumstances.  The dissenting commissioners would have required exchange of discovery information, including the plaintiff’s qualifications and training, because a denial of same is a violation of procedural due process and the Supreme Court’s holding in Bogetta that a magistrate may order a party to participate in discovery, in limited circumstances.

Summary

            To summarize, the controlling opinion in Stokes has significantly altered the playing field with respect to the issue of disability.  It appears the plaintiff may now establish a disability by proving the inability to perform the job that pays at the maximum earning level.  Once that has been established, it appears the burden has now been placed upon the employer to prove that the employee is not disabled and that there is work within the claimant’s qualifications and training that the claimant is capable of performing.  Pretrial discovery of the claimant’s qualifications and training is no longer available, so defendants will have to use alternative means to obtain the necessary information to meet their new burden of proof.

            Arguably, the Stokes’ opinion has significantly deviated from the Supreme Court’s Sington definition of disability in an attempt to resurrect the old standard of disability under Haske, i.e. the inability to perform the job at the maximum level. 

            There is indication that the employer may seek expedited leave to appeal directly to the Michigan Supreme Court.  We will keep you apprised of all developments regarding the ever-changing definition of disability, consistent with our goal to provide the best possible employer representation in the State of Michigan. 

            If you have any questions or concerns regarding the Stokes’ opinion, or any other issues, please contact any of the attorneys at Bleakley, Cypher, Parent, Warren & Quinn, P.C.