Hogan v Michigan Youth Correctional Facility, 2007 ACO #216
The magistrate found that the Plaintiff had suffered four work-related injuries to his left shoulder; however, the magistrate denied wage loss benefits to the Plaintiff finding that he had failed to prove he was disabled pursuant to Sington v Chrysler Corp., 467 Mich 144 (2002).

The magistrate theorized that the Sington case defines disability as a physical limitation that affects a worker’s ability to earn maximum wages at available work within his qualifications and training.

The magistrate did not believe that the Plaintiff was disabled because he could no longer work in the corrections field, where he earned his maximum wage. The Plaintiff had qualifications and training to work as a car salesman. No evidence was presented that he could not work as a car salesman despite his physical limitations.

The magistrate advised that when a plaintiff is capable of performing a job within his qualifications and training, despite his work-related condition, he must prove either 1) that the job does not pay maximum wages; or 2). that the job is not reasonably available.

The magistrate opined that the real issue is “what a car salesman in the Plaintiff’s geographic area pays today” and indicated that vocational testimony would probably be necessary to establish the earnings of a car salesman. No such evidence was presented. In the alternative, the magistrate advised that the Plaintiff could have established that a job as a car salesman was not reasonably available. However, the Plaintiff did not present any evidence that he looked for a job as a car salesman.

On appeal, the WCAC, relying on Stokes v DiamlerChrysler Corp., 272 Mich App 571 (2006), indicated that when the employee’s testimony and medical evidence establish that the employee is disabled from performing all jobs within his qualifications and training, the Sington standard is met. Unless the employer shows that, contrary to the employee’s proof, there are real jobs within the employee’s qualifications and training that pay the maximum wage, disability is established.

The WCAC, in review of the magistrate’s opinion, advised that the magistrate did not find that the Plaintiff lacked credibility pertaining to his past earnings as an automobile salesperson and held that pursuant to Stokes, the Plaintiff had established a prima facie case of disability pursuant to Sington.

Therefore, the Plaintiff’s testimony that his work as a car salesman, in the past, paid less
than his work with the Defendant, was enough to establish disability.

In his dissenting opinion, Commissioner Przybylo, writes that the lead opinion proposes a standard that would relieve the Plaintiff from a specific element of proof that the Stokes court mandates; the current pay for every job the Plaintiff previously performed. Commissioner Przybylo would have remanded this matter for additional proofs that address this issue.

This matter has been appealed to the Michigan Court of Appeals.