Important Workers' Compensation Appellate Commission Decision on the Use of Vocational Testimony

The Workers' Compensation Appellate Commission has just issued an important decision relating to the use of vocational testimony in workers' compensation cases. The case is Stivers v DaimlerChrysler Corporation, 2006 ACO #230.

By way of background, in order to defend a claim of “disability” the employer often offers the testimony of a vocational expert. The vocational expert may render testimony the employee, while limited in some ways, could still be realistically employed at work suitable to his or her qualifications and training. These vocational experts identify such work, identify the rate of pay for such work, and describe its availability in the labor marketplace.

Some trial magistrates have resisted use of vocational testimony by employers, even though it is often the only meaningful way to defend a disability claim where the employee has work-related physical restrictions. Recently, Magistrate Sloss explicitly refused to consider a vocational expert’s testimony in his disability deliberation in the case Stivers v DaimlerChrysler Corporation. Afterwards, the plaintiff’s bar often cited Magistrate Sloss’s decision to other magistrates as a prime example of the magistrate’s ability to disregard such evidence.

The Workers' Compensation Appellate Commission has now issued a decision reversing Magistrate Sloss in Stivers. In an opinion authored by Commissioner Will, the Appellate Commission has ruled that Magistrate Sloss erred by not considering the vocational testimony. The Commission says that the vocational testimony is relevant and "vocational testimony [i]s a helpful guide to the magistrate in some cases and should not be excluded."

The Appellate Commission then returned the case to Magistrate Sloss with instructions he consider the vocational testimony before making a disability evaluation.

This case should lay to rest the idea that vocational testimony is irrelevant and can be excluded by trial magistrates in cases where disability is at issue.