THE COURT OF APPEALS DECIDES STOKES v DAIMLERCHRYSLER CORPORATION

The Court of Appeals has issued its decision in Stokes. In a 2-1 ruling, the Court of Appeals' majority affirms the open award of benefits while vacating many rulings in the majority decision of the Workers' Compensation Appellate Commission. The most important points from the Court of Appeals' majority decision are the following:

• Work suitable to the employee's qualifications and training "is not limited to the jobs on the employee's resume, but, rather, includes any jobs the injured employee could actually perform upon hiring." The Court of Appeals' majority said to the extent the Appellate Commission held otherwise, "it erred."

• Related to the above ruling, the Court of Appeals' majority said "to the extent the Workers' Compensation Appellate Commission held that as a matter of law a transferable skills analysis is irrelevant in evaluating the employee's qualifications and training, it erred. A transferable skills analysis may yield credible testimony that there is actual employment that the employee's qualifications and training make the employee capable of performing upon hiring, although the employee has never performed it before."

• With respect to discovery, the Court of Appeals' majority said, "the WCAC concluded that the magistrate had no authority to order plaintiff to provide discovery to defendant in this matter. This was error." The Court held, "the magistrate has authority to grant relevant discovery necessary for defendant to develop a defense trial under Sington." This can include "vocational expert interviews" of plaintiff. It is a “matter for the magistrate’s discretion." The Court also said vocational information "could be sought by interrogatories if necessary before trial."

• The Court of Appeals' majority said the Appellate Commission's "holding that plaintiff did not need to show his loss of wages was caused by his work-related injury and resulting disability" is "vacated."

• The Court of Appeals' majority nevertheless affirmed the open award finding plaintiff's proofs sufficient to make "a prima facie case of disability" and defendant did not rebut them. The Court majority held that, "[w]hile an interview will no doubt be appropriate in some cases," it was not error for the magistrate to refuse a pre-trial vocational interview in this case. Defendant could have "sought the information by interrogatory" and by other means so as "to present a transferable skills analysis" at trial. Finally the Court of Appeals' majority did not find any abuse of discretion in the magistrate not adjourning the case primarily because defendant "had not provided its vocational counsel with plaintiff's employment records before trial."

• The dissent agreed with the majority on most of its holdings, but would reverse and remand the case "because the WCAC used the wrong legal definition of disability and defendant was denied a meaningful opportunity to discover evidence and present proofs regarding plaintiff's actual qualifications and training."

Governor Granholm Makes Appointments

LANSING - Governor Jennifer M. Granholm announced the following recent appointments to the Workers Compensation Board of Magistrates, the State Council for Interstate Adult Offender Supervision, and the Self-Insurers' Security Fund, Second Injury Fund, Silicosis, Dust Disease, and Logging Industry Compensation Fund Board of Trustees.

See Full List of Appointees Here

The Court of Appeals has yet to decide Stokes v DaimlerChrysler Corporation

The Michigan Supreme Court directed the Court of Appeals to "issue a decision before October 1, 2006" in Stokes v DaimlerChrysler Corporation. You will recall that Stokes is the case where the entire Workers' Compensation Appellate Commission issued a split decision, 3-2, describing the Commission’s view on how Sington v DaimlerChrysler Corporation should be implemented and on whether pre-trial discovery in the form of vocational testimony is possible under the Workers' Disability Compensation Act. The Michigan Supreme Court stayed the Commission’s Stokes decision and directed the Court of Appeals to hear the case and issue its decision by October 1, 2006.

That date has come and gone and the Court of Appeals has yet to release its decision. An inquiry as to when the Court of Appeals may be releasing a decision has not produced any solid answer. Rumors abound that the lengthy delay in the Court of Appeals' Stokes decision is somehow tied to the election.

For whatever reason, we are still waiting for the decision. Look here for a report of the decision when it is eventually issued.

Recommendations made by the Workers' Compensation Qualifications Advisory Committee

Dear Governor Granholm:

This letter is to transmit the recommendations made by the Workers' Compensation Qualifications Advisory Committee (QAC) of individuals seeking appointment to the eight positions on the Workers' Compensation Board of Magistrates, with terms expiring on January 26, 2007. The QAC makes these recommendations pursuant to the Workers' Disability Compensation Act and Executive Order 2003-18.

Six incumbent magistrates applied for re-appointment and the QAC reviewed the supervisor’s performance evaluation of each individual. On October 12, 2006, the QAC interviewed five of these applicants. The sixth was entitled to the recommendation made following her October 2005 interview, in accordance with the QAC resolution that its recommendations would last for one year.

Based upon the performance evaluations and interviews, the QAC recommends the following individuals as qualified for re-appointment:

Christopher P. Ambrose* Murray A. Gorchow* Paul H. Reinhardt

Jennifer L. Crawford* Valencia L. Jarvis* Rosemary K. Wolock*

We highly recommend those individuals whose names are marked with an asterisk.

A significant number of non-incumbents applied for positions on the Board of Magistrates. Fifteen of these individuals met the minimum standards, required by MCL 418.210, and were interviewed by the QAC on October 12, 13, or 16, 2006. We recommend the following individuals to you for appointment to the Workers' Compensation Board of Magistrates:

Thomas H. Burden Emily C. Hall Paul. H. Kullen

Michael J. Cantor Michael J. Harrelson David B. Merwin

Nancy J. Day* Alan S. Helmore

Delores D. Hall Robert F. James*

We highly recommend those candidates whose names are marked with an asterisk.

The following people were interviewed in October 2005 and continue to be recommended:

William A. Baillargeon Frank G. Cusmano* Lisa A. Klaeren*

DanielM. Bridges Lee A. Decker*

Those whose names are marked with an asterisk are highly recommended.

For your reference, enclosed are copies of the recommended candidates’ resumes, performance evaluations, and related documents.

The QAC recommendations stated in this letter are for magistrate positions with terms commencing on January 27, 2007, as well as any vacancies occurring between now and January 26, 2009 or until the QAC sends another list, whichever occurs first.

Finally, on behalf of all the QAC members, thank you for the opportunity to participate in the process of identifying individuals for potential appointment to the Workers' Compensation Board of Magistrates.

Sincerely,
Marya V. Sieminski, Chair
Qualifications Advisory Committee

Sep 15, 2006 - Minutes of Board of Managers Meeting

The Technology Committee Report was presented by Ms. Child. She reports that the website is continuing to develop. An email blast was going to be sent regarding the new career opportunity page on the website. There was a discussion of creating a hyperlink to the RIMS website, and vice versa. Finally, a discussion was had regarding making dues payable through the website in the future.

The Amicus Curiae Report was submitted by Mr. Calille. He noted that in Paige v Sterling Heights the Supreme Court adopted the position supported by the Board. This is in connection with the statutory requirement that where a work-related death is not contemporaneous with the work injury, the claimant must prove that the work injury was "the" proximate cause of the death. The case law previously indicated that such a death was compensable if the work injury was "a" proximate cause of the death. It was also pointed out that we are awaiting a decision from the Court of Appeals in Stokes v DaimlerChrysler. The Court of Appeals is to issue a decision before October 1, 2006. In fact, the decision has still not been issued.

The Board's attention was drawn to the recent decision in Irby v SMART. This was a Rule V hearing heard by the Director of the Workers' Compensation Agency. At the conclusion of the opinion he directed that an investigation be done regarding how the claim had been adjusted. "Therefore, in addition to the payments and penalties ordered herein, this matter is referred to agency staff with the directive to review claims files of this agency approved self-insured employer for appropriate handling in accordance with Michigan law and practice." The Board expressed concerns about the Director "second-guessing" how files are adjusted and about the possibility of a new trend developing.

The Funds Trustees Report was delivered by Ms. Child. Dues notices have been sent out with a 2% assessment. As of August 80% of the dues had been paid. As you know, the Trustees have only two members instead of the required three. A third person was recently appointed, and promptly resigned. So there is another vacancy that now must be filled.

The Health Care Committee Report was presented by Ms. Azar. She reported that Michigan was one of fourteen states studied by the Workers' Compensation Research Institute relative to healthcare costs. Michigan was deemed a low-cost state. She also noted that a study is being done regarding evidence-based medical guidelines that would establish, for example, reasonable lengths of time for treatment of a condition, and a reasonable number of treatments. Rules for pharmaceutical companies are also being studied or proposed that could be a topic for future discussion by the board.

The 2006 Fall Conference Report was delivered by Ms. Azar. The Pirates of the Comp Arena theme is going well. All of the speakers are set. The brochures have been mailed out. There are 70 registrants so far.

Under Old Business the Sington evaluation forms proposed by David Campbell were passed out. Also passed out was the Sington Analysis Description of Purpose and Limits of Counselor Relationship form. Some concern was expressed about the use of the phrase “utilizing your past employment history.” Rather than placing this emphasis on past employment history, it might be better to replace the word past with "full or complete." There was also mention made of the use of the phrase "local labor market information." It was thought it would be better to have the word local replaced with relevant. The newly amended administrative rules regarding vocational rehabilitation were distributed. There was also some concern expressed with the rapid pace that these forms, as well as the new administrative rules, are being considered. This push may inhibit all parties from contributing. Also discussed under old business was attendance at meetings Attendance at the September meeting was very good. With winter weather coming, the members were reminded that the teleconference system will be available. This method, however, is not to be substituted for regular, personal attendance.

Under New Business it was noted that the QAC has made no appointments, because it has not conducted any interviews yet. Interviews are scheduled to take place on October 12, 13, and 16. Two people passed the test. It was also noted that this could be an interesting time for appointments. Until the next governor is elected in November, many appointed positions throughout state government may go unfilled.

Discussion of the 2007 Spring Conference was tabled until the next meeting.

Ms. Azar brought to the board's attention information relative to excess insurance coverage. The federal Terrorism Risk Insurance Act may not be renewed next year because the federal government does not believe that there are any problems with getting excess coverage. Typically, a workers' compensation policy does not allow for an exclusion of terrorist acts. Other types of policies can exclude terrorist acts. Further, workers’ compensation insurance is mandatory. The inability to secure excess coverage could seriously affect the ability to remain self-insured. The Board may wish to contact the federal government's study group that is studying this matter.

In closing, it was agreed that a card would be sent to Magistrate Barney's widow expressing our condolences. Additionally a $100 gift would be made in Magistrate Barney’s name for the treatment of pancreatic cancer.

A motion to adjourn was made by Ms. Cyrulnik, seconded by Ms. Susser. The meeting was adjourned at 4:21 p.m.

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.