SUPREME COURT DECIDES STOKES v CHRYSLER LLC
BY: Gerald M. Marcinkoski, Lacey & Jones, LLP
The Michigan Supreme Court on June 12, 2008 released the long-awaited opinion in Stokes v Chrysler LLC. The Supreme Court explained how the Sington definition of disability in the Worker’s Disability Compensation Act is to be applied. Recall that Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002) is the case where the Supreme Court six years ago explained the meaning of the definition of general disability in workers’ compensation.
The Supreme Court in Stokes sets forth a specific step-by-step process that should be followed in litigating workers’ compensation claims. This process should also be borne in mind in evaluating workers’ compensation claims that are not in litigation. Before setting forth the Supreme Court’s step-by-step guidelines, the following points in the opinion are worth highlighting:
- The Supreme Court displayed some displeasure with the Magistrates and Workers’ Compensation Appellate Commission’s “tendency to properly set forth the Sington standard, but then to apply the standard in a manner that effectively constitutes a reversion” to pre-Sington law. The Supreme Court in Stokes said: “It is insufficient to merely articulate the Sington standard and then overlook necessary steps in its application.”
- The Supreme Court said that the workers’ compensation claimant’s burden of proving disability includes the following: “The claimant must make a good-faith attempt to procure post-injury employment if there are jobs at the same salary or higher that he is qualified and trained to perform.” And, the claimant is to disclose “the results of any efforts to secure employment.”
- In defending the case, “the employer [is] entitled to discovery before the hearing to enable it to meet its burden of coming forward with evidence to rebut claimant’s claim of disability.” “Discovery” is an out-of-court effort to gather information by various means, such as via interrogatories and depositions. The Supreme Court said: “For example, the employer may choose to hire a vocational expert to challenge the claimant’s proofs. That expert must be permitted to interview the claimant and present the employer’s own analysis or assessment.” The “discovery” can occur “throughout the entire process of examining the case,” as for example where the need arises for an interview in the midst of the workers’ compensation hearing. The Stokes dissent objected to this saying: “Now, every time an employer requests to have its expert interview a claimant, the magistrate must comply.”
- It is the claimant’s burden to prove that all jobs in the same “salary range” suitable to his/her qualifications and training cannot be performed as a result of the work injury or are not reasonable available. The Supreme Court said suitable jobs are “‘those jobs that afford a plaintiff an opportunity for consideration to be hired because he possesses the minimum experience, education, and skill.’”
The Supreme Court then sets forth the procedures to be followed in detail. The Supreme Court said: “We attempt only to afford guidance in the application of Sington so that future claimants and employers will have the benefit of a consistent and workable standard in assessing their rights and obligations under the law.” The step-by-step process is as follows:
“After reviewing the inconsistencies in the WCAC opinions since Sington, we set forth the following practical application of the Sington standard in this case.
First, the injured claimant must disclose his qualifications and training. This includes education, skills, experience, and training, whether or not they are relevant to the job the claimant was performing at the time of the injury. It is the obligation of the finder of fact to ascertain whether such qualifications and training have been fully disclosed.
Second, the claimant must then prove what jobs, if any, he is qualified and trained to perform within the same salary range as his maximum earning capacity at the time of the injury. Sington, supra at 157. The statute does not demand a transferable-skills analysis and we do not require one here, but the claimant must provide some reasonable means to assess employment opportunities to which his qualifications and training might translate. This examination is limited to jobs within the maximum salary range. There may be jobs at an appropriate wage that the claimant is qualified and trained to perform, even if he has never been employed at those particular jobs in the past. Id. at 160. The claimant is not required to hire an expert or present a formal report. For example, the claimant’s analysis may simply consist of a statement of his educational attainments, and skills acquired throughout his life, work experience, and training; the job listings for which the claimant could realistically apply given his qualifications and training; and the results of any efforts to secure employment. The claimant could also consult with a job-placement agency or career counselor to consider the full range of available employment options. Again, there are not absolute requirements, and a claimant may choose whatever method he sees fit to prove an entitlement to workers’ compensation benefits. A claimant sustains his burden of proof by showing that there are no reasonable employment options available for avoiding a decline in wages.
We are cognizant of the difficulty of placing on the claimant the burden of defining the universe of jobs for which he is qualified and trained, because the claimant has an obvious interest in defining that universe narrowly. Nonetheless, this is required by the statute. Moreover, because the employer always has the opportunity to rebut the claimant’s proofs, the claimant would undertake significant risk by failing to reasonably consider the proper array of alternative available jobs because the burden of proving disability always remains with the claimant. The finder of fact, after hearing from both parties, must evaluate whether the claimant has sustained his burden.
Third, the claimant must show that is work-related injury prevents him from performing some or all of the jobs identified as within his qualifications and training that pay his maximum wages. Id. at 158.
Fourth, if the claimant is capable of performing any of the jobs identified, the claimant must show that he cannot obtain any of these jobs. The claimant must make a good-faith attempt to procure post-injury employment if there are jobs at the same salary or higher that he is qualified and trained to perform and the claimant’s work-related injury does not preclude performance.
Upon the completion of these four steps, the claimant establishes a prima facie case of disability. The following steps represent how each of the parties may then challenge the evidence presented by the other.
Fifth, once the claimant has made a prima facie case of disability, the burden of production shifts to the employer to come forward with evidence to refute the claimant’s showing. At the outset, the employer obviously is in the best position to know what jobs are available within that company and has a financial incentive to rehabilitate and re-employ the claimant.
Sixth, in satisfying its burden of production, the employer has a right to discovery under the reasoning of Boggetta if discovery is necessary for the employer to sustain its burden and present a meaningful defense. Pursuant to MCL 418.851 and MCL 418.853 [footnote omitted], the magistrate has the authority to require discovery when necessary to make a proper determination of the case. The magistrate cannot ordinarily make a proper determination of a case without becoming fully informed of all the relevant facts. If discovery is necessary for the employer to sustain its burden of production and to present a meaningful defense, then the magistrate abuses his discretion in denying the employer’s request for discovery. For example, the employer may choose to hire a vocational expert to challenge the claimant’s proofs. That expert must be permitted to interview the claimant and present the employer’s own analysis or assessment. The employer may be able to demonstrate that there are actual jobs that fit within the claimant’s qualifications, training, and physical restrictions for which the claimant did not apply or refused employment.
Finally, the claimant, on whom the burden of persuasion always rests, may then come forward with additional evidence to challenge the employer’s evidence.
This precise sequence is not rigid, but rather identifies the nature of the proofs that must precede the fact-finder’s decision. Should it become evident in a particular case that a different sequence is more practical, the parties may present their evidence accordingly. However, the magistrate must ensure that all steps are completed in some fashion or another, that all the facts necessary to the determination of the case are presented, that each side has been accorded an adequate opportunity to respond to the other’s proofs, and that the statutory burden of proof is respected. After that point, the magistrate can properly determine whether the claimant has satisfied his obligations under MCL 418.301(4).
We reiterate that MCL 418.851 places the burden of proof on the claimant to demonstrate his entitlement to compensation and benefits by a preponderance of the evidence. This burden of persuasion never shifts to the employer, although the burden of production of evidence may shift between the parties as the case progresses. Because a claimant does not prove a “disability” under MCL 418.301(4) by merely demonstrating the inability to perform any previous jobs, the burden remains on the claimant to demonstrate that there are no available jobs within his qualifications and training that he can perform. Only after the claimant has first sustained that statutory burden of proofs does the burden of production shift to the employer to show that there are jobs that the claimant can perform.”
The dissent in Stokes says Mr. Stokes worked 28 years as a forklift driver for Chrysler and has a high school diploma and, therefore, “If compelled discovery is ‘necessary’ in this case, it will be ‘necessary” in all cases.” The dissent also says:
“However, as a practical matter, the claimant will face even greater risk if he doesnot hire an expert. The majority clearly assumes that employers will have vocational experts at workers’ compensation proceedings to best support their positions. With the employer’s expert locked and loaded, the prudent claimant will have like reinforcement. The vocational proofs required virtually ensure that claimants will need experts.”
