*1
y DaimlerChrysler
571
Stokes
STOKES v DAIMLERCHRYSLERCORPORATION
August 8, 2006,
Docket No. 268544. Submitted
at Detroit. Decided
2006,
26,
sought.
appeal
October
9:05 a.m. Leave to
sought
compensation
disabling
Fredie Stokes
workers’
benefits for a
working
spine injury
cervical
he incurred while
as a
driver
forklift
DaimlerChrysler Corporation.
compensation mag-
A
for
workers’
granted
DaimlerChrysler
open
istrate
Stokes an
award of benefits.
appealed
Compensation Appellate
to the Workers’
Commission
(WCAC),
magistrate
remanded
case to
which
the
the
for reconsid-
light
Sington Chrysler Corp,
(2002),
of
eration in
plaintiffs previous salary, training, education, together longer plaintiff perform any that the could no of jobs pay the within the wage, prima showing disability. maximum established a facie of 2. The WCACerred to the extent that held that a it transfer- irrelevant, law, analysis evaluating able skills as a matter in plaintiffs However, the the WCACdid concluding analysis err in that a transferable is not a skills necessary part plaintiffs proofs. proof aof burden remains that, disability, despite to show fact as a matter, practical in cases where existence within plaintiffs qualifications apparent, are not expected contrary defendant is to establish facts on to which base a conclusion. concluding magistrate 3. The erred in that the had no authority provide discovery to order the defen- authority, Boggetta dant. The had the under v Bur- roughs (1962), Corp, inquiries 600 to make those investigations However, necessary. that he deemed because this authority discovery does not derive from the broad rules of set Michigan Rules, forth Court the defendant entitled was not 272 Mich plaintiff; entitled it was to have interview its vocational only deemed neces- form whatever sary light develop fact that a defense. records, testimony, prior access information, the WCACdid not err medical considerable *2 magistrate concluding abuse discretion in the did not his that plaintiff by declining interviewed the defense the to be to order expert. light plaintiff lost 4. conclusion that the of WCAC’s wages impairment, his medical its as a result of work-related unnecessary confusing, lengthy that discussion of issue was and vacated, unnecessary along and is the WCAC’s and therefore with partial disability provisions. confusing of the discussion refusing magistrate did not his discretion to 5. The abuse adjourn expert that the vocational could the trial so defendant’s testimony given plaintiffs trial that had review only days provided been five before trial and not been retained any plaintiffs deposition records or of the with the testimony, agreeing basis for that and the WCACwas not without adjournment properly denied. was part. part Affirmed in and in vacated J., dissenting, stating clearly WCAC in its E that the erred Saad, ruling qualifications plaintiffs and that work suitable to the training jobs performed, to the is limited that he without reference possessed to skills. This error whether he transferable was by ruling magis- The not harmless. WCACfurther erred that the plaintiff authority provide trate have the to order the to did not defendant, discovery be to the and the case should remanded to the to reason- with directions order the that is Also, ably necessary prepare defense. allow defendant its regarding legally the WCAC erred its statements whether injury required to show that his work-related caused wage-earning capacity, of is fundamental current loss which 418.301(4). part proofs Finally, plaintiffs of under MCL majority incorrectly analyzed argument the defendant’s that the erroneously concluded the defendant bore the burden disproving disability affirmatively proving of the existence jobs within the and The compensation in a must or her workers’ matter establish his disability by prepon- and work-related entitlement benefits evidence, legal derance of the the WCACcommitted a clear by concluding error otherwise. The WCAC’s should be decision reversed, magistrate. and the case should be remanded Stokes Wage-Earning — Compensation Disability Capacity. 1. —Maximum Workers’ disability finding requires A there is a determination that capacity employee’s wage-earning limitation maximum in all jobs injured employee’s qualifications training to an suitable 418.301M). (MCL — — Compensation Disability 2. Workers’ Prima Facie Case. jobs, employee’s previous salary, training,
Evidence of an education, together employee could no longer jobs of the within his or her pay wage, prima the maximum facie establish a (MCL 418.301[4]). showing 3. Workers’ — — Compensation Disability Burden of Proof. proof employee disability, burden remains on to show that, despite the fact in cases where the existence of other employee’s qualifications appar- within the are ent, employer expected establish facts on which to base a (MCL 418.301[4]). contrary conclusion
4. Workers’ Magistrate. — — Compensation Discovery Authority compensation authority
A in a workers’ case has the inquiries investigations make those that he she deems *3 (MCL418.851). necessary — 5. Workers’ — Compensation Discovery Scope. discovery provisions Michigan
The broad in contained the Court apply compensation cases; therefore, Rules do to workers’ only defendant is entitled to whatever form of 418.851). (MCL necessary develop deems a defense Mancini, Schreuder, Conrad, & (by Kline Roger EC. Kline) R. (Daryl Royal, counsel), plaintiff. for the Marcinkoski) & Jones M.
Lacey (by Gerald for the defendant. SAAD, EJ.,
Before: WHITE, and JANSEN and JJ. Defendant appeals granted J. leave the en WHITE, opinion banc Compensation Appellate Workers’ (WCAC) affirming open of dis- Commission award 571 272 Mich com- that the WCAC argues Defendant ability benefits. of disabil- the standard in applying of law mitted errors 144; 648 467 Mich Chrysler Corp, ity under magis- concluding (2002), and in NW2d discov- grant pretrial authority general had no trate in a result this reached that the WCAC ery. conclude We of benefits— grant magistrate’s affirming case— record, and affirm amply supported that is overly in broad However, opinion because result. unduly understood being capable and is parts,1 supra, we Sington, application in its restrictive it is inconsistent to the extent opinion vacate the forth herein. principles set I in 1971 when working for defendant Plaintiff started involved old. His work for years he was 19 transport parts to unload trucks driving forklifts “mules,” He also drove plant. defendant’s and around parts around transport trucks used to are small which defendant, the end of his career with Toward plant. driver, which dispatch as a employed throughout a computer that he enter data into required deliver- unloading, driving, and day in addition to required driver still dispatch Plaintiffs work as a ing. day. hours a forklifts or mules five that he drive the required plaintiff and mules Operating the forklifts flexion, extension, twisting engage repetitive he frequent jarring and the spine, cervical minor im- driving repeated caused experienced while clarify applicable procedure, law and in an effort to No doubt dissent, majority opinion, 39-page panel produced 51-page en banc *4 parties separate 8-page and amici curiae differ in their dissent. The and a breadth, length majority opinion. one reading of its Because multiple interpretations. language supporting can find pact injuries spine. 1990s, Near end of the plaintiff began feeling pain in his cervical spine and arms while working. The pain plaintiffs neck and arms increased until the fall 1999, when it forced stop working. According to plaintiffs treat- ing physician, Paz, Dr. Arturo the jarring and other physical activity caused repetitive trauma cervical spine and aggravated plaintiffs existing rheu- matoid arthritis so as to leave him unable job as a dispatch driver.
Plaintiff sought workers’ compensation benefits based on a spine cervical disability. The magistrate accepted Dr. Paz’s that the disabling cervical spine condition was caused the repetitive flexion, extension, and jarring of plaintiffs spine cervical dur- ing his work for defendant. Accordingly, granted plaintiff open award of mag- benefits. The original istrate’s opinion does engage in a separate analysis of disability under 418.301(4), MCL but appar- ently relied on Haske v Transport Leasing, 455 Mich 628; 566 NW2d (1997),2 which defined “disability” to include an injury that prevents an employee from performing a single job within his qualifications and training. Id. at 655.
Defendant appealed the award of benefits to the WCAC, arguing that the magistrate erred in finding that plaintiff suffered a injury work-related rather than a noncompensable condition of aging. the same appeal, defendant argued that the case should be re- manded to for reconsideration of the disability issue in light of Sington, supra, which over- ruled Haske respect to its definition of “disability.” The WCAC affirmed the magistrate’s finding that plain- tiff had suffered a injury work-related supported by Haske subsequently Sington, supra part by overruled at 161. *5 APP 571 272 MICH Opinion of the Court How- evidence. material, and substantial competent, magistrate matter to the ever, the remanded Sing- finding under disability of his for reconsideration ton, explaining: because he could Stokes to be disabled
Dr. Paz found testimony, job Based on this as a hi-lo driver. return to his job” to that not return magistrate found Stokes “could job.” “any of that or duties can a claimant Sington, the test is not whether Under performing, he last but whether return to the work was wage a limitation of his maximum has suffered claimant his earning capacity in work within only remand, magistrate address training. will On under the standard. of Stokes’ issue remand, sought defendant after hearing Before the rehabilitation by a vocational have interviewed plaintiff relevant expert give prepare denied Sington. magistrate The application request counsel renewed this request. this Defense remand, hearing and the the start of the inter- to submit to an again plaintiff refused to order expert. by defendant’s vocational view he defendant’s motion have rejected noted that while expert, defendant’s vocational interviewed anything from else doing did not prevent he information. acquire this back- regarding Plaintiff testified training. graduated Plaintiff ground, qualification, drafting junior high He took school high from school. school, otherwise had no high but shop wood college very He attended for brief vocational degree any did not certification. periods but obtain training or adult educa- job He did not take defendant, plaintiff for working tion classes. Before refrigerator at a warehouse driving forklift worked Stokes stocking merchandise at a He TV store. also occa- sionally helped stock shelves at his cousin’s record store. None of those paid anywhere near the wage working earned for defendant. Plaintiff had no typing skills; his data-entry experience dispatch as a driver consisted of typing rack numbers into the com- puter. activities, As far as recreational plaintiff testified that he played chess and cards and watched sports on TV He accompanied they golfed, friends while and rode in, drive, but did not golf cart.
At hearing, defendant presented testimony from *6 vocational rehabilitation expert Robert Seal. Defense presented counsel very Seal with a lengthy hypothetical question based on the relevant factors raised in plain- tiffs testimony, asking whether he could give opin- ion regarding plaintiffs wage-earning capacity given plaintiffs qualifications, training, and restrictions. Seal answered as follows:
Well, point nearly this in time it speculative would be my part opinion wage to render an earning about his capacity. I actually would need to employers contact to survey what is out there. again, job And to determine availability wages jobs. for accompanying those actually,
And prior even probably to that I would need to complete analysis, what is called the transferable skills I profile where would take the essentially pre- that was history, sented of his work background, his educational restrictions physicians as outlined both and enter that information computer essentially into the have that profile, all profile the variables of that bounced off of the Department U.S. Dictionary Occupational Labor’s job Titles. All of their to classifications assess what might appropriate falling be most within the restrictions and other as noted. Immediately following Seal’s to response the hypo- thetical question, defense counsel adjourn asked to or Opinion Court hearing to allow Seal
continue develop proofs analysis relevant as to mentioned so objected, analysis. counsel Plaintiffs question appeared arguing concern re- that 418.301(5), earning capacity under MCL sidual 418.301(4) disability MCL than under rather responded Sington. he counsel Defense showing develop attempting evidence prior wages level or earn at his was still able earning capacity, postinjury plaintiff had a residual to reduce his allow defendant which would benefits. place followingexchange then took between
The witness, and defendant’s Seal: you just question. Magistrate: have a When were The —I contacted, Seal, regarding this case? Mr. Thursday, October 2nd. Mr. Seal: Okay. you provided Magistrate: And have been The today’s hearing any deposition of the before any job of the Plaintiffs files? deposition material. Not
Mr. Seal: No. his, you you Magistrate: Alright. seen have Have you job application or have seen his seen his Chrysler? file with
Mr. Seal: No. *7 adjourn. magistrate motion to denied defendant’s The magistrate argued that because the Defense counsel plaintiff requests previously to have denied his prepare by market a labor interviewed hearing, counsel in advance of the defense evaluation any provide with have had no reason to Seal would magistrate hearing. The con- information before the rejected motion for a ceded that he had defendant’s plaintiff, that he but asserted vocational interview Stokes v had not defense from prevented doing anything counsel else to his prepare expert. Seal was then excused. magistrate’s
The after remand opinion incorporated his earlier reference findings by plain- and summarized testimony education, tiffs regarding training, his and The experience. work noted creden- Seal’s tials a vocational expert as and summarized his testi- mony as follows: testified, response
Mr. Seal hypotheti- to an accurate regarding plaintiffs qualifications, training, cal expe- rience, only speculate regard that he could plain- training tiff wage earning [s] as well as capacity. He employers would have to contact and would plaintiff perform job need to meet with a transferable analysis. any skill He admitted that he never reviewed plaintiffs personnel identify file in an attempt potential job Additionally, transferable skills. he admitted that he any testimony never medical reviewed in this matter to identify job restrictions. recognized that plaintiff had the
burden of proving his case a preponderance evidence and concluded plaintiff had proven a 418.301(4) disability under MCL and Sington, explain- ing as follows: disability, order to establish a work-related
must demonstrate that he has a limitation of his maximum wage earning capacity in work suitable to his 418.301(4); 7.237(301)(4); MCL MSA (2002). Chrysler 144, 154; Corp, 467 Mich NW2d job I find that plaintiff experience s is limited to that of a warehouse upon worker hi-lo driver. Based plaintiffs qualifications borne out testimony at trial and at the hearing, remand I find that he sustained proving disability. his burden of a work related my finding
I reiterate that Dr. Paz’s is cred- ible. Dr. Paz testified that could not *8 571 Opinion the Court twisting, turning, jarring or of his neck. bending, repetitive Mayer’s findings plain- Additionally, repeat I Dr. that even rotation, jobs required cervical perforin tiff could flexion, jobs required fine motor or extension or 32). (Mayer, are These restrictions based coordination compression. significant spinal his cord that he cannot accept plaintiffs I fact, jobs. plaintiffs I any previous his find physically limit him to strenu- clearly he disabled due to his ous work from which is Further, significant compression. defendant spinal cord any failed to submit evidence that within his provide that could [sic] or wage earning capacity.Mr. plaintiff his maximum Seal with credible, only speculate and he testified that he could job regard given abilities that he had order) (by my to meet with or review been unable There- plaintiffs employment records medical records. fore, testimony, give, little he was able to what irrelevant.
II magistrate’s Defendant decision to the appealed (1) WCAC, raising arguments: magistrate’s four by denied due of law rulings process preclud- (2) defense; ing presenting magis- it from a viable legally by refusing trate erred to order to meet (3) magistrate vocational expert; with defendant’s defining parameters plaintiffs qualifica- erred in (4) erred training; tions and by effectively reading partial matter of law disabil- Disability out of the ity provisions Compensa- Worker’s (WDCA), tion Act MCL 418.101 et seq.
ordered that
be considered
an en banc
appeal
supplemen-
and instructed the
to submit
panel,
parties
“(a)
regarding
authority
tal briefs
of information
in a
compel
party
disclosure
(b)
Sington process
application
Chrysler Corp,
(2002),
The WCAC affirmed magistrate’s decision in a *9 majority opinion by written Commissioner Granner S. Ríes and concurred in by Commissioners Martha M. Roger Glaser and majority G. Will. The WCAC found that magistrate did not err in refusing to order plaintiff to meet with defendant’s vocational expert, that defendant to access the relevant information ahead of the hearing and a fair opportunity present to proofs its magistrate, that the magistrate’s finding disability was record, supported that the magistrate followed the 418.301(4) relevant law under MCL Sington, and that the conclusion that plaintiff is disabled “is not contra- by speculation dicted that plaintiff might be able to earn wages because the record fails to reflect employment suitable to qualifications and training that represents a meaningful opportunity for plaintiff to earn wages.” Commissioners James J. Kent Gregory A. Przybylo disagreed with the majority’s conclusions and filed separate dissents. regard
With
to the magistrate’s
refusal
to order
to be examined or questioned by defendant’s
expert,
vocational
the majority wrote:
It is the conventional
compensation
wisdom in worker’s
circles that
a “forcible disclosure of information”—
“discovery”
identified as
in other
permit-
tribunals —is not
ted in
compensation....
worker’s
[W]e believe that
accurate,
conventional wisdom
supported by
law,
is
is
case
and is not refuted
isolated administrative cases that
investigate
beyond
have failed to
reading
issue
a casual
is, ultimately,
Boggetta Burroughs
what
dicta in
Corp,
(1962).
sion of majority noted some nonbinding dictum. While exchange pretrial for the specific statutory provisions very information, authority allowing no express it found language in the of the WDCA. Because discoveiy general magistrate authority permitting no express there is or to defendant’s vocational meeting order a with majority concluded discoveiy necessary, order other regardless had no to do so magistrate power that the considerations of fairness. equitable defendant’s need concluded: majority authority no actual to allow apparent It that there is party disgorge order a information to party, except applicable in limited not the other situations here, authority may thought implied be legally Accordingly, exist is not sufficient. we hold that the failing require did abuse discretion plaintiff to meet defendant’s vocational consultant authority necessary because he lacked the to order *10 meeting place. take such (at least, Sington supplies the need for information so told), authority. legislature we are but not the The must authority, provide the and it has not done so. the and majority
The found that denial of adjourn hearing deprive refusal to the did not defen- any regarding plaintiffs dant of relevant information abilities, training. The ma- physical qualifications, and pre- that medical evidence had jority observed been hearing the and to defen- sented at first was available dant, and did not reveal hearing while first regarding information education and work plaintiffs continuously employed had been experience, years old, he defendant’s by defendant since was 19 so Stokes own records would reveal any relevant history and training, education. majority agreed
The with the that plain- physical kept tiffs condition him from returning jobs he held. Because there previously was no evidence any jobs was able to paid him or more than he working defendant, same made for concluded he majority had shown 418.301(4) under MCL and Sington. majority re- jected defendant’s that the argument magistrate erred by assessing plaintiffs qualifications training solely on the plaintiffs prior employment basis of history: employee’s conclude that an qualifications
We and train- ing effect, represent, employee’s listing resume: a of the employee characteristics of the has held and how they pay much training employee and the that the has been provided prior injury. to the work-related Such characteristics jobs held, along of the training elucidation of may employee undergone, have will enable a determination to be made as to the employee’s work which is suitable to the Further, qualifications training. be, initially, plaintiffs testimony will whatever de- party wishing augment
scribes them to be and the description employee’s qualification has obligation present rely such party evidence. A cannot upon opponent present the evidence out of or which his Moreover, her claim or defense will be construed. testimony may may not be sufficient to allow for a determination as to what work is suitable to 418.301(4) The majority stated that MCL contained nothing concerning analysis transferable skills that prior opinions post-Sington “should not be read as requiring employee to show that such may possess skills as he actually job transfer *11 market.” determined Finally, majority analysis” depict “transferable skills would inaccurately ability gainful employment actual to obtain a claimant’s proof for virtually impossible in a burden and result the plaintiff: reasons, reject concept that the mea- we
For these employee’s qualifications suitable to an surement work analysis. training a “transferable skills” Such includes employee analysis suggests that work which the has an and, therefore, totally of its performed unaware never requirements, to mea- physical or mental can be utilized disability. sure training repre- employee’s qualifications While resume, employee’s Motors Peacock General
sent #274, Corp, agree do not with the assertion 2003 ACO we any job wage earning capacity for suitable to the that the must be shown. established go employee if the has held proofs Such could on forever jobs. And, no matter how even a few different kinds of (and exhausting) proofs, such a standard exhaustive open employer’s arguments briefing still leaves only argument appeal employee that the can answer employee employer Both must and not with evidence. impossible excused from burdens. be employment after the Just as the use of such theoretical disability, injury cannot be utilized to refute a claim of employment neither can theoretical be utilized at the time employee’sinjury employment the field to describe against impairment is measured. which within regard employment With existence pays employee’s income under wage equivalent Sing- to his maximum ton, determined that the defendant- majority of actual employer must demonstrate existence concluded: plaintiff. majority available to the case, plaintiff impairment In this has a serious medical precludes performance of and all which work is, result, performed. He record reveals he has ever totally disabled within a field of that com- *12 585 prises Were it demonstrated represents there was work available to him which meaningful earn, opportunity to if even short of an actual work, partially offer of he could been have found to be But, disabled. short of a firm intention not to work at an opportunity wages represents meaningful to earn which opportunity performed work that can be basis, competitive on a and sustained resulting there is no compensation alteration in the employee worker’s rate. An profit cannot when the barrier to a return to the work force is a unilateral intention not to work. magistrate’s findings by supported fact are material,
competent, and, and substantial evidence when proper legal under the viewed standard as embodied 418.301(4), 418.351, 418.361(1), MCL MCL MCL and MCL 418.371(1), totally demonstrate that he is disabled.
Ill Defendant raises five basic arguments in this appeal: (1) the WCAC improperly limited the definition of work “suitable to qualifications and training” to (2) work that had performed in the past; erroneously WCAC concluded that it not necessary for plaintiff to prove causal link between his disability (3) and loss of wages; the WCAC erroneously deter- mined that defendant-employer bore the burden of (4) disproving disability under Sington; the WCAC erred finding that the had no authority to order necessary permit to pre- (5) pare a defense under Sington; and the WCAC erred by finding that the magistrate did not abuse his discre- tion by refusing adjourn trial so that defendant’s vocational expert prepare could a Singíore-based de- fense using introduced at trial. arguments
Defendant’s
assert that the WCAC made
errors of law and assessed the record before it using an
legal framework;
erroneous
that the
specifically,
WCAC
App
586
571
272
op
Opinion
the Court
binding
precedent
case
misapplied
misinterpreted
of law
questions
Such
of the WDCA.
the provisions
de novo.
are reviewed
case
compensation
a workers’
Inc, Mich
469
Systems,
Land
Dynamics
Rakestraw v Gen
(2003).
interpreta-
The WCAC’s
224;
220,
666 NW2d
deference.
entitled to
ordinarily
is
tion of WDCA
where
such deference
not afford
However, this Court “will
pertinent
statute
interpretation
the WCAC’s
Mich, Mich
Co
Tel
incorrect.” Maier Gen
clearly
(2001). Regarding findings
655, 660; 637 NW2d
findings under
magistrate’s
fact, the
reviews
*13
Court
standard, while this
evidence”
“substantial
“any
fact under
findings of
the WCAC’s
reviews
Co, 462
A & P Tea
Mudel v Great
standard.
evidence”
(2000).
691, 698;
As this a expresses, “disability” in part, “wage earning relevant in capacity” limitation employee’s qualifications training. work suitable to an pertinent “capacity” The definition of in a common diction- ary producing ability.” is “maximum output Webster’s (3d ed). Dictionary New College Accordingly, World 418.301(4) plain language of MCL person indicates that a injury suffers a if an covered under the WDCA person’s results in a reduction maximum reason- ability wage earning able work person’s suitable understood, So employee condition that rendered an perform job paying salary, given unable to the maximum employee’s qualifications training, leaving but employee equally well-paying position free to his suitable would con- disability. stitute a [Emphasis added.] distinguished Court this interpretation 418.301(4) of MCL its prior from definition of disability *14 Haske, in at supra 628: 301(4) Haske,... § this Court concluded that defined
disability personal injury as “a or work-related disease that prevents employee any work, an performing from a even job, single qualifications within training....” 301(4), Legislature § Because of words the used in plain Haske definition of is untenable. The mean- 301(4) ing § “disability” of the definition of in “a employee’s wage earning limitation of an capacity in work qualifications training” precludes suitable to his re- garding person inability perform a as disabled when an 272 Mich APP Opinion the Court fact, not, person’s reduce particular job does in
one
other, equally well-paying
in
work
wage earning capacity
301(4)
qualifications and
Section
suitable to his
specifically directs the reader to a consideration of whether
earning capacity,
wage
limitation in
not
there is a
(or
merely
performing
in
one
person
whether a
is
limited
more) particular jobs. [Sington, supra
158.]
at
it
Thus,
significance
clearly
is that
over-
Sington’s
ruled Haske.
injury-related inability
An employee’s
jobs
employee’s
one or some
within the
a dis-
longer
no
establishes
ability. Rather,
finding
disability requires
a deter-
in an employee’s
mination that
there is
limitation
maximum,
“overall,
words,
earning
in
wage
other
injured
capacity
jobs
employee’s
in all
suitable to
Id. at 159.
training.”
B
418.301(4)
Sington
or in
Nothing
suggests
MCL
person’s qualifications
that “work suitable
training”
limited to
claimant’s resume or actual
in the
To the
jobs
performed
past.
held,
extent the
it erred. The lan-
majority
so
guage
injured
used in
takes a broad view of an
training,”
employee’s “qualifications and
which is
resume, but,
limited to the
employee’s
rather,
any jobs
injured
includes
could
employee
Sington opinion
actually perform
upon hiring.
specifically directs the fact-finder to
“whether
address
in wage earning capacity”
there is
limitation
rather
limited
injured employee
merely
than whether the
“is
(or more)
Id. at
jobs.”
158.
performing
particular
one
in Rea v
Sington referred
Court’s
order
Supreme
(1995).
Olds/Mazda/Volvo,
On the other to the extent the WCAC ad- the from standpoint dressed issue the of the produc- evidence, matter, tion of and held that as a practical employee’s proofs generally will consist of the of equivalent employee’s i.e., the a listing resume — of the the description jobs held employee until injury, the time of pay jobs, the the for those and a description employee’s of the education employee —and that cannot of within his the maximum paying wage, By did not err. producing evidence, such in addition to evidence of a injury causing work-related em- disability, an ployee prima makes facie case disability —a in maximum employee’s limitation wage-earning in all capacity jobs suitable the employee’s quali- and training. fications The WCAC did not err in concluding that a showing such is adequate estab- disability lish the absence showing evidence there is in real fact work within the employee’s training and experience, paying wage, maximum employee perform upon able to hiring. regard, disagree this we defendant’s and magistrate’s dissent’s characterization approach placing proof WCAC’s burden employer disability. It disprove is evident opinion, from his as we noted previously, magistrate clearly understood that the proof burden of as defined to establish his
is on the case in WCAC, analyzing Sington. Similarly, fashion, on defen- proof the burden place this did *16 Rather, determined that when the employer. dant testimony medical evidence establish and employee’s the jobs all the performing disabled from employee that the is quali- that are within his the has or employee performed met, the standard is and Sington training, and fications that, contrary employ- to the unless the shows employer jobs employee’s are real within the proofs, ee’s there training wage, the maximum pay and that qualifications disability is established.3
c Further, that, as the extent the WCAC held analysis irrelevant law, matter of a transferable skills is and train- evaluating employee’s qualifications in the yield analysis may it A transferable skills ing, erred. credible that there is actual that employee’s training the and make the qualifications although employee performing upon hiring, of capable it never before. On the employee performed the has stated, among things: 3 TheWCAC other begin the observation that if the record demonstrates We training qualifications job employee’s that the and consist of one any gained perform and he has no skills that would allow him to job, perform job inability legally other that one sufficient totally all to his to establish that he is disabled from work suitable training. training And if his and and job, inability jobs all such consist more than one wages paying the will demonstrate he is disabled. maximum training only job qualifications and consist of one But where jobs sharply all a small or defined skill set relative to exist of force, jobs convergence be a of the extant in the labor there can jobs qualifi- jobs employee has held with suitable to his those and cations hand, a particular analysis may transferable skills reach are conclusions that based on and assumptions speculation, supported by are not the employee’s actual qualifications or the realities case, workplace. any particular should be well able to discern the difference.
Similarly, that, did not err in majority concluding disability, did changing interpretation (or skills intend make a analysis transferable non- analysis) necessary part transferable skills em- An ployee’s objective proofs. evaluation the employee’s skills, past education, employment, training, and mea- sured against employee’s physical work-related limi- tations, no it will doubt make apparent parties magistrate whether, case, particular likely it is jobs that there are within employee’s qualifications employee perform, is still able to indeed, the employee may, need to address these *17 pay the associated them in with order to sustain his cases, burden of In proof. proofs such the need for further will arise from the extent of employee’s qualifications training and and employee’s disability, the nature of the and not from arguments presented by theoretical cases, In other employer. the employee’s proofs will seem sufficient, and jobs the existence of other within the employee’s qualifications and training appar- will not be cases, ent. employer such would be expected to facts establish on which to base contrary conclusion. Such practical recognition change does not the allocation of proof; burden the burden proof remains employee disability. to show
D case, observed, In the instant as the WCAC employee’s qualifications training and were straightfor- 272 Mich
Opinion the Court limitations were limited, physical and his and ward to con- magistrate reason for the no clear. There was plaintiffs within additional work clude that there was able plaintiff training qualifications affir- majority’s regard, In this the WCAC perform. Mudel, supra. supported. mance was well The asserts that both dissent Sing- and the magistrate proofs limited improperly de- employment history ton with inquiry fendant, and train- plaintiffs qualifications rather than work, and reversal ing perform reading Our required. disagree. therefore We magistrate under- record us to conclude that leads and asked question Sington, the relevant under stood his whether sustained proper question: in his establishing burden of that he has limitation to his maximum work suitable wage-earning capacity lim- The never do longer ited the to whether could no inquiry job. plaintiffs qualifica- his examined training tions and and came to the conclusion factual him to jobs that his limited warehouse, driving working “physi- hi-lo and in a from he is cally clearly strenuous work which disabled.” on plaintiffs This conclusion was based jobs, training, his education and concerning prior showing failure produce defendant’s evidence that, were, fact, there contrary plaintiffs proofs, that he plaintiffs qualification within him his maxi- provide could that would amply mum wage. supported This conclusion was the record. *18 that, notwithstanding
Similarly, we conclude overly majority of the sweep opinion, broad WCAC instant case is supported WCAC’s evaluation op Opinion the Court controlling the record and withstands review under the majority standards. The reviewed the testimony and basis, concluding affirmed the the same all plaintiff totally disabled from the he held past, “nothing and there is in the to record suggest has
to perform any job pays wages equivalent, or greater than, earning [sic] to what he was for [sic] [Emphasis defendant.” added.] concluded that the magistrate had no authority provide to order to to this matter. This was error.
A In Boggetta, supra, Compensation the Workmen’s Board found that Appeal to predecessor statute 413.8,4 MCL MCL gave the workers’ compen- 418.851, magistrate power grant sation discovery when nec- essary, explaining: 8,
Section part compensation of the workmen’s law provides assigned any hearing that a referee “shall make (he) inquiries investigations such it shall as deem necessary.” general language This is broad consistent with purpose the intent placing law ultimate responsibility hearing inquiries in the officer to make such may investigations necessary be to determine injured whether worker is entitled benefits under law. do not responsibility We believe the referee’s investigate personal is limited to detective work on his part. It enough require answering is broad interrogatories requested by parties one of the if such 4 1948 CL 413.8. *19 Mich 272 571
594 op Opinion the Court necessary inquiry into the facts. proper are to answers omitted)]. (internal quotation [Boggetta, supra at 603 improvidently that it concluded leave Although Court reasons, Supreme our granted jurisdictional for interpretation of appeal the board’s effectively adopted referee full law, stating hearing the had “[t]he appeal in the board’s by quoted the statute authority, the ruling, disgorge the defendant require to at information.” Id. 603-604. requested currently of MCL states: first sentence 418.851 hearing compensation magistrate “The worker’s investiga- inquiries claim shall make such necessary.” (Emphasis tions he or she considers as added.) rejected au- majority Boggetta The WCAC as discovery, concluding thority ordering for it on which was based has since statutory provision to make clear that the relied on provision been amended magistrate’s Court author- Boggetta refers ity hearing, at the and also that the Court’s statement However, Supreme Court’s order was dictum. directing of defendant’s grant this Court this case v Bur- application specifically Boggetta states “that (1962), 600 roughs Corp, [118 NW2d 980] controlling authority this remains until reversed 875, DaimlerChrysler Corp, Court.” 475 Mich Stokes (2006). controlling remains au- Boggetta Because follow thority, this Court and the WCAC must it. Under authority Boggetta, under MCL discovery necessary a party 418.851 to order allow case. present its hand, magistrate’s On not authority the other is in the discovery from the rules set forth derived broad Rather, authority limited Michigan Court Rules. is to a “necessary proper inquiry to that is into which magistrate has supra facts.” at 603. While the Boggetta, Opinion op the Court authority relevant grant necessary that is for defendant to develop a defense under it Sington, does automatically follow that defendant is entitled plaintiff.5 have its vocational What interview form discovery necessary to enable a defendant to investigate employee’s prepare a proper defense under is a matter
for magistrate’s discretion.
B *20 To the magis- extent the WCAC concluded that trate did not abuse his in declining discretion to order participate interview, to in the that no need for case, an interview was shown in this and that defen- inability dant’s to a present defense at the was due to hearing provide its own failure to with information prior hearing, we find the conclusions adequately by the supported record.6 While 5 specifically provides While MCL 418.385 for the examination of employer’s experts, statutory claimants medical there is no counterpart specifically providing for interviews vocational experts, necessary and the information will often be available employee’s records, through interrogatories. or obtainable 6 majority stated: any are vocationally We unable to discern relevant information hearing that Mr. Seal learned at the could he not have learned hearing remand, plaintiff earlier. Under cross-examination at prior properly was asked prior whether decision listed all his
jobs Chrysler [and jobs]____ confirmed that he held no other prior experience years ago, Plaintiffs vocational some part-time, comparison pales in which was work for defen- (not riding driving, dant. Plaintiffs hobbies —such as it is to be noted) golf employ- a cart —do not seem to for destine plaintiff performed Chrysler, presum- ment. The kind work for 272 Mich op Opinion the Court cases, in some appropriate will no be an interview doubt information defendant had sufficient in the instant case history long-term work prior testimony, a in the form medical information defendant, and considerable re- of the additional information to narrow the focus if by interrogatory sought it could be quired so trial, augment obtained at trial necessary before analysis based on the transferable skills preliminary sum, In we already information available. considerable WCAC, satisfied, are as were inability requested defendant’s conduct viable present did lead to its failure interview ably, Chrysler. surprise Plaintiffs did not come as a restrictions long depositions from the medical taken before. were obtainable trial, there no reason to At defendant indicated that information, manager provide the vocational case "with anything do more than what he has since—he would be unable to 44) however, today.” (Rem, was, Seal done This not what Mr. here hypothetical question, response to a Mr. Seal did not indicated. simply He indicated that he indicate he needed more information. computer. he needed to enter the information has received into (Rem 40). [,] that, given Mr. It conclusion Seal been the informa- is our *21 Chrysler already prior hearing possessed, to the that he tion that responded questions propounded him could to without have case, speculating. suppose that information could another we hearing response have been disclosed at the which would alter manager, but that is not this case and we are vocational case day. leave that fact for another forced to circumstance willing simply of We are to attribute Mr. Seal’s lack magistrate’s plaintiff to failure to order to meet information do not it would have more with Mr. Seal. We doubt that been expect plaintiff, for Mr. Seal to meet with but we convenient required compare he would still be the information received directly plaintiff developed from with information he whatever other means. Rather, Sington defense. defendant hired an expert provided then him with of none the information that defendant, was such plaintiffs available as employ- prior testimony. ment records and his result, As a expert conducted none the research that be would necessary present analysis. transferable skills It appears colloquy from the trial prelimi- that had the nary work done with the information, been available would have permitted the expert time integrate the additional provided information at trial into his opinion. magistrate did not abuse his in concluding discretion it that was defendant’s failure to properly with pursue expert, issue its rather than magistrate’s denial of prior for an request interview plaintiff, that led to the failure to mount defense, viable WCAC did not err Mudel, affirming on this point. supra.
Vi Defendant asserts that the WCAC erred as a matter by holding law did not need to show that wages his loss of was caused his work-related injury resulting disability. The majority having concluded that “it is obvious that wages lost result his work-related medical impairment,” its lengthy dis- cussion of the issue unnecessary and confusing, and Similarly, is therefore vacated. the majority’s related discussion the partial disability provisions is vacated for the same reason.
VII Finally, reject argument we defendant’s by refusing erred to adjourn the trial. De- sought adjourn fendant the hearing so that its vocational could review trial testi- *22 598 272 571 Mich Dissenting by Opinion EJ. Saad, regarding possibility mony prepare opinion and testi- on that future based denied defendant’s motion mony. The determining that had been adjourn after trial, days before had not been only retained five testimony, any of the deposition with provided records. plaintiffs employment provided not been circumstances, say that we cannot Under these adjourn by refusing his discretion magistrate abused was basis or that the WCAC without proceedings, denied. agreeing adjournment properly for majority opinion The result reached WCAC’s opinion is to the extent en banc is affirmed. vacated opinion. with this inconsistent JANSEN, J., concurred. I (dissenting). respectfully P.J. dissent because
SAAD, in legal Compen- errors the Workers’ numerous (WCAC’s) opin- en banc Appellate sation Commission’s I Though agree majority’s ion. with the conclusion contains misstate- majority opinion WCAC’s several law, majority’s ruling I with the disagree ments af- here nevertheless be the result reached should magistrate’s and the firmed. Because commission’s repudiated Supreme in this case our Court’s actions 144; 648 Chrysler holding Sington Corp, (2002), effectively prevented NW2d Sing- from a defense under preparing presenting ton, I would reverse the WCAC decision remand magistrate. this matter to the DEFINITION OF DISABILITY that “work clearly ruling The WCAC erred its training” person’s to that suitable 418.301(4) under MCL limited Dissenting Opinion EJ. Saad, the claimant performed, without reference *23 possessed any whether claimant other “transfer- he wages. able” skills which could earn Contrary to Sington, both magistrate the WCAC and the improperly inquiry limited this to pivotal history plaintiffs quali- rather than the fication and to perform any other work. I disagree majority’s with the “harmless error” conclu- sion that the instant .. employee’s “[i]n case. and were straightforward see ante limited,” 591-592, because the WCAC used wrong legal definition of disability and defendant meaningful was denied a opportunity to discover evi- present dence and proofs regarding plaintiffs actual qualifications and training.
DISCOVERY
Also, the
by ruling
WCAC erred
that the
had
no authority
plaintiff
discovery
to order
to provide
to
Clearly,
defendant.
the WCAC erred as a matter of law by
upholding
magistrate’s
to
discovery
refusal
order
because, under
Boggetta
Burroughs Corp, 368
Mich
600;
(1962),
CAUSAL CONNECTION Further, the WCAC’s regarding statements whether of wages needed to show loss were also incor- 571 Mich 272 Saad, EJ. Dissenting Opinion unnecessary, confusing, legal and constitute rect, injury proves if both work-related error. Even he capacity, must also wage-earning loss injury caused his current work-related show that his to MCL wage-earning capacity pursuant loss 418.301(4). Corrections, 172, v Dep’t Sweatt (2003) (“there a linkage must be 186; 661 NW2d the re- injury work-related disabling between part plain- is a This fundamental pay”). duction under the act. proofs tiffs
BURDEN OF PROOF
analysis
Finally,
majority’s
I
with the
disagree
argument
er-
regarding defendant’s
roneously
defendant-employer
bore
concluded
Sington by
under
disproving
the burden of
*24
affirmatively proving
existence
within
It
injured employee’s qualifications
in a workers’
well established
matter must establish
work-related
compensation
by disability
preponder-
and entitlement
to benefits
418.851;
Aquilina
ance of the evidence. MCL
Gen
206, 211;
Motors