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Michigan Supreme Court Lansing, Michigan

Opinion
FREDIE STOKES, Plaintiff-Appellee, v CHRYSLER LLC, formerly known as DAIMLERCHRYSLER CORPORATION, Defendant-Appellant. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 12, 2008

No. 132648

We heard oral argument on defendant employer's application for leave to appeal to consider whether the burden-shifting analysis articulated by the Court of Appeals relieved claimant of the burden of proving that he was disabled from all jobs paying the maximum wages within his qualifications and training, as required by Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002). A workers' compensation claimant bears the burden of proving that he has a disability under MCL 418.301(4), and that burden does not shift to the employer. MCL 418.851. The claimant must show more than a mere inability to perform a previous job.

Once the claimant proves that he is disabled from all jobs within the claimant's qualifications and training, the burden of production shifts to the employer contesting the claim to come forward with evidence to challenge the claimant's proof of disability, and the employer is entitled to discovery before the hearing to enable the employer to meet this production burden. Here, claimant did not sustain his burden of proving by a preponderance of the evidence that he was disabled from all jobs within his qualifications and training. However, given the inconsistent application of the Sington standard in the past, we believe that it would be equitable to allow claimant an opportunity to present his proofs with the guidance provided by this opinion. Accordingly, we reverse the Court of Appeals in part and remand the matter to the magistrate for a new hearing consistent with the procedures set forth in this opinion. I. FACTS AND PROCEDURAL HISTORY Claimant was a forklift driver for the employer from 1971 to 1999. During his last five years, claimant drove a forklift for about five hours a day and performed dispatch work by entering automotive part numbers on a keyboard or relaying information over the telephone the rest of the day. Claimant increasingly felt pain in his neck and arms until he could no longer work in the fall of 1999. Claimant's physician opined that claimant's physical activity at work caused repetitive trauma to his cervical spine and aggravated his existing rheumatoid arthritis. On February 15, 2000, claimant had surgery on his cervical spine.

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Claimant filed a petition for workers' compensation benefits based on a cervical spine disability. Both experts agreed that claimant was totally disabled from his job, but the employer's expert asserted that the sole cause of the disability was claimant's preexisting rheumatoid arthritis. The magistrate granted claimant an open award of benefits, relying on Haske v Transport Leasing, Inc, Indiana, 455 Mich 628, 662; 566 NW2d 896 (1997), which defined "disability" as an injury that prevents the employee from performing any single job within his qualifications and training. The Workers' Compensation Appellate Commission (WCAC) affirmed the finding that claimant's disability was work-related, but remanded the case to the magistrate for reconsideration of the disability issue under the standard set forth in Sington, which overruled Haske during the pendency of this case. Before the remand hearing, the employer filed a motion to compel claimant to submit to an interview by the employer's vocational rehabilitation counselor, but the magistrate denied the motion. At the remand hearing, the employer's vocational expert stated that he could not testify with regard to claimant's wageearning capacity because he needed to complete a `transferable-skills' analysis but had not met with claimant and had only been retained four days before the hearing. Defense counsel requested an adjournment or continuance to allow the vocational expert to perform the analysis. The magistrate denied the employer's motion to adjourn because the employer had failed to provide its expert with any of the information already in the employer's possession. 3


At the remand hearing, claimant testified that he had graduated from high school but had no vocational training. Claimant attended college for brief periods both before and during his employment with the employer, but did not obtain a degree or certification. He had no typing or computer skills, and his only jobs before working for the employer consisted of driving a forklift for a refrigerator warehouse and stocking supplies and materials. Claimant had not worked since leaving his employment with the employer. The magistrate determined that

claimant met the Sington standard for disability and again granted claimant an open award of benefits. The WCAC affirmed, concluding that a claimant's qualifications and training consist of the claimant's previous jobs, how much the jobs paid, and the training the claimant received at those jobs. The WCAC stated that the claimant was not required to show other skills he possessed that might transfer to another job. The WCAC also concluded that the magistrate had not abused his discretion in denying the employer's request for an adjournment and that the magistrate did not have the authority to compel claimant to meet with the vocational expert. The employer sought leave to appeal in the Court of Appeals, but also sought bypass review in this Court. We entered an order denying the bypass application, but directing the Court of Appeals to grant the application and issue its opinion by October 1, 2006. The order stayed the WCAC's opinion and stated

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that Boggetta v Burroughs Corp, 368 Mich 600; 118 NW2d 980 (1962),1 remained controlling authority. 475 Mich 875 (2006). The Court of Appeals, in a split decision, affirmed the award of benefits, but vacated several portions of the WCAC opinion that were inconsistent with Sington and Boggetta, in particular discussions regarding loss of wages and partial disability. Stokes v DaimlerChrysler Corp, 272 Mich App 571, 588, 593-594, 597; 727 NW2d 637 (2006). The Court of Appeals held that suitable work "is not limited to the jobs on the employee's resume, but, rather, includes any jobs the injured employee could actually perform upon hiring." Id. at 588. However, the Court of Appeals then decided that the WCAC had not erred in holding that, "as a practical matter, an employee's proofs will generally consist of the equivalent of the employee's resume" and held that such proofs "in addition to evidence of a work-related injury causing the disability" were adequate to establish a "prima facie case of disability." Id. at 589. The "prima facie case," in turn, was adequate to establish a compensable disability unless the employer established the existence of real jobs within the employee's training and experience that paid the maximum wage. Id. at 590. The Court of Appeals further stated that a transferable-skills analysis could be relevant in evaluating the claimant's qualifications and training,

In Boggetta, supra at 603, this Court quoted with approval the opinion of the Workmen's Compensation Appeal Board (WCAB), which stated that a hearing referee's responsibility is "`broad enough to require the answering of interrogatories requested by one of the parties if such answers are necessary to a proper inquiry into the facts.'"

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but was not required. Id. at 590-591. Finally, the Court of Appeals held that the magistrate possessed the authority to order discovery, but had not abused his discretion in concluding that an interview was unnecessary in this case because the employer had sufficient information in the form of prior testimony to give to the vocational expert. Id. at 593-597. The dissenting judge would have reversed the WCAC decision and remanded to the magistrate because the latter's actions "effectively prevented defendant from preparing and presenting a defense," the inquiry into whether claimant possessed any other transferable skills was improperly limited by considering only claimant's employment history, and the WCAC erroneously concluded that the employer had the burden of proving the existence of jobs within the claimant's qualifications and training. Id. at 598-601. The employer sought leave to appeal in this Court. We directed the clerk to schedule oral argument on whether to grant the application or to take other peremptory action. 477 Mich 1097 (2007). II. STANDARD OF REVIEW Findings of fact made by the WCAC are conclusive in the absence of fraud. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000). We review de novo questions of law in final orders of the WCAC. DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).

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III. ANALYSIS A. BURDEN OF PROOF TO ESTABLISH A DISABILITY A claimant under the Worker's Disability Compensation Act (WDCA) must prove his entitlement to compensation and benefits by a preponderance of the evidence. MCL 418.851; Aquilina v Gen Motors Corp, 403 Mich 206, 211; 267 NW2d 923 (1978). MCL 418.301(4) provides: As used in this chapter, "disability" means a limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss.[2] Rea v Regency Olds/Mazda/Volvo, 450 Mich 1201, 1201 (1995), addressed the burden of proof required to establish a disability: It is not enough for the claimant claiming partial disability to show an inability to return to the same or similar work. If the claimant's physical limitation does not affect the ability to earn wages in work in which the claimant is qualified and trained, the claimant is not disabled. Haske, supra at 662, overruled Rea, stating: "Where the employee has carried his burden of proving wage loss, he will, as a practical matter, have proven that he is unable to perform a single job within his qualifications and training, and, therefore, that he is disabled."

We do not address the issue of wage loss in this opinion, which, under MCL 418.301(4), is an issue entirely separate from the establishment of disability. Once a plaintiff makes a prima facie showing of disability, the plaintiff must also prove a wage loss. Sington, supra at 160 n 11.

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Subsequently, MCL 418.301(4) was examined thoroughly in Sington, supra at 155-159: As this language plainly expresses, a "disability" is, in relevant part, a limitation in "wage earning capacity" in work suitable to an employee's qualifications and training. The pertinent definition of "capacity" in a common dictionary is "maximum output or producing ability." Webster's New World Dictionary (3d College ed). Accordingly, the plain language of MCL 418.301(4) indicates that a person suffers a disability if an injury covered under the WDCA results in a reduction of that person's maximum reasonable wage earning ability in work suitable to that person's qualifications and training. So understood, a condition that rendered an employee unable to perform a job paying the maximum salary, given the employee's qualifications and training, but leaving the employee free to perform an equally well-paying position suitable to his qualifications and training would not constitute a disability. *** [T]he language of

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