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STATE OF MICHIGAN COURT OF APPEALS

SANDRA STIVEN, Plaintiff-Appellee, v GENERAL MOTORS CORPORATION, Defendant-Appellant.

UNPUBLISHED December 16, 2010

No. 294579 WCAC LC No. 09-000006

Before: MURPHY, C.J., and METER and GLEICHER, JJ. PER CURIAM. Defendant General Motors Corporation (GM) appeals by leave granted an order of the Workers' Compensation Appellate Commission (WCAC), affirming the magistrate's open award of wage loss benefits to plaintiff. We reverse and remand for further proceedings. In July 2006, plaintiff executed an irrevocable special attrition plan (SAP) relative to her employment with GM. Under the terms of the SAP, plaintiff had to retire from GM no later than January 1, 2007, and she would receive a lump sum payment of $35,000, along with a regular pension. On November 29, 2006, plaintiff sustained an injury to her right hand and wrist when her wrist became caught in a piece of machinery while plaintiff was performing maintenance work during the course of her employment with GM. Although she applied for sick leave, plaintiff continued to show up for work through December 22, 2006. However, because she was only able to use one hand due to the injury, she did not perform her normal duties as an electrician. She spent some time ordering, sorting, and stocking parts, and plaintiff also sold raffle tickets while on the job. Plaintiff testified that, by December 22, 2006, GM had run out of work for her to perform that could be done with only one hand. From December 23, 2006, through the end of the year, regular plant operations were shut down for the holidays. Plaintiff received a down-time paycheck for the last week in December 2006; it was not a sick leave check. Plaintiff testified that she had been working 12-hour days, six days a week. And she

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would have worked "overtime" during the holiday week had she not been injured, assuming overtime work had been available and offered.1 Plaintiff retired on January 1, 2007. Plaintiff subsequently filed a petition for workers' compensation benefits. The magistrate granted plaintiff an open award of wage loss benefits at the rate of $706 per week from December 23, 2006, until ordered otherwise. The WCAC affirmed the magistrate's ruling. This Court then granted GM's application for leave to appeal. On appeal, GM argues that plaintiff is not entitled to wage loss benefits because any wage loss that plaintiff incurred was attributable to her decision to retire, not to her disability. The WCAC's factual findings are deemed conclusive in the absence of fraud. Stokes v Chrysler LLC, 481 Mich 266, 274; 750 NW2d 129 (2008). "We review de novo questions of law in final orders of the WCAC." Id. "[A] decision of the WCAC is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework." DiBenedetto v West Shore Hosp, 461 Mich 394, 401-402; 605 NW2d 300 (2000). 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. With respect to this provision, our Supreme Court in Stokes made the following observations: The claimant bears the burden of proving a disability by a preponderance of the evidence under MCL 418.301(4), and the burden of persuasion never shifts to the employer. The claimant must show more than a mere inability to perform a previous job. Rather, to establish a disability, the claimant must prove a workrelated injury and that such injury caused a reduction of his maximum wageearning capacity in work suitable to the claimant's qualifications and training. [Stokes, 481 Mich at 297.] Accordingly, there must exist a causal connection or linkage between the injury and the wage loss. See also Sweatt v Dep't of Corrections, 468 Mich 172, 186; 661 NW2d 201 (2003). This necessary causal connection was the subject of a hypothetical in Sington v Chrysler Corp, 467 Mich 144, 160-161; 648 NW2d 624 (2002), wherein the Court stated:

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The record does not reveal whether overtime work would have actually been available to plaintiff during the holiday week.

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[T]he second sentence [of

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