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Injured Workers Face Devastating Decision by Michigan Supreme Court

July 2, 2008 by Steven M. Gursten

On June 12th, the Michigan Supreme Court issued a decision in Stokes v. Chrysler which will have a devastating effect on injured workers and Michigan workers compensation lawyers. Workers injured on the job in Michigan will be the biggest losers, as the 4 activist justices on the Michigan Supreme Court (Justices Taylor, Corrigan, Young and Markman) have handed Michigan workers compensation insurance companies a stunning victory.

Impact on Auto Accident Victims – On the Job
Our lawyers do not practice workers compensation, but Stokes will also impact many of our own injured clients who have been involved in serious car and truck accidents throughout Michigan. Many of the people we help are hurt in automobile accidents occurring when people are on the job. Because of this, our attorneys work closely with workers compensation lawyers to help clients receive benefits when they are hurt in car crashes occurring during the scope of their employment. Often we refer our clients to excellent workers compensation lawyers to help our clients with obtaining their work comp benefits, while our own accident lawyers help them in the case against the driver that caused their injuries.

Stokes essentially requires people injured on the job to show how they not only cannot perform the last job they had before their work related accident, but they must also prove how they cannot perform any other job that pays the same amount of money.

Workers Compensation Cases – Now More Difficult & Expensive
Workers compensation attorneys in Michigan will now require examination from a vocational expert in almost every case, adding at least $750 to $1,000 in costs that many people will not be able to afford. Stokes also allows pre-hearing discovery in all Workers Compensation cases. This will probably add an additional layer of vocational rehabilitation testimony to every case. As many people know, these vocational “experts” mainly opine that a person can return to work without any accommodations, no matter how serious or disabling his or her injuries truly are. These changes will make it far more difficult for Michigan lawyers to handle a workers compensation case, and will add to the costs of trying each case significantly. It will also give the insurance industry one more area to contest an otherwise clear and obvious case, and will most certainly impact attorney fees in workers compensation cases.

The following was written by Justice Markman, who ironically calls himself a “strict textualist” on the Court. There is nothing textualist about this drastic change to Michigan’s workers compensation laws:

[W]e 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.

We reiterate that Sington overruled Haske and, therefore, that the procedures of the workers’ compensation process must reflect this change in the case law. 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 work related injury and that such injury caused a reduction of his maximum wage earning capacity in work suitable to the claimant’s qualifications and training. To establish the latter element, the claimant must follow these steps:
(1) The claimant must disclose all of his qualifications and training;
(2) the claimant must consider other jobs that pay his maximum preinjury wage to which the claimant’s qualifications and training translate;
(3) the claimant must show that the work-related injury prevents him from performing any of the jobs identified as within his qualifications and training; and
(4) if the claimant is capable of performing some or all of those jobs, the claimant must show that he cannot obtain any of those jobs.
If the claimant establishes all these factors, then he has made a prima facie showing of disability satisfying MCL 418.301(4), and the burden of producing competing evidence then shifts to the employer. The employer is entitled to discovery before the hearing to enable the employer to meet this production burden. While the precise sequence of the presentation of proofs is not rigid, all these steps must be followed.

Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

Stokes v. Chrysler No. 132684, slip op. at 31-33 (Mich. June 12, 2008).

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