Stokes v. Chrysler, L.L.C., 481 Mich 266, 750 N.W.2d 129 (2008)
On June 12, 2008, the Michigan Supreme Court issued its long awaited decision in Stokes, providing parties a consistent and workable standard of disability under the Michigan Workers’ Compensation Act.

With respect to the definition of disability, the Court specifically reaffirmed its previous holding in Singtonthat, pursuant to §301(4), an employee must establish a work-related injury and a loss of maximum earning capacity in all jobs within one’s qualifications, training, and experience. For example, it is not enough that a work-related injury renders an employee unable to perform the job that was performed at the time of injury. The employee must still establish that the injury caused the inability to perform any and all jobs reasonably available in the ordinary marketplace that pay at or above the maximum earning capacity level.

The Supreme Court made it clear that a workers’ compensation claimant bears the burden of proving that he is disabled and that the burden does not shift to the employer. To establish a prima facie case of disability under the Workers’ Disability Compensation Act, the claimant must prove a work-related injury and a reduction of his or her maximum earning capacity in work suitable to his or her qualifications and training.

From a practical standpoint, in order to meet the burden of proof, the claimant must establish his work qualifications, training, work experience and universe of jobs related thereto, as well as an inability to perform same. After the establishment of qualifications, training, and the universe of jobs those qualifications and training translate to, the claimant must establish that a work-related injury prohibits the performance of all jobs reasonably available in the ordinary marketplace.

With respect to what constitutes “qualifications and training,” the Supreme Court adopted prior Appellate Commission decisions that defined the phrase as formal education, work experience, special training, skills, and licenses. When determining whether available work is “suitable” to one’s qualifications and training, the Supreme Court explained that an employee need not have performed the job in the past. Rather, a job that afforded an employee an opportunity to be hired because he possesses the minimum experience, education, and skill, would constitute a suitable job.

While the claimant is not required to submit expert or vocational testimony to establish a compensable disability, the Supreme Court specifically articulated that under the appropriate circumstances, an employer has the right to have the claimant evaluated by a vocational expert to examine the claimant’s qualifications, training, physical restrictions, and whether there are actual jobs that fit within those parameters in the ordinary marketplace. The Supreme Court specifically provided that in the appropriate case where an employer chooses to hire vocational experts to challenge the claimant’s proof, the expert must be permitted to interview the claimant face-to-face.

The Supreme Court made it abundantly clear that discovery does exist in the Workers’ Compensation arena. In particular, the Supreme Court explained that an employer has the right to discovery necessary to meet its burden and present a meaningful defense. While the magistrate has the authority to require discovery when necessary, the Supreme Court made it clear that a magistrate cannot ordinarily make a proper determination of a case without being fully informed of all the relevant facts. In other words, if an employer presents tangible evidence that discovery is needed by way of vocational testimony, subpoena, interrogatories, or otherwise, the magistrate will be considered to have abused his discretion if he denies such requests.

As noted above, the claimant bears the burden of proving that he is disabled and the burden does not shift to the employer. That being said, if a claimant establishes a prima facie case of disability, the “burden of production” shifts to the employer to come forth with evidence to refute the claimant. Thus, if the claimant does present sufficient evidence to establish a compensable disability, the employer is afforded the opportunity to present evidence that would challenge the existence of any disability. That may be done with vocational testimony and/or other evidence of actual jobs within the ordinary marketplace that are within the claimant’s qualifications, training, and experience and that pay at the maximum level.