HOW AGGRESSIVE CAN YOU BE WITH SINGTON? A Change in the Definition of Disability – Sington v Chrysler Corporation · The statute – MCL 418.301(4) and MCL 418.401(1): 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. · Prior interpretation: Haske v Transport Leasing, Inc. In its 1997 decision in Haske, the Michigan Supreme Court held that “an employee proves a disability where he can no longer perform a job suitable to his qualifications and training as a result of his injury”.(Emphasis added) In Haske the Court focused on what an employee could not do. If there was only one job suitable to the employee’s qualifications and training that the employee could not perform, but 99 that the employee could perform, he or she was considered to be disabled. · Mr. Sington’s case o Hired in 1971 o For the last 15 year of his employment, he worked as a “floater” performing various production jobs o June 1994 – occupational injury to left shoulder, accepted as compensable o Left shoulder surgery and eventual return to work as a floater, with restrictions of no work reaching over shoulder level o August 1996 to November 1996 – off work for a non-occupational right shoulder injury and surgery o November 1996 – returned to work as a floater, with new work restrictions, honored by Chrysler o Mr. Sington’s average weekly wage stayed the same both before and after both of his shoulder surgeries o March 1997 – Mr. Sington went off work for a non-work related medical condition (a stroke) and received sickness and accident benefits and a permanent and total disability pension o Workers’ compensation benefits were not paid · The Court’s Decision The Supreme Court reversed the Court of Appeals’ award of workers’ compensation benefits and remanded the case to the Workers’ Compensation Appellate Commission to reconsider it in light of the Court’s new definition of disability. · The “New” Definition of Disability The Supreme Court defined disability as follows: 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. (Emphasis added.) The Court’s focus was no longer on what an employee could not do, but on what an employee could still do. Test: Is there at least one job, available at the employer or in the relevant labor market, which is within the employee’s restrictions and suitable to the employee’s qualifications and training, which pays as much as or more than the employee’s job at the time of the injury? Issues: o How are the wages determined at the time of the injury for comparison with the employee’s “maximum reasonable wage earning ability”? o Do the other jobs suitable to the employee’s qualifications and training have to be available? Utilizing Sington to the Employer’s Advantage · Types of Cases to Which Sington Might Apply o People working below qualifications and training o People in very low paying or part-time jobs o White collar employees: Professionals, accountants, doctors, nurses, lawyers, managers, sales people, etc. o Stress reaction to a single supervisor o Stress reaction to an isolated incident of employment o Dermatitis or allergic reaction cases, resulting in restriction regarding only one exposure o Plant closings where all employees work up to the closing day, generating maximum reasonable wages within their qualifications and training · Practical Application o Establish the broadest qualifications and training to increase the pool of jobs suitable to the employee’s qualifications and training · Application for employment · Resume · Interview · Education · Training · Job history, including employer, duration of employment, jobs, hours, rates of pay, etc. · Licenses · Certificates of completion or competency o Avoid calling post injury work: · Light duty · Favored work · Accommodated work o How to establish available work that pays as much or more than the job being performed at the time of the injury · Other jobs at the employer of injury · Classified ads · Placement agencies · Recruiters · Temporary agencies · Vocational evaluation and labor market survey Strategies For More Aggressive Use of Sington · Bases for Disputing and Litigating Cases to Facilitate Resolution · “DeMinimus” Restrictions May Mean No Disability · Is “Residual Wage Earning Capacity” Back a la Sobotka & Braddock? o First apply Sington to determine whether the employee is disabled o If the employee is disabled, then apply MCL 418.361(1): - “While the incapacity for work resulting from a personal injury is partial, the employer shall pay, or cause to be paid to the injured employee weekly compensation equal to 80% of the difference between the injured employee’s after-tax average weekly wage before the personal injury and the after-tax average weekly wage which the injured employee is able to earn after the personal injury, but not more than the maximum weekly rate of compensation, as determined under section 355.” (Emphasis added.) o Kocevski v Triam Automotive, 2002 ACO #310, Leonard v Wayne State University, 2003 ACO #4, Kallas v Eagle Alloy, Inc, 2003 ACO #51, held that the magistrate may find that the employee retains a post-injury ability to earn, reducing the weekly wage loss benefit, where the employer can prove that there are - Real jobs in the real world, - Which pay less than the employee’s maximum reasonable wage earning capacity, - Which are reasonably available to the employee (do not need bona fide offer of reasonable employment?), - Which the employee can perform (within the employee’s restrictions and suitable to the employee’s qualifications and training), and - That there are factors other than the residual effects of the injury that cause continued unemployment (e.g., lack of application, refusal of job, or other work avoidance) o Does Sweatt v Dep’t of Corrections, ___Mich___ (5/13/03), limit the use of MCL 418.361(1) to cases where the employee is working? - “[T]his provision only addresses those situations in which the employee still has a wage-earning capacity, but a reduced wage-earning capacity. That is, it only addresses those situations in which the employee is employed, but earning less money than before the work-related injury.” Slip opinion at 14 (emphasis added).