COURT OF APPEALS AFFIRMS AWARD OF BENEFITS IN STOKES v DAIMLERCHRYSLER, BUT CLARIFIES THE LAW (10-26-06) In a 2-1 decision, the Court of Appeals, on remand from the Supreme Court, affirmed the Workers’ Compensation Appellate Commission’s majority result, affirming the magistrate’s grant of an open award of benefits. However, the Court of Appeals disagreed with and reversed several of the holdings of the WCAC majority. 1. The Court of Appeals held that the WCAC erred in limiting the definition of work “suitable to [the employee’s] qualifications and training” to actual jobs which plaintiff had performed in the past (i.e., the equivalent of the employee’s “resume”). In quoting Sington v Chrysler Corp, 467 Mich 144, 159; 648 NW2d 624 (2002), the Court held that “a finding of disability requires a determination that there is a limitation in an employee’s “overall, or in other words, maximum, wage earning capacity in all jobs suitable to an injured employee’s qualifications and training.” (Emphasis added.) The Court found that Sington “takes a broad view of an injured employee’s ‘qualifications and training,’ which is not limited to the jobs on the employee’s resume, but, rather, includes any jobs the injured employee could actually perform upon hiring.” Slip opinion at 10. 2. However, the Court held that, where an employee presents proofs which consist of the equivalent of the employee’s resume, and evidence of a work-related injury causing the disability, an employee makes a prima facie case of disability, unless the employer shows that, contrary to the employee’s proofs, there are real jobs, within the employee’s qualifications and training that pay the maximum wage. Slip opinion at 10-11. 3. The Court held that the WCAC erred to the extent that it held as a matter of law a transferable skills analysis is irrelevant in evaluating the employee’s qualifications and training. The Court stated that “[a] transferable skills analysis may yield credible testimony that there is actual employment that the employee’s qualifications and training makes the employee capable of performing upon hiring, although the employee has never performed it before. Slip opinion at 11. 4. However, the Court also held that “Sington did not intend to make a transferable skills analysis, (or non-transferable skills analysis), a necessary part of the employee’s proofs.” Slip opinion at 11. 5. The Court held that it was error for the WCAC to conclude that the magistrate had no authority to order the employee to provide discovery to the employer in this case. Relying on Bogetta v Burroughs Corp, 368 Mich 600; 118 NW2d 980 (1962), the Court held that the statute gives magistrates limited power to grant discovery “necessary to a proper inquiry into the facts.” “It does not automatically follow that [an employer] is entitled to have its vocational expert interview plaintiff. What form of discovery is necessary to enable [an employer] to investigate an employee’s qualifications and training and prepare a proper defense under Sington is a matter for the magistrate’s discretion.” Slip opinion at 13. “While an interview will no doubt be appropriate in some cases, in the instant case, [the employer] had sufficient information in the form of prior testimony, a long-term work history with [the employer], and considerable medical information, to narrow the focus of the additional information so that it could be sought by interrogatory if necessary before trial, or obtained at trial . . ..” Slip opinion at 14-15.