In Slais v State of Michigan, Department of State Police, 2009 ACO #10, the Workers’ Compensation Appellate Commission, in an en banc opinion (with all five appellate commissioners participating), resolved a question as to whether a record of the proceedings in a vocational rehabilitation hearing must be made. The Appellate Commission in a 4-1 decision held that a hearing before a magistrate, on an appeal of a vocational rehabilitation order issued by the director or his designate, must be preserved, either by recording or by stenographic notes. Under §319 of the Workers’ Disability Compensation Act, vocational rehabilitation disputes are initially heard by the director of the Agency or one of his designates. Often, the hearings are conducted by David R. Campbell, the State’s vocational rehabilitation consultant. In the Slais case, Mr. Slais sought approval of a vocational rehabilitation plan, requiring the employer to pay for law school tuition to vocationally rehabilitate Mr. Slais. After a hearing, Mr. Campbell ruled that the employer was responsible to pay for Mr. Slais’ law school tuition. The employer appealed Mr. Campbell’s ruling to a magistrate. The magistrate affirmed Mr. Campbell’s ruling. The employer then appealed to the Appellate Commission. The employer argued that both of the hearings should have been recorded, and that the failure to record the hearings deprived the employer of due process of law. The Appellate Commission did not require that a record of the initial hearing be made and preserved. However, the Appellate Commission held that “the Workers’ Disability Compensation Act requires that in a rehabilitation hearing before a magistrate, stenographic notes or the use of recording equipment is mandatory”. Previously, in the appeal hearing before the magistrate, no new evidence was allowed and the hearing was not on the record. Without recorded testimony from the employee, vocational experts, or other witnesses at either hearing, an employer (or an employee) could not adequately challenge an adverse holding of the vocational rehabilitation consultant or magistrate on appeal. The requirement that a record be made at the magistrate hearing now affords the opportunity for a meaningful appeal of the magistrate’s decision. 01/28/09