PROOF OF LOSS OF WAGE EARNING CAPACITY In Binkley v Alstom Power, Inc., 2009 ACO #212, the Workers’ Compensation Appellate Commission, in a two-to-one decision, clarified the ways in which plaintiff could prove loss of wage earning capacity in jobs suitable to his or her qualifications and training. In the Binkley case, there was no testimony from a vocational rehabilitation expert regarding plaintiff’s maximum wage earning capacity in jobs suitable to his qualifications and training, or whether there were still jobs plaintiff could perform post-injury in which he could earn his maximum reasonable wage at the time of injury. Further, the magistrate found that plaintiff “conducted a very limited job search following his injury. He called the Boilermakers Union on a few occasions, but realized that doing so was useless because he can no longer work as a boilermaker.” Magistrate’s decision at 13. Plaintiff worked as journeyman boilermaker. He was highly compensated. He earned $28.00 per hour, plus fringe benefits, when he was injured on December 1, 2006. The magistrate found that he sustained a work related injury to his low back and right lower extremity and that the injury had caused a medically distinguishable condition which precluded plaintiff from performing his job as a boilermaker. Notwithstanding the absence of vocational testimony and a very limited job search by plaintiff, the magistrate found plaintiff to be disabled. The magistrate based his fact finding on “common sense.” “The magistrate found it would defy common sense to conclude the plaintiff could duplicate or exceed his boilermaker wages using his sedentary skills.” 2009 ACO #212 at 15. In writing the majority opinion, Commissioner Donna Grit found that plaintiff’s “evidence falls short on step two of the Stokes disability analysis, which requires him to prove what jobs he is qualified and trained to perform that have the same salary range as his maximum wage earning capacity at the time of injury.” Id., at 13. Commissioner Grit went on to note that there was no statutory requirement to produce vocational testimony. However, in quoting the Stokes decision, she noted that a plaintiff “must provide some reasonable means to assess employment opportunities to which his qualifications and training might translate.” Id., citing Stokes v Chrysler LLC, 481 Mich. 266, 282 (2008). Importantly, the magistrate had made a finding that plaintiff had developed skills while working as a boilermaker which could translate into other jobs plaintiff had not sought. The magistrate noted that plaintiff had obtained skill in reading blueprints, welding, being a working foreman, general construction knowledge, and knowledge of tools. Thus, although plaintiff may have been disabled from performing the full realm of boilermaker duties, he had other, potentially transferable skills. The Appellate Commission reversed the magistrate’s grant of an open award of benefits, essentially finding that “common sense” was an inadequate basis on which to determine plaintiff’s inability to duplicate or exceed his boilermaker wages with his medical restrictions. The Appellate Commission held that, in order to meet his burden of proof on the issue of disability under Stokes, plaintiff would either have to provide expert testimony from a vocational rehabilitation consultant, or show that he had conducted a good faith job search, proving that there were no jobs available to him, suitable to his qualifications and training, which would have matched or exceeded his maximum reasonable wage at the time of injury. In summary, this decision is important because it clarifies the types of proof that will satisfy plaintiff’s burden of proving loss of wage earning capacity and disability under Stokes. A mere “common sense” conclusion that the employee is too skilled, to highly compensated and too disabled to find similar paying work is inadequate. The employee must prove the actual absence of or inability to obtain (due to work related medical restrictions) jobs paying his maximum reasonable wage in his relevant job market. If you have any questions or would like a copy of the full text of the Appellate Commission decision, please contact us. 04/30/10