Archive for April, 2012

Workers’ Compensation – New Act Places Greater Burden on Plaintiffs to Prove Disability

Thursday, April 19th, 2012

Changes to Michigan Workers’ Compensation Act:

The Michigan Legislature recently passed a bill providing significant modifications to the Workers’ Compensation Act. The changes are widely considered to be of benefit to Michigan employers. Among the most substantial of the changes passed is a codification of the earlier Supreme Court ruling Stokes v. Chrysler, L.L.C. A plaintiff has the burden of proving disability. Disability is defined as a limitation of an employee’s wage earning capacity in work suitable to her or her qualifications and training resulting from a work-related injury or disease. The Act essentially sets forth a multi-step test which plaintiffs must meet to establish disability:

1. Plaintiff must disclose prior qualifications and training, which include educational skills, experience and training;

2. Plaintiff must consider other jobs that pay his/her maximum pre-injury wage to which Plaintiff’s qualifications and training translate;

3. Plaintiff must be able to establish that the work injury prevents the performance of any of the jobs identified as being within his/her qualifications and training;

4. If Plaintiff is capable of performing some or all of those jobs, Plaintiff must show he/she cannot obtain any of those jobs;

5. Plaintiff must make a good faith attempt to procure post-injury employment if there are jobs that he/she is qualified to perform and Plaintiff’s work-related injury does not preclude performance.

A plaintiff is required to demonstrate a good faith effort to obtain employment and present proof that the injury would preclude the type of duties which any of the available jobs would require. Once the plaintiff establishes all of the above factors, the defendant may then offer evidence which tends to refute plaintiff’s demonstration of a good faith effort. These proofs generally require the use of a vocational rehabilitation expert to perform an assessment with job search activities. The vocational expert then provides testimony regarding the plaintiff’s wage earning capacity and job availability. Wage loss is defined as the amount of wages lost due to a disability. A plaintiff is required to establish a connection between disability and the wage loss.

The Act now takes a step beyond the original Stokes ruling, and addresses the situation in which jobs are available within the plaintiff’s education, qualification and training that pay less than the “maximum wage.” Thus, the plaintiff must show a good faith attempt to secure any employment within his or her physical capabilities, even jobs which pay less than what the plaintiff previously earned. Similarly, the defendant can present evidence of available jobs earning lower wages as evidence the Plaintiff retains a partial wage earning capacity. If the magistrate accepts evidence the plaintiff retains a partial wage earning capacity, his/her entitlement to benefits will be reduced accordingly.

The new provisions of the Workers’ Compensation Act discussing a partial wage earning capacity are of importance. Claims which have been accepted as compensable should be evaluated to determine whether the claimant has a disability, and whether that disability is total or partial. If the disability is only partial, the changes in the Act may provide a significant reduction in exposure. Evaluation of a claimant’s residual wage earning capacity should be considered in light of the circumstances of each case.

At Grzanka Grit McDonald, we remain available to discuss with you the changes in the Michigan Workers’ Compensation Act on either a general or a case by case basis. Please contact us for a consultation.