Archive for the 'Recent Developments' Category

The Impact of the Stokes Decision

Wednesday, October 29th, 2008

In the recent decision of Stokes v Chrysler LLC, 481 Mich 266 (2008), the Michigan Supreme Court set up a multi-step test which plaintiffs must meet to establish disability.

(1) plaintiff must disclose all 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 his/her qualifications and training translate;
(3) Plaintiff must be able to establish 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; and
(5) Plaintiff must make a good faith effort to procure post-injury employment if there are jobs at the same salary or higher that he/she is qualified to perform and plaintiff’s work-related injury does not preclude performance. Plaintiff will also have to demonstrate a good faith effort to obtain employment and present proof the injury would preclude the type of work which any of the available jobs would require.

Once plaintiff establishes all of the above factors, defendant/employer then has the burden of presenting evidence there were jobs within plaintiff’s qualifications, training and physical limitations that were reasonably available and which would have allowed plaintiff to earn his/her “maximum wage.” These proofs will generally require the use of a vocational rehabilitation expert to perform an assessment with job search activities, as well as personally interview plaintiff to determine the necessary information to perform the assessment and job search activities. The decision does establish the right to such a vocational interview.

If the defendant presents evidence which indicates there are jobs available for plaintiff within his/her qualifications, background and training, then plaintiff would have the opportunity to present additional vocational evidence, potentially in the form of their own vocational counselor.

Overall, the impact of the Stokes decision will obviously depend on the specific facts in each case and Plaintiff’s qualifications, background and training, as well as the level of wages being earned with the employer. The decision will have a greater impact on cases involving low wage earning employees since the burden of establishing the inability to obtain work at minimum paying jobs will be quite difficult.

If you have any questions regarding the impact of this decision on any claims please feel free to contact Grzanka Grit McDonald.