Stokes v. CHRYSLER LLC

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 12, 2008

FREDIE STOKES,

Plaintiff-Appellee,

v No. 132648

CHRYSLER LLC, formerly known as
DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We heard oral argument on defendant employer’s application for leave to

appeal to consider whether the burden-shifting analysis articulated by the Court of

Appeals relieved claimant of the burden of proving that he was disabled from all

jobs paying the maximum wages within his qualifications and training, as required

by Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002). A workers’

compensation claimant bears the burden of proving that he has a disability under

MCL 418.301(4), and that burden does not shift to the employer. MCL 418.851.

The claimant must show more than a mere inability to perform a previous job.
Once the claimant proves that he is disabled from all jobs within the claimant’s

qualifications and training, the burden of production shifts to the employer

contesting the claim to come forward with evidence to challenge the claimant’s

proof of disability, and the employer is entitled to discovery before the hearing to

enable the employer to meet this production burden. Here, claimant did not

sustain his burden of proving by a preponderance of the evidence that he was

disabled from all jobs within his qualifications and training. However, given the

inconsistent application of the Sington standard in the past, we believe that it

would be equitable to allow claimant an opportunity to present his proofs with the

guidance provided by this opinion. Accordingly, we reverse the Court of Appeals

in part and remand the matter to the magistrate for a new hearing consistent with

the procedures set forth in this opinion.

I. FACTS AND PROCEDURAL HISTORY

Claimant was a forklift driver for the employer from 1971 to 1999. During

his last five years, claimant drove a forklift for about five hours a day and

performed dispatch work by entering automotive part numbers on a keyboard or

relaying information over the telephone the rest of the day. Claimant increasingly

felt pain in his neck and arms until he could no longer work in the fall of 1999.

Claimant’s physician opined that claimant’s physical activity at work caused

repetitive trauma to his cervical spine and aggravated his existing rheumatoid

arthritis. On February 15, 2000, claimant had surgery on his cervical spine.

2

 Claimant filed a petition for workers’ compensation benefits based on a

cervical spine disability. Both experts agreed that claimant was totally disabled

from his job, but the employer’s expert asserted that the sole cause of the disability

was claimant’s preexisting rheumatoid arthritis. The magistrate granted claimant

an open award of benefits, relying on Haske v Transport Leasing, Inc, Indiana,

455 Mich 628, 662; 566 NW2d 896 (1997), which defined “disability” as an injury

that prevents the employee from performing any single job within his

qualifications and training. The Workers’ Compensation Appellate Commission

(WCAC) affirmed the finding that claimant’s disability was work-related, but

remanded the case to the magistrate for reconsideration of the disability issue

under the standard set forth in Sington, which overruled Haske during the

pendency of this case.

Before the remand hearing, the employer filed a motion to compel claimant

to submit to an interview by the employer’s vocational rehabilitation counselor,

but the magistrate denied the motion. At the remand hearing, the employer’s

vocational expert stated that he could not testify with regard to claimant’s wage-

earning capacity because he needed to complete a ‘transferable-skills’ analysis but

had not met with claimant and had only been retained four days before the

hearing. Defense counsel requested an adjournment or continuance to allow the

vocational expert to perform the analysis. The magistrate denied the employer’s

motion to adjourn because the employer had failed to provide its expert with any

of the information already in the employer’s possession.

3

 At the remand hearing, claimant testified that he had graduated from high

school but had no vocational training. Claimant attended college for brief periods

both before and during his employment with the employer, but did not obtain a

degree or certification. He had no typing or computer skills, and his only jobs

before working for the employer consisted of driving a forklift for a refrigerator

warehouse and stocking supplies and materials. Claimant had not worked since

leaving his employment with the employer. The magistrate determined that

claimant met the Sington standard for disability and again granted claimant an

open award of benefits.

The WCAC affirmed, concluding that a claimant’s qualifications and

training consist of the claimant’s previous jobs, how much the jobs paid, and the

training the claimant received at those jobs. The WCAC stated that the claimant

was not required to show other skills he possessed that might transfer to another

job. The WCAC also concluded that the magistrate had not abused his discretion

in denying the employer’s request for an adjournment and that the magistrate did

not have the authority to compel claimant to meet with the vocational expert.

The employer sought leave to appeal in the Court of Appeals, but also

sought bypass review in this Court. We entered an order denying the bypass

application, but directing the Court of Appeals to grant the application and issue

its opinion by October 1, 2006. The order stayed the WCAC’s opinion and stated

4

that Boggetta v Burroughs Corp, 368 Mich 600; 118 NW2d 980 (1962),1 remained

controlling authority. 475 Mich 875 (2006).

The Court of Appeals, in a split decision, affirmed the award of benefits,

but vacated several portions of the WCAC opinion that were inconsistent with

Sington and Boggetta, in particular discussions regarding loss of wages and partial

disability. Stokes v DaimlerChrysler Corp, 272 Mich App 571, 588, 593-594,

597; 727 NW2d 637 (2006). The Court of Appeals held that suitable work “is not

limited to the jobs on the employee’s resume, but, rather, includes any jobs the

injured employee could actually perform upon hiring.” Id. at 588. However, the

Court of Appeals then decided that the WCAC had not erred in holding that, “as a

practical matter, an employee’s proofs will generally consist of the equivalent of

the employee’s resume” and held that such proofs “in addition to evidence of a

work-related injury causing the disability” were adequate to establish a “prima

facie case of disability.” Id. at 589. The “prima facie case,” in turn, was adequate

to establish a compensable disability unless the employer established the existence

of real jobs within the employee’s training and experience that paid the maximum

wage. Id. at 590. The Court of Appeals further stated that a transferable-skills

analysis could be relevant in evaluating the claimant’s qualifications and training,

1
In Boggetta, supra at 603, this Court quoted with approval the opinion of
the Workmen’s Compensation Appeal Board (WCAB), which stated that a hearing
referee’s responsibility is “‘broad enough to require the answering of
interrogatories requested by one of the parties if such answers are necessary to a
proper inquiry into the facts.’”

5

but was not required. Id. at 590-591. Finally, the Court of Appeals held that the

magistrate possessed the authority to order discovery, but had not abused his

discretion in concluding that an interview was unnecessary in this case because the

employer had sufficient information in the form of prior testimony to give to the

vocational expert. Id. at 593-597.

The dissenting judge would have reversed the WCAC decision and

remanded to the magistrate because the latter’s actions “effectively prevented

defendant from preparing and presenting a defense,” the inquiry into whether

claimant possessed any other transferable skills was improperly limited by

considering only claimant’s employment history, and the WCAC erroneously

concluded that the employer had the burden of proving the existence of jobs

within the claimant’s qualifications and training. Id. at 598-601.

The employer sought leave to appeal in this Court. We directed the clerk to

schedule oral argument on whether to grant the application or to take other

peremptory action. 477 Mich 1097 (2007).

II. STANDARD OF REVIEW

Findings of fact made by the WCAC are conclusive in the absence of fraud.

Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607

(2000). We review de novo questions of law in final orders of the WCAC.

DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).

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 III. ANALYSIS

A. BURDEN OF PROOF TO ESTABLISH A DISABILITY

A claimant under the Worker’s Disability Compensation Act (WDCA)

must prove his entitlement to compensation and benefits by a preponderance of the

evidence. MCL 418.851; Aquilina v Gen Motors Corp, 403 Mich 206, 211; 267

NW2d 923 (1978). MCL 418.301(4) provides:

As used in this chapter, “disability” means a limitation of an
employee’s wage earning capacity in work suitable to his or her
qualifications and training resulting from a personal injury or work
related disease. The establishment of disability does not create a
presumption of wage loss.[2]

Rea v Regency Olds/Mazda/Volvo, 450 Mich 1201, 1201 (1995), addressed the

burden of proof required to establish a disability:

It is not enough for the claimant claiming partial disability to
show an inability to return to the same or similar work. If the
claimant’s physical limitation does not affect the ability to earn
wages in work in which the claimant is qualified and trained, the
claimant is not disabled.

Haske, supra at 662, overruled Rea, stating: “Where the employee has carried his

burden of proving wage loss, he will, as a practical matter, have proven that he is

unable to perform a single job within his qualifications and training, and,

therefore, that he is disabled.”

2
We do not address the issue of wage loss in this opinion, which, under
MCL 418.301(4), is an issue entirely separate from the establishment of disability.
Once a plaintiff makes a prima facie showing of disability, the plaintiff must also
prove a wage loss. Sington, supra at 160 n 11.

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 Subsequently, MCL 418.301(4) was examined thoroughly in Sington, supra

at 155-159:

As this language plainly expresses, a “disability” is, in
relevant part, a limitation in “wage earning capacity” in work
suitable to an employee’s qualifications and training. The pertinent
definition of “capacity” in a common dictionary is “maximum output
or producing ability.” Webster’s New World Dictionary (3d College
ed). Accordingly, the plain language of MCL 418.301(4) indicates
that a person suffers a disability if an injury covered under the
WDCA results in a reduction of that person’s maximum reasonable
wage earning ability in work suitable to that person’s qualifications
and training.

So understood, a condition that rendered an employee unable
to perform a job paying the maximum salary, given the employee’s
qualifications and training, but leaving the employee free to perform
an equally well-paying position suitable to his qualifications and
training would not constitute a disability.

***

[T]he language of § 301(4) requires a determination of
overall, or in other words, maximum, wage earning capacity in all
jobs suitable to an injured employee’s qualifications and training.

Sington, supra at 161, continued by explicitly overruling the burden of proof set

forth in Haske because it was inconsistent with MCL 418.301(4). At the same

time, Sington, supra at 156-157, 161, reinstated the prior ruling of Rea, concluding

that the procedure established in Rea was harmonious with the statute.

Thus, the standard for establishing a prima facie case of disability under

Sington requires that the claimant prove a work-related injury, and that injury must

result in a reduction of the claimant’s maximum wage-earning capacity in work

suitable to his qualifications and training. Sington, supra at 155. The WCAC has

struggled in consistently applying this standard since Sington.

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 B. BURDEN OF PROOF SINCE SINGTON

Since Sington, lower courts and tribunals have closely analyzed a

claimant’s burden of proof, but the application of that standard has arguably been

inconsistent. In Kethman v Lear Seating Corp, 2003 Mich ACO 205, p 6, the

WCAC interpreted Sington to require the claimant to demonstrate

1. his work qualifications and training, and what jobs
they translate to, and

2. that he has a work-related physical or mental
impairment which does not permit him to perform jobs within his
qualifications and training and that he has lost wages, and

3. that he is either unable to perform or cannot obtain
employment at all those jobs within his qualifications and training
that pay his maximum income, which are reasonably available.

The WCAC then stated that, after the claimant proves these three factors, the

burden of going forward shifts to the employer, which may present evidence that

there were jobs within the claimant’s qualifications, training, and physical

limitations that were reasonably available. Id. at 7. This analysis, in our

judgment, constitutes an accurate summation of the Sington standard.

In Peacock v Gen Motors Corp, 2003 Mich ACO 274, p 19, the WCAC

sought to define “qualifications and training,” stating that this phrase encompasses

formal education, work experience, special training, skills, and licenses. In

addition, the WCAC described “suitable” jobs as a phrase that did not delimit the

universe of potential jobs, but, rather, included “those jobs that afford a plaintiff an

opportunity for consideration to be hired because he possesses the minimum

9

experience, education, and skill.” Id. at 20. The WCAC’s definitions, in our

judgment, again constitute accurate summations of these terms.

In Riley v Bay Logistics, Inc, 2004 Mich ACO 27, p 7, the WCAC

attempted to harmonize existing caselaw by summarizing the Sington factors

required to prove a threshold disability as follows:

1. Has plaintiff established the universe of jobs for which
he is qualified and trained, and how much do they pay?

2. Has plaintiff established his work related physical or
mental impairment, which does not permit him or her to perform
jobs within his qualifications and training causing him to lose
wages?

3. Has plaintiff established that he was either unable to
perform (or obtain because such jobs were not reasonably available)
all the jobs within his qualifications and training that pay his
maximum wage (for the purpose of establishing his Section 301(4)
threshold disability).

The WCAC also concluded that once the claimant establishes a prima facie case of

disability, the burden of persuasion shifts to the employer. Id.

Numerous WCAC opinions have quoted the tests set forth in Kethman and

Riley. However, these opinions have not always been consistent in their

application of the Sington standard. There is a tendency to properly set forth the

Sington standard, but then to apply the standard in a manner that effectively

constitutes a reversion to Haske. One example is Riley itself, in which Sington

was applied in a similar manner to that which occurred in the instant case.

While Riley scrupulously analyzed the Sington standard of proof, the

application of that standard was less compelling. For example, the WCAC

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determined that the claimant’s work-related physical restrictions precluded him

from performing each job that he had done in the past. Riley, supra at 6, 8.

Taking into account that the claimant had only a ninth-grade education and lacked

formal training, the WCAC concluded that the claimant was unable to perform any

job within his qualifications. Id. The WCAC then inferred that the claimant had

thereby established that he could no longer perform the jobs that paid the

maximum wage that may have been available. Id. at 8. However, the WCAC

opinion did not discuss the possibility that the claimant possessed any skills that

could transfer to other job fields. In addition, there was no evidence presented

regarding the availability of other jobs or the claimant’s job search efforts.

The WCAC continued to address the application of the Sington standard in

Bacon v Bedford Pub Schools, 2005 Mich ACO 47. The WCAC stated that a

claimant carries the burden of establishing which jobs fall within the claimant’s

qualifications and training. Id. at 3. However, the WCAC determined that,

because of the claimant’s limited education and lack of job training, her testimony

regarding her work history, education, and physical condition was sufficient to

establish the universe of jobs that the claimant was qualified and trained to

perform. Id. at 4, 7. This analysis, we believe, effected a reversion to the Haske

standard in the name of Sington.

Similarly, in Higgins v Delphi Automotive Sys, 2005 Mich ACO 136, p 2,

the claimant had testified at the hearing regarding her education, work experience,

and inability to return to any of her previous jobs because of her work-related

11

injury. The magistrate found that the claimant’s job as an unskilled industrial

production worker defined her universe of jobs because her previous jobs had been

too remote to be significant. Id. The magistrate concluded that the claimant was

disabled because her injury precluded her from performing any of the jobs she had

done in the past for the same employer. Id. at 3. The WCAC affirmed, stating

that the magistrate had found credible the claimant’s testimony that she was

“unable to perform any of the jobs she previously had with defendant.” Id. at 5.

Again, the WCAC effectively reverted to the Haske standard in describing the

burden of proof.

On the other hand, in Stanton v Great Lakes Employment, 2003 Mich ACO

129, pp 2-3, the claimant’s work-related injury precluded him from being able to

perform most of his previous jobs because they required him to stand all day.

However, the claimant had applied for an estimated 50 jobs, some of which were

the types of jobs he had performed in the past, and others were jobs that he had

never performed. Id. at 1-2. The claimant had also contacted the previous

employer from which he had earned his highest pre-injury wages but received no

offer. Id. at 4. The WCAC determined that the claimant had satisfied the

threshold level of disability on the basis of the following factors: the severity of

the claimant’s injury; that most of his training and qualifications required

significant standing and walking; that the claimant had proved his desire to return

to work by applying for an estimated 50 jobs; that the claimant had not been

offered employment by his employer or another employer; that the employer had

12

not accommodated the claimant’s physical restrictions; and that no job had been

made known to him for which he failed to apply. Id. at 3. The burden of going

forward then shifted to the employer, which produced no evidence that there were

actual jobs available at the maximum wage within the claimant’s qualifications

and training. Id. at 4. Stanton’s application of the Sington standard represented a

much more accurate and thorough analysis than the analyses of previous cases.

In Nowak v East Lansing, 2005 Mich ACO 83, pp 1-2, the claimant was a

patrol officer who suffered a work-related injury to her knee. The WCAC stated

that the magistrate’s finding that the claimant’s work-related injury prevented her

from working as a patrol officer did not establish a disability under Sington. Id. at

4. The claimant had continued to work full-time as the head of the parking

enforcement unit for the employer and received her full salary. Id. at 4, 8. The

WCAC remanded to the magistrate to determine whether the claimant’s new

position fell within her qualifications and training, whether it constituted “a

regular job for which there was a substantial job market,” and whether the job paid

the maximum salary. Id. at 8. If so, then the claimant would not be able to satisfy

the definition of “disability” under Sington. Id. Again, this analysis comports

with the standard set forth in Sington. If the employer was paying the claimant her

full salary because the new job merited that salary, rather than as an

accommodation for her injury, then the claimant had not suffered a loss in wage-

earning capacity.

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 Stanton and Nowak represent accurate summations of what is required in

the application of Sington to the facts of a WDCA case. A claimant must do more

than demonstrate that his work-related injury prevents him from performing a

previous job. Sington, supra at 161. It is insufficient to merely articulate the

Sington standard and then overlook necessary steps in its application. Rather,

MCL 418.301(4) requires that the claimant prove a limitation in “wage earning

capacity in work suitable to his qualifications and training resulting from a

personal injury or work related disease” to establish a prima facie case of

disability. Therefore, the claimant must first prove a work-related injury. Sington,

supra at 155. Second, that injury must result in a reduction of the claimant’s

wage-earning capacity in work suitable to his qualifications and training. Id.

After reviewing the inconsistencies in the WCAC opinions since Sington, we set

forth the following practical application of the Sington standard in this case.

First, the injured claimant must disclose his qualifications and training.

This includes education, skills, experience, and training, whether or not they are

relevant to the job the claimant was performing at the time of the injury. It is the

obligation of the finder of fact to ascertain whether such qualifications and training

have been fully disclosed.

Second, the claimant must then prove what jobs, if any, he is qualified and

trained to perform within the same salary range as his maximum earning capacity

at the time of the injury. Sington, supra at 157. The statute does not demand a

transferable-skills analysis and we do not require one here, but the claimant must

14

provide some reasonable means to assess employment opportunities to which his

qualifications and training might translate. This examination is limited to jobs

within the maximum salary range. There may be jobs at an appropriate wage that

the claimant is qualified and trained to perform, even if he has never been

employed at those particular jobs in the past. Id. at 160. The claimant is not

required to hire an expert or present a formal report. For example, the claimant’s

analysis may simply consist of a statement of his educational attainments, and

skills acquired throughout his life, work experience, and training; the job listings

for which the claimant could realistically apply given his qualifications and

training; and the results of any efforts to secure employment. The claimant could

also consult with a job-placement agency or career counselor to consider the full

range of available employment options. Again, there are no absolute

requirements, and a claimant may choose whatever method he sees fit to prove an

entitlement to workers’ compensation benefits. A claimant sustains his burden of

proof by showing that there are no reasonable employment options available for

avoiding a decline in wages.

We are cognizant of the difficulty of placing on the claimant the burden of

defining the universe of jobs for which he is qualified and trained, because the

claimant has an obvious interest in defining that universe narrowly. Nonetheless,

this is required by the statute. Moreover, because the employer always has the

opportunity to rebut the claimant’s proofs, the claimant would undertake

significant risk by failing to reasonably consider the proper array of alternative

15

available jobs because the burden of proving disability always remains with the

claimant. The finder of fact, after hearing from both parties, must evaluate

whether the claimant has sustained his burden.

Third, the claimant must show that his work-related injury prevents him

from performing some or all of the jobs identified as within his qualifications and

training that pay his maximum wages. Id. at 158.

Fourth, if the claimant is capable of performing any of the jobs identified,

the claimant must show that he cannot obtain any of these jobs. The claimant

must make a good-faith attempt to procure post-injury employment if there are

jobs at the same salary or higher that he is qualified and trained to perform and the

claimant’s work-related injury does not preclude performance.

Upon the completion of these four steps, the claimant establishes a prima

facie case of disability. The following steps represent how each of the parties may

then challenge the evidence presented by the other.

Fifth, once the claimant has made a prima facie case of disability, the

burden of production shifts to the employer to come forward with evidence to

refute the claimant’s showing. At the outset, the employer obviously is in the best

position to know what jobs are available within that company and has a financial

incentive to rehabilitate and re-employ the claimant.

Sixth, in satisfying its burden of production, the employer has a right to

discovery under the reasoning of Boggetta if discovery is necessary for the

employer to sustain its burden and present a meaningful defense. Pursuant to

16

MCL 418.851 and MCL 418.853,3 the magistrate has the authority to require

discovery when necessary to make a proper determination of the case. The

magistrate cannot ordinarily make a proper determination of a case without

becoming fully informed of all the relevant facts. If discovery is necessary for the

employer to sustain its burden of production and to present a meaningful defense,

then the magistrate abuses his discretion in denying the employer’s request for

discovery. For example, the employer may choose to hire a vocational expert to

challenge the claimant’s proofs. That expert must be permitted to interview the

claimant and present the employer’s own analysis or assessment. The employer

may be able to demonstrate that there are actual jobs that fit within the claimant’s

qualifications, training, and physical restrictions for which the claimant did not

apply or refused employment.

Finally, the claimant, on whom the burden of persuasion always rests, may

then come forward with additional evidence to challenge the employer’s evidence.

This precise sequence is not rigid, but rather identifies the nature of the

proofs that must precede the fact-finder’s decision. Should it become evident in a

particular case that a different sequence is more practical, the parties may present

their evidence accordingly. However, the magistrate must ensure that all steps are

3
MCL 418.851 provides, in pertinent part, that “[t]he worker’s
compensation magistrate at the hearing of the claim shall make such inquiries and
investigations as he or she considers necessary.” MCL 418.853 allows the
magistrate to “administer oaths, subpoena witness, and to examine [] parts of the
books and records. . . .”

17

completed in some fashion or another, that all the facts necessary to the

determination of the case are presented, that each side has been accorded an

adequate opportunity to respond to the other’s proofs, and that the statutory burden

of proof is respected. After that point, the magistrate can properly determine

whether the claimant has satisfied his obligations under MCL 418.301(4).

We reiterate that MCL 418.851 places the burden of proof on the claimant

to demonstrate his entitlement to compensation and benefits by a preponderance of

the evidence. This burden of persuasion never shifts to the employer, although the

burden of production of evidence may shift between the parties as the case

progresses. Because a claimant does not prove a “disability” under MCL

418.301(4) by merely demonstrating the inability to perform any previous jobs,

the burden remains on the claimant to demonstrate that there are no available jobs

within his qualifications and training that he can perform. Only after the claimant

has first sustained this statutory burden of proof does the burden of production

shift to the employer to show that there are jobs that the claimant can perform.

C. APPLICATION OF SINGTON STANDARD

The WCAC’s determination that claimant proved a work-related injury is

conclusive because there is no evidence of fraud. Mudel, supra at 701. At issue is

only whether claimant sustained his burden of proving that his work-related injury

effected a reduction of his maximum wage-earning capacity in work suitable to his

qualifications and training. Because this is a question of law, we review this issue

de novo. DiBenedetto, supra at 401.

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 We hold that claimant did not satisfy his burden of establishing a disability.

Claimant’s demonstration that he could no longer perform his job because of a

work-related injury was simply insufficient to establish a “disability” under MCL

418.301(4). In holding to the contrary, we believe that the Court of Appeals and

the WCAC short-circuited the requirements of Sington and effected a reversion to

Haske.

Under Sington, claimant was required to demonstrate that the injury to his

cervical spine limited his maximum wage-earning capacity in work suitable to his

qualifications and training. Claimant merely testified regarding his employment

and educational background. Claimant presented no evidence that he had even

considered the possibility that he was capable of performing any job other than

driving a forklift. Likewise, the lower court, the magistrate, and the tribunal

seemingly assumed that because claimant had driven a forklift for so many years,

that was all he was able to do and that he had acquired no additional skills

throughout his life that might translate to other positions of employment. At a

minimum, claimant was required by the WDCA to show that he had considered

other types of employment within his qualifications and training that paid his

maximum wages and that he was physically unable to perform any of those jobs or

unable to obtain those jobs. There is no evidence in this case that claimant sought

any post-injury employment or would have been willing to accept such

employment within the limits of his qualifications, training, and restrictions.

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 The Court of Appeals opinion effectively relieved claimant of this burden

of proof by concluding:

[T]o the extent the WCAC addressed the issue from the
standpoint of the production of evidence, and held that as a practical
matter, an employee’s proofs will generally consist of the equivalent
of the employee’s resume—i.e., a listing and description of the jobs
the employee held up until the time of the injury, the pay for those
jobs, and a description of the employee’s training and education—
and testimony that the employee cannot perform any of the jobs
within his qualifications and training paying the maximum wage, the
WCAC did not err. By producing such evidence, in addition to
evidence of a work-related injury causing the disability, an employee
makes a prima facie case of disability—a limitation in the
employee’s maximum wage-earning capacity in all jobs suitable to
the employee’s qualifications and training. The WCAC did not err
in concluding that such a showing is adequate to establish disability
in the absence of evidence showing that there is in fact real work
within the employee’s training and experience, paying the maximum
wage, that the employee is able to perform upon hiring. [Stokes,
supra at 589.]

By finding that claimant had met his burden of proof under Sington, in the absence

of evidence concerning other jobs for which he might have been qualified, the

Court of Appeals suggested strongly that the burden of showing the existence of

such jobs is on defendant. It is not.

In this case, claimant did not meet his burden of proving a disability under

the WDCA because he only presented evidence of an inability to perform his prior

job. However, even if claimant met his burden, the employer was effectively

denied the opportunity to rebut claimant’s proofs. The employer’s pre-trial

request to have claimant interviewed by the employer’s vocational expert was

denied. The employer renewed this request at the remand hearing, but this request

20

was also denied. Because claimant refused to meet with the employer’s vocational

expert, and the magistrate was unwilling to compel an interview, the employer’s

vocational expert could only provide speculative testimony regarding the effect of

claimant’s injury on his wage-earning capacity. The employer’s expert testified

that, after interviewing claimant, he would have completed a transferable-skills

analysis based on claimant’s profile and work restrictions. Next, the employer’s

expert would have contacted potential employers to determine job availability and

wages for any jobs falling within claimant’s qualifications, training, and

restrictions. The employer requested an adjournment or continuance to allow its

expert to perform this analysis, but that request was also denied.

The employer was essentially denied the opportunity to ascertain claimant’s

ability to perform other jobs. Not only did the magistrate’s ruling deprive the

employer of the ability to present evidence of actual jobs in the marketplace that

claimant could have obtained, but the employer was deprived of the ability to

assess whether there were any jobs available within its own company that claimant

could perform. While the employer was in the best position to know which

openings were available within its company, it was not in a position to know all

the skills and training claimant had acquired throughout his life that might be

compatible with one of the jobs available. The employer was entitled to discovery

21

before the hearing to enable it to meet its burden of coming forward with evidence

to rebut claimant’s claim of disability.4

IV. RESPONSE TO THE DISSENT

The WDCA establishes a careful balance between the employee’s interest

in receiving compensation when he suffers a disability as a result of a work-related

injury and the employer’s interest in avoiding legally unsound workers’

compensation claims. This Court’s role is to avoid upsetting this balance in favor

of either party and to ensure that the standards and preconditions for benefits

established by the law are maintained. The dissent disregards this law and

substitutes its own sense of the balance between the employer and the employee

for that of the Legislature.

However, the preferences of the dissent notwithstanding, MCL 418.301(4)

requires a workers’ compensation claimant to demonstrate a limitation or

4
The procedures set forth in this opinion are more consistent with Sington
than the procedures of the Court of Appeals, and Sington is more consistent with
the statute than is Haske. Moreover, it must be said, although it does not influence
this opinion, that the procedures set forth here will almost certainly lead to a far
more efficient use of human and economic resources in Michigan than the
procedures introduced by this Court in Haske. Injured employees who are able to
continue to work will be encouraged to do so instead of having their skills wasted,
workers’ compensation costs will be reduced for employers, and the
competitiveness of Michigan as a workplace with other states will be enhanced.
Not only does the dissent misconstrue these observations by ignoring our prefatory
language, post at 23 and n 18, but one cannot help but glean from the dissent a
sense that it is somehow better that a person who, while unable to perform Job A
as a result of a workplace injury, could perform Job B at an equivalent
compensation should be encouraged not to do so, thereby imposing higher
workers’ compensation costs on his employer. To what conceivable end?

22

reduction in wage-earning capacity. This provision defines a workers’

compensation “disability” to mean a “limitation of an employee’s wage earning

capacity in work suitable to his qualifications and training resulting from a

personal injury or work related disease.” Thus, to be compensable, something

more than an injury is required; specifically, the injury must result in a “limitation

of [the] employee’s wage earning capacity” in work for which that employee is

suited. Instead of taking this language at face value, the dissent remains wedded

to the proposition set forth in Haske, and rejected in Sington, that a claimant may

demonstrate a disability merely by showing an inability to perform a single job

within his qualifications or training. Whatever the merits of this standard, it is

simply not the standard that our Legislature has adopted. In today’s decision, we

reiterate Sington’s holding and impose no new requirements on any workers’

compensation claimant. We attempt only to afford guidance in the application of

Sington so that future claimants and employers will have the benefit of a

consistent and workable standard in assessing their rights and obligations under

the law.

Additionally, the employer is entitled to challenge the claimant’s evidence

in support of a workers’ compensation claim, it is entitled to have the burden of

proof in a workers’ compensation claim remain with the claimant, and it is entitled

to secure evidence in its own behalf. In other words, the employer is entitled to

avail itself of the law.

23

 The dissent asserts, first, that the majority has indulged in “judicial

creativity” to “effectively” require that a claimant provide a transferable-skills

analysis in order to evidence a disability. Post at 2-4. Contrary to this assertion,

such an analysis does not constitute a requirement on the part of a claimant. While

the claimant must present some manner of assessment of alternative employment

opportunities to which his qualifications and training might, or might not,

translate-- precisely to demonstrate that the injury has, in fact, “limited” his wage-

earning capacity-- this showing need not be in any particular form. The claimant

must simply demonstrate in light of his injury that there are no reasonable

employment options for avoiding a diminution in wages. If there are such

options, a claimant’s wage-earning capacity has obviously not been “limited,” and

he is not entitled to benefits; if there are not such options, then the claimant’s

wage-earning capacity has equally obviously been limited, and he is entitled to

benefits. This all makes eminent sense. There is nothing to be compensated for--

at least not in terms of wage reduction-- if there has been no reduction in the

claimant’s ability to earn his maximum wages. Most people would not find this to

be a very problematic understanding; only the dissent sees the sky falling. Sington

requires nothing more than the kind of inquiry in which any reasonable person

would engage if he became injured outside the workplace and could no longer

perform his job. Such a person would naturally inquire, “Is there another job in

which I am employable at a similar wage?” Because the dissent considers this too

onerous a burden, it would simply read out of the statute any obligation of the

24

claimant to demonstrate a limitation or reduction in his wage-earning capacity.

The dissent demonstrates no alternative means by which a reduction in wage-

earning capacity can be measured than by actually looking to see whether there are

other jobs for which a claimant is qualified.5

Claimant here presented no evidence that he considered whether there were

any other jobs paying appropriate wages that he could perform, and for this reason

his proofs were deficient. Nonetheless, the dissent repeatedly, and confidently,

asserts that claimant cannot perform any other job for which he is qualified. It is

unclear how the dissent could possibly make this assertion so assuredly. Does the

dissent have access to secret information denied the rest of this Court? How can

the dissent be certain that claimant cannot perform any other job when neither

party has presented evidence to this effect? While the dissent may well be proven

correct in the end, there is simply no basis in the present record for making this

declaration. There is no way of knowing whether claimant is entitled to benefits

until the correct legal standards have been applied, and these standards cannot be

applied until the claimant has introduced evidence concerning his wage-earning

5
The dissent compares the general language of MCL 418.301(4) with the
more specific language of MCL 418.385 to conclude that MCL 418.301(4) does
not require affirmative proofs to demonstrate a limitation in wage-earning
capacity. This conclusion is illogical. The Legislature used specific language in
MCL 418.385 to require a claimant to submit to a medical examination. It does
not follow that every other provision of the statute must use similarly specific
language when more general language will suffice. In stating that the claimant
must demonstrate a reduction in wage-earning capacity, MCL 418.301(4) is
sufficiently clear in what it requires.

25

capacity. Only then can the magistrate render an informed determination of

eligibility.

The dissent next asserts that we have indulged in “judicial creativity” to

invent the requirement that the employer may be entitled to discovery in

attempting to rebut an employee’s claim. Post at 2-4. However, discovery is

hardly a novel concept in workers’ compensation proceedings. Rather, it may

sometimes be necessary to effect the legislative intent that some, but not all,

workplace injuries entitle the worker to benefits; it may sometimes be necessary to

enable the magistrate to make a fully informed decision regarding whether a

claimant has proven a disability; and it may sometimes be necessary to afford an

employer the opportunity to present a meaningful defense.

The dissent asserts that we have “create[d] a new rule of discovery in

disability hearings” in holding that the employer has a right to discovery. Post at

10. However, there has been discovery for both sides before the hearing on a

regular basis in workers’ compensation proceedings. In O’Brien v Federal Screw

Works, 1998 Mich ACO 53, p 4, the WCAC, sitting en banc, affirmed the

magistrate’s order directing the defendant to allow a tour of its plant, stating:

In examining the dissenting opinion, we cannot help noting
that our colleagues would allow plaintiff to subpoena lab reports,
material safety data sheets and any other relevant papers and
documents. They would further allow depositions of defendant’s
representatives (not specifically provided for in the statute except in
the case of medical experts). However, they would not allow the
magistrate to order a physical inspection of defendant’s premises,
even during the trial (as they define that term), because of a lack of
statutory authority.

26

 We cannot agree with this narrow interpretation. As noted,
there is no explicit statutory authority which allows for the deposing
of lay witnesses. Rather, the common practice of magistrates has
long been to err on the side of information rather than ignorance.
For this reason, accommodations are regularly made for the taking of
lay testimony where necessary (even of plaintiff on occasion) despite
the lack of explicit statutory authority.

It is clear that discovery is an integral part of workers’ compensation proceedings

that has been consistently upheld by the WCAC. See, e.g., White v Waste Mgt,

2004 Mich ACO 4, p 7 (holding that the employer’s entitlement to a meaningful

defense was hindered when the magistrate precluded its vocational expert from

meeting with the claimant); Nessel v Schenck Pegasus Corp, 2003 Mich ACO 272,

pp 7-8 (stating that, to the extent the claimant or the employer has information

regarding the claimant’s qualifications and training, as well as the availability of

jobs, such information should be exchanged before the hearing rather than during

the hearing); Rochon v Grede Foundries, Inc, 2000 Mich ACO 534, p 6

(upholding the magistrate’s order compelling the answer of more than 200

interrogatories because “magistrates have the power to compel discovery by way

of exchange of information, documents, and answers to written interrogatories”).

It is clear from the requirement of MCL 418.301(4) that a claimant prove a

limitation in wage-earning capacity in work suitable to his or her qualifications

and training that the Legislature intended to limit the universe of workplace

injuries for which a claimant may recover compensation benefits. The only way to

give meaningful effect to this intent is to ensure, where appropriate, that evidence

is presented regarding the claimant’s qualifications and training, what jobs the

27

claimant is qualified and trained to perform within the maximum salary range, and

the claimant’s ability to perform and obtain any of those jobs. Such an analysis

will sometimes require a certain amount of discovery in order for a claimant to be

able to prove a disability under the statute.

The magistrate cannot make a proper determination of whether a claimant

has proved a disability without becoming fully informed of all the relevant facts.

The dissent asserts that our holding allowing discovery would deprive the

magistrate of his discretion to allow discovery under MCL 418.851 and MCL

418.853. However, a magistrate’s discretion is no more absolute than it is in any

other realm of judicial decision-making. In those cases in which a magistrate’s

denial of discovery effectively deprives an employer of the right to present a

meaningful defense, the magistrate, as a general matter, abuses his discretion.6

6
The dissent asserts that under Boggetta, which stated that a hearing referee
has the authority to require discovery, Boggetta, supra at 603-604, the employer
does not have a right to discovery. However, if a magistrate has the discretion to
order discovery, and such discovery is necessary for the employer in a particular
case to sustain its burden of production, then the magistrate does abuse his
discretion in failing to order discovery and denying the employer the opportunity
to present a defense. The dissent also asserts that Boggetta is not applicable
because the statute it relied on has been modified. Boggetta, supra at 602-603,
quoted with approval the WCAB opinion, which first cited Rule 7 of the
workmen’s compensation department’s rules of practice, 1954 Mich Admin Code,
R 408.7: “‘At the hearing in any case, the hearing referee may call witnesses and
order the production of books, records, including hospital records, accounts and
papers which he deems necessary for the purpose of making an award.’” This
language reflected the authority granted under the predecessor to MCL 418.853,
former MCL 413.3, which stated, in pertinent part: “The board or any member
thereof shall have the power to administer oaths, subpoena witnesses and to
(. . . continued)

28

 The statute provides the magistrate with the authority and discretion to

extract as much information from the parties as is necessary for the magistrate to

make a proper determination in a case. A magistrate cannot make a proper

determination without becoming fully informed of the facts regarding a claimant’s

limitation in wage-earning capacity in work suitable to his qualifications and

training. The disposition of a case on the basis of partial information might well

under some circumstances constitute an abuse of discretion, especially when, as

(continued . . .)
examine such parts of the books and records of the parties to a proceeding as relate
to questions in dispute.” The WCAB concluded that Rule 7 gave the hearing
referee authority to carry out certain actions, but did not constitute an exhaustive
list of what a hearing referee could do in workmen’s compensation proceedings.
Boggetta, supra at 602. The WCAB then cited the predecessor to MCL 418.851,
former MCL 413.8, which stated that a hearing referee “‘shall make such inquiries
and investigations as it (he) shall deem necessary.’” Id. at 603. The WCAB
concluded that the hearing referee’s responsibility was “‘broad enough to require
the answering of interrogatories requested by one of the parties if such answers are
necessary to a proper inquiry into the facts.’” Id. The “substantial alteration” in
the statute that the dissent refers to, post at 14, is effectively that the language “at
the hearing” was added in MCL 418.851. Applying Boggetta’s reasoning, this
change would not alter the holding at all. These two provisions accord a
magistrate the authority to require necessary discovery throughout the entire
process of examining the case to render a proper decision regarding whether a
claimant has proved a disability. They do not purport to constitute an exhaustive
list of actions a magistrate may take. In addition, the WCAC, sitting en banc,
addressed the meaning of this amendment in O’Brien, supra at 3, in which it held
that the addition of this language was a result of statutory changes in 1985, in
which the authority to assign cases was removed from the Bureau of Worker’s
Disability Compensation and vested in the newly created Board of Magistrates.
The language “The worker’s compensation magistrate at the hearing” was merely
a replacement of the previous language, “The hearing referee assigned to any
hearing.” Id. Therefore, the phrase “at the hearing” is a qualifier for the word
“magistrate” and refers to the entire proceedings before the magistrate, and does
not refer to only a portion of those proceedings.

29

here, the restriction on disclosure effectively relieves a claimant of the obligation

to satisfy his burden of proof.

The employer has the right to present a meaningful defense. Yet, the

dissent would deprive the employer of any right to discovery and, consequently,

any practical way of sustaining its burden of production. How would the

employer necessarily know what skills or training an employee had obtained in the

course of his life that might be compatible with an employment position? How

would the employer necessarily be apprised of the myriad factors that would

facilitate or impede an employee’s ability to secure an equivalent position in the

event of an injury?

The dissent again confidently asserts that the employer here possessed

sufficient information, in the form of claimant’s employee file and transcripts from

prior hearings, for its expert to conduct a transferable-skills analysis. How does

the dissent know this? Certainly, this assertion is inconsistent with the

magistrate’s assessment of the testimony that defendant’s vocational expert

“would need to meet with plaintiff to perform a transferable job skill analysis.”

Moreover, as the dissenting commissioner noted, plaintiff attended college on

three separate occasions after he began his employment with defendant, and that

this training, however limited, “would be relevant in determining if he had any

post injury job qualifications and training . . . .”

Even more significantly, what are the standards for the dissent’s assertions?

If there had been no prior proceedings, would the employer be limited to its

30

personnel files? Must an employer maintain personnel files in specific

anticipation of someday having to do a wage-earning capacity analysis on an

employee? How does an employer accurately establish wage-earning capacity

without access to information from the best-informed person in the world

concerning that subject: the claimant himself?

The dissent also alludes to the employer’s duty under MCL 418.319(1) to

provide an injured employee with vocational rehabilitation services, but

immediately takes issue with the employer’s right to interview the employee in

this regard. Just as with the matter of discovery, it is unclear how the dissent

would have the employer satisfy its obligation in this regard without affording it

some means to access to necessary information. In both of these realms, the

dissent prefers to deny the employer any ability to gather information necessary to

defend itself.

V. CONCLUSION

We reiterate that Sington overruled Haske and, therefore, that the

procedures of the workers’ compensation process must reflect this change in the

caselaw. The claimant bears the burden of proving a disability by a preponderance

of the evidence under MCL 418.301(4), and the burden of persuasion never shifts

to the employer. The claimant must show more than a mere inability to perform a

previous job. Rather, to establish a disability, the claimant must prove a work-

related injury and that such injury caused a reduction of his maximum wage-

31

earning capacity in work suitable to the claimant’s qualifications and training. To

establish the latter element, the claimant must follow these steps:

(1) The claimant must disclose all of his qualifications and training;

(2) the claimant must consider other jobs that pay his maximum pre-

injury wage to which the claimant’s qualifications and training translate;

(3) the claimant must show that the work-related injury prevents him

from performing any of the jobs identified as within his qualifications and

training; and

(4) if the claimant is capable of performing some or all of those jobs, the

claimant must show that he cannot obtain any of those jobs.

If the claimant establishes all these factors, then he has made a prima facie

showing of disability satisfying MCL 418.301(4), and the burden of producing

competing evidence then shifts to the employer. The employer is entitled to

discovery before the hearing to enable the employer to meet this production

burden. While the precise sequence of the presentation of proofs is not rigid, all

these steps must be followed.

In this case, claimant did not sustain his burden of proving a disability. The

Court of Appeals erred in holding that claimant sustained his burden of proving

that he was disabled from all jobs within his qualifications and training because

the existence of other jobs within his qualifications and training paying the

maximum wages was not apparent. The Court of Appeals also erred by holding

that evidence concerning whether claimant has reasonable employment options

32

available for avoiding a diminution in his wages in a position within his

qualifications and training is not part of a claimant’s proofs, and further erred by

effectively shifting the burden of proof to the employer to demonstrate that there

are jobs available within the claimant’s qualifications and training. Finally, the

Court of Appeals erred in holding that the magistrate did not abuse his discretion

by denying the employer’s expert the opportunity to interview claimant before the

hearing. Given the inconsistent application of the Sington standard in the past, we

believe that it would be equitable to allow claimant the opportunity to present his

proofs with the guidance provided by this opinion. Accordingly, we reverse those

portions of the Court of Appeals judgment and remand this matter to the

magistrate for a new hearing consistent with the procedures set forth in this

opinion.

Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.

33

 STATE OF MICHIGAN

SUPREME COURT

FREDIE STOKES,

Plaintiff-Appellee,

v No. 132648

CHRYSLER LLC, formerly known as
DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

CAVANAGH, J. (dissenting).

Today, the majority judicially creates new procedures, a heightened

evidentiary standard, and compelled discovery for workers’ compensation

hearings. The majority exercises its creativity at the expense of Michigan

workers, whom this opinion places at “significant risk.” Ante at 15-16. Because

these new provisions subvert the will of the Legislature, ignore the language of the

Worker’s Disability Compensation Act (WDCA), and recklessly risk the well-

being of Michigan workers, I dissent.

The Legislature created a careful balance of critical interests in the WDCA.

The act extinguished a worker’s common-law claim for injury at work, providing

an exclusive and limited remedy for such an injury. The result is lower and more

predictable injury compensation costs for employers. But injured workers also

benefit under the act:
 The family of the [injured worker] . . . knew privation and
sorrow when injury stopped income. True, the injured workman
would not get full “damages” as that term is used in the law. The
amount of his recovery was carefully circumscribed. It was limited
to interference with earning capacity. The workman might be so
grotesquely disfigured as to shock even the insensitive, yet for this
harm there was no compensation, unless aided by statute. . . . [T]he
workman has given up his common-law action, and can no longer
seek damages from a jury. However, there was a giving on both
sides. In return for the workman’s limited monetary recovery he got
the certainty of adequate compensatory payments without recourse
to litigation. [Crilly v Ballou, 353 Mich 303, 308-309; 91 NW2d
493 (1958).]

The people’s elected representatives crafted the WDCA with precision. It

states that “[p]rocess and procedure under this act shall be as summary as

reasonably may be.” MCL 418.853. Thus, “it is repugnant to attempt to judicially

read into the act other requirements or conditions that operate to defeat or limit its

aim.” Kidd v Gen Motors Corp, 414 Mich 578, 588; 327 NW2d 265 (1982). This

Court has long recognized the clear limit on judicial creativity. “‘The workmen’s

compensation law is a departure, by statute, from the common law, and its

procedure provisions speak all intended upon the subject. Rights, remedies, and

procedure thereunder are such and such only as the statute provides.’” Paschke v

Retool Industries, 445 Mich 502, 511; 519 NW2d 441 (1994), quoting Luyk v

Hertel, 242 Mich 445, 447; 219 NW 721 (1928) (emphasis in Paschke). Under

the WDCA, a claimant who proves that he suffered a “disability” is entitled to

benefits. MCL 418.301. Importantly, though the WDCA defines the term, the act

does not provide any particular procedure for proving the existence of a disability.

2

Instead, the Legislature leaves it up to the claimant regarding how to proceed in

proving his case.

Today, the majority finds the act wanting. The majority reads a new

requirement into the act: an injured worker must now provide the equivalent of a

“transferable-skills analysis” to show a limitation of wage-earning capacity when

establishing a disability under MCL 418.301(4). This equivalent of a transferable-

skills analysis is a key component of the new procedure the majority creates to

prove a disability. According to the majority, a claimant must disclose his

qualifications and training, present the equivalent of a transferable-skills analysis

identifying the “universe of jobs” for which he might be qualified, and show that

his work-related injury prevents him from performing jobs or that he is otherwise

unable to obtain jobs for which he might be qualified; the employer may then

rebut the claimant’s proofs and, finally, the claimant “may then come forward with

additional evidence to challenge the employer’s evidence.” Ante at 14-17. In

addition to these novel requirements, the majority creates a new right: the

employer has a right to discovery. Specifically, the employer’s vocational expert

“must be permitted to interview” the claimant. Ante at 17.

There is no support or authority in the WDCA for the new requirements,

procedures, and rights the majority reads into the act. As a whole, this procedural

gauntlet is inimical to the longstanding respect this Court has afforded the careful

balance crafted by the people’s representatives in the WDCA: “[T]he WDCA is in

derogation of the common law, and its terms should be literally construed without

3

judicial enhancement.” Paschke, 445 Mich at 510-511. Further, the specific

requirements that a claimant must provide the equivalent of a transferable-skills

analysis and submit to an interview by the employer’s expert are not supported by

the language of the act. Accordingly, the majority invades the province of the

Legislature by adopting these new requirements.

The majority effectively requires a claimant to present a transferable-skills

analysis. Defendant’s vocational expert in the present case described the analysis:

. . . I would probably need to complete what is called the
transferable skills analysis, where I would take the profile that was
essentially presented of [plaintiff’s] work history, his educational
background, his restrictions as outlined by both physicians and enter
all that information into the computer and essentially have that
profile, all the variables of that profile bounced off of the U.S.
Department of Labor’s Dictionary of Occupational Titles. All of
their job classifications to assess what jobs might be most
appropriate falling within the restrictions and other qualifications
and training as noted.

As an alternative to this complex analysis, the majority allows that the claimant

may “provide some reasonable means to assess employment opportunities to

which his qualifications and training might translate.”1 Ante at 14-15. But, in

1
The Code of Federal Regulations also defines “transferable skills”:

What we mean by transferable skills. We consider you to
have skills that can be used in other jobs, when the skilled or semi-
skilled work activities you did in past work can be used to meet the
requirements of skilled or semi-skilled work activities of other jobs
or kinds of work. This depends largely on the similarity of
occupationally significant work activities among different jobs. [20
CFR 404.1568(d)(1) (emphasis added).]

4

either case, the WDCA simply does not require this level of evidentiary proof to

show a limitation in wage-earning capacity.

Comparison to the WDCA’s requirement for proof of injury is instructive.

MCL 418.385 requires extensive and specific proofs of injury. It states that

“[a]fter the employee has given notice of injury . . . , if so requested by the

employer or the carrier, he or she shall submit himself or herself to an examination

by a physician or surgeon authorized to practice medicine under the laws of this

state . . . .” This demonstrates that the Legislature knows how to create a

requirement of detailed proof when it wants to. The Legislature required detailed

proof to show a work-related injury. It did not require the same level of

evidentiary detail to show a limitation in wage-earning capacity. The “express

mention in a statute of one thing implies the exclusion of other similar things.”

Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971); see also

Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193

(2003).

The WDCA does not authorize or require a claimant to present a

transferable-skills analysis or its equivalent to show disability. But the act does

require the employer to provide a transferable-skills analysis, or its equivalent, for

an employee after he has been found disabled. MCL 418.319(1) reads, in part:

When as a result of the injury [an employee] is unable to
perform work for which he or she has previous training or
experience, the employee shall be entitled to such vocational
rehabilitation services, including retraining and job placement, as
may be reasonably necessary to restore him or her to useful

5

 employment. If such services are not voluntarily offered and
accepted, the director on his or her own motion or upon application
of the employee, carrier, or employer, after affording the parties an
opportunity to be heard, may refer the employee to a bureau-
approved facility for evaluation of the need for, and kind of service,
treatment, or training necessary and appropriate to render the
employee fit for a remunerative occupation. Upon receipt of such
report, the director may order that the training, services, or treatment
recommended in the report be provided at the expense of the
employer. [Emphasis added.]

The requirements of MCL 418.319(1) sound very much like a transferable-

skills analysis or its reasonable equivalent. In fact, a transferable-skills analysis is

part of the vocational rehabilitation services offered by the Workers’

Compensation Agency.2 Given that the act requires employers to provide and pay

for a transferable-skills analysis after disability is established, it is simply

astonishing that the majority would require the injured employee to provide and

pay for this same detailed analysis, or its equivalent, in order to prove a disability.

Likewise, the act contemplates a similar analysis conducted by competent

individuals trained in the field when an injured worker is also eligible for

unemployment benefits. MCL 418.301 states:

(6) A carrier shall notify the Michigan employment security
commission of the name of any injured employee who is

2
Michigan’s guidelines for vocational rehabilitation providers state:
“Vocational rehabilitation is composed of numerous activities leading to the goal
of returning the injured/ill individual to productive employment. Vocational
rehabilitation encompasses such services as counseling, job analysis, placement,
labor market surveys, transferable skills analysis, job seeking skills training and
vocational testing.” State of Michigan Vocational Rehabilitation Providers’
Guidelines, p 1 (emphasis added), available at (accessed May 13, 2008).

6

 unemployed and to which the carrier is paying benefits under this
act.

(7) The Michigan employment security commission shall give
priority to finding employment for those persons whose names are
supplied to the commission under subsection (6). [Emphasis
added.][3]

The Legislature has chosen to place the strenuous requirements of a transferable-

skills analysis, or its reasonable equivalent, on the employer and the state, not on

an injured worker seeking compensation.

Importantly, there is no indication that a transferable-skills analysis is a

reliable indicator of a claimant’s ability to find work. The Workers’

Compensation Appellate Commission (WCAC), part of the Workers’

Compensation Agency, an agency with specific expertise in employment matters,

stated in this case that a transferable-skills analysis is speculative:

[W]e reject the concept that the measurement of work suitable
to an employee’s qualifications and training includes a “transferable
skills” analysis. Such an analysis suggests that work which the
employee has never performed and, therefore, is totally unaware of
its physical or mental requirements, can be utilized to measure
disability.

. . . Such proofs could go on forever if the employee has held
even a few different kinds of jobs. And, no matter how exhaustive
(and exhausting) the proofs, such a standard still leaves open the

3
I note that the WDCA does not require an injured worker to look for work
in order to prove a disability or receive compensation. MCL 421.28(1)(a), part of
the Employment Security Act, demonstrates that the Legislature knows how to
create such a requirement when it wishes. Such a requirement does not exist in the
WDCA.

7

 employer’s arguments in briefing on appeal that the employee can
answer only with argument and not with evidence. Both employee
and employer must be excused from impossible burdens. [Stokes v
DaimlerChrysler Corp, 2006 Mich ACO 24, p 73.]

The majority puts an impossible burden on injured workers, in opposition to the

letter and purpose of the WDCA. “[I]t is repugnant to attempt to judicially read

into the act other requirements or conditions that operate to defeat or limit its

aim.” Kidd, 414 Mich at 588.

In finding that Mr. Stokes had sufficiently met the requirements of MCL

418.301(4), the Court of Appeals stated:

The magistrate never limited the inquiry to whether plaintiff
could no longer do his job. The magistrate examined plaintiff’s
qualifications and training and came to the factual conclusion that
his qualifications and training limited him to jobs driving a hi-lo and
working in a warehouse, and “physically strenuous work from which
he is clearly disabled.” This conclusion was based on plaintiff’s
testimony concerning his prior jobs, his education and training, and
defendant's failure to produce evidence showing that, contrary to
plaintiff's proofs, there were, in fact, jobs within plaintiff’s
qualification or training that he could perform that would provide
him with his maximum wage. This conclusion was amply supported
by the record. [Stokes v DaimlerChrysler Corp, 272 Mich App 571,
592; 727 NW2d 637 (2006).]

I agree with the Court of Appeals that Mr. Stokes satisfied the requirements

of MCL 418.301(4). The majority states that “[c]laimant merely testified

regarding his employment and educational background” and that he “presented no

evidence that he had even considered the possibility that he was capable of

performing any job other than driving a forklift.” Ante at 19. This is a

mischaracterization of the proceedings before the magistrate. The magistrate

8

conducted a substantial inquiry into Mr. Stokes’s qualifications and training,

which included his hobbies and non-work-related activities going back more than

30 years.4 The magistrate then concluded: “In fact, I find that [Mr. Stokes’s]

training and qualifications limit him to physically strenuous work from which he is

clearly disabled due to his significant spinal cord compression.” The magistrate

found, as a matter of fact, both (1) that Mr. Stokes’s qualifications and training

qualified him to do only physically strenuous work and (2) that his disability

prevented him from doing physically strenuous work. There was simply no job

for which Mr. Stokes was qualified that he was physically able to perform. I am

mystified about what the majority finds lacking in Mr. Stokes’s proofs.5 Under

these circumstances, I believe it was reasonable for the magistrate to find that Mr.

Stokes had suffered a reduction in his wage-earning capacity.

4
Thus, the magistrate did not confine himself to reviewing whether Mr.
Stokes was disabled from a single job; rather, the magistrate extensively reviewed
whether Mr. Stokes had suffered a limitation in his wage-earning capacity. See
Sington v Chrysler Corp, 467 Mich 144, 158; 648 NW2d 624 (2002).
5
Mr. Stokes’s spinal cord compression prevents him from obtaining any
job paying the maximum wages for which he might otherwise be qualified. In
light of these findings by the magistrate, any job search would obviously be an
exercise in futility. As mentioned, the WDCA does not require an injured worker
to look for work in order to obtain benefits. In this case, the majority requires Mr.
Stokes to search for jobs that do not exist. I believe there are far more efficient
uses of resources than to send claimants out on a wild goose chase for jobs that do
not exist. The majority’s opinion does not make “eminent sense,” ante at 24; it is
incomprehensible.

9

 The majority also creates a new rule of discovery in disability hearings.

The majority states that, in order for an employer to effectively meet its burden of

production, “the employer has a right to discovery”6 under Boggetta v Burroughs

Corp, 368 Mich 600; 118 NW2d 980 (1962). Specifically, the employer’s expert

“must be permitted to interview the claimant.”7 Ante at 16-17. This is directly

contrary to the plain language and the plain purpose of the WDCA. The majority

strips the magistrate of the discretion for discovery authorized by the Legislature.

The magistrate’s discretion is clearly provided in the two general discovery

provisions of the act. MCL 418.851 states that the “worker’s compensation

6
There is no such right in the WDCA. The majority creates it today. There
is also no constitutional right to discovery. In re Del Rio, 400 Mich 665, 687 n 7;
256 NW2d 727 (1977). Given that there is no statutory or constitutional right to
discovery, the majority oversteps its bounds by recognizing such a right. As this
Court has stated: “‘The workmen’s compensation law is a departure, by statute,
from the common law, and its procedure provisions speak all intended upon the
subject. Rights, remedies, and procedure thereunder are such and such only as the
statute provides.’” Baughman v Grand Trunk W R Co, 277 Mich 70, 72; 268 NW
815 (1936), quoting Luyk, 242 Mich at 447 (emphasis added).

7
The majority states that “[b]ecause claimant refused to meet with the
employer’s vocational expert, and the magistrate was unwilling to compel an
interview, the employer’s vocational expert could only provide speculative
testimony regarding the effect of claimant’s injury on his wage-earning capacity.”
Ante at 21. These are not the facts of this case. Defendant has identified no
evidence it might have gained from interviewing Mr. Stokes that was not
otherwise available. In fact, the magistrate found that defendant’s own ineptitude
left its expert without the necessary data. Defendant hired its vocational expert
five days before the final hearing (inclusive of a weekend) and failed to provide
the expert with Mr. Stokes’s employee file (which was in defendant’s possession)
or with transcripts from prior hearings in which Mr. Stokes testified about his
work and life qualifications and training. Stokes, 2006 Mich ACO 24 at 42-44.

10

magistrate at the hearing of the claim shall make such inquiries and investigations

as he or she considers necessary.” (Emphasis added.) This statutory provision

contemplates discovery for the purposes of, and at the discretion of, the magistrate

only. Likewise, MCL 418.853 states that “the director, worker’s compensation

magistrates, arbitrators, and the board shall have the power to administer oaths,

subpoena witnesses, and to examine such parts of the books and records of the

parties to a proceeding as relate to questions in dispute.” Again, the statute

expressly grants the magistrate broad discretion regarding discovery. The

majority’s new discovery rule impermissibly strips discretion from the magistrate.

If the Legislature had intended to limit the magistrate’s discretion regarding

discovery of vocational information, it would have done so. It did not.

There is one statutory exception to the magistrate’s broad discretion

regarding discovery. MCL 418.385 applies between parties and compels

discovery. It states:

After the employee has given notice of injury and from time
to time thereafter during the continuance of his or her disability, if so
requested by the employer or the carrier, he or she shall submit
himself or herself to an examination by a physician or surgeon
authorized to practice medicine under the laws of the state, furnished
and paid for by the employer or the carrier. If an examination
relative to the injury is made, the employee or his or her attorney
shall be furnished, within 15 days of a request, a complete and
correct copy of the report of every such physical examination
relative to the injury performed by the physician making the
examination on behalf of the employer or the carrier. The employee
shall have the right to have a physician provided and paid for by
himself or herself present at the examination. If he or she refuses to
submit himself or herself for the examination, or in any way
obstructs the same, his or her right to compensation shall be

11

 suspended and his or her compensation during the period of
suspension may be forfeited. Any physician who makes or is
present at any such examination may be required to testify under
oath as to the results thereof. If the employee has had other physical
examinations relative to the injury but not at the request of the
employer or the carrier, he or she shall furnish to the employer or the
carrier a complete and correct copy of the report of each such
physical examination, if so requested, within 15 days of the request.
If a party fails to provide a medical report regarding an examination
or medical treatment, that party shall be precluded from taking the
medical testimony of that physician only. The opposing party may,
however, elect to take the deposition of that physician.

MCL 418.385 overrides the discretion of the magistrate and compels

employees to submit to employers’ discovery requests for medical information.8 It

is extensive and specific. The Legislature knows how to require discovery when it

wants to. It did so regarding medical information. It did not regarding a

transferable-skills analysis or any other form of discovery related to a claimant’s

qualifications and training. “This court cannot write into the statutes provisions

that the legislature has not seen fit to enact.” Passelli v Utley, 286 Mich 638, 643;

282 NW 849 (1938).

The majority cites Boggetta, asserting that the case stands for the

proposition that “the employer has a right to discovery” under the WDCA “if

discovery is necessary for the employer to sustain its burden and present a

8
MCL 418.222(2) also requires both the employee and the employer to
disclose relevant medical records at the time of an application for a hearing or a
written response. It does not apply to subsequent proceedings and further
indicates the majority’s error in creating discovery rules additional to those the
Legislature saw fit to provide.

12

meaningful defense.”9 Ante at 16. It does not. First, Boggetta was decided solely

on jurisdictional grounds, so its comments on the permissible scope of discovery

in workers’ compensation hearings are dicta. Second, Boggetta did not require the

magistrate to compel discovery; it merely stated that a magistrate could require

discovery between parties at the magistrate’s discretion. Boggetta does not create

a right of discovery in any party, and it does not strip the magistrate of discretion.

Finally, Boggetta does not apply here because the Legislature has significantly

modified the statute it relied on.

The Court in Boggetta stated that its advisory comments were grounded

“by the statute quoted in the appeal board’s ruling.” Boggetta, 368 Mich at 603-

604. Boggetta interpreted former MCL 413.8, which stated that “the member or

deputy member of the commission assigned to any hearing in accordance with the

provisions of [former MCL 413.7] shall make such inquiries and investigations as

it shall deem necessary.” MCL 413.8 was repealed and replaced by MCL

418.851,10 which was subsequently amended to read that “the worker’s

compensation magistrate at the hearing of the claim shall make such inquiries and

investigations as he or she considers necessary.”11 (Emphasis added.)

9
I observe that if compelled discovery is necessary in this case, it is
difficult to imagine the case in which it would not be.
10
1969 PA 317.
11
1994 PA 271.

13

 This is a substantial alteration of the former statute. The added language,

“at the hearing,” limits the scope of permissible discovery.12 In fact, the amended

12
This is a substantial change for the matter at hand because Boggetta was
grounded in the “‘broad general language’” of the former statute. Boggetta, 368
Mich at 603 (citation omitted). This “broad” language was subsequently qualified
and limited by amendment. Thus, not only is the discovery rule in Boggetta dicta
and not on point, but its statutory grounding has been substantially altered. The
majority asserts that the amendment “was merely a replacement of the previous
language,” apparently contending that the amendment was meaningless. Ante at
29 n 6. For this proposition, the majority cites the WCAC en banc decision in
O’Brien v Federal Screw Works, 1998 Mich ACO 53. But in the present case, the
WCAC stated:

[S]ince the issuance of Boggetta, this dicta [regarding
discovery] has been given undue attention without recognizing that,
in the passage of time, the Worker’s Compensation Act has been
amended since 1962 when Boggetta was decided. . . .

It may be saying too much to assert that the amendment that
was codified in what is now MCL 418.851 intended to adopt the
dissenting position in Boggetta, but it can be stated that the
amendment knocked the foundation out from under the majority
opinion in Boggetta. For this reason, and because the language in
Bogetta is dicta, we agree that any party’s confidence in Boggetta as
authority for allowing a magistrate to require a party to participate in
pre-trial discovery (e.g., plant tours, interrogatories, meeting with
vocational consultants) may be easily dashed. [Stokes, 2006 Mich
ACO 24 at 47-48.]

Specifically addressing the case that the majority refers to here, the WCAC stated
that “[i]n O’Brien, the majority suggested that the 1985 amendments . . . were
written simply to alter the assignment of cases from the Director . . . to some other
unstated entity.” Id. at 53. The WCAC then observed that who assigned cases
was irrelevant: “The language ‘at the hearing’ . . . has a very plain meaning no
matter what administrative body assigns the cases for hearing.” Id. at 54. The
commission concluded: “We believe that ‘the hearing’ in MCL 418.851 means
what it says and refers to the hearing of the claim at which time the parties present
their proofs in whatever fashion is necessary and it is done on the record.” Id. at
53. In coming to this conclusion, the WCAC observed that O’Brien had admitted
(. . . continued)

14

language appears to call into question even the limited advisory holding of

Boggetta. Before the hearing is simply not “at the hearing.” If it were, the added

language would not have been necessary. The Legislature has subsequently

modified the statute at issue in Boggetta to limit discovery. The majority’s new

rule broadly expands discovery. Indeed, it compels discovery between parties,

which the act does not expressly allow. Further, it strips the statutorily mandated

discretion of the magistrate. Under the WDCA, the propriety and form of

discovery are within the magistrate’s discretion.13 What the statute gave, the

majority takes away.

(continued . . .)
that “‘there is no explicit statutory authority which allows for the deposing of lay
witnesses.’” Id. at 52, quoting O’Brien, 1998 Mich ACO 53 at 4. The WCAC
found this critical because “[w]hat is lacking in the administrative discussion of
the issue of discovery is any true recognition that the authority for discovery has to
be identified explicitly in the Act and that an implicit authority is not legally
sufficient.” Stokes, 2006 Mich ACO 24 at 50. See also Baldus v Michigan, 1997
Mich ACO 429, p 4 (“The legislature, by amending [MCL 418.851] to limit the
magistrate’s inquiries and investigations to those conducted at the hearing, seems
to have adopted the [Boggetta] dissent’s position.”).
13
The majority states that “[i]t is clear that discovery is an integral part of
workers’ compensation proceedings that has been consistently upheld by the
WCAC.” Ante at 27. This is not the issue; the issue is whether the magistrate has
discretion regarding discovery (as stated in the WDCA) or is forced to require
discovery in certain situations (as mandated today by the majority).

To support its decision to override the statutory discretion afforded the
magistrate and to force magistrates to compel vocational interviews, the majority
cites a smattering of WCAC cases. I do not find the cases compelling on this
point. With one exception, the cases do not stand for the proposition that the
magistrate is required to compel discovery in certain situations; the cases simply
affirm the magistrate’s discretion to order such discovery as he deems necessary.
(. . . continued)

15

(continued . . .)
For instance, in Nessel v Schenck Pegasus Corp, 2003 Mich ACO 272, p 7, the
commission began with the obvious: “Certainly, the worker’s compensation arena
has never had full discovery as provided for in the Michigan General Court
Rules.” The commission went on to conclude:

While pre-trial access to information is critical, the extent of
discovery and the precise form which disclosure may take, is
commended to the broad discretion of worker’s compensation
magistrates. However, it is error for a magistrate confronted with
requests for information pursuant to Sington to categorically deny
requests for information on the ground such information is not
subject to pre-trial production. The need for particular information
must be assessed on a case-by-case basis. [Id. at 8 (emphasis
added).]

The majority disregards the broad discretion the WDCA affords the magistrate and
replaces the “case-by-case” evaluation contemplated in Nessel with categorically
compelled discovery for employers’ vocational experts. Nessel does not support
the majority’s new discovery rule.

Likewise, in Rochon v Grede Foundries, Inc, 2000 Mich ACO 534, p 6,
while the commission asserted “that magistrates have to the power to compel
discovery,” the commission did not assert that this Court has the power, under the
WDCA, to categorically compel a magistrate to require discovery in certain
situations. Indeed, the commission noted the unique circumstance and specific
scope of its decision: “Given the unique problems that a death case presents, the
magistrate acted reasonably and within his discretion in ordering the discovery.”
Id.

Similarly, O’Brien did not categorically embrace vocational discovery;
rather, the commission again addressed a specific circumstance, stating that
Bogetta “stands for the proposition that limited discovery tools such as
interrogatories may be utilized in cases involving unique problems, i.e., death
cases.” O’Brien, 1998 Mich ACO 53 at 3. So the cases cited by the majority
stress the magistrate’s discretion and address specific circumstances in which, on a
case-by-case basis, discovery may be required; more importantly, they are
diametrically opposed to the majority’s discretion-stripping mandate.

In White v Waste Mgt, 2004 Mich ACO 4, the commission did require a
magistrate to compel the claimant to submit to an interview by the employer’s
(. . . continued)

16

 The WDCA states that the “worker’s compensation magistrate at the

hearing of the claim shall make such inquiries and investigations as he or she

considers necessary.” MCL 418.851. The WDCA also states that “worker’s

compensation magistrates . . . have the power . . . to examine such parts of the

(continued . . .)

vocational expert. Addressing that aberrant decision, the commission in the

present case, sitting en banc, stated:

We disagree with the majority opinion in White . . . .
. . . Neither the Court’s decision in Sington, nor “the reality of
legal requirements and evolved complex burdens of evidentiary
proofs mandated by modern case law such as found in Sington,”
have moved the Legislature to alter the authority of the magistrate.
While it is accurate to state that the opinion in Sington changed
perceptions of the Worker’s Compensation Act, we must recognize
that the Act, itself, did not change after Sington was issued. Sington
has merely provided a party with the motivation to assert that there
is dormant authority in the Act that now must be awakened.”
[Stokes, 2006 Mich ACO 24 at 51, quoting the dissent in White,
2004 Mich ACO 4 at 14.]

The commission then concluded:

If the Legislature determines that it had made an unwise
choice in failing to allow for discovery, it is the legislative
prerogative to amend the Act and provide for it. Certainly, along the
way, the Legislature could then provide some guidance as to what is
a permissible and what is an impermissible use of vocational
consultants. The Legislature could also determine whether Sington
actually codified the definition of disability it intended and whether
it is prudent to divert the limited dollars of employers and employees
in the worker’s compensation arena away from efforts to put
employees back to work and in the direction of vocational
consultants. [Stokes, 2006 Mich ACO 24 at 61.]

Because there is no statutory authority for its decision, the majority stretches for
support in WCAC decisions. But such support is not consistent or substantial.

17

books and records of the parties to a proceeding as relate to questions in

dispute.”14 MCL 418.853. The majority states that the workers’ compensation

magistrate must require the claimant to submit to an interview with the employer’s

expert. Ante at 17. The majority’s new discovery rule is simply contrary to the

language of the WDCA.

This discovery rule is a new requirement. The majority insists that its

opinion creates no new requirements.15 Ante at 23. The majority attempts to

disguise the new requirement as necessary to prevent abuse of discretion. Ante at

28. This is disingenuous. There can be no abuse if there is no discretion, and

there can be no discretion if there is no choice. Under the majority’s new rule,

there is no choice; the employer’s expert “must be permitted to interview the

claimant.” Ante at 17. Now, every time an employer requests to have its expert

interview a claimant, the magistrate must comply.

The majority assures us that its new discovery rule will apply only when

“such discovery is necessary for the employer in a particular case . . . .” Ante at 28

14
This is consistent with the nature of the proceedings envisioned by the
WDCA. “‘Proceedings under the workmen’s compensation act are purely
statutory,—administrative, not judicial,—inquisitorial, not contentious,—disposed
of not by litigation and ultimate judgment, but summarily.’” Hayward v
Kalamazoo Stove Co, 290 Mich 610, 616-617; 288 NW 483 (1939), quoting
Hebert v Ford Motor Co, 285 Mich 607, 610; 281 NW 374 (1938).

15
The majority opinion also claims to “afford guidance in the application of
Sington . . . .” Ante at 28-29. If Sington requires rewriting the WDCA, then
Sington should be reviewed.

18

n 6. But in this case, the defendant sought information that was completely

unnecessary. To review, Mr. Stokes had worked for defendant his entire adult life;

at a previous hearing, he disclosed all his out-of-work hobbies, activities, and

experience (including the content of the high school classes and college courses he

had attended decades earlier); it is uncontested that his severe spinal compression

disables him from all physically strenuous labor. When asked what information

was lacking, the defendant’s expert stated that he would need Mr. Stokes’s “work

history, his educational background, [and] his restrictions as outlined by both

physicians . . . .” All this information was in the hands of defendant well in

advance of the hearing. Defendant has identified no evidence that it hoped to

discover.16 If compelled discovery is “necessary” in this case, it will be

“necessary” in all cases. This Court has stated that “‘[r]ights, remedies, and

procedure [under the WDCA] are such and such only as the statute provides.’”

Paschke, 445 Mich at 511, quoting Luyk, 242 Mich at 447 (emphasis in Paschke).

16
In its attempt to characterize the magistrate’s exercise of discretion in
this case as abuse of that discretion, the majority states the general proposition that
a “magistrate cannot make a proper determination without becoming fully
informed of the facts regarding a claimant’s” reduced wage-earning capacity.
Ante at 29. I fully agree, and, when such a case is presented to this Court, I will
vote accordingly. But that proposition has nothing to do with this case. The
magistrate’s review was extensive, and he considered all relevant facts, including
employment opportunities. The majority has not identified one relevant fact or
inquiry that would hint that the magistrate in this case was less than fully
informed.

19

 The majority asserts that discovery is not a “novel concept in workers’

compensation proceedings.” Ante at 26. I agree. The WDCA expressly gives the

magistrate the power to compel testimony and the production of documents. MCL

418.853. The act authorizes the magistrate to make inquiries and investigations.

MCL 418.851. Magistrate-directed discovery is not novel at workers’

compensation hearings. But it is novel to endow employers with a “right to

discovery” when that right is found nowhere in the statute. It is novel to require a

magistrate to compel discovery in certain situations when the act gives the

magistrate broad discretion in discovery: “The worker’s compensation magistrate

at the hearing of the claim shall make such inquiries and investigations as he or

she considers necessary.” Id. (emphasis added).

The majority states that the “magistrate cannot make a proper determination

of whether a claimant has proved a disability without becoming fully informed of

all the relevant facts.” Ante at 28. Again, I agree. But in this case, as noted, the

magistrate conducted a thorough review of all the relevant facts.

The standards for workers’ compensation hearings are found in the WDCA.

Today the majority finds the language of the act wanting and creates new

procedures, requirements, and rules. The majority exercises its creativity, in

opposition to the purposes of the act, at the risk of injured workers. This Court has

stated that “the act should be liberally construed to grant rather than to deny

benefits.” Paschke, 445 Mich at 511. Likewise, this Court has held that the

careful legislative balance in the act was created “to provide financial and medical

20

benefits to victims of work-connected injuries in an efficient, dignified and certain

form.” Whetro v Awkerman, 383 Mich 235, 242; 174 NW2d 783 (1970).

The majority confesses recognition that its requirements, especially the

requirement of a transferable-skills analysis or its equivalent, place injured

workers at “significant risk.” Ante at 15. This risk is evident “because the

employer always has the opportunity to rebut the claimant’s proofs,” and thus “the

claimant would undertake significant risk by failing to reasonably consider the

proper array of alternative available jobs because the burden of proving disability

always remains with the claimant.” Ante at 15-16 (emphasis added).

The requirement creates significant risk because the claimant may not

understand what is required in a transferable-skills analysis. A claimant may not

have the knowledge or skills required to accurately conduct a transferable-skills

analysis. Further, as the Court of Appeals observed in this case, there is a

considerable risk that a transferable-skills analysis “would inaccurately depict a

claimant’s actual ability to obtain gainful employment and result in a virtually

impossible burden of proof for the plaintiff[.]”17 Stokes, 272 Mich App at 583-

17
I agree with the majority that “any reasonable person” would assess her
employment alternatives if she were injured outside the workplace such that she
could not perform her current job. Ante at 24. But Mr. Stokes cannot perform any
job for which he might be qualified. For Mr. Stokes, the answer to the question, Is
there another job in which I am employable at a similar wage? is “No.” Requiring
him to search for work that cannot be found is unreasonable. See ante at 24.
Further, I believe that Michigan workers wish to work for a living. I suspect few
Michigan employees view an injury resulting in job loss as a welcome opportunity
(. . . continued)

21

584. The significant risk the majority creates by requiring a transferable-skills

analysis or its equivalent is inimical to certain and summary proceedings and,

therefore, intolerable under the WDCA. Further, it improperly adds to the burden

and expense of injured workers seeking compensation for work-related injuries.

The majority informs us that, although required to provide a detailed

vocational analysis, a claimant “is not required to hire an expert . . . .” Ante at 15.

However, as a practical matter, the claimant will face even greater risk if he does

not hire an expert. The majority clearly assumes that employers will have

vocational experts at workers’ compensation proceedings to best support their

positions. With the employer’s expert locked and loaded, the prudent claimant

will have like reinforcement. The vocational proofs required virtually ensure that

claimants will need experts. Additionally, because of the uncertainty and expense

imposed by this regime, it will almost certainly be more difficult for injured

workers to find competent representation. This burden of uncertainty, difficulty,

and expense is contrary to the “certainty of adequate compensatory payments

without recourse to litigation” contemplated in the act. Crilly, 353 Mich at 309.

(continued . . .)
to become acquainted with their couches. Consequently, I do not believe that
denying injured workers’ claims for assistance is necessary to prevent statewide
destruction. And even if I were convinced of the majority’s policy assertions, I
would be constrained by the language of the WDCA from denying benefits to a
deserving claimant. Mr. Stokes has severe spinal compression. He is not able to
perform his former job or any other paying a similar wage. The majority’s
decision to deny him benefits is unreasonable and unsupportable.

22

 Finally, I note that the majority asserts that today’s decision will enhance

“the competitiveness of Michigan as a workplace with other states . . . .”18 Ante at

22 n 4. But Michigan is a state, not a business. This state’s first responsibility is

the health and welfare of its citizens. It is for the Legislature to make policy

decisions. The Legislature has crafted a careful balance of critical concerns in the

WDCA.19 This Court has stated that “[i]t is not this Court’s role to decide whether

the Legislature acted wisely or unwisely in enacting this statute. We will not

substitute our own social and economic beliefs for those of the Legislature, which

is elected by the people to pass laws.” McAvoy v H B Sherman Co, 401 Mich 419,

439; 258 NW2d 414 (1977). Today, the majority takes a different view. I

respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

18
I find it quite ironic that this Court’s “textualists,” first, have no problem
adding language to the statute and, second, assert what good public policy their
additions create.

19
The majority emphasizes that fairness to employers compels its creative
amendments of the WDCA. But that is precisely the point: the Legislature has
carefully balanced the equities in the act. This Court should not attempt to adjust
the scales that Michigan lawmakers have set.

23

 STATE OF MICHIGAN

SUPREME COURT

FREDIE STOKES,

Plaintiff-Appellee,

v No. 132648

CHRYSLER LLC, formerly known as
DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

WEAVER, J. (dissenting).

I join Justice Cavanagh’s dissenting opinion, but write separately to

highlight that my separate concurrence in Sington v Chrysler Corp, 467 Mich 144,

172; 648 NW2d 624 (2002), did not concur in, and differed from, the view of the

majority of four (Chief Justice Taylor and Justices Corrigan, Young, and

Markman) that under the workers’ compensation act, MCL 418.301(4), and under

Sington, the claimant always has the burden of proof.

In this case, writing for the majority of four, Justice Markman states that,

under Sington, the claimant failed to sustain his burden of proving that his work-

related injury effected a reduction of his maximum wage-earning capacity in work

suitable to his qualifications and training.

I disagree with the majority of four. Rather, I agree with the Court of

Appeals decision below that once a claimant has established his or her disability
by a preponderance of the evidence, the burden of going forward with the

evidence shifts as the parties present their proofs. Thus, the burden of proving a

disability remains with the claimant, but the burden of proof shifts back and forth

as each party brings forth further evidence.

Further, I concur with Justice Cavanagh’s conclusion that the majority of

four reads a new requirement into the act: namely, that under the majority’s view,

a claimant must provide a “transferable-skills analysis” to show a limitation of

wage-earning capacity as proof of a disability under MCL 418.301(4). For the

reasons stated in Justice Cavanagh’s dissent, I do not think that either the statute or

Sington can be correctly interpreted in that manner.

Elizabeth A. Weaver

2