Proof of Continuing Inability to Earn Wages Required to Avoid Burden to Prove Lack of Wage-Earning Capacity — Where Claimant’s Condition was Sufficiently Improved “Non-Compliance with Stokes is No Longer Excused”

This is an interesting case, in which the Court of Appeals affirmed the Michigan Workers Compensation Appellate Commission’s (WCAC) decision, in part, on the failure of a workers’ compensation claimant to prove a continuing inability to earn wages after evidence established he could return to work at a wage-earning capacity (even if that capacity was restricted by lingering effects of the original injury).

Plaintiff injured his shoulder on the job.  He sought medical treatment, which resulted in surgery and rehabilitation for a period of time.  By all accounts, his injury was sufficiently rehabilitated and he was allowed to return to work.  Plaintiff sought total and permanent disability benefits for the period of time subsequent to the time he was deemed able to return to work (and after which he did in fact return to work with restrictions).

The magistrate ordered benefits for the entire period.  The WCAC reversed in part, holding that although Plaintiff had proved a total and permanent disability for a period of time (the time from the injury, diagnosis, surgery and recovery to a return to work status (with restrictions)), the magistrate erred in concluding that plaintiff “was completely removed from work in anticipation of surgery as well as for a period of recovery following that surgery.”

The Court of Appeals affirmed noting that the WCAC was correct in ruling that after the date he was deemed fit to return to work with restrictions, “plaintiff was required to establish disability ‘within the usual Stokes [v. Chrysler LLC, 481 Mich. 266; 750 N.W.2d 1129 (2008)] paradigm’”.  Even though Plaintiff sought to return to work with the defendant employer after that date, “he did not present evidence of other jobs within his salary range for which he is qualified and trained to perform.”  Slip Op. at 7, citing Stokes, 481 Mich at 282-83.  Where the evidence presented indicated plaintiff’s condition was sufficiently improved, his continued non-compliance with Stokes was no longer excused.  Id. at 6.  The Court of Appeals concluded that plaintiff therefore “failed to sustain his burden of proof related to this Stokes requirement by failing to show that ‘there are no reasonable employment options available for avoiding a decline in wages.’”  Id., citing Stokes, supra.

Practice Notes:

Dismissal of Cross-Appeal for Failure to File Claim for Review too Harsh a Sanction – The Court of Appeals ultimately remanded this case to the Appellate Commission requiring it to consider Plaintiff’s “cross-appeal” which had been dismissed by the Commission because although Plaintiff filed the brief within the 30-day period, he did not file the proper claim for review form to assert his cross appeal.  The Court held that the harsh sanction of dismissal of an appeal was unwarranted in light of this technical failure of Plaintiff to essentially file a cover sheet to his cross appeal.

Consideration of Records and Evidence Not Presented Below – The Court did reject the plaintiff’s attempt to include additional medical records and evidence in the appeal that were not part of the record below, stating “it appears that plaintiff did not provide the WCAC with all of the records he now cites on appeal, as required by MCL 418.861a(8). This Court’s review is generally limited to the record of the administrative tribunal and we will not allow enlargement of the record on appeal.”  Slip Op. at 7, citing Amorello v Monsanto Corp, 186 Mich App 324, 330; 463 NW2d 487 (1990).  Even though the Court excluded this, it then went on to state that even the medical evidence Plaintiff was not allowed to submit did not prove that he was totally disabled for the extended period.

Read the opinion here:  scharnitzke v coca cola workers comp case

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