Stokes v. Daimlerchrysler Corp.

• Decision Date: 26 October 2006
• Docket Number: Docket No. 268544.
• Citation: 272 Mich. App. 571,727 N.W.2d 637
• Parties: Fredie STOKES, Plaintiff-Appellee, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

727 N.W.2d 637

272 Mich. App. 571

Fredie STOKES, Plaintiff-Appellee, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellant.

Docket No. 268544.

Court of Appeals of Michigan.

Submitted August 8, 2006, at Detroit.

Decided October 26, 2006, at 9:05 a.m.

Released for Publication February 20, 2007.

Mancini, Schreuder, Kline & Conrad, P.C. (by Roger R. Kline), Warren (Daryl Royal, of counsel), Dearborn, for the plaintiff.

Lacey & Jones (by Gerald M. Marcinkoski), Birmingham, for the defendant.

Before: SAAD, P.J., and JANSEN and WHITE, JJ.

WHITE, J.

Defendant appeals by leave granted the en banc opinion of the Workers' Compensation Appellate Commission (WCAC) affirming an open award of disability benefits. Defendant argues that the WCAC committed errors of law in applying the standard of disability under Sington v. Chrysler Corp., 467 Mich. 144, 648 N.W.2d 624 (2002), and in concluding that the magistrate had no general authority to grant pretrial discovery. We conclude that the WCAC reached a result in this case — affirming the magistrate's grant of benefits — that is amply supported by the record, and affirm the result. However, because the opinion is overly broad in parts,¹ and is capable of being understood as unduly restrictive in its application of Sington, supra, we vacate the opinion to the extent it is inconsistent with the principles set forth herein.

I

Plaintiff started working for defendant in 1971 when he was 19 years old. His work for defendant involved driving forklifts to unload trucks and transport parts in and around defendant's plant. He also drove "mules," which are small trucks used to transport parts around the plant. Toward the end of his career with defendant, plaintiff was employed as a dispatch driver, which required that he enter data into a computer throughout the day in addition to unloading, driving, and delivering. Plaintiff's work as a dispatch driver still required that he drive the forklifts or mules five hours a day. Operating the forklifts and mules required plaintiff to engage in repetitive flexion, extension, and twisting of plaintiff's cervical spine, and the frequent jarring he experienced while driving caused repeated minor impact injuries to the spine. Near the end of the 1990s, plaintiff began feeling pain in his cervical spine and arms while working. The pain in plaintiff's neck and arms increased until the fall of 1999, when it forced plaintiff to stop working. According to plaintiff's treating physician, Dr. Arturo Paz, the jarring and other physical activity caused repetitive trauma to plaintiff's cervical spine and aggravated plaintiff's existing rheumatoid arthritis so as to leave him unable to perform his job as a dispatch driver.

Plaintiff sought workers' compensation benefits based on a cervical spine disability. The magistrate accepted Dr. Paz's testimony that the disabling cervical spine condition was caused by the repetitive flexion, extension, and jarring of plaintiff's cervical spine during his work for defendant. Accordingly, the magistrate granted plaintiff an open award of benefits. The magistrate's original opinion does not engage in a separate analysis of disability under MCL 418.301(4), but apparently relied on Haske v. Transport Leasing, 455 Mich. 628, 566 N.W.2d 896 (1997),² which defined "disability" to include an injury that prevents an employee from performing a single job within his qualifications and training. Id. at 655, 566 N.W.2d 896.

Defendant appealed the award of benefits to the WCAC, arguing that the magistrate erred in finding that plaintiff suffered a work-related injury rather than a noncompensable condition of aging. In the same appeal, defendant argued that the case should be remanded to the magistrate for reconsideration of the disability issue in light of Sington, supra, which overruled Haske with respect to its definition of "disability." The WCAC affirmed the magistrate's finding that plaintiff had suffered a work-related injury as supported by competent, material, and substantial evidence. However, the WCAC remanded the matter to the magistrate for reconsideration of his disability finding under Sington, explaining:

Dr. Paz found Stokes to be disabled because he could not return to his job as a hi-lo driver. Based on this testimony, the magistrate found Stokes "could not return to that job" or "any duties of that job."

Under Sington, the test is not whether a claimant can return to the work he was last performing, but whether the claimant has suffered a limitation of his maximum wage earning capacity in work within his qualifications and training. On remand, the magistrate will address only the issue of Stokes' disability under the Sington standard.

Before the hearing after remand, defendant sought to have plaintiff interviewed by a vocational rehabilitation expert to prepare the expert to give testimony relevant to the application of Sington. The magistrate denied this request. Defense counsel renewed this request at the start of the hearing on remand, and the magistrate again refused to order plaintiff to submit to an interview by defendant's vocational expert. The magistrate noted that while he rejected defendant's motion to have plaintiff interviewed by defendant's vocational expert, he did not prevent defendant from doing anything else to acquire this information.

Plaintiff testified regarding his employment background, qualification, and training. Plaintiff graduated from high school. He took drafting in junior high school and wood shop in high school, but otherwise had no vocational training. He attended college for very brief periods but did not obtain a degree or any certification. He did not take any other job training or adult education classes. Before working for defendant, plaintiff worked driving a forklift at a refrigerator warehouse and stocking merchandise at a TV store. He also occasionally helped stock shelves at his cousin's record store. None of those jobs paid anywhere near the wage plaintiff earned working for defendant. Plaintiff had no typing skills; his data-entry experience as a dispatch driver consisted of typing rack numbers into the computer. As far as recreational activities, plaintiff testified that he played chess and cards and watched sports on TV. He accompanied friends while they golfed, and rode in, but did not drive, a golf cart.

At the hearing, defendant presented testimony from vocational rehabilitation expert Robert Seal. Defense counsel presented Seal with a very lengthy hypothetical question based on the relevant factors raised in plaintiff's testimony, asking whether he could give an opinion regarding plaintiff's wage-earning capacity given plaintiff's qualifications, training, and restrictions. Seal answered as follows:

Well, at this point in time it would be nearly speculative on my part to render an opinion about his wage earning capacity. I would need to actually contact employers to survey what is out there. And to determine again, job availability and wages for those accompanying jobs.

And actually, even prior to that I would probably need to complete what is called the transferable skills analysis, where I would take the profile that was essentially presented of his work history, his educational background, his restrictions as outlined by both physicians and enter 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.

Immediately following Seal's response to the hypothetical question, defense counsel asked to adjourn or continue the hearing to allow Seal to perform the analysis mentioned so as to develop proofs relevant to the Sington analysis. Plaintiff's counsel objected, arguing that the question appeared to concern residual earning capacity under MCL 418.301(5), rather than disability under MCL 418.301(4) and Sington. Defense counsel responded that he was attempting to develop evidence showing that plaintiff was still able to earn wages at his prior level or that plaintiff had a residual postinjury earning capacity, which would allow defendant to reduce his disability benefits.

The following exchange then took place between the magistrate and defendant's expert witness, Seal:

The Magistrate:—I just have a question. When were you contacted, Mr. Seal, regarding this case?

Mr. Seal: Thursday, October 2nd.

The Magistrate: Okay. And have you been provided before today's hearing any of the deposition testimony or any of the Plaintiff's job files?

Mr. Seal: No. Not any of the deposition material.

The Magistrate: Alright. Have you seen his, have you seen his job application or have you seen his employment file with Chrysler?

Mr. Seal: No.

The magistrate denied defendant's motion to adjourn. Defense counsel argued that because the magistrate had previously denied his requests to have plaintiff interviewed by an expert to prepare a labor market evaluation in advance of the hearing defense counsel would have had no reason to provide Seal with any information before the hearing. The magistrate conceded that he had rejected defendant's motion for a vocational interview of plaintiff, but asserted that he had not prevented defense counsel from doing anything else to prepare his expert. Seal was then excused.

The magistrate's opinion after remand incorporated his earlier findings by reference and summarized plaintiff's testimony regarding his education, training, and work experience. The magistrate noted Seal's credentials as a vocational expert and summarized his testimony as follows:

Mr. Seal testified, in response to an accurate hypothetical regarding plaintiff's qualifications, training, and experience, that he could only speculate with regard to plaintiff'[s] qualifications...