Lofton v. Autozone, Inc., 020109 MIWC, 2009-197
| Case Date | February 01, 2009 |
| Court | Michigan |
On order of the court, the application for leave to appeal the February 4, 2008 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(l), in lieu of granting leave to appeal, we VACATE the decision of the Worker’s Compensation Appellate Commission mailed April 4, 2007, and we REMAND this case to the Board of Magistrates for reconsideration in light of Stokes v Chrysler LLC, 481 Mich. 266 (2008). If it is found that the plaintiff is disabled under MCL 418.301(4), but that the limitation of wage earning capacity is only partial, the magistrate shall compute wage loss benefits under MCL 418.361(1), based upon what the plaintiff remains capable of earning. The magistrate assigned to this case may take additional proofs upon request of either party. We DIRECT the magistrate to issue a decision and file that decision with the Clerk of this Court within 126 days of the date of this order.We retain jurisdiction. CAVANAGH, J., would deny leave to appeal. WEAVER, J., (dissenting). I dissent from the order vacating the decision of the Workers’ Compensation Appellate Commission and remanding this case to the Board of Magistrates for reconsideration in light of Stokes v Chrysler LLC, 481 Mich. at 320 (Weaver, J., dissenting), I vote to grant leave to appeal in this case to consider whether a majority of this Court reached the correct decision in Stokes. KELLY, J., would grant leave to appeal to reconsider Stokes v Chrysler LLC, 481 Mich. 266 (2008). PROCEDURAL HISTORY Petition alleges date of injury of February 26, 1999 -- The plaintiff, by Application for Mediation or Hearing – Form A, filed on March 23, 1999, alleged an injury date of February 26, 1999, as follows: “Claimant slipped on ice while unloading a truck in the course of his employment, sustaining lumbar radiculopathy and disc injury.” Magistrate’s initial decision awarding benefits, mailed August 8, 2001 – Magistrate Andrew Sloss found that a work-related injury occurred on February 26, 1999, and granted an open award of benefits at the rate of $491.26 from February 27, 1999, until further order. The magistrate relied upon the testimony of treating doctors, Ali Fadel, M.D. and S. Ahmad, M.D. He found that Plaintiff could not perform the duties of either of his two jobs because he could not lift more than 15 pounds or work while bending. It was further ordered that the Second Injury Fund (Dual Employment Provisions) reimburse Defendant Autozone, Inc., and Employers Insurance Company of Wausau for 28 per cent of the benefits paid, based upon Plaintiff’s wages in his second employment at Zaman Enterprises. WCAC remands for Sington, infra, 467 Mich. 144 (2002) – Following appeal, the Workers’ Compensation Appellate Commission (WCAC) remanded the case for a supplemental decision applying the then recent decision of Sington v DaimlerChrysler Corp, 467 Mich. 144 (2002). Lofton v Autozone et al, 2002 ACO #322, Docket 01-0331, mailed December 13, 2002. The WCAC stated that the magistrate found disability under Haske [v Transport Leasing, Inc., 455 Mich. 628, 566 N.W.2d 896 (1997)] and ordered the magistrate to make findings concerning Plaintiff’s qualifications and training. The question posed was whether there were regular jobs in the marketplace at the maximum level of wages within Plaintiff’s qualifications and training that he could perform. Magistrate’s decision on first remand mailed June 1, 2004 – At the hearing on remand, Defendant Autozone presented the deposition testimony of Laura Rosenbaum, a vocational rehabilitation counselor. She had a master’s degree in counseling and was a licensed professional counselor. She interviewed Plaintiff, administered the Wide Ranging Achievement Test (WRAT), and used a computer program to identify 135 job titles from the Dictionary of Occupational Titles that fell within her estimation of Plaintiff’s qualifications and training. Based upon this information, it was her opinion that Plaintiff had a wage-earning capacity in available jobs of $35,000 to $40,000. In an earlier proceeding Plaintiff’s average weekly wage was found to be $969.64 for an annual wage of $50,421.28. Ms. Rosenbaum testified that she did not find any single available job that equaled Plaintiff’s wages on the date of injury. Ms. Rosenbaum found a job with Morisette Automotive as an automobile service manager at $40,000 a year. This was a “light” job in her estimation. The magistrate applied Sington, supra, 467 Mich. at 154. He stated that Plaintiff testified that there were no jobs within his qualifications and training that he could perform with his disability. Defendant countered with the Morisette job. However, Ms. Rosenbaum did not inquire about whether the job could be performed within Plaintiff’s lifting restrictions. Plaintiff testified he had similar jobs in the past and they involved lifting that would exceed his restrictions. The magistrate concluded that Plaintiff had established there were no jobs available within his qualifications, training and ability to perform. He had no ability to earn wages and was disabled as defined by the Act. WCAC remands for further findings on November 30, 2004 -- This matter returned to the WCAC after remand. Lofton v Autozone et al, 2004 ACO #370, Docket 01-0331, mailed November 30, 2004. The WCAC found that the magistrate’s supplemental opinion was not sufficient and remanded for proper application of Sington, pursuant to Riley v Bay Logistics, 2004 ACO #27, Sington v Chrysler Corp (On Remand), 2003 ACO #92, and Wegienka v Monsanto Chemical Co, 2004 ACO #324. Commissioner Will concurred, stating that the magistrate’s review of the vocational testimony was defective. The magistrate seemed to say that the vocational expert only contacted one employer, whereas defendant argued that she spoke to 21 other employers. The magistrate should also make a finding regarding Plaintiff’s credibility. Magistrate’s decision on second remand, mailed May 17, 2005 -- In his Opinion and Order, Magistrate Sloss applied Riley, Sington (On Remand), and Wegienka, supra, as well as Kethman v Lear Seating, 2003 ACO #205, as follows: Plaintiff testified regarding his education, training and work history. He testified that his injury prevented him from performing any of his prior employments on a full time basis and he could only perform about half of the total work duties of the positions. The magistrate found that Plaintiff’s credibility was sufficient. Plaintiff established that there were no jobs within his qualifications and training that he could perform given his disability. The magistrate found that Ms. Rosenbaum was not an expert and her testimony was not admissible as expert testimony under MRE 702. WCAC remands for Stokes v DaimlerChrysler Corp, 2006 ACO #24 -- In an Opinion and Order, the WCAC remanded the case again for analysis under Sington v Chrysler Corp, 467 Mich. 144 (2002), utilizing Stokes v DaimlerChrysler Corp, 2006 ACO #24. Lofton v Autozone et al, 2006 ACO #56, Docket #01-0331, mailed April 6, 2006. Magistrate’s decision on third remand, mailed August 2, 2006 -- Magistrate Sloss issued an Opinion and Order On Further Remand. The magistrate stated that pursuant to Stokes v DaimlerChrysler Corp, 2006 ACO #24, p 67, once the employee has credibly asserted that he cannot return to the job that pays his maximum income and the record fails to demonstrate that there is any other work suitable to his qualifications...
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