________________ _______________ Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 empl oyer’s application for leave to appeal to consider whether th e burden-shifting an alysis articulated by the Court of Appeals relieved claimant of the burden of proving that he wa s disabled from all jobs paying the maximum wa ges 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 disa bled 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 evid ence to challeng e the claimant’s proof of disability, and the employer is entitled to discove ry before th e hearing to enable the employer to meet this produc tion burden. Here, claimant did not sustain his burden of prov ing by a preponderance of the evidence that he was disabled from all jobs within his qualifica tions 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. Accord ingly, we reverse the Court of Appeals in part and remand the matter to the magi strate 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 num bers 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 coul d no longer wo rk in the fall of 1999. Claimant’s physician opined that claima nt’s physical activity at work caused repetitive trauma to his cerv ical spine and aggravated his existing rheumatoid arthritis. On February 15, 2000, claimant had surg ery on his cervical spine.

2Claimant filed a petition for workers ’ compensation ben efits based on a cervical spine disability. Bo th experts agreed that clai mant was totally disabled from his job, but the employer’s expert asserted that the sole cause of the disability was claimant’s preexisting rh eumatoid arthritis. The ma gistrate granted claimant an open award of be nefits, relying on Haske v Transport Leasing, Inc, Indiana , 455 Mich 628, 662; 566 NW 2d 896 (1997), which defined “disability” as an injury that prevents the empl oyee from performing any single job within his qualifications and training. The Wo rkers’ Compensation Appellate Commission (WCAC) affirmed the finding that clai mant’s disability wa s work-related, but remanded the case to the magistrate for reconsideration of th e disability issue under the standard set forth in Sington , which overruled Haske during the pendency of this case. Before the remand hearing, the employ er filed a motion to compel claimant to submit to an interview by the employer’s vocational rehab ilitation counselor, but the magistrate denied the motion. At the remand heari ng, 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 ‘trans ferable-skills’ analysis but had not met with claimant and had only been retained four days before the hearing. Defense counsel requested an ad journment or continuance to allow the vocational expert to perform the analysis. The magist rate 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.

3At the remand hearing, claimant test ified 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 t yping or computer skills , and his only jobs before working for the employer consisted of driving a forklif t for a refrigerator warehouse and stocking supp lies and materials. Claima nt had not worked since leaving his employment with the employ er. 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 previo us 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 th e magistrate had not abused his discretion in denying the employer’s re quest 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 ord er denying the bypass application, but directing the Court of Ap peals to grant the a pplication and issue its opinion by October 1, 20 06. The order stay ed the WCAC’s op inion and stated

4that Boggetta v Burroughs Corp , 368 Mich 600; 11 8 NW2d 980 (1962), 1 remained controlling authority. 475 Mich 875 (2006). The Court of Appeals, in a split deci sion, affirmed the award of benefits, but vacated several portions of the WCAC opinion that were inconsistent with Sington and Boggetta , in particular discussions regard ing 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 ca se,” in turn, was adequate to establish a comp ensable disability unless the employer estab lished the existence of real jobs within the employee’s training and experience that paid the maximum
wage. Id . at 590. The Court of Appeals furt her stated that a transferable-skills analysis could be relevant in evaluating th e 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 requi re the answering of interrogatories requested by one of the parties if such answers are necessary to a proper inquiry into the facts.’”

5but was not required. Id . at 590-591. Finally, the Co urt of Appeals held that the magistrate possessed the authority to or der discovery, but ha d not abused his discretion in conc luding that an interv iew was unnecessary in this case because the employer had sufficient information in the fo rm 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 th e latter’s actions “effectively prevented defendant from preparing and presenting a defense,” the inqu iry into whether claimant possessed any other transferab le skills was improperly limited by considering only claimant’s employment history, and the WCAC erroneously concluded that the employer had the burd en 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 wh ether to grant the appli cation or to take other peremptory action. 477 Mich 1097 (2007).
II. STANDARD OF REVIEW Findings of fact made by the WCAC are co nclusive 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).

6III. ANALYSIS
A. BURDEN OF PROOF TO ES TABLISH A DISABILITY A claimant under the Worker’s Di sability 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 chap ter, “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 in jury or work related disease. The establishm ent 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 claima nt claiming partial disability to show an inability to ret urn to the same or similar work. If the claimant’s physical limitation do es not affect the ability to earn wages in work in which the claima nt 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 qualifica tions 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 separat e from the establishment of disability. Once a plaintiff makes a prima facie showin g of disability, the plaintiff must also prove a wage loss. Sington , supra at 160 n 11.

7Subsequently, 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 “w age earning capac ity” in work suitable to an employee’s qualifica tions 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 lang uage 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 cond ition that rendered an employee unable to perform a job paying the maxi mum salary, given the employee’s qualifications and training, but le aving the employee free to perform an equally well-paying position su itable to his qualifications and training would not constitute a disability. * * * [T]he language of § 301(4) requires a determination of overall, or in other wo rds, maximum, wage earn ing capacity in all jobs suitable to an injured employee’s qualifications and training. Sington, supra at 161, continued by explicitly overruling th e 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, reinsta ted 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 ca pacity in work suitable to his qualifi cations and training. Sington , supra at 155. The WCAC has struggled in consistently a pplying this standard since Sington

.
8B. 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 a nd training, and what jobs they translate to, and 2. that he has a work-relat ed physical or mental impairment which does not permit him to perform jo bs within his qualifications and training and th at 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, wh ich are reasonably available. The WCAC then stated th at, after the claimant proves these three factors, the burden of going forward shifts to the empl oyer, which may pres ent 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 “qualifica tions and training,” stating that this phrase encompasses formal education, work experience, speci al training, skills, and licenses. In addition, the WCAC described “suitable” j obs as a phrase that did not delimit the universe of potential jobs, but, rather, include d “those jobs that afford a plaintiff an opportunity for consideration to be hi red because he po ssesses the minimum

9experience, education, and skill.” Id . at 20. The WCAC’s definitions, in our judgment, again constitute accurat e summations of these terms.
In Riley v Bay Logistics, Inc , 2004 Mich ACO 27, p 7, the WCAC attempted to harmonize exis ting caselaw by summarizing the Sington factors required to prove a thres hold disability as follows:
1. Has plaintiff established th e 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 qualifica tions and training that pay his maximum wage (for the purpose of establishing his Section 301(4) threshold disability). The WCAC also concl uded that once the claimant esta blishes 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 tendenc y 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

10determined that the claima nt’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 ed ucation and lacked formal training, the WCAC concluded that the claimant was una ble to perform any job within his qualifications. Id . The WCAC then inferred that the claimant had thereby established that he could no lo nger 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 claima nt’s job search efforts. The WCAC continued to add ress the application of the Sington standard in Bacon v Bedford Pub Schools , 2005 Mich ACO 47. Th e WCAC stated that a claimant carries the burden of establishi ng which jobs fall with in the claimant’s qualifications and training. Id . at 3. However, the WCAC determined that, because of the claimant’s limited educatio n and lack of job t raining, her testimony regarding her work history, education, and physical condition was sufficient to establish the universe of jobs that th e 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 re garding her education, work experience, and inability to return to an y of her previous jobs be cause of her work-related

11injury. The magistrat e found that the claimant’s j ob as an unskilled industrial production worker define d her universe of jobs because her previous j obs had been too remote to be significant. Id . The magistrate conclude d 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 sh e previously had w ith defendant.” Id . at 5. Again, the WCAC effec tively 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 th e past, and others w ere 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 th at 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 qualif ications 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 a nother employer; that the employer had

12not accommodated the claimant’s physical restrictions; and that no job had been made known to him for whic h he failed to apply. Id . at 3. The burden of going forward then shifted to th e 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 anal yses 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 in jury prevented her from working as a patrol officer di d not establish a disability under Sington

. Id . at 4. The claimant had continued to work full-time as the he ad of the parking enforcement unit for the employer and received her full salary. Id . at 4, 8. The WCAC remanded to the magistrate to de termine 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 wh ether 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 merite d that salary, rat her than as an accommodation for her injury, then the claimant had not suffered a loss in wage

earning capacity.

13Stanton 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 insuffici ent to merely articulate the Sington standard and then overl ook necessary steps in its application. Rather, MCL 418.301(4) requires th at the claimant prove a limitation in “wage earning capacity in work suitable to his qualif ications and training resulting from a personal injury or work related disease” to establish a prima facie case of disability. Therefore, the cl aimant must first prove a work-related injury. Sington , supra at 155. Second, that injury must result in a re duction of the claimant’s wage-earning capacity in work suitable to his qualifications and training. Id

. After reviewing the inconsistenc ies 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 disc lose his qualifications and training. This includes education, skills, experien ce, 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 sal ary range as his ma ximum 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

14provide some reasonable means to assess employment opportunit ies to which his qualifications and training might translat e. This examination is limited to jobs within the maximum salary ran ge. 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 consis t 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 qu alifications 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 optio ns. Again, there are no absolute requirements, and a claimant may choose wh atever method he sees fit to prove an entitlement to workers’ compensation benefits. A clai mant sustains his burden of proof by showing that th ere 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 t rained, because the claimant has an obvious interest in defini ng that universe narro wly. Nonetheless, this is required by the st atute. Moreover, because the employer always has the opportunity to rebut the claimant’s proofs, the claimant would undertake significant risk by failing to reasonably c onsider the proper array of alternative

15available jobs because the burden of provi ng disability always remains with the claimant. The finder of fact, after heari ng from both parties, must evaluate whether the claimant has sustained his burden. Third, the claimant must show that his work-relat ed injury prevents him from performing some or all of the jobs id entified as within his qualifications and training that pay his maximum wages. Id . at 158. Fourth, if the claimant is capable of performing any of th e jobs identified, the claimant must show th at he cannot obtain any of these jobs . The claimant must make a good-faith attempt to proc ure post-injury empl oyment if there are jobs at the same salary or higher that he is qualified a nd trained to perform and the claimant’s work-relat ed injury does not preclude performance. Upon the comple tion of these four steps, the claimant establishes a prima facie case of disability. The following st eps represent how each of the parties may then challenge th e evidence presente d by the other. Fifth, once the claimant has made a prima facie case of disability, the burden of production shifts to the empl oyer to come forwar d 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 wi thin that company and has a financial incentive to rehabilitate a nd re-employ the claimant. Sixth, in satisfying its burden of pr oduction, the employer has a right to discovery under the reasoning of Boggetta if discovery is necessary for the employer to sustain its burde n and present a meaningful defense. Pursuant to

16MCL 418.851 an d MCL 418.853, 3 the magistrate has the authority to require discovery when necessary to make a pr oper determination of the case. The magistrate cannot ordinarily make a pr oper determination of a case without becoming fully in formed of all the relevant facts. If discovery is necessary for the employer to sustain its burden of productio n and to present a meaningful defense, then the magistrate abuses his discreti on in denying the employer’s request for discovery. For example, the employer ma y choose to hire a vocational expert to challenge the claimant’s proofs. That expert must be permitted to interview the claimant and present the em ployer’s own analysis or assessment. The employer may be able to demonstrate that there are act ual jobs that fit w ithin the claimant’s qualifications, training, and physical rest rictions for which the claimant did not apply or refused employment. Finally, the claimant, on whom the bur den of persuasion always rests, may then come forward w ith additional eviden ce to challenge the employer’s evidence. This precise sequence is not rigid, but rather identifies the nature of the proofs that must precede th e fact-finder’s decision. Shoul d it become evident in a particular case that a different sequence is more practical, the parties may present their evidence accordingl y. However, the magistrate mu st ensure that all steps are

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

17completed in some fashion or another, that all the facts necessary to the determination of the case ar e presented, that each side has been accorded an adequate opportunity to resp ond to the other’s proofs, an d that the statutory burden of proof is respected. After that point , the magistrate can properly determine whether the claimant has satisfied hi s obligations und er MCL 418.301(4). We reiterate that MCL 418. 851 places the bur den of proof on the claimant to demonstrate his entitlement to compen sation 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 sh ift between the parties as the case progresses. Because a claimant do es not prove a “disability” under MCL 418.301(4) by merel y demonstrating the inability to perform any previous jobs, the burden remains on the clai mant 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 st atutory burden of proof does the burden of production shift to the employer to sh ow 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 sustai ned his burden of pr oving that his wo rk-related injury effected a reduction of his maximum wage-earn ing 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.

18We hold that claimant did not satisfy hi s burden of establis hing a disability. Claimant’s demonstration that he coul d no longer perform his job because of a work-related injury was si mply insufficient to esta blish a “disab ility” 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 demons trate that the injury to his cervical spine limited his maximum wage-earn ing capacity in work suitable to his qualifications and training. Claimant merely testified regarding his employment and educational background. Claimant pr esented no evidence that he had even considered the possibility th at he was capable of perfo rming any job other than driving a forklift. Likewi se, the lower court, the ma gistrate, and the tribunal seemingly assumed that because claimant had driven a forklif t for so many years, that was all he was able to do and th at he had ac quired no additional skills throughout his life that might translate to other positions of employment. At a minimum, claimant was required by the WD CA to show that he had considered other types of employment within his qua lifications and training that paid his maximum wages and that he wa s physically unable to perfo rm any of t hose jobs or unable to obtain those jobs. There is no evidence in this case that claimant sought

any post-injury employmen t or would have been willing to accept such employment within the limits of his qualifications, training, and restrictions.

19The Court of Appeals opinion effectivel y relieved claimant of this burden of proof by concluding: [T]o the extent th e WCAC addressed the issue from the standpoint of the produc tion of evidence, and held that as a practical matter, an employee’s proofs will ge nerally consist of the equivalent of the employee’s resume—i.e., a lis ting and description of the jobs the employee held up until the time of the injury, th e 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 traini ng paying the maximum wage, the WCAC did not err. By producing such evidence, in addition to evidence of a work-relat ed injury causing the disability, an employee makes a prima facie case of di sability—a limitation in the employee’s maximum wage-earning capaci ty in all jobs suitable to the employee’s qualifications and t raining. 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 oth er jobs for which he might have been qualified, the Court of Appeals suggested strongly that the burden of showing the ex istence of such jobs is on defendant. It is not. In this case, claimant did not meet hi s burden of provin g a disability under the WDCA because he only presented evidence of an inability to perform his prior job. However, even if claimant me t his burden, the employer was effectively denied the opportunity to rebut claima nt’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

20was also denied. Because claimant refuse d to meet with the employer’s vocational expert, and the magistrate was unwilling to compel an interview, the employer’s vocational expert could on ly provide speculative tes timony regarding the effect of claimant’s injury on his wa ge-earning capacity. The employer’s expert testified that, after interviewing claimant, he wo uld have completed a transferable-skills analysis based on claimant’s profile a nd work restrictions. Next, the employer’s expert would have contacted potential empl oyers to determine job availability and wages for any jobs falling within clai mant’s qualifications, training, and restrictions. The employer requested an ad journment or continuance to allow its expert to perform this analysis, but that request was also denied. The employer was essentially denied th e opportunity to ascertain claimant’s ability to perform other j obs. Not only did the magi strate’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 wa s 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 acqui red throughout his life that might be compatible with one of the jobs available. The employer was entitled to discovery

21before the hearing to en able 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 balan ce 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 Co urt’s role is to avoid upse tting this balance in favor of either party and to ensure that the standards and precond itions for benefits established by the law are maintained. The dissent disregards this law and substitutes its own sense of the balan ce between the employ er and the employee for that of the Legislature. However, the preferences of the dissent notwithst anding, 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 th e 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 proc edures set forth here will almost certainly lead to a far more efficient use of human and economic resources in Mi chigan than the procedures introduced by this Court in Haske . Injured employees who are able to continue to work will be en couraged to do so instead of having their skills wasted, workers’ compensation co sts will be reduced for employers, and the competitiveness of Michigan as a workplace with other st ates will be enhanced. Not only does the dissent mi sconstrue 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, coul d perform Job B at an equivalent compensation should be en couraged not to do so , thereby imposing higher workers’ compensation cost s on his employer. To what conceivable end?

22reduction in wage-earning capacity. Th is provision defines a workers’ compensation “disability” to mean a “limitation of an employee’s wage earning capacity in work suitable to his qualif ications and training resulting from a personal injury or work rel ated disease.” Thus, to be compensable, something more than an in jury is required; specifically, the in jury 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 Legislatu re 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 empl oyers will have the benefit of a consistent and workable standard in a ssessing their rights an d obligations under the law. Additionally, the employer is entitled to challenge the claimant’s evidence in support of a workers’ co mpensation claim, it is entitled to have the burden of proof in a workers’ compensation claim rem ain with the claimant, and it is entitled to secure evidence in its own behalf. In other word s, the employer is entitled to avail itself of the law.

23The dissent asserts, first, that the majority has indulg ed in “judicial creativity” to “effectively” require that a cl aimant 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 qualificati ons and training might, or might not, translate-- precisely to demonstrate that th e injury has, in fact , “limited” his wage

earning capacity-- this showing need not be in any partic ular 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 be en “limited,” and he is not entitled to benefits; if there are not such options, then the claimant’s wage-earning capacity has equa lly 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 hi s maximum wages. Most pe ople would not find this to be a very problematic un derstanding; 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 p erson would naturally inquire, “Is there another job in which I am employa ble 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

24claimant to demonstrate a limitation or reduction in his wage-earning capacity. The dissent demonstrates no alternative means by wh ich a reduction in wage

earning capacity can be meas ured than by actually looki ng to see whether there are other jobs for which a claimant is qualified. 5 Claimant here presented no evidence th at he considered whether there were any other jobs paying appropriate wages th at he could perform, and for this reason his proofs were deficient. Nonetheless, the dissent repeated ly, and confidently, asserts that claimant cannot perform any ot her 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 de nied the rest of this Court? How can the dissent be certain that claimant cannot perform an y other job when neither party has presented evidence to this effect? While the di ssent 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 standard s 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 la nguage of MCL 418.301(4) with the more specific language of MCL 418.385 to conclude that MC L 418.301(4) does not require affirmative proofs to de monstrate a limitation in wage-earning capacity. This conclusion is illogical. The Legislature used specific language in MCL 418.385 to require a claimant to subm it to a medical examination. It does not follow that every other provision of the statute mu st use similarly specific language when more general language will suffice. In stating that the claimant must demonstrate a reduction in wag e-earning capacity, MCL 418.301(4) is sufficiently clear in what it requires.

25capacity. Only then can the magistrate render an informed determination of eligibility. The dissent next asserts that we ha ve indulged in “judicial creativity” to invent the requirement that the empl oyer 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’ comp ensation proceedings. Rather, it may sometimes be necessary to effect the legislative intent that some, but not all, workplace injuries entitle th e worker to benefits; it may sometimes be necessary to enable the magistrate to make a fully info rmed decision reg arding whether a claimant has proven a disa bility; and it may sometimes be necessary to afford an employer the opportun ity to present a m eaningful defense. The dissent asserts that we have “create[d] a new rule of discovery in disability hearings” in holding that th e employer has a right to discovery. Post at 10. However, there has b een discovery for both side s before the hearing on a regular basis in workers’ co mpensation proceedings. In O’Brien v Federal Screw Works , 1998 Mich ACO 53, p 4, the WC AC, sitting en banc, affirmed the magistrate’s order directing the defendant to allow a tour of its plant, stating: In examining the dissenting opin ion, we cannot help noting that our colleagues would allow pl aintiff to subpoena lab reports, material safety data sheets and any other relevant papers and documents. They would further a llow depositions of defendant’s representatives (not specifically provi ded for in the statute except in the case of medical experts). Ho wever, they would not allow the magistrate to order a physical in spection of defendant’s premises, even during th e trial (as they define that term), because of a lack of statutory authority.

26We cannot agree with this narrow interpretation. As noted, there is no explicit statutory author ity which allows for the deposing of lay witnesses. Rather, the common practice of magistrates has long been to err on the side of informatio n rather than ignorance. For this reason, accommodations are re gularly 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’ co mpensation proceedings that has been consistently u pheld by the WCAC. See, e.g., White v Waste Mgt , 2004 Mich ACO 4, p 7 (hol ding that the employer’s en titlement 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 cl aimant or the empl oyer has information regarding the claimant’s qualifications and t raining, as well as th e availability of jobs, such informatio n should be exchange d 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 an swer 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 MC L 418.301(4) that a claimant prove a limitation in wage-earning capacity in work suitable to hi s or her qualifications and training that the Legislature inte nded 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 qualif ications and training, what jobs the

27claimant is qualified and trained to perf orm within the maximum salary range, and the claimant’s ability to perfo rm and obtain any of those jobs. Such an analysis will sometimes require a certain amount of disc overy in order for a claimant to be able to prove a disability under the statute. The magistrate cannot make a proper de termination of whether a claimant has proved a disability without becoming fu lly 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 magist rate’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 effectiv ely 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. Howeve r, 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 productio n, 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 relie d on has been modified. Boggetta , supra at 602-603, quoted with approval the WCAB opini on, which first cited Rule 7 of the workmen’s compensation depart ment’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 b ooks, records, including hospital records, accounts and papers which he deems nece ssary for the purpo se of making an award.’” This language reflected the authority grante d under the predecesso r to MCL 418.853, former MCL 413.3, which stat ed, in pertinent part: “T he board or any member thereof shall have the power to administer oaths, subpoena witnesses and to (. . . continued)

28The statute provides the magistrate w ith the authority and discretion to extract as much information from the parties as is nece ssary for the magistrate to make a proper determination in a case. A magistrate cannot make a proper determination without becomi ng fully informed of the facts regarding a claimant’s limitation in wage-earning capac ity in work suita ble to his qualifications and training. The disposition of a case on the basis of partial information might well under some circumstances c onstitute an abuse of discre tion, especially when, as

(continued . . .) examine such parts of the bo oks and records of the partie s to a proceeding as relate to questions in dispute.” The WCAB co ncluded 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 th en cited the predece ssor to MCL 418.851, former MCL 413.8, which st ated 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 respons ibility was “‘broad enough to require the answering of interrogatories requested by one of the p arties if such answers are necessary to a proper in quiry 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 nece ssary discovery throughout the entire process of examining the case to render a proper deci sion 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 th e newly created Board of Magistrates. The language “The worker’s compensation magistrate at the hearing” was merely a replacement of the prev ious language, “The hearing referee assigned to any hearing.” Id . Therefore, the phrase “at the h earing” 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.

29here, the restriction on disclosure effectivel y relieves a claimant of the obligation to satisfy his burden of proof. The employer has the right to presen t a meaningful defense. Yet, the dissent would deprive the employer of any right to discovery and, consequently, any practical way of sust aining its burden of pro duction. How would the employer necessarily know what skills or t raining an employee had obtained in the course of his life that might be compatib le with an employme nt position? How would the employer necessarily be appris ed of the myriad factors that would facilitate or impede an employee’s ability to secure an equiva lent position in the event of an injury? The dissent again confidently ass erts that the empl oyer here possessed sufficient information, in th e form of claimant’s employee file and transcripts from prior hearings, for its expert to conduct a transferable-s kills 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 tran sferable job skill analysis.” Moreover, as the dissentin g commissioner noted, plain tiff attended college on three separate occasions after he began his employment with defendant, and that this training, however limited, “would be relevant in determin ing 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, woul d the employer be limited to its

30personnel 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 informa tion from the best-informe d person in the world concerning that subject: the claimant himself? The dissent also alludes to the em ployer’s duty under MC L 418.319( 1) to provide an injured empl oyee with vocational reh abilitation services, but immediately takes issue with the employe r’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 obliga tion in this regard without affording it

some means to access to neces sary information. In both of thes e 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 refl ect 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 th e burden of persuasion never shifts to the employer. The claimant must sh ow more than a mere in ability to perform a previous job. Rather, to establish a di sability, the claimant must prove a work

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

31earning capacity in work suita ble to the claimant’s qualifi cations and training. To establish the latter element, the cl aimant must follow these steps: (1) The claimant must disclose all of his qualifications and training; (2) the claimant must consider othe r jobs that pay his maximum pre

injury wage to which th e claimant’s qualifications and training translate; (3) the claimant must show that the work-related inju ry prevents him from performing any of the jobs identifie d as within his qualifications and training; and (4) if the claimant is capable of perfo rming some or all of those jobs, the claimant must show that he cannot obtain any of those jobs. If the claimant establishes all these fact ors, then he has made a prima facie showing of disability satis fying MCL 418.301(4), and the burden of producing competing evidence th en 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 hol ding that claimant sustai ned 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 app arent. The Court of App eals also erred by holding that evidence concerning whether clai mant has reasonable employment options

32available 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 qua lifications and training. Finally, the Court of Appeals erred in ho lding that the magistrate di d not abuse his discretion by denying the employer’s expe rt the opportunity to interview claimant before the hearing. Given the inconsis tent application of the Sington standard in the past, we believe that it would be equitable to allo w claimant the opport unity to present his proofs with the guidance provided by this opinion. Accordingl y, we reverse those portions of the Court of Appeals judg ment and remand this matter to the magistrate for a new hearing consistent with the proced ures set forth in this opinion.

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

33v S T A T E O F M I C H I G A N
SUPREME COURT

FREDIE STOKES, Plaintiff-Appellee,
No. 132648 CHRYSLER LLC, formerly known as DAIMLERCHRYSLER CORPORATION, Defendant-Appellant.

CAVANAGH, J. ( dissenting ). Today, the majority judicially creat es new procedures, a heightened evidentiary standard, an d compelled discovery fo r workers’ co mpensation hearings. The majority exercises its cr eativity at the expe nse of Michigan workers, whom this opinion pl aces at “significant risk.” Ante at 15-16. Because these new provisions subvert the will of th e Legislature, ignore the language of the Worker’s Disability Compensation Act (WDCA), an d recklessly risk the well

being of Michigan wo rkers, I dissent. The Legislature created a careful balance of critical interests in the WDCA. The act extinguished a work er’s common-law claim for in jury at work, providing an exclusive and limited remedy for such an injury. The result is lower and more predictable injury compensation costs fo r employers. But injured workers also benefit under the act:The family of the [injured wo rker] . . . knew privation and sorrow when injury stopped inco me. True, the injured workman would not get full “damages ” as that term is us ed 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 insensitiv e, 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. Howe ver, there was a giving on both sides. In return fo r the workman’s limited monetary recovery he got the certainty of adequate compensa tory payments without recourse to litigation. [ Crilly v Ballou , 353 Mich 303, 308-309; 91 NW2d 493 (1958).] The people’s elected rep resentatives crafted the WDC A with precision. It states that “[p]rocess and procedure under this act shall be as summary as reasonably may be.” MCL 418.8 53. Thus, “it is repugnant to attempt to judicially read into the act other requirements or condi tions that operate to defeat or limit its aim.” Kidd v Gen Motors Corp , 414 Mich 578, 588; 32 7 NW2d 265 (1982). This Court has long recognized the clear limit on judicial creativity. “‘The workmen’s compensation law is a departure, by st atute, from the common law, and its procedure provisions speak a ll 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 NW 2d 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 “disab ility” is entitled to benefits. MCL 418.301. Importantly, th ough the WDCA defines the term, the act does not provide any particular procedure for proving the existence of a disability.

2Instead, 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 equi valent of a transferableskills analysis is a key co mponent of the new procedu re the majority creates to prove a disability. According to the ma jority, a claimant must disclose his qualifications and training, present the equi valent of a transferable-skills analysis identifying the “universe of jobs” for which he might be qualified, and show that his work-related injury preven ts 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, th e claimant “may then come forward with additional evidence to challenge the em ployer’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. Speci fically, the employer’s vocational expert “must be permitted to in terview” the claimant. Ante at 17

. There is no support or authority in the WDCA for the new requirements, procedures, and rights the ma jority reads into th e act. As a whole, this procedural gauntlet is inimical to the longstanding respect this Court has afforded the careful balance crafted by the peopl e’s representatives in the WDCA: “[T]he WD CA is in derogation of the common law, and its t erms should be literally construed without

3judicial enhancement.” Paschke, 445 Mich at 510-511. Further, the specific requirements that a claimant must provide the equivale nt 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 claima nt 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 pr ofile that was essentially presented of [plaintiff’s] work hist ory, his educational background, his restrictions as outlin ed by both physicians and enter all that information into the co mputer 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 as sess 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 al so 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-sk illed work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significan t work activities among different jobs. [20 CFR 404.1568(d)(1) (emphasis added).]

4either case, the WDCA simply does not require this leve l of evidentiary proof to show a limitation in wage-earning capacity. Comparison to the WDCA’s requirement for proof of in jury is instructive. MCL 418.385 requires extensive and specific proofs of injury. It states that “[a]fter the employee has given notice of in jury . . . , 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 auth orized to practice medicine under the laws of this state . . . .” This demonstrates th at the Legislature knows how to create a requirement of detailed proof when it want s to. The Legislat ure required detailed proof to show a work-relat ed injury. It did not require the same level of evidentiary detail to show a limitation in wage-earning capac ity. The “express mention in a statute of one thing implies the exclusion of oth er similar things.” Stowers v Wolodzko, 386 Mich 119, 133; 191 NW 2d 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 equivale nt to show disability . But the act does require the employer to provide a transferab le-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 inju ry [an employee] is unable to perform work for whic h he or she has previous training or experience, the employee shall be en titled to such vocational rehabilitation services, including retraining and job placement , as may be reasonably necessary to restore him or her to useful

5employment. If such services are not voluntarily offered and accepted, the director on his or h er own motion or upon application of the employee, carrier, or employ er, after affording the parties an opportunity to be heard, may refer the em ployee 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 th e training, services, or treatment recommended in the report be provided at the expense of the employer . [Emphasis added.] The requirements of MC L 418.319(1) sound very much like a transferableskills 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 re quire the injured employee to provide and pay for this same detailed analysis, or its e quivalent, in order to prove a disability. Likewise, the act contem plates 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 Mi chigan 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 l eading 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 Voca tional Rehabilitation Providers’ Guidelines, p 1 (emphasis added), av ailable at <http://www.michigan.gov/ documents/Voc_Reh ab_guidelines_153795_7.pdf> (accessed May 13, 2008).

6unemployed and to which the carrier is paying benefits under this act. (7) Th e Michigan employment securi ty 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 transferableskills analysis, or its reasonable equivale nt, on the employer and the state, not on an injured worker seeking compensation. Importantly, there is no indi cation 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 sp ecific expertise in employment matters, stated in this case that a transferable-skills anal ysis is speculative: [W]e reject the concept that th e measurement of work suitable to an employee’s qualifications an d 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 requiremen ts, 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 compensatio n. MCL 421.28(1)(a), part of the Employment Security Act, demonstrat es that the Legislature knows how to create such a requiremen t when it wishes. Such a re quirement does not exist in the WDCA.

7employer’s arguments in briefing on appeal that the employee can answer only with argum ent and not with evid ence. Both employee and employer must be excused from impossible burdens. [ Stokes v DaimlerChrysler Corp , 2006 Mich ACO 24, p 73.] The majority puts an impo ssible burden on injured work ers, in opposition to the letter and purpose of the WDCA. “[I]t is re pugnant to a ttempt to judicially read into the act other requiremen ts or conditions that operat e to defeat or limit its aim.” Kidd, 414 Mich at 588. In finding that Mr. Stokes had suffi ciently 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 limite d him to jobs driving a hi-lo and working in a warehouse , and “physically stren uous 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 ev idence 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 st ates that “[c]laimant merely testified regarding his employment and educational background” and that he “presented no evidence that he had even considered the po ssibility that he was capable of performing any job other th an driving a forklift.” Ante at 19. This is a mischaracterization of the proceedings be fore the magistrate. The magistrate

8conducted a substantial in quiry into Mr. Stokes’s qua lifications and training, which included his hobbies and non-work-related activities going b ack more than 30 years. 4 The magistrate then concluded: “In fact, I fi nd that [Mr. Stokes’s] training and qualifications limit him to phys ically strenuous work from which he is clearly disabled due to his significant sp inal cord compression.” The magistrate found, as a matter of fact, both (1) that Mr. Stokes’s qualifications and training qualified him to do only phys ically strenuous work an d (2) that his disability prevented him from doing phy sically 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 reasonabl e for the magistrate to find that Mr. Stokes had suffered a reduction in his wage-earning capacity.

4 Thus, the magistrate did not confin e himself to reviewing whether Mr. Stokes was disabled from a single job; rather, the magistrate extensively reviewed whether Mr. Stokes had suffered a limita tion in his wage-earn ing capacity. See Sington v Chrysler Corp , 467 Mich 144, 158; 648 NW2d 624 (2002).

5 Mr. Stokes’s spinal cord compre ssion 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 woul d obviously be an exercise in futility. As men tioned, 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 th ere are far more efficient uses of resources than to send claimants out on a wild goose ch ase for jobs that do not exist. The majority’s opin ion does not make “eminent sense,” ante at 24; it is incomprehensible.

9The majority also creates a new rule of discovery in di sability 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 langua ge and the plain purpose of the WDCA. The majority strips the magistrate of the discretion for di scovery authorized by the Legislature. The magistrate’s discretion is clearly pr ovided in the two general discovery provisions of the act. MCL 418.851 st ates that the “wor ker’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 compen sation law is a departure, by statute, from the common law, and its procedure pr ovisions speak all intended upon the subject. Rights , remedies, and procedure thereund er 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 th at “[b]ecause claimant refu sed to meet with the employer’s vocational expert, and the ma gistrate was unwillin g to compel an interview, the employer’s vocational e xpert could only pr ovide speculative testimony regarding the effect of claimant’s injury on his wag e-earning capacity.” Ante at 21. These are not the facts of th is case. Defendant has identified no evidence it might have gained from in terviewing Mr. Stokes that was not otherwise available. In fact, the magistrat e 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.

10magistrate at the hearing of the claim shall make such in quiries 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, MC L 418.853 states that “the director, worker’s compensation magistrates, arbitrators, and the board sha ll have the power to administer oaths, subpoena witnesses, and to examine such parts of th e books and records of the parties to a proceeding as relate to questions in dis pute.” Again, the statute expressly grants the magistrate broa d discretion regardin g discovery. The majority’s new discovery rule impermissibl y 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 no tice of injury and from time to time thereafter during the continuan ce of his or her disability, if so requested by the employer or the carrier, he or she shall submit himself or herself to an examin ation by a physician or surgeon authorized to practice medicine und er the laws of the state, furnished and paid for by the employer or the carrier. If an examination relative to the in jury is made, the employee or his or her attorney shall be furnished, within 15 da ys 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 em ployer or the carrier. The employee shall have the right to have a phy sician provided and paid for by himself or herself present at the ex amination. If he or she refuses to submit himself or herself for th e examination, or in any way obstructs the same, his or her right to compensation shall be

11suspended and his or her comp ensation during the period of suspension may be forfeited. An y 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 bu t not at the request of the employer or the carrier, he or she sh all furnish to the employer or the carrier a complete and correct copy of the report of each such physical examination, if so request ed, 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 opposi ng party may, however, elect to take the de position of that physician. MCL 418.385 overrides the discreti on of the magistrate and compels employees to submit to employers’ disc overy requests for medical information. 8 It is extensive and specific. The Legislatu re 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 fo rm of discovery related to a claimant’s qualifications and training. “This court ca nnot write into the statutes provisions that the legislature has no t 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 ri ght to discovery” un der the WDCA “if discovery is necessary for the employ er 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 app lication for a hearing or a written response. It does not apply to subsequent proceed ings and further indicates the majority’s error in creating discovery rules additional to those the Legislature saw fit to provide.

12meaningful defense.” 9 Ante at 16. It does not. First, Boggetta was decided solely on jurisdictional grounds, so its comment s on the permissible scope of discovery in workers’ compen sation 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 th e 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 th e appeal board’s ruling.” Boggetta, 368 Mich at 603

- 604. Boggetta interpreted former MCL 413.8, wh ich 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 subsequen tly 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 th is case, it is difficult to imagine the case in which it would not be.

10 1969 PA 317.

11 1994 PA 271.

13This is a substantial alteration of th e 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 “bro ad” language was subs equently qualified and limited by amendment. Thus, not only is the discovery rule in Boggetta dicta and not on point, but its statutory gro unding has been substantially altered. The majority asserts that the amendment “was merely a replacement of the previous language,” apparently cont ending that the amendm ent was meaningless. Ante at 29 n 6. For this pr oposition, the majority cites th e 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 a ttention without recognizing that, in the passage of time, the Wo rker’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 MC L 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 p arty 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 ma jority 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 obs erved that who assigned cases was irrelevant: “The language ‘at the h earing’ . . . has a v ery plain meaning no matter what administrative body a ssigns the cases for hearing.” Id. at 54. The commission concluded: “W e believe that ‘the heari ng’ in MCL 418.851 means what it says and refers to the hearing of th e claim at which time the parties present their proofs in whatever fashion is nece ssary and it is done on the record.” Id. at 53. In coming to this conclusion, the WCAC observed that O’Brien had admitted (. . . continued)

14language appears to call into questi on even the limited advisory holding of Boggetta . Before the hearing is si mply not “at the hearing. ” If it were, the added language would not have been necessary. The Le gislature 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. Fu rther, it strips the statutorily mandated discretion of the magistrate. Under the WDCA, the propri ety 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 stat utory authority whic h 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 recogniti on 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 proceed ings that has been cons istently 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 ma ndated today by the majority). To support its decision to override the statutory discretion afforded the magistrate and to force magistrates to co mpel 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 co mpel discovery in certain s ituations; the cases simply affirm the magistrate’s discre tion 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 ob vious: “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 critic al, 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 informat ion pursuant to Sington to categorically deny requests for information on the ground such information is not subject to pre-trial production. Th e need for particular information must be assessed on a case-by-case basis. [ Id. at 8 (emphasis added).] The majority disregards the broad discre tion the WDCA affords the magistrate and replaces the “case-by-case” eval uation 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 magi strates have to th e power to compel discovery,” the commission did not assert th at this Court has the power, under the WDCA, to categorically compel a magi strate 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 or dering the discovery.” Id. Similarly, O’Brien did not categorically em brace vocational discovery; rather, the commission again addressed a specific circumstan ce, stating that Bogetta “stands for the proposition that limited discovery tools such as interrogatories may be utilized in cases involving unique pr oblems, 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 addre ss 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 su bmit to an intervie w by the employer’s (. . . continued)

16The WDCA states that the “worker’s compensatio n magistrate at the hearing of the claim shall ma ke such inquiries and investigations as he or she considers necessary.” MC L 418.851. The WDCA also states that “worker’s compensation magistrates . . . have the po wer . . . 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 co mplex 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 Comp ensation Act, we must recognize that the Act, itself, did not change after Sington was issued. Sington has merely provided a party with th e 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 provi de 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 majo rity stretches for support in WCAC decisions. But such support is not consistent or substantial.

17books and records of the p arties to a proceeding as relate to questions in dispute.” 14 MCL 418.853. The majority st ates that the wo rkers’ compensation magistrate must require the claimant to s ubmit to an interview with the employer’s expert. Ante at 17. The majority’s new discove ry rule is simply contrary to the language of the WDCA. This discovery rule is a new requiremen t. The majority insists that its opinion creates no new requirements. 15 Ante at 23. The majo rity 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 c hoice. 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 empl oyer 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 p articular case . . . .” Ante at 28

14 This is consistent with the nature of the proceedings envisioned by the WDCA. “‘Proceedings u nder the workmen’s comp ensation 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 48 3 (1939), quoting Hebert v Ford Motor Co , 285 Mich 607, 610; 281 NW 374 (1938).

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

18n 6. But in this case, the defendant sought information that was completely unnecessary. To review, Mr. Stokes had wo rked for defendant his entire adult life; at a previous hearing, he disclosed a ll his out-of-work hobbies, activities, and experience (including the cont ent of the high school cla sses and college courses he had attended decades earlier) ; it is uncontested that hi s severe spinal compression disables him from all physi cally 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, [an d] his restrictions as outlined by both physicians . . . .” All this informati on was in the hands of defendant well in advance of the hearing. D efendant has identified no ev idence that it hoped to discover. 16 If compelled discovery is “nece ssary” in this cas e, it will be “necessary” in all cases. Th is 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 ge neral proposition that a “magistrate cannot make a proper de termination without becoming fully informed of the fact s regarding a claimant’s” redu ced 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 opport unities. The majority has not identified one relevant fact or inquiry that would hint th at the magistrate in this case was less than fully informed.

19The majority asserts that discovery is not a “novel c oncept in workers’ compensation proceedings.” Ante at 26. I agree. The WDCA expressly gives the magistrate the power to compel testim ony 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. Bu t it is novel to endow em ployers 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 “magist rate cannot make a proper determination of whether a claimant has pr oved a disability without b ecoming fully informed of all the relevant facts.” Ante at 28. Again, I agree. But in this case, as noted, the magistrate conducted a thorough revie w 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 exercise s its creativity, in opposition to the purposes of the act, at the risk of inju red workers. This Court has stated that “the act should be liberally construed to grant rat her 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 fi nancial and medical

20benefits to victims of work -connected injuries in an effi cient, 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 anal ysis or its equivalent, place injured workers at “significant risk.” Ante at 15. This risk is evident “because the employer always has the opportunity to rebu t the claimant’s proo fs,” 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 transferab le-skills analysis. A claimant may not have the knowledge or skills required to accurately conduct a transferable-skills analysis. Further, as th e Court of Appeals observed in this case, there is a considerable risk that a transferable-sk ills 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

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17 I agree with the majority that “a ny reasonable person” would assess her employment alternatives if she were injured outside the workpl ace 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 Mich igan workers wish to work for a livi ng. I suspect few Michigan employees view an injury resulting in job loss as a welcome opportunity (. . . continued)

21584. The significant risk the majority creates by re quiring 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 wo rkers seeking compensation for work-related injuries. The majority informs us that, alt hough required to provide a detailed vocational analysis, a claimant “is not required to hire an expert . . . .” Ante at 15. However, as a practical matt er, the claimant will face ev en greater risk if he does not hire an expert. The majority cl early assumes that employers will have vocational experts at work ers’ compensation proceedings to best support their positions. With the employer’s expert locked and load ed, the prudent claimant will have like reinforcement. The vocational proofs requ ired virtually ensure that claimants will need experts. Additionall y, because of the un certainty and expense imposed by this regime, it will almost certainly be more difficult for injured workers to find competent rep resentation. 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 wo rkers’ claims for assistance is necessary to pr event statewide destruction. And even if I were convince d of the majority’s policy assertions, I would be constrained by th e language of the WDCA from denying benefits to a deserving claimant. Mr. Stokes has severe spi nal compression. He is not able to perform his former job or any other pa ying a similar wage. The majority’s decision to deny him benefits is unreasonable and unsupportable.

22Finally, I note that the majority asserts that t oday’s decision will enhance “the competitiveness of Mi chigan as a workplace with other states . . . .” 18 Ante at 22 n 4. But Michigan is a st ate, not a business. This st ate’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 care ful 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 beli efs for those of the Legislature, which is elected by the peop le to pass laws.” McAvoy v H B Sherman Co , 401 Mich 419, 439; 258 NW2d 414 (1977). Today, the majority takes a different view. 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, seco nd, assert what good public policy their additions create.

19 The majority emphasizes that fairne ss to employers compels its creative amendments of the WDCA. But that is precisely the point: the Legislature has carefully balanced the e quities in the act. This Court should not atte mpt to adjust the scales that Michigan lawmakers have set.

23 Iv S T A T E O F M I C H I G A N
SUPREME COURT

FREDIE STOKES, Plaintiff-Appellee,
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 (2 002), did not concur in, and differed from, the view of the majority of four (Chief Justice Taylor and Justices Corri gan, Young, and Markman) that under the wo rkers’ compensation act, MC L 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 hi s burden of proving that his work

related injury effected a reduction of hi s maximum wage-earning capacity in work suitable to his qualifications and training. I disagree with the majority of four. Rather, I agree w ith the Court of Appeals decision below that once a claimant has esta blished his or her disabilityby a preponderance of the evidence, the burden of going forward with the evidence shifts as the par ties present their proofs. Th us, the burden of proving a disability remains with the claimant, but th e burden of proof sh ifts back and forth as each party brings fo rth further evidence. Further, I concur with Justice Cavanagh’s conclusion that the majority of four reads a new requirement in to the act: namely, that under the majority’s view, a claimant must provide a “transferable-sk ills analysis” to show a limitation of wage-earning capacity as proo f of a disability under MC L 418.301(4) . For the reasons stated in Justice Cavanagh’s dissent, I do not think that e ither the statute or Sington can be correctly interp reted in that manner.

Elizabeth A. Weaver

2