_______________________________ 

 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 12, 2008 

FREDIE STOKES, 

Plaintiff-Appellee, 

v No. 132648 

CHRYSLER LLC, formerly known as 

DAIMLERCHRYSLER CORPORATION, 

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

MARKMAN, J. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the procedures set forth in this opinion. 

I. FACTS AND PROCEDURAL HISTORY 

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

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

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

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

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

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

repetitive trauma to his cervical spine and aggravated his existing rheumatoid 

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

2
 
Claimant filed a petition for workers’ compensation benefits based on a 

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

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

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

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

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

that prevents the employee from performing any single job within his 

qualifications and training. The Workers’ Compensation Appellate Commission 

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

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

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

pendency of this case. 

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

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

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

vocational expert stated that he could not testify with regard to claimant’s wageearning capacity because he needed to complete a ‘transferable-skills’ analysis but 

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

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

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

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

of the information already in the employer’s possession. 

3
 
At the remand hearing, claimant testified that he had graduated from high 

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

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

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

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

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

leaving his employment with the employer. The magistrate determined that 

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

open award of benefits. 

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

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

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

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

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

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

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

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

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

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

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

4
 
 

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

 remained 

controlling authority. 475 Mich 875 (2006). 

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

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

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

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

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

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

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

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

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

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

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

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

to establish a compensable disability unless the employer established the existence 

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

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

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

1

 In Boggetta, supra at 603, this Court quoted with approval the opinion of 

the Workmen’s Compensation Appeal Board (WCAB), which stated that a hearing 

referee’s responsibility is “‘broad enough to require the answering of 

interrogatories requested by one of the parties if such answers are necessary to a 

proper inquiry into the facts.’” 

5
 
but was not required. Id. at 590-591. Finally, the Court of Appeals held that the 

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

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

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

vocational expert. Id. at 593-597. 

The dissenting judge would have reversed the WCAC decision and 

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

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

claimant possessed any other transferable skills was improperly limited by 

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

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

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

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

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

peremptory action. 477 Mich 1097 (2007). 

II. STANDARD OF REVIEW 

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

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

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

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

6
 
 

III. ANALYSIS 

A. BURDEN OF PROOF TO ESTABLISH A DISABILITY 

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

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

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

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

As used in this chapter, “disability” means a limitation of an 

employee’s wage earning capacity in work suitable to his or her 

qualifications and training resulting from a personal injury or work 

related disease. The establishment of disability does not create a 

presumption of wage loss.[2] 

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

burden of proof required to establish a disability: 

It is not enough for the claimant claiming partial disability to 

show an inability to return to the same or similar work. If the 

claimant’s physical limitation does not affect the ability to earn 

wages in work in which the claimant is qualified and trained, the 

claimant is not disabled. 

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

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

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

therefore, that he is disabled.” 

2

 We do not address the issue of wage loss in this opinion, which, under 

MCL 418.301(4), is an issue entirely separate from the establishment of disability. 

Once a plaintiff makes a prima facie showing of disability, the plaintiff must also 

prove a wage loss. Sington, supra at 160 n 11. 

7
 
 Subsequently, MCL 418.301(4) was examined thoroughly in Sington, supra 

at 155-159: 

As this language plainly expresses, a “disability” is, in 

relevant part, a limitation in “wage earning capacity” in work 

suitable to an employee’s qualifications and training. The pertinent 

definition of “capacity” in a common dictionary is “maximum output 

or producing ability.” Webster’s New World Dictionary (3d College 

ed). Accordingly, the plain language of MCL 418.301(4) indicates 

that a person suffers a disability if an injury covered under the 

WDCA results in a reduction of that person’s maximum reasonable 

wage earning ability in work suitable to that person’s qualifications 

and training. 

So understood, a condition that rendered an employee unable 

to perform a job paying the maximum salary, given the employee’s 

qualifications and training, but leaving the employee free to perform 

an equally well-paying position suitable to his qualifications and 

training would not constitute a disability. 

* * * 

[T]he language of § 301(4) requires a determination of 

overall, or in other words, maximum, wage earning capacity in all 

jobs suitable to an injured employee’s qualifications and training. 

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

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

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

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

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

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

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

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

struggled in consistently applying this standard since Sington. 

8
B. BURDEN OF PROOF SINCE SINGTON
 

Since Sington, lower courts and tribunals have closely analyzed a 

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

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

WCAC interpreted Sington to require the claimant to demonstrate 

1. his work qualifications and training, and what jobs 

they translate to, and 

2. that he has a work-related physical or mental 

impairment which does not permit him to perform jobs within his 

qualifications and training and that he has lost wages, and 

3. that he is either unable to perform or cannot obtain 

employment at all those jobs within his qualifications and training 

that pay his maximum income, which are reasonably available. 

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

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

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

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

judgment, constitutes an accurate summation of the Sington standard. 

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

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

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

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

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

opportunity for consideration to be hired because he possesses the minimum 

9
 
experience, education, and skill.” Id. at 20. The WCAC’s definitions, in our 

judgment, again constitute accurate summations of these terms. 

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

attempted to harmonize existing caselaw by summarizing the Sington factors 

required to prove a threshold disability as follows: 

1. Has plaintiff established the universe of jobs for which 

he is qualified and trained, and how much do they pay? 

2. Has plaintiff established his work related physical or 

mental impairment, which does not permit him or her to perform 

jobs within his qualifications and training causing him to lose 

wages? 

3. Has plaintiff established that he was either unable to 

perform (or obtain because such jobs were not reasonably available) 

all the jobs within his qualifications and training that pay his 

maximum wage (for the purpose of establishing his Section 301(4) 

threshold disability). 

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

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

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

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

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

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

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

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

While Riley scrupulously analyzed the Sington standard of proof, the 

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

10
 
determined that the claimant’s work-related physical restrictions precluded him 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

standard in the name of Sington. 

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

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

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

11
 
injury. The magistrate found that the claimant’s job as an unskilled industrial 

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

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

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

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

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

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

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

burden of proof. 

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

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

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

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

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

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

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

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

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

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

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

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

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

12
 
not accommodated the claimant’s physical restrictions; and that no job had been 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

accommodation for her injury, then the claimant had not suffered a loss in wageearning capacity. 

13
 
Stanton and Nowak represent accurate summations of what is required in 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

have been fully disclosed. 

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

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

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

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

14
 
provide some reasonable means to assess employment opportunities to which his 

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

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

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

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

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

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

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

for which the claimant could realistically apply given his qualifications and 

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

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

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

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

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

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

avoiding a decline in wages. 

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

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

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

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

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

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

15
 
available jobs because the burden of proving disability always remains with the 

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

whether the claimant has sustained his burden. 

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

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

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

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

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

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

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

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

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

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

then challenge the evidence presented by the other. 

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

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

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

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

incentive to rehabilitate and re-employ the claimant. 

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

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

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

16
 
 

MCL 418.851 and MCL 418.853,3

 the magistrate has the authority to require 

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

magistrate cannot ordinarily make a proper determination of a case without 

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

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

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

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

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

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

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

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

apply or refused employment. 

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

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

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

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

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

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

3

 MCL 418.851 provides, in pertinent part, that “[t]he worker’s 

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

investigations as he or she considers necessary.” MCL 418.853 allows the 

magistrate to “administer oaths, subpoena witness, and to examine [] parts of the 

books and records. . . .” 

17
 
completed in some fashion or another, that all the facts necessary to the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. APPLICATION OF SINGTON STANDARD 

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

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

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

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

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

de novo. DiBenedetto, supra at 401. 

18
 
We hold that claimant did not satisfy his burden of establishing a disability. 

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

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

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

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

Haske. 

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

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

qualifications and training. Claimant merely testified regarding his employment 

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

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

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

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

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

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

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

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

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

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

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

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

19
 
The Court of Appeals opinion effectively relieved claimant of this burden 

of proof by concluding: 

[T]o the extent the WCAC addressed the issue from the 

standpoint of the production of evidence, and held that as a practical 

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

of the employee’s resume—i.e., a listing and description of the jobs 

the employee held up until the time of the injury, the pay for those 

jobs, and a description of the employee’s training and education— 

and testimony that the employee cannot perform any of the jobs 

within his qualifications and training paying the maximum wage, the 

WCAC did not err. By producing such evidence, in addition to 

evidence of a work-related injury causing the disability, an employee 

makes a prima facie case of disability—a limitation in the 

employee’s maximum wage-earning capacity in all jobs suitable to 

the employee’s qualifications and training. The WCAC did not err 

in concluding that such a showing is adequate to establish disability 

in the absence of evidence showing that there is in fact real work 

within the employee’s training and experience, paying the maximum 

wage, that the employee is able to perform upon hiring. [Stokes, 

supra at 589.] 

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

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

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

such jobs is on defendant. It is not. 

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

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

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

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

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

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

20
 
was also denied. Because claimant refused to meet with the employer’s vocational 

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

vocational expert could only provide speculative testimony regarding the effect of 

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

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

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

expert would have contacted potential employers to determine job availability and 

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

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

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

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

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

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

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

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

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

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

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

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

21
 
 

 

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

to rebut claimant’s claim of disability.4 

IV. RESPONSE TO THE DISSENT 

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

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

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

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

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

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

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

for that of the Legislature. 

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

requires a workers’ compensation claimant to demonstrate a limitation or 

4

 The procedures set forth in this opinion are more consistent with Sington 

than the procedures of the Court of Appeals, and Sington is more consistent with 

the statute than is Haske. Moreover, it must be said, although it does not influence 

this opinion, that the procedures set forth here will almost certainly lead to a far 

more efficient use of human and economic resources in Michigan than the 

procedures introduced by this Court in Haske. Injured employees who are able to 

continue to work will be encouraged to do so instead of having their skills wasted, 

workers’ compensation costs will be reduced for employers, and the 

competitiveness of Michigan as a workplace with other states will be enhanced. 

Not only does the dissent misconstrue these observations by ignoring our prefatory 

language, post at 23 and n 18, but one cannot help but glean from the dissent a 

sense that it is somehow better that a person who, while unable to perform Job A 

as a result of a workplace injury, could perform Job B at an equivalent 

compensation should be encouraged not to do so, thereby imposing higher 

workers’ compensation costs on his employer. To what conceivable end? 

22
 
reduction in wage-earning capacity. This provision defines a workers’ 

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

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

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

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

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

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

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

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

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

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

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

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

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

consistent and workable standard in assessing their rights and obligations under 

the law. 

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

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

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

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

avail itself of the law. 

23
 
The dissent asserts, first, that the majority has indulged in “judicial 

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

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

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

the claimant must present some manner of assessment of alternative employment 

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

translate-- precisely to demonstrate that the injury has, in fact, “limited” his wageearning capacity-- this showing need not be in any particular form. The claimant 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

24
 
 

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

The dissent demonstrates no alternative means by which a reduction in wageearning capacity can be measured than by actually looking to see whether there are 

other jobs for which a claimant is qualified.5 

Claimant here presented no evidence that he considered whether there were 

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

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

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

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

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

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

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

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

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

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

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

5

 The dissent compares the general language of MCL 418.301(4) with the 

more specific language of MCL 418.385 to conclude that MCL 418.301(4) does 

not require affirmative proofs to demonstrate a limitation in wage-earning 

capacity. This conclusion is illogical. The Legislature used specific language in 

MCL 418.385 to require a claimant to submit to a medical examination. It does 

not follow that every other provision of the statute must use similarly specific 

language when more general language will suffice. In stating that the claimant 

must demonstrate a reduction in wage-earning capacity, MCL 418.301(4) is 

sufficiently clear in what it requires. 

25
 
capacity. Only then can the magistrate render an informed determination of 

eligibility. 

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

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

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

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

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

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

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

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

employer the opportunity to present a meaningful defense. 

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

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

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

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

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

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

In examining the dissenting opinion, we cannot help noting 

that our colleagues would allow plaintiff to subpoena lab reports, 

material safety data sheets and any other relevant papers and 

documents. They would further allow depositions of defendant’s 

representatives (not specifically provided for in the statute except in 

the case of medical experts). However, they would not allow the 

magistrate to order a physical inspection of defendant’s premises, 

even during the trial (as they define that term), because of a lack of 

statutory authority. 

26
 
We cannot agree with this narrow interpretation. As noted, 

there is no explicit statutory authority which allows for the deposing 

of lay witnesses. Rather, the common practice of magistrates has 

long been to err on the side of information rather than ignorance. 

For this reason, accommodations are regularly made for the taking of 

lay testimony where necessary (even of plaintiff on occasion) despite 

the lack of explicit statutory authority. 

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

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

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

defense was hindered when the magistrate precluded its vocational expert from 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

27
 
 

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

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

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

able to prove a disability under the statute. 

The magistrate cannot make a proper determination of whether a claimant 

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

The dissent asserts that our holding allowing discovery would deprive the 

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

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

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

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

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

6

 The dissent asserts that under Boggetta, which stated that a hearing referee 

has the authority to require discovery, Boggetta, supra at 603-604, the employer 

does not have a right to discovery. However, if a magistrate has the discretion to 

order discovery, and such discovery is necessary for the employer in a particular 

case to sustain its burden of production, then the magistrate does abuse his 

discretion in failing to order discovery and denying the employer the opportunity 

to present a defense. The dissent also asserts that Boggetta is not applicable 

because the statute it relied on has been modified. Boggetta, supra at 602-603, 

quoted with approval the WCAB opinion, which first cited Rule 7 of the 

workmen’s compensation department’s rules of practice, 1954 Mich Admin Code, 

R 408.7: “‘At the hearing in any case, the hearing referee may call witnesses and 

order the production of books, records, including hospital records, accounts and 

papers which he deems necessary for the purpose of making an award.’” This 

language reflected the authority granted under the predecessor to MCL 418.853, 

former MCL 413.3, which stated, in pertinent part: “The board or any member 

thereof shall have the power to administer oaths, subpoena witnesses and to 

(. . . continued) 

28
 
 

The statute provides the magistrate with the authority and discretion to 

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

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

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

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

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

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

(continued . . .) 

examine such parts of the books and records of the parties to a proceeding as relate 

to questions in dispute.” The WCAB concluded that Rule 7 gave the hearing 

referee authority to carry out certain actions, but did not constitute an exhaustive 

list of what a hearing referee could do in workmen’s compensation proceedings. 

Boggetta, supra at 602. The WCAB then cited the predecessor to MCL 418.851, 

former MCL 413.8, which stated that a hearing referee “‘shall make such inquiries 

and investigations as it (he) shall deem necessary.’” Id. at 603. The WCAB 

concluded that the hearing referee’s responsibility was “‘broad enough to require 

the answering of interrogatories requested by one of the parties if such answers are 

necessary to a proper inquiry into the facts.’” Id. The “substantial alteration” in 

the statute that the dissent refers to, post at 14, is effectively that the language “at 

the hearing” was added in MCL 418.851. Applying Boggetta’s reasoning, this 

change would not alter the holding at all. These two provisions accord a 

magistrate the authority to require necessary discovery throughout the entire 

process of examining the case to render a proper decision regarding whether a 

claimant has proved a disability. They do not purport to constitute an exhaustive 

list of actions a magistrate may take. In addition, the WCAC, sitting en banc, 

addressed the meaning of this amendment in O’Brien, supra at 3, in which it held 

that the addition of this language was a result of statutory changes in 1985, in 

which the authority to assign cases was removed from the Bureau of Worker’s 

Disability Compensation and vested in the newly created Board of Magistrates. 

The language “The worker’s compensation magistrate at the hearing” was merely 

a replacement of the previous language, “The hearing referee assigned to any 

hearing.” Id. Therefore, the phrase “at the hearing” is a qualifier for the word 

“magistrate” and refers to the entire proceedings before the magistrate, and does 

not refer to only a portion of those proceedings. 

29
 
here, the restriction on disclosure effectively relieves a claimant of the obligation 

to satisfy his burden of proof. 

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

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

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

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

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

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

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

event of an injury? 

The dissent again confidently asserts that the employer here possessed 

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

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

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

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

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

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

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

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

post injury job qualifications and training . . . .” 

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

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

30
 
personnel files? Must an employer maintain personnel files in specific 

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

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

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

concerning that subject: the claimant himself? 

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

provide an injured employee with vocational rehabilitation services, but 

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

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

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

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

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

defend itself. 

V. CONCLUSION 

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

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

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

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

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

previous job. Rather, to establish a disability, the claimant must prove a workrelated injury and that such injury caused a reduction of his maximum wage31
 
earning capacity in work suitable to the claimant’s qualifications and training. To 

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

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

(2) the claimant must consider other jobs that pay his maximum preinjury wage to which the claimant’s qualifications and training translate; 

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

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

training; and 

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

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

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

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

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

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

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

these steps must be followed. 

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

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

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

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

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

that evidence concerning whether claimant has reasonable employment options 

32
 
available for avoiding a diminution in his wages in a position within his 

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

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

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

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

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

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

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

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

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

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

opinion. 

Stephen J. Markman 

Clifford W. Taylor 

 Maura D. Corrigan 

Robert P. Young, Jr. 

33
 
v 

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 creates new procedures, a heightened 

evidentiary standard, and compelled discovery for workers’ compensation 

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

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

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

Worker’s Disability Compensation Act (WDCA), and recklessly risk the wellbeing of Michigan workers, I dissent. 

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

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

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

predictable injury compensation costs for employers. But injured workers also 

benefit under the act: 
The family of the [injured worker] . . . knew privation and 

sorrow when injury stopped income. True, the injured workman 

would not get full “damages” as that term is used in the law. The 

amount of his recovery was carefully circumscribed. It was limited 

to interference with earning capacity. The workman might be so 

grotesquely disfigured as to shock even the insensitive, yet for this 

harm there was no compensation, unless aided by statute. . . . [T]he 

workman has given up his common-law action, and can no longer 

seek damages from a jury. However, there was a giving on both 

sides. In return for the workman’s limited monetary recovery he got 

the certainty of adequate compensatory payments without recourse 

to litigation. [Crilly v Ballou, 353 Mich 303, 308-309; 91 NW2d 

493 (1958).] 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2
 
Instead, the Legislature leaves it up to the claimant regarding how to proceed in 

proving his case. 

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

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

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

establishing a disability under MCL 418.301(4). This equivalent of a transferableskills analysis is a key component of the new procedure the majority creates to 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3
 
 

 

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

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

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

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

Legislature by adopting these new requirements. 

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

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

. . . I would probably need to complete what is called the 

transferable skills analysis, where I would take the profile that was 

essentially presented of [plaintiff’s] work history, his educational 

background, his restrictions as outlined by both physicians and enter 

all that information into the computer and essentially have that 

profile, all the variables of that profile bounced off of the U.S. 

Department of Labor’s Dictionary of Occupational Titles. All of 

their job classifications to assess what jobs might be most 

appropriate falling within the restrictions and other qualifications 

and training as noted. 

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

may “provide some reasonable means to assess employment opportunities to 

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

1

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

What we mean by transferable skills. We consider you to 

have skills that can be used in other jobs, when the skilled or semiskilled work activities you did in past work can be used to meet the 

requirements of skilled or semi-skilled work activities of other jobs 

or kinds of work. This depends largely on the similarity of 

occupationally significant work activities among different jobs. [20 

CFR 404.1568(d)(1) (emphasis added).] 

4
 
either case, the WDCA simply does not require this level of evidentiary proof to 

show a limitation in wage-earning capacity. 

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

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

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

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

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

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

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

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

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

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

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

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

(2003). 

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

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

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

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

When as a result of the injury [an employee] is unable to 

perform work for which he or she has previous training or 

experience, the employee shall be entitled to such vocational 

rehabilitation services, including retraining and job placement, as 

may be reasonably necessary to restore him or her to useful 

5
 
 

employment. If such services are not voluntarily offered and 

accepted, the director on his or her own motion or upon application 

of the employee, carrier, or employer, after affording the parties an 

opportunity to be heard, may refer the employee to a bureauapproved facility for evaluation of the need for, and kind of service, 

treatment, or training necessary and appropriate to render the 

employee fit for a remunerative occupation. Upon receipt of such 

report, the director may order that the training, services, or treatment 

recommended in the report be provided at the expense of the 

employer. [Emphasis added.] 

The requirements of MCL 418.319(1) sound very much like a 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 require the injured employee to provide and 

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

Likewise, the act contemplates a similar analysis conducted by competent 

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

unemployment benefits. MCL 418.301 states: 

(6) A carrier shall notify the Michigan employment security 

commission of the name of any injured employee who is 

2

 Michigan’s guidelines for vocational rehabilitation providers state: 

“Vocational rehabilitation is composed of numerous activities leading to the goal 

of returning the injured/ill individual to productive employment. Vocational 

rehabilitation encompasses such services as counseling, job analysis, placement, 

labor market surveys, transferable skills analysis, job seeking skills training and 

vocational testing.” State of Michigan Vocational Rehabilitation Providers’ 

Guidelines, p 1 (emphasis added), available at <http://www.michigan.gov/ 

documents/Voc_Rehab_guidelines_153795_7.pdf> (accessed May 13, 2008). 

6
 
 

unemployed and to which the carrier is paying benefits under this 

act. 

(7) The Michigan employment security commission shall give 

priority to finding employment for those persons whose names are 

supplied to the commission under subsection (6). [Emphasis 

added.][3] 

The Legislature has chosen to place the strenuous requirements of a transferableskills analysis, or its reasonable equivalent, on the employer and the state, not on 

an injured worker seeking compensation. 

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

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

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

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

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

[W]e reject the concept that the measurement of work suitable 

to an employee’s qualifications and training includes a “transferable 

skills” analysis. Such an analysis suggests that work which the 

employee has never performed and, therefore, is totally unaware of 

its physical or mental requirements, can be utilized to measure 

disability. 

. . . Such proofs could go on forever if the employee has held 

even a few different kinds of jobs. And, no matter how exhaustive 

(and exhausting) the proofs, such a standard still leaves open the 

3

 I note that the WDCA does not require an injured worker to look for work 

in order to prove a disability or receive compensation. MCL 421.28(1)(a), part of 

the Employment Security Act, demonstrates that the Legislature knows how to 

create such a requirement when it wishes. Such a requirement does not exist in the 

WDCA. 

7
 
employer’s arguments in briefing on appeal that the employee can 

answer only with argument and not with evidence. Both employee 

and employer must be excused from impossible burdens. [Stokes v 

DaimlerChrysler Corp, 2006 Mich ACO 24, p 73.] 

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

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

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

aim.” Kidd, 414 Mich at 588. 

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

418.301(4), the Court of Appeals stated: 

The magistrate never limited the inquiry to whether plaintiff 

could no longer do his job. The magistrate examined plaintiff’s 

qualifications and training and came to the factual conclusion that 

his qualifications and training limited him to jobs driving a hi-lo and 

working in a warehouse, and “physically strenuous work from which 

he is clearly disabled.” This conclusion was based on plaintiff’s 

testimony concerning his prior jobs, his education and training, and 

defendant's failure to produce evidence showing that, contrary to 

plaintiff's proofs, there were, in fact, jobs within plaintiff’s 

qualification or training that he could perform that would provide 

him with his maximum wage. This conclusion was amply supported 

by the record. [Stokes v DaimlerChrysler Corp, 272 Mich App 571, 

592; 727 NW2d 637 (2006).] 

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

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

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

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

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

mischaracterization of the proceedings before the magistrate. The magistrate 

8
 
 

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

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

30 years.4

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

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

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

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

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

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

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

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

 Under 

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

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

4

 Thus, the magistrate did not confine himself to reviewing whether Mr. 

Stokes was disabled from a single job; rather, the magistrate extensively reviewed 

whether Mr. Stokes had suffered a limitation in his wage-earning capacity. See 

Sington v Chrysler Corp, 467 Mich 144, 158; 648 NW2d 624 (2002). 

5

 Mr. Stokes’s spinal cord compression prevents him from obtaining any 

job paying the maximum wages for which he might otherwise be qualified. In 

light of these findings by the magistrate, any job search would obviously be an 

exercise in futility. As mentioned, the WDCA does not require an injured worker 

to look for work in order to obtain benefits. In this case, the majority requires Mr. 

Stokes to search for jobs that do not exist. I believe there are far more efficient 

uses of resources than to send claimants out on a wild goose chase for jobs that do 

not exist. The majority’s opinion does not make “eminent sense,” ante at 24; it is 

incomprehensible. 

9
 
 

 

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

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

production, “the employer has a right to discovery”6

 under Boggetta v Burroughs 

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

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

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

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

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

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

6

 There is no such right in the WDCA. The majority creates it today. There 

is also no constitutional right to discovery. In re Del Rio, 400 Mich 665, 687 n 7; 

256 NW2d 727 (1977). Given that there is no statutory or constitutional right to 

discovery, the majority oversteps its bounds by recognizing such a right. As this 

Court has stated: “‘The workmen’s compensation law is a departure, by statute, 

from the common law, and its procedure provisions speak all intended upon the 

subject. Rights, remedies, and procedure thereunder are such and such only as the 

statute provides.’” Baughman v Grand Trunk W R Co, 277 Mich 70, 72; 268 NW 

815 (1936), quoting Luyk, 242 Mich at 447 (emphasis added). 

7

 The majority states that “[b]ecause claimant refused to meet with the 

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

interview, the employer’s vocational expert could only provide speculative 

testimony regarding the effect of claimant’s injury on his wage-earning capacity.” 

Ante at 21. These are not the facts of this case. Defendant has identified no 

evidence it might have gained from interviewing Mr. Stokes that was not 

otherwise available. In fact, the magistrate found that defendant’s own ineptitude 

left its expert without the necessary data. Defendant hired its vocational expert 

five days before the final hearing (inclusive of a weekend) and failed to provide 

the expert with Mr. Stokes’s employee file (which was in defendant’s possession) 

or with transcripts from prior hearings in which Mr. Stokes testified about his 

work and life qualifications and training. Stokes, 2006 Mich ACO 24 at 42-44. 

10
 
magistrate at the hearing of the claim shall make such inquiries and investigations 

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

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

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

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

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

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

expressly grants the magistrate broad discretion regarding discovery. The 

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

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

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

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

regarding discovery. MCL 418.385 applies between parties and compels 

discovery. It states: 

After the employee has given notice of injury and from time 

to time thereafter during the continuance of his or her disability, if so 

requested by the employer or the carrier, he or she shall submit 

himself or herself to an examination by a physician or surgeon 

authorized to practice medicine under the laws of the state, furnished 

and paid for by the employer or the carrier. If an examination 

relative to the injury is made, the employee or his or her attorney 

shall be furnished, within 15 days of a request, a complete and 

correct copy of the report of every such physical examination 

relative to the injury performed by the physician making the 

examination on behalf of the employer or the carrier. The employee 

shall have the right to have a physician provided and paid for by 

himself or herself present at the examination. If he or she refuses to 

submit himself or herself for the examination, or in any way 

obstructs the same, his or her right to compensation shall be 

11
 
 

 

 

suspended and his or her compensation during the period of 

suspension may be forfeited. Any physician who makes or is 

present at any such examination may be required to testify under 

oath as to the results thereof. If the employee has had other physical 

examinations relative to the injury but not at the request of the 

employer or the carrier, he or she shall furnish to the employer or the 

carrier a complete and correct copy of the report of each such 

physical examination, if so requested, within 15 days of the request. 

If a party fails to provide a medical report regarding an examination 

or medical treatment, that party shall be precluded from taking the 

medical testimony of that physician only. The opposing party may, 

however, elect to take the deposition of that physician. 

MCL 418.385 overrides the discretion of the magistrate and compels 

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

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

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

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

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

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

282 NW 849 (1938). 

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

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

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

8

 MCL 418.222(2) also requires both the employee and the employer to 

disclose relevant medical records at the time of an application for a hearing or a 

written response. It does not apply to subsequent proceedings and further 

indicates the majority’s error in creating discovery rules additional to those the 

Legislature saw fit to provide. 

12
 
 

 

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

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

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

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

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

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

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

modified the statute it relied on. 

The Court in Boggetta stated that its advisory comments were grounded 

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

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

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

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

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

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

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

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

9

 I observe that if compelled discovery is necessary in this case, it is 

difficult to imagine the case in which it would not be. 

10 1969 PA 317. 

11 1994 PA 271. 

13
 
 

 

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

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

12 This is a substantial change for the matter at hand because Boggetta was 

grounded in the “‘broad general language’” of the former statute. Boggetta, 368 

Mich at 603 (citation omitted). This “broad” language was subsequently qualified 

and limited by amendment. Thus, not only is the discovery rule in Boggetta dicta 

and not on point, but its statutory grounding has been substantially altered. The 

majority asserts that the amendment “was merely a replacement of the previous 

language,” apparently contending that the amendment was meaningless. Ante at 

29 n 6. For this proposition, the majority cites the WCAC en banc decision in 

O’Brien v Federal Screw Works, 1998 Mich ACO 53. But in the present case, the 

WCAC stated: 

[S]ince the issuance of Boggetta, this dicta [regarding 

discovery] has been given undue attention without recognizing that, 

in the passage of time, the Worker’s Compensation Act has been 

amended since 1962 when Boggetta was decided. . . . 

It may be saying too much to assert that the amendment that 

was codified in what is now MCL 418.851 intended to adopt the 

dissenting position in Boggetta, but it can be stated that the 

amendment knocked the foundation out from under the majority 

opinion in Boggetta. For this reason, and because the language in 

Bogetta is dicta, we agree that any party’s confidence in Boggetta as 

authority for allowing a magistrate to require a party to participate in 

pre-trial discovery (e.g., plant tours, interrogatories, meeting with 

vocational consultants) may be easily dashed. [Stokes, 2006 Mich 

ACO 24 at 47-48.] 

Specifically addressing the case that the majority refers to here, the WCAC stated 

that “[i]n O’Brien, the majority suggested that the 1985 amendments . . . were 

written simply to alter the assignment of cases from the Director . . . to some other 

unstated entity.” Id. at 53. The WCAC then observed that who assigned cases 

was irrelevant: “The language ‘at the hearing’ . . . has a very plain meaning no 

matter what administrative body assigns the cases for hearing.” Id. at 54. The 

commission concluded: “We believe that ‘the hearing’ in MCL 418.851 means 

what it says and refers to the hearing of the claim at which time the parties present 

their proofs in whatever fashion is necessary and it is done on the record.” Id. at 

53. In coming to this conclusion, the WCAC observed that O’Brien had admitted 

(. . . continued) 

14
 
 

 

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

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

language would not have been necessary. The Legislature has subsequently 

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

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

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

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

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

majority takes away. 

(continued . . .) 

that “‘there is no explicit statutory authority which allows for the deposing of lay 

witnesses.’” Id. at 52, quoting O’Brien, 1998 Mich ACO 53 at 4. The WCAC 

found this critical because “[w]hat is lacking in the administrative discussion of 

the issue of discovery is any true recognition that the authority for discovery has to 

be identified explicitly in the Act and that an implicit authority is not legally 

sufficient.” Stokes, 2006 Mich ACO 24 at 50. See also Baldus v Michigan, 1997 

Mich ACO 429, p 4 (“The legislature, by amending [MCL 418.851] to limit the 

magistrate’s inquiries and investigations to those conducted at the hearing, seems 

to have adopted the [Boggetta] dissent’s position.”). 

13 The majority states that “[i]t is clear that discovery is an integral part of 

workers’ compensation proceedings that has been consistently upheld by the 

WCAC.” Ante at 27. This is not the issue; the issue is whether the magistrate has 

discretion regarding discovery (as stated in the WDCA) or is forced to require 

discovery in certain situations (as mandated today by the majority). 

To support its decision to override the statutory discretion afforded the 

magistrate and to force magistrates to compel vocational interviews, the majority 

cites a smattering of WCAC cases. I do not find the cases compelling on this 

point. With one exception, the cases do not stand for the proposition that the 

magistrate is required to compel discovery in certain situations; the cases simply 

affirm the magistrate’s discretion to order such discovery as he deems necessary. 

(. . . continued) 

15
 
 

 

(continued . . .) 

For instance, in Nessel v Schenck Pegasus Corp, 2003 Mich ACO 272, p 7, the 

commission began with the obvious: “Certainly, the worker’s compensation arena 

has never had full discovery as provided for in the Michigan General Court 

Rules.” The commission went on to conclude: 

While pre-trial access to information is critical, the extent of 

discovery and the precise form which disclosure may take, is 

commended to the broad discretion of worker’s compensation 

magistrates. However, it is error for a magistrate confronted with 

requests for information pursuant to Sington to categorically deny 

requests for information on the ground such information is not 

subject to pre-trial production. The need for particular information 

must be assessed on a case-by-case basis. [Id. at 8 (emphasis 

added).] 

The majority disregards the broad discretion the WDCA affords the magistrate and 

replaces the “case-by-case” evaluation contemplated in Nessel with categorically 

compelled discovery for employers’ vocational experts. Nessel does not support 

the majority’s new discovery rule. 

 Likewise, in Rochon v Grede Foundries, Inc, 2000 Mich ACO 534, p 6, 

while the commission asserted “that magistrates have to the power to compel 

discovery,” the commission did not assert that this Court has the power, under the 

WDCA, to categorically compel a magistrate to require discovery in certain 

situations. Indeed, the commission noted the unique circumstance and specific 

scope of its decision: “Given the unique problems that a death case presents, the 

magistrate acted reasonably and within his discretion in ordering the discovery.” 

Id. 

Similarly, O’Brien did not categorically embrace vocational discovery; 

rather, the commission again addressed a specific circumstance, stating that 

Bogetta “stands for the proposition that limited discovery tools such as 

interrogatories may be utilized in cases involving unique problems, i.e., death 

cases.” O’Brien, 1998 Mich ACO 53 at 3. So the cases cited by the majority 

stress the magistrate’s discretion and address specific circumstances in which, on a 

case-by-case basis, discovery may be required; more importantly, they are 

diametrically opposed to the majority’s discretion-stripping mandate. 

In White v Waste Mgt, 2004 Mich ACO 4, the commission did require a 

magistrate to compel the claimant to submit to an interview by the employer’s 

(. . . continued) 

16
 
 

 

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

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

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

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

(continued . . .) 

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

present case, sitting en banc, stated: 

We disagree with the majority opinion in White . . . . 

. . . Neither the Court’s decision in Sington, nor “the reality of 

legal requirements and evolved complex burdens of evidentiary 

proofs mandated by modern case law such as found in Sington,” 

have moved the Legislature to alter the authority of the magistrate. 

While it is accurate to state that the opinion in Sington changed 

perceptions of the Worker’s Compensation Act, we must recognize 

that the Act, itself, did not change after Sington was issued. Sington 

has merely provided a party with the motivation to assert that there 

is dormant authority in the Act that now must be awakened.” 

[Stokes, 2006 Mich ACO 24 at 51, quoting the dissent in White, 

2004 Mich ACO 4 at 14.] 

The commission then concluded: 

If the Legislature determines that it had made an unwise 

choice in failing to allow for discovery, it is the legislative 

prerogative to amend the Act and provide for it. Certainly, along the 

way, the Legislature could then provide some guidance as to what is 

a permissible and what is an impermissible use of vocational 

consultants. The Legislature could also determine whether Sington 

actually codified the definition of disability it intended and whether 

it is prudent to divert the limited dollars of employers and employees 

in the worker’s compensation arena away from efforts to put 

employees back to work and in the direction of vocational 

consultants. [Stokes, 2006 Mich ACO 24 at 61.] 

Because there is no statutory authority for its decision, the majority stretches for 

support in WCAC decisions. But such support is not consistent or substantial. 

17
 
 

 

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

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

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

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

language of the WDCA. 

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

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

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

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

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

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

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

interview a claimant, the magistrate must comply. 

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

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

14 This is consistent with the nature of the proceedings envisioned by the 

WDCA. “‘Proceedings under the workmen’s compensation act are purely 

statutory,—administrative, not judicial,—inquisitorial, not contentious,—disposed 

of not by litigation and ultimate judgment, but summarily.’” Hayward v 

Kalamazoo Stove Co, 290 Mich 610, 616-617; 288 NW 483 (1939), quoting 

Hebert v Ford Motor Co, 285 Mich 607, 610; 281 NW 374 (1938). 

15 The majority opinion also claims to “afford guidance in the application of 

Sington . . . .” Ante at 28-29. If Sington requires rewriting the WDCA, then 

Sington should be reviewed. 

18
 
 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16 In its attempt to characterize the magistrate’s exercise of discretion in 

this case as abuse of that discretion, the majority states the general proposition that 

a “magistrate cannot make a proper determination without becoming fully 

informed of the facts regarding a claimant’s” reduced wage-earning capacity. 

Ante at 29. I fully agree, and, when such a case is presented to this Court, I will 

vote accordingly. But that proposition has nothing to do with this case. The 

magistrate’s review was extensive, and he considered all relevant facts, including 

employment opportunities. The majority has not identified one relevant fact or 

inquiry that would hint that the magistrate in this case was less than fully 

informed. 

19
 
The majority asserts that discovery is not a “novel concept in workers’ 

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

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

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

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

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

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

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

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

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

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

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

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

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

magistrate conducted a thorough review of all the relevant facts. 

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

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

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

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

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

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

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

20
 
 

 

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

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

The majority confesses recognition that its requirements, especially the 

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

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

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

claimant would undertake significant risk by failing to reasonably consider the 

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

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

The requirement creates significant risk because the claimant may not 

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

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

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

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

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

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

17 I agree with the majority that “any reasonable person” would assess her 

employment alternatives if she were injured outside the workplace such that she 

could not perform her current job. Ante at 24. But Mr. Stokes cannot perform any 

job for which he might be qualified. For Mr. Stokes, the answer to the question, Is 

there another job in which I am employable at a similar wage? is “No.” Requiring 

him to search for work that cannot be found is unreasonable. See ante at 24. 

Further, I believe that Michigan workers wish to work for a living. I suspect few 

Michigan employees view an injury resulting in job loss as a welcome opportunity 

(. . . continued) 

21
 
 

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

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

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

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

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

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

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

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

vocational experts at workers’ compensation proceedings to best support their 

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

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

claimants will need experts. Additionally, because of the uncertainty and expense 

imposed by this regime, it will almost certainly be more difficult for injured 

workers to find competent representation. This burden of uncertainty, difficulty, 

and expense is contrary to the “certainty of adequate compensatory payments 

without recourse to litigation” contemplated in the act. Crilly, 353 Mich at 309. 

(continued . . .) 

to become acquainted with their couches. Consequently, I do not believe that 

denying injured workers’ claims for assistance is necessary to prevent statewide 

destruction. And even if I were convinced of the majority’s policy assertions, I 

would be constrained by the language of the WDCA from denying benefits to a 

deserving claimant. Mr. Stokes has severe spinal compression. He is not able to 

perform his former job or any other paying a similar wage. The majority’s 

decision to deny him benefits is unreasonable and unsupportable. 

22
 
 

 

Finally, I note that the majority asserts that today’s decision will enhance 

“the competitiveness of Michigan as a workplace with other states . . . .”18 Ante at 

22 n 4. But Michigan is a state, not a business. This state’s first responsibility is 

the health and welfare of its citizens. It is for the Legislature to make policy 

decisions. The Legislature has crafted a careful balance of critical concerns in the 

WDCA.19 This Court has stated that “[i]t is not this Court’s role to decide whether 

the Legislature acted wisely or unwisely in enacting this statute. We will not 

substitute our own social and economic beliefs for those of the Legislature, which 

is elected by the people to pass laws.” McAvoy v H B Sherman Co, 401 Mich 419, 

439; 258 NW2d 414 (1977). Today, the majority takes a different view. 

respectfully dissent. 

Michael F. Cavanagh 

 Marilyn Kelly 

18 I find it quite ironic that this Court’s “textualists,” first, have no problem 

adding language to the statute and, second, assert what good public policy their 

additions create. 

19 The majority emphasizes that fairness to employers compels its creative 

amendments of the WDCA. But that is precisely the point: the Legislature has 

carefully balanced the equities in the act. This Court should not attempt to adjust 

the scales that Michigan lawmakers have set. 

23
 

I 
v 

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 (2002), did not concur in, and differed from, the view of the 

majority of four (Chief Justice Taylor and Justices Corrigan, Young, and 

Markman) that under the workers’ compensation act, MCL 418.301(4), and under 

Sington, the claimant always has the burden of proof. 

In this case, writing for the majority of four, Justice Markman states that, 

under Sington, the claimant failed to sustain his burden of proving that his workrelated injury effected a reduction of his maximum wage-earning capacity in work 

suitable to his qualifications and training. 

I disagree with the majority of four. Rather, I agree with the Court of 

Appeals decision below that once a claimant has established his or her disability 
by a preponderance of the evidence, the burden of going forward with the 

evidence shifts as the parties present their proofs. Thus, the burden of proving a 

disability remains with the claimant, but the burden of proof shifts back and forth 

as each party brings forth further evidence. 

Further, I concur with Justice Cavanagh’s conclusion that the majority of 

four reads a new requirement into the act: namely, that under the majority’s view, 

a claimant must provide a “transferable-skills analysis” to show a limitation of 

wage-earning capacity as proof of a disability under MCL 418.301(4). For the 

reasons stated in Justice Cavanagh’s dissent, I do not think that either the statute or 

Sington can be correctly interpreted in that manner. 

 Elizabeth A. Weaver 

2