In this Michigan Compensation Appellate Commission decision I recently secured, the Commission significantly addresses a Plaintiff’s burden of proof under step four of Stokes v. Chrysler Corp, LLC.
According to the Commission, first, the vocational experts are now going to have to provide a more complete list of jobs an individual has the transferable skills to perform within certain sets of restrictions. The “universe of jobs” “list” referred to according to this opinion “will never change, and as such, serves as a foundation for future disagreements about disability and wage loss.”
Secondly, the Commission concludes a claimant’s ability to work fluctuates with a person’s physical condition.
In the third paragraph, “the next step further concentrate the job list to those jobs that are: 1) suitable to the plaintiffs qualifications and training; 2) within plaintiffs work related restrictions; and additionally 3) available to plaintiff. This step routinely involves vocational surveys and plaintiff directed job searches. This step is glaringly missing from the analyses. To adequately address this step the magistrate must consider fluctuations in the evidence for the entire time of the claimed disability. For example, a vocational expert may perform a job market survey that only examines the job market during a specific week. Or, as in this case, plaintiff may exhibit varying degrees of tenacity when looking for work. Again those fluctuations alter the list of jobs that are available. Only once plaintiff proves that no suitable restriction-compliant jobs are available in the magistrate order full benefit.
Under this analysis, it is unlikely that an individual will be receiving full benefits if they can work. It also requires more of vocational experts from both sides.
Here is the opinion: 2013 ACO # 1
Published by Carson J Tucker, JD MSEL
Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs.
Board of Directors, Michigan Defense Trial Counsel
Amicus Committee Co-Chair, Michigan Defense Trial Counsel
Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia.
United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003
Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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