22 Jun News Flash: Disability? Florian v Grimm
The Court of Appeals, in an unpublished decision, Florian v Grimm, commented upon the standard for establishing disability in a workers’ compensation case in Michigan.
Florian was a logger who suffered a leg injury while at work. Magistrate Moher determined that Plaintiff was entitled to an open award of benefits. MCAC reversed, indicating that Florian had not established disability; which was his burden to prove. The Court of Appeals reversed MCAC and reinstated the open award.
The Court of Appeals noted that Plaintiff had disclosed his work history, qualifications and training and that Florian was a high school graduate who had a remote apprenticeship in tool & die operations. He had engaged in foundry work, construction work, and work on a trailer production line in the early 1970s, with his career being logging from that point forward.
Florian used Mr. Ostwald as a vocational expert. Ostwald testified that Florian’s skills were logging specific and he did not have any transferrable skills. Ostwald testified that Florian would need a sit/stand option and could only do sedentary work which would likely pay less than his logging wages. Ostwald did not consider the tool & die apprenticeship because of the introduction of computers and its remote nature.
The Court of Appeals observed that MCAC had reversed the open award, noting that Florian had not complied with the job-seeking requirements of the statute to prove a case for disability. Recall, that to prove disability, a plaintiff must show that he or she is disqualified, due to his or her injury’s medical restrictions, from performing all jobs that make his or her maximum wages. If there are some jobs at maximum wages that the plaintiff is qualified to perform, then he or she must show a good-faith attempt to get those jobs.
The Court opined that Florian had used Ostwald’s vocational assessment to determine Florian could no longer work as a logger, that his skills were not transferrable, and that his only other vocational experience and training was too outdated to be considered; i.e. that Florian was not qualified to perform any other jobs but logging. Ostwald also testified that light and sedentary work, which he claimed would result in a decline in Florian’s maximum wages, was uncommon in Florian’s geographical area. The Court held that Ostwald did not identify any jobs that would pay maximum wages and that Florian would be qualified for, given his medical restrictions. The Court noted that MCAC had reversed, noting that Florian had not searched for unskilled sedentary or light duty jobs. The Court noted that Florian was only required to do this if there had been jobs identified at maximum wages that Florian was medically able, and vocationally qualified, to perform; and Florian had no duty to seek lower-paying unskilled or light duty work.
Rationale for the decision
Practically-speaking, a plaintiff is not required to seek lower-paying work to make an initial showing of disability, allowing his or her injury to be compensable. However, it appears there may have been some confusion between the Court of Appeals and MCAC.
Essentially, MCAC was saying that there was no labor market survey and no proofs on the record to show that Florian’s expert had identified jobs at maximum wages within his qualifications. To prove disability, the plaintiff must show jobs at maximum wages that he or she is qualified to perform and then show that his or her medical restrictions, resulting from the work-related injury, prohibit the performance of those jobs. It appears Ostwald just testified that sedentary jobs were rare and likely paid less than Florian’s maximum logging wages, without identifying specific jobs in that category that met Florian’s qualifications. Unfortunately, the defendants in this case did not put on any vocational testimony to show: 1) there were maximum wage jobs available within Florian’s restrictions, qualifications, and geographical area; or 2) show that Florian had a residual wage-earning capacity to take a credit. Therefore, the Magistrate was left with Plaintiff’s proofs in granting an open award. MCAC noted that Florian had several past work experiences which were unrelated to logging and Florian had failed to make a record showing the availability of any of those types of jobs at maximum wages. All that the Magistrate had before him was the testimony of Ostwald that Florian would be restricted to light duty or sedentary work and that those jobs were uncommon in Florian’s geographic area and likely paid less than his logging wages (his logging wages being $13-$16 per hour).
Where is this case now?
This case is currently on Application for Leave to Appeal with the Michigan Supreme Court. Remember that this is an unpublished opinion, does not constitute binding precedent, and is very fact specific. As a result, we do not recommend any alteration in trial tactics or strategy at this point. This case is a good reminder of the importance of our vocational assessments to prove the presence of maximum wage work within a plaintiff’s restrictions, as well as, residual wage-earning capacity to take a credit. We will continue to keep our clients informed as updates become available.