Lauri Read recently tried a case testing the definition of disability under Stokes v Chrysler Corp as codified in the Michigan Worker’s Disability Compensation Act 2011 amendments. The trial included fourteen medical and vocational depositions, over 100 trial exhibits and five days of testimony.
The case involved a hospital pharmacist with two bachelor’s degrees and over thirty years’ experience in his field. Plaintiff claimed a work-related right (dominant) shoulder injury super-imposed on a preexisting condition. Plaintiff presented at trial with his right arm immobilized in a sling and testified that his right arm was useless. He further claimed that his constant pain and use of narcotic pain relief medication prevented him from performing the mental/intellectual tasks associated with his occupation. Plaintiff eventually amended his claim to allege a specific loss/industrial loss of use of the right upper extremity.
The magistrate concluded that plaintiff established a work-related injury, finding that the claimed injury was medically distinguishable from plaintiff's pre-existing right shoulder condition. However, in her sixty-three page decision, she specifically held that plaintiff did not establish a loss of wage earning capacity pursuant to the worker's disability compensation act. In reaching her conclusion, the judge noted that plaintiff exaggerated and overstated his job duties, claimed every side effect from every medication and lacked credibility. She concluded that the testimony of defense witnesses, both of whom were pharmacists and coworkers of plaintiff, was credible. She also relied on the testimony of defendant’s vocational expert that the occupation of pharmacist is considered sedentary according to the Dictionary of Occupational Titles, despite plaintiff’s testimony to the contrary.
The judge awarded medical benefits only. However, she specifically held that defendant was not responsible for the medical bills of plaintiff's primary treating physician, a well-known plaintiff expert. Plaintiff's counsel referred plaintiff to this physician. He rendered “treatment” for nearly three years. The judge found that this doctor was merely a consultant and the purported treatment was of no benefit.
An open award of benefits in this case would have resulted in the payment of nearly three years of accrued benefits plus ongoing wage loss of $40,000 per year for this is a 63-year-old plaintiff.
In defending claims under the amended definition of disability as “loss of wage earning capacity,” it is essential that employers be actively involved in the process. This case turned on the credible testimony of employer witnesses who provided a clear description of plaintiff’s job duties and responsibilities.
Keller Thoma PC attorneys are available to assist employers, carriers and self-insured groups in defending their workers’ disability compensation claims.