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Volume XXIII, No. 27, October 5, 2011 

From the Law Offices of Garan Lucow Miller, P.C.

 

From the Co-Editors

James L. Borin & Simeon R. Orlowski

 

Diligent Job Search Not Sufficient to Satisfy Plaintiff’s Burden of Proof Under Stokes and Lofton Decisions

Doty v. General Motors, 2011 ACO#108

CO-CONTRIBUTORS – DENNIS P. PARTRIDGE and TODD D. BARRY

In a 3-0 decision, the Appellate Commission reversed and remanded to the Board of Magistrates for additional testimony as to the issue of partial disability under §361 of the Workers’ Compensation Act. The Magistrate, according to the Appellate Commission, failed to provide enough analysis of the Lofton standard and simply concluded that plaintiff’s diligent job search satisfied her burden of proof. The appellate commission ruled that the job search in and of itself does not satisfy Lofton.

“Rather, the Magistrate must follow the law to develop plaintiff’s post-injury wage-earning capacity for all work suitable to plaintiff’s qualifications and training. Then a job search that covers those potential jobs will satisfy plaintiff’s burden.”

The Appellate Commission concluded that without knowing the scope of the jobs, the diligence of the search is irrelevant. Pursuant to Doty, the plaintiff not only has the burden of proof in establishing there are no jobs that he or she can do that would pay maximum wage-earning capacity, but also that there are no jobs out there where they can earn less than they were earning at the time of injury. Using a Stokes analysis and vocational testimony, if it is found that there are jobs out there the plaintiff can perform within his or her qualifications and training earning less than at the time of injury, the employee would be entitled to only partial benefits.

In light of the Doty decision, not only cases presently in litigation but also cases voluntarily paid or paid pursuant to Order should be evaluated as to the propriety of having a vocational assessment/residual wage-earning capacity evaluation performed. At that juncture, consideration should be given toward seeking modification of plaintiff’s benefit rate consistent with the vocational assessment analysis and the Doty decision.

The Doty decision suggests that where a claimant is found to have a post-injury wage-earning capacity, even in jobs that pay less than the claimant’s maximum wage-earning capacity prior to injury, wage loss benefits can be reduced in accordance with the post-injury wage-earning capacity established. This further re-enforces the need for vocational testimony to rebut plaintiff’s prima facie case and to establish the “scope of jobs” within the plaintiff’s qualifications and training.

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WINDY CITY SEMINAR
NOVEMBER 10, 2011
CHICAGO MARRIOTT SUITES O’HARE
6155 North River Rd. | Rosemont | Illinois 60018

AGENDA

8:30 – 8:55 A.M. CONTINENTAL BREAKFAST / REGISTRATION

8:55 – 9:00 A.M. WELCOME AND INTRODUCTION
Speaker: DAVID A. COUCH

9:00 – 10:00 A.M. MICHIGAN FIRST PARTY NO-FAULT (PIP) UPDATES
Speaker: JUDITH A. MOSKUS

10:00 – 10:20 A.M. UPDATE ON USING SOCIAL NETWORKING SITES AS A DISCOVERY TOOL
Speaker: DAVID A. COUCH

10:20 – 10:30 A.M. BREAK

10:30 – 11:30 A.M. TIPS & TRICKS OF LITIGATING/TRYING CATASTROPHIC CASES
Speaker: JOHN J. GILLOOLY

11:30 – 12:00 P.M. MICHIGAN THIRD PARTY AUTOMOBILE NEGLIGENCE UPDATES
Speaker: DAVID A. COUCH

12:00 – 12:30 P.M. PANEL DISCUSSION ON DEPOSITION STRATEGIES & TIPS FOR TESTIFYING EFFECTIVELY
Moderator: DAVID A. COUCH

12:30 – 1:00 P.M. QUESTION AND ANSWER SESSION
Return Evaluation Forms

Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at Ecarty@garanlucow.com.

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NEW DATE FOR TROY BREAKFAST SEMINAR

Based on the pending No-Fault legislation which may or may not have been enacted by late October, Garan Lucow Miller, is re-scheduling the Troy Breakfast Seminar for April 19, 2012.