Author(s): Michael DePolo

MICHIGAN SUPREME COURT DECIDES

STOKES v CHRYSLER LLC

AND DECIDES TEST FOR DETERMINING DISABILITY

The Michigan Supreme Court in releasing its long-awaited decision in Stokes v Chrysler LLC has now determined the necessary elements that must be established by a claimant to prove disability under the Workers’ Disability Compensation Act. In so doing, the Court held that under MCL 418.301(4), a claimant maintains the burden of proof of establishing that a work-related injury caused a “reduction in the claimant’s maximum wage earning capacity in work suitable to the claimant’s qualifications and training,” and that to assess whether a claim is compensable, workers’ compensation claimants, insurance carriers, employers, attorneys, and judges must analyze the four steps enumerated in the majority opinion. There, the Court held that:

“To establish that an injury caused a reduction to the claimant’s maximum wage earning capacity in work suitable to the claimant’s qualifications and training:

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

(2) The claimant must consider other jobs that pay his maximum pre-injury 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.”

The Court held that if a claimant establishes each of these factors, then he has made a prima facie showing of disability under MCL 418.301(4), and the burden of producing competing evidence then shifts to the employer to rebut the claimant’s proofs. In order to do so, the employer is entitled to discovery before the hearing that would enable it to develop evidence that rebuts plaintiff’s prima facie case. This discovery includes, but is not limited to, the use of a vocational expert who would be allowed to interview the claimant in order to obtain information to challenge the claimant’s assertions of disability.

The Court specifically held that the employer need not demonstrate that there exists real jobs within the employee’s qualifications and training that pay maximum wages.

In reiterating the disability standard announced previously in its decision in Sington v Chrysler Corp, 467 Mich 144 (2002), the Court in Stokes held that the fact finder must assess the possibility that the claimant may have skills that would transfer to other job fields and that there must be a finding that the claimant engaged in job search efforts. While a full-blown transferable skills analysis need not be performed by the fact finder, the Court made it clear that in assessing whether a claimant is disabled the employer must be given some reasonable means to analyze what employment opportunities meet claimant’s qualifications and training. In this regard, a claimant will sustain his burden when he demonstrates that there are no reasonable employment options available for him to avoid a decline in wages. If such options do exist, the claimant has failed to establish “a limitation to his wage earning capacity”.

Obviously, this decision is much easier implemented in the courtroom than it is at the claims level. By the time a case reaches trial, which is the situation that the Court addressed in Stokes, sufficient time to perform a complete vocational rehabilitation assessment has been afforded to the employer/carrier. In addition, medical discovery has taken place by way of either independent medical evaluation, obtaining medical reports, and even the taking of medical depositions. At the claims level, however, the Court’s decision in Stokes places an extreme burden on the claims handler to investigate issues of qualifications and training, maximum wage earning, medical conditions, and all the other factors that go in to determining whether a claim will be voluntarily paid or disputed. For that reason, we strongly urge that upon initial investigation, claims handlers obtain as much information from the claimant as is possible. This would include a full discussion with the claimant of his or her educational background, past employments, and, if applicable, what efforts the claimant has already made in obtaining new employment to avoid a decline in wages. To do this within the 30-day limit for declining a claim will necessarily be problematic, and we can envision that such analysis will almost necessarily lead to litigation. Therefore, we urge you to contact us should you have any questions with regard to the practical application of the Stokes opinion.

Should you have any questions, please feel free to contact the workers’ compensation attorneys at Garan Lucow Miller , P.C.

SERVICES MUST BE LAWFULLY RENDERED TO BE COMPENSABLE UNDER THE MICHIGAN NO FAULT ACT FOR PERSONAL PROTECTION INSURANCE (PIP) BENEFITS

In Psychosocial Service Associates, PC v State Farm Mut Auto Ins Co, ___ Mich App ___ (2008), a published opinion, the Court of Appeals analyzed whether or not neurobiofeedback (NBF) techniques was lawfully rendered by the Plaintiff within the definitions of the Public Health Code (PHC), MCL 333.1101 et seq. and the Professional Service Corporation Act (PSCA) MCL 450.211 et seq. Defendant argued that Plaintiff’s treatment violated both the PHC and the PSCA such that the treatment was not lawfully rendered and compensable under the No Fault Act.

Procedurally, the district court denied Defendant’s Motion for Partial Summary Disposition, intending to have an evidentiary hearing when experts from the licensing board, or other qualified individuals, would testify to assist the Court in making this decision. Defendant appealed to the circuit court, which reversed the district court’s denial by determining that NBF falls exclusively within the scope of psychology. Since Plaintiff had no fully licensed psychologists at the clinic at relevant time, the circuit court found Plaintiff was in violation of the PHC and PSCA such that the treatment was not lawfully rendered and precluding payment of no fault benefits. The Michigan Court of Appeals reversed the circuit court, finding a genuine legal issue of whether the NBF procedure utilized was solely a biofeedback technique, falling exclusively within the scope of psychology. There also remained a fact issue as to whether Plaintiff’s sole shareholder was required to be a licensed psychologist to determine if there was a violation of the PSCA. The case was remanded to the district court for further proceedings consistent with this opinion to determine if indeed the services provided by Plaintiff and its staff may have been lawfully rendered.

The applicable statute is MCL 500.3157, which states in pertinent part:

“A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance . . . may charge a reasonable amount for the products, services and accommodations rendered. . . .” (Emphasis added).

To determine whether NBF falls exclusively within the scope of psychology, as the circuit court determined, the Court of Appeals had to examine the various statutes under which Plaintiff and its staff were licensed and compare them with other provisions of the PHC. In reviewing the parameters with respect to the practice of

psychology pursuant to MCL 333.18201(1), it became clear to the Court of Appeals that NBF could only be “lawfully rendered” if it fell within the scope of the other licenses of Plaintiff’s staff and was not exclusively within the scope of psychology. This was due to the fact that no fully licensed psychologists were at Plaintiff’s clinic to render treatment or supervise the other staff members. To do this, the Court of Appeals had to consult the dictionary definition of these terms because none of the “means” enumerated in MCL 333.18201(1)(b) are defined in the statutes or administrative rules.

The Court of Appeals specifically consulted the dictionary definitions for “psychotherapy,” “behavior modification” and “biofeedback,” to which NBF is related. The Court also looked at specific definitions for NBF, known as “neurotherapy” and “EEG biofeedback.” From these definitions, the Court of Appeals determined that the NBF procedure utilized by the Plaintiff may be a “biofeedback technique”. However, the various additional definitions also made it clear to the court that “biofeedback” is a subset of “behavior modification,” which in turn is a subset of “psychotherapy”. As such, the Court of Appeals determined that NBF clearly falls within the practice of psychology because it falls within the definition of several different “means” in MCL 333.18201(1)(b). However, that did not answer the question or whether NBF is exclusively within the scope of the practice of psychology. The Court of Appeals found nothing in the statutory language that specifically restricts NBF to the practice of psychology.

The Court of Appeals therefore looked to the several exemptions from the licensing requirement to practice psychology as noted in MCL 333.18214. These exemptions did not prohibit any statutorily recognized member of any profession from practicing his or her profession as authorized by law. Id. This statute further did not prohibit a “professional counselor” whose practice may include preventative techniques, counseling techniques, or behavior modification techniques from practicing his or her profession consistent with his or her training and with a code of ethics for that respective profession. Id. The court also looked to the definitions for the practice of nursing, social work, social services technician and counseling, as defined by the PHC, to determine if any of Plaintiff’s staff members could have lawfully rendered treatment within the exemptions to the practice of psychology.

In the instant case, Plaintiff’s staff included licensed registered nurses, a licensed nurse practitioner, a licensed social worker and a licensed social service technician, who was also a licensed counselor. When analyzing and applying the applicable statutes and definitions under the PHC to the individual professions of Plaintiff’s staff members, the Court of Appeals determined that the NBF procedure utilized by a Plaintiff could be characterized as “psychotherapy”, which is within the scope of social work, or “behavior modification”, which is within the scope of counseling. Also, because Plaintiff’s nurse practitioner is certified by the Biofeedback Certification Institute of America for EEG feedback, the Court determined he arguably meets the requirements under MCL 333.18101(d) of being specifically trained in what is potentially a “behavior modification technique”. As such, the Court of Appeals determined that there remains a question of fact regarding how NBF should be characterized. Depending on how NBF is characterized, the services provided by Plaintiff and its staff could indeed have been “lawfully rendered”.

Lastly, although not directly relevant to the key issue decided by the Court of Appeals, Plaintiff originally challenged jurisdiction, arguing that whether Plaintiff’s facility and staff members were properly licensed to rendered services was a regulatory matter to be determined by the Board because of its specialized knowledge, rather than a district court. The Court of Appeals dispensed that argument by quickly determining that the district court, not the Board, has original subject-matter jurisdiction over a claim for no-fault benefits and further that

since the Legislature defined the scope of psychology and the scope of other fields in which Plaintiff’s staff members were licensed to practice, the courts were equally capable of interpreting those statutes as the Board. Accordingly, the Court of Appeals determined that the district court properly exercised its jurisdiction and the case was indeed remanded to the district court for further proceedings consistent with this opinion.