Author(s): Michael DePolo

Michigan Supreme Court Remands Lofton v Auto Zone, Inc. To Workers’ Compensation Appellate Commission for Review

Almost eight years after the initial decision from Magistrate Sloss finding that plaintiff was entitled to an open award of benefits based upon restrictions that prevented plaintiff from lifting more than 15 pounds or working in a bent position, the Michigan Supreme Court has again returned this case to the Workers’ Compensation Appellate Commission for further review. In an order dated July 15, 2009, a four-member panel of the court, comprised of Justices Corrigan, Young, Markman, and Cavanagh, upon review of the lengthy opinion of Magistrate Wolock, decided not to retain jurisdiction and returned this case to the Workers’ Compensation Appellate Commission pursuant to the WCAC’s standard review established in MCL 418.861a. Justices Kelly, Weaver, and Hathaway voted to grant leave to appeal.

The Michigan Supreme Court, on October 1, 2008, had previously issued an order indicating that because of plaintiff’s partial disability, the magistrate must compute wage loss benefits under MCL 418.361(1) based upon what plaintiff “remains capable of earning.” This led to the assumption that the Michigan Supreme Court would use the Lofton case to ultimately hold that in cases of partial disability, a claimant’s residual wage earning capacity can be used to offset benefits to which he would otherwise be entitled based upon the average weekly wage. Indeed, some went so far as to indicate that the Michigan Supreme Court was intending, prior to its change in membership, to hold that a residual wage earning capacity, if established, could reduce the amount of compensation benefits payable, even in the case of a claimant who is not actually earning subsequent wages.

With the replacement of Justice Taylor by Justice Hathaway, it was then believed that the Michigan Supreme Court could possibly issue an opinion in Lofton that might substantially undercut its previous opinion in Stokes v Chrysler LLC. While that may still be the case, it is clear that such a determination will have to await the interim opinion of the Workers’ Compensation Appellate Commission and, because the Michigan Supreme Court did not retain jurisdiction, either an opinion from the Court of Appeals or an order from the Court of Appeals indicating that it would not grant leave to appeal.

Thus, the saga will continue and there will remain a significant amount of uncertainty as to how the Michigan Supreme Court will deal with the issue of partial disability and residual wage earning capacity post-Stokes.

We will continue to monitor this issue and keep you advised of further developments as they occur. If you have any questions, please do not hesitate to contact the workers’ compensation attorneys at Garan Lucow Miller, P.C.