RANDY J BINKLEY V ALSTOM POWER INCORPORATED
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
RANDY J. BINKLEY,
UNPUBLISHED
March 8, 2011
Plaintiff-Appellant,
v
No. 295890
WCAC
LC No. 09-000080
ALSTOM POWER, INC., and AMERICAN
ZURICH INSURANCE COMPANY,
Defendants-Appellees.
Before: FITZGERALD, P.J., and O’CONNELL and METER, JJ.
PER CURIAM.
In a 2-to-1 decision, the Worker’s Compensation Appellate Commission (“WCAC”)
reversed a determination of the magistrate that plaintiff was entitled to an award of wage loss
disability benefits. The majority concluded that plaintiff failed to establish a disability under
Stokes v Chrysler, LLC, 481 Mich 266, 281-283; 750 NW2d 129 (2008),1 for the reason that
plaintiff failed to present any evidence to prove what jobs he is qualified and trained to perform
that have the same salary range as his maximum wage earning capacity at the time of injury. All
three members of the WCAC affirmed the magistrate’s denial of an award of attorney fees to
plaintiff under MCL 418.315(1). We granted plaintiff’s application for leave to appeal and now
affirm the decision of the WCAC.
I.
Following a tour of duty in the military in the late 1960s, plaintiff began his
apprenticeship as a boilermaker. He earned his journeyman’s card fifteen years later. On
December 1, 2006, during blizzard conditions, plaintiff slipped and fell on a job site at the
Consumers Power Pigeon River power plant and injured his lower back and right leg. Plaintiff
1
To the extent that plaintiff asserts that Stokes was wrongly decided, we note that this Court is
bound by our Supreme Court’s decision until such time as the Court instructs otherwise by
overruling or modifying the decision. State Treasurer v Sprague, 284 Mich App 235, 242; 772
NW2d 452 (2009).
-1-
reports that, as a consequence of his injuries, he has experienced constant and worsening back
and leg pain, which he described as “feel[ing] like somebody’s sticking a knife in my lower right
back; I got pain shooting down to my ankle. . . . It feels like somebody’s stabbing me in the
back. My right side.” Plaintiff has not returned to work since the date of his injury.
Plaintiff commenced these proceedings to obtain worker’s compensation benefits. He
alleged in support of his benefits application that his December 2006 work injuries left him
unable to perform any of the usual duties of boilermaker or a foreman on a job site, and that there
was no light duty or sedentary work in the boilermaking trade. Following a two-day trial, the
magistrate awarded wage loss benefits to plaintiff. The magistrate found that plaintiff
demonstrated by a preponderance of the evidence that he sustained a work-related injury to his
lower back and right leg. He also concluded that plaintiff had demonstrated that his December 1,
2006, injury was medically distinguishable from any prior back injury or condition, as required
by Rakestraw v General Dynamics Land Systems, Inc, 469 Mich 220, 231-232; 666 NW2d 199
(2003).
Next, the magistrate found that plaintiff’s work-related injury was disabling, as defined in
Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002), and Stokes, 481 Mich 266.
With regard to the second Stokes factor, whether plaintiff proved what jobs, if any, he is
qualified and trained to perform within the same salary range as his maximum earning capacity
at the time of the injury, the magistrate opined:
On appeal, the defendant will likely argue that plaintiff has failed to
satisfy the second part of the Stokes test. Although a vocational expert is not
required under Stokes, it would have been helpful in this case for an expert to
testify that plaintiff’s employment as a boilermaker represents his maximum wage
earning capacity. This was not done. Plaintiff also conducted a very limited job
search following his injury. He called the boilermakers’ union on a few
occasions, but realized that doing so was useless because he can no longer work
as a boilermaker. Plaintiff has obtained skills throughout his life. He credibly
testified that his service in the Army as a weapons expert, 40 years ago, does not
realistically translate to transferable skills in the civilian world. However, the
plaintiff has obtained skills while working as a boilermaker, including reading
blueprints, welding, being a working foreman, general construction knowledge,
and knowledge of tools. The question is whether, despite plaintiff’s work
injuries, he can obtain jobs which pay his maximum wage earning capacity.
Because the plaintiff did not obtain a vocational expert and conducted a very
limited job search, plaintiff has made what should be an easy question to
answer very difficult.
Despite the lack of vocational testimony and plaintiff’s limited job search,
I find that the plaintiff established that his maximum wage earning capacity is
working exclusively as a boilermaker. This finding is based on the unique
circumstances of this case. Plaintiff has a ninth-grade education. He has
performed one job, outside of the military, his entire adult life. He has worked as
a boilermaker earning substantial wages. The job is union based and highly
compensated. Based on the stipulation of the parties, plaintiff’s annual income as
-2-
a boilermaker is approximately $65,000.00. If fringes are included, his annual
income as a boilermaker is approximately $106,000.00. Plaintiff and his medical
experts credibly testified that he cannot work as a boilermaker. The plaintiff has
developed skills while working as a boilermaker which may translate into other
jobs the plaintiff has not sought. However, it defies common sense that the
plaintiff could find a job earning the same wages he earned as a boilermaker given
his set of skills and current physical condition. Based on the credible testimony
of plaintiff’s experts, the plaintiff has only been able to perform sedentary work
since his injury. The plaintiff credibly testified he cannot sit or stand for long
periods of time. He is also on heavy pain medication to cope with the symptoms
related to his work injury. Therefore, it defies common sense that the plaintiff
could find a sedentary job reading blueprints, welding or utilizing his knowledge
of tools which would pay the wages he earned as a boilermaker, especially given
the current state of the economy. Defendant may argue that this finding is based
on speculation and conjecture. However, I believe that it is based on common
sense. In People vs. Simon, 1989 [sic] Mich App 565 (1991), the Michigan Court
of Appeals held that fact finders may and should use their own common sense and
every day experience in evaluating evidence.
Common sense in this case suggests that the plaintiff’s sole maximum
wage earning capacity is working as a boilermaker. Therefore, he has satisfied
the second element of the Stokes test by showing there are no reasonable
employment options available for avoiding a decline in wages. [Boldface in
original.]
Finally, the magistrate denied plaintiff’s request for an award of attorney fees pursuant to
MCL 418.315(1), which allows attorney fees to be awarded when a defendant has refused to pay
medical expenses.
Defendants appealed that ruling and plaintiff cross-appealed. On December 14, 2009, all
three members of the WCAC affirmed the magistrate’s finding of injury and denial of plaintiff’s
request for an award of attorney fees. Two members of the WCAC issued a majority opinion,
however, that reversed the magistrate’s finding of disability. The majority opined that the
magistrate’s disability analysis was inconsistent with Stokes and that the magistrate’s finding that
plaintiff satisfied the second prong of the Stokes test was unsupported by the record. The
majority elaborated:
The plaintiff suggests his case is analogous to a case with an injury that
prevents high paying professionals, such as lawyers and doctors, from returning to
their normal work. The plaintiff argues that even though those professionals have
a high skill set, it would be reasonable to conclude, without vocational testimony
or job search efforts, that other jobs suitable to a doctor’s or lawyer’s skill set
would likely pay less than maximum wages.
The plaintiff’s analogy is faulty. For instance, a low back injury might
prevent a surgeon from spending hours standing in an operating room leaning
over a patient. But does it prevent him or her from editing or writing medical
-3-
textbooks, teaching medical students, teaching nursing students, researching, or
working in a sales position for pharmaceutical or medical equipment companies?
Likewise, while we agree Mr. Binkley cannot return to the work he has
performed in the past, we are not at all comfortable relying on “common sense” to
tell us his particular skill set does not afford him an opportunity to earn maximum
wages. Perhaps where the plaintiff lives in Florida is home to a trade school that
needs someone to teach students to read blueprints. Perhaps Mr. Binkley’s
knowledge of tools would allow him to sell tools. Perhaps his long-term
construction skills in building nuclear power plants and oil refineries are uniquely
marketable as the world focuses on energy reduction. We are not saying any of
those jobs exist, or what they would pay. To do so would be speculative.
However, it was equally speculative for the magistrate to conclude those types of
jobs do not exist, or if they do exist, that they would not pay maximum wages.
If Mr. Binkley had presented competent vocational testimony or
conducted a good faith job search, his award of benefits would likely withstand
scrutiny. Because he failed to provide either, we believe his proofs are
insufficient. The magistrate’s award of wage loss benefits is inconsistent with
Stokes and is inconsistent with multiple cases from this Commission. Daniels v
Event Staffing, Inc, 2009 ACO # 121; Childs v Delphi Automotive Corporation,
2009 ACO # 198 and Angel v Al South, LLC, 2009 ACO #184.
We certainly do not want to discourage magistrates from using common
sense when appropriate. However, the disability analysis required in this case
calls for more than can be gleaned from common sense or even a permissible
inference. We believe what the magistrate did was akin to taking judicial notice
of the fact the plaintiff was unemployable at his previous wages. That is not the
type of fact that is subject to judicial notice.
We turn to the guidance offered by the rules of evidence on judicial notice.
MRE 201 outlines the scope of judicial notice. The rule provides a judicially
noticed fact must be one not subject to reasonable dispute, and that the fact is
either generally known within the territorial jurisdiction of the court or capable or
[sic: of] accurate and ready determination by sources whose accuracy are
unquestioned.
Stokes offers us a complicated interpretation of the burden of proof
required by a specific statutory provision in [the] Michigan Worker’s Disability
Compensation Act. We do not believe the complicated disability analysis
required by Stokes falls within what most people would consider general
knowledge or common sense. We do not believe whether Mr. Binkley is
employable is an issue that is not subject to reasonable dispute. We do not
believe Mr. Binkley’s employability is a generally known fact. It is even less
likely that Mr. Binkley’s employability in Florida is generally known to a
magistrate in Michigan.
-4-
The plaintiff’s proofs fall short of establishing disability. Common sense,
inferences or judicial notice cannot be used to find the facts necessary to plug the
holes in the plaintiff’s case. Accordingly, we reverse the award of wage loss
benefits. [Boldface in original.]
The dissenting commissioner noted that the magistrate’s findings of fact were supported
by competent, material and substantial evidence on the whole record where plaintiff testified that
boilermakers are paid the highest wage of any of the skilled trades and where plaintiff presented
documents from the unemployment agency indicating that he did not qualify for benefits because
he was unable to perform suitable full-time work. The commissioner also noted that he was
impressed with the “magistrate’s common sense approach to this [the disability issue], where he
discusses the role of common sense in the analysis process.”
II.
A decision of the WCAC is subject to reversal if it is predicated on erroneously legal
reasoning or the wrong legal framework. Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467,
471; 673 NW2d 95 (2003); Ross v Modern Mirror & Glass Co, 268 Mich App 558, 561; 710
NW2d 59 (2005). This Court reviews the factual findings of the WCAC under the “any
evidence” standard. Ross, 268 Mich App at 561. As long as there is any competent record
evidence supporting the WCAC’s factual findings, this Court must treat the factual findings as
conclusive. Schmaltz, 469 Mich at 471. This Court continues to exercise de novo review of
questions of law resolved in any final order of the WCAC. Mudel v Great Atlantic & Pacific
Tea Co, 462 Mich 691, 697 n 3; 614 NW2d 607 (2000).
III.
The WCAC majority correctly determined that plaintiff failed to carry his evidentiary
burden under Stokes, 481 Mich 266, and, therefore, that he failed to establish a prima facie case
of disability.
In Stokes, our Supreme Court delineated the proofs necessary to establish a prima facie
case of disability under Sington, 467 Mich 144. A claimant may not establish a prima facie case
of disability by merely demonstrating that “his work-related injury prevents him from
performing a previous job.” Stokes, 481 Mich at 281. Rather, the claimant must show a workrelated injury and that the injury resulted in a reduction of the claimant’s wage-earning capacity
in work suitable to his qualifications and training. Id. To establish the requisite reduction in
wage-earning capacity, the claimant must satisfy the following four steps. First, the claimant
must fully disclose his qualifications and training. Id. at 281. Second, the claimant must
establish “what jobs, if any, he is qualified and trained to perform within the same salary range
as his maximum earning capacity at the time of the injury.” Id. at 282 “A claimant sustains his
burden of proof by showing that there are no reasonable employment options available for
avoiding a decline in wages.” Id. Third, the claimant must prove that his work-related injury
“prevents him from performing some or all of the jobs identified as within his qualifications and
training that pay his maximum wages.” Id. at 283. Fourth, the claimant must show that he
cannot obtain any of the jobs he is capable of performing. Id. at 283.
-5-
A claimant who successfully completes the above steps has established a prima facie case
of disability. The burden of production then shifts to the employer to come forward with
evidence to refute the claimant’s showing. Id. at 283-284. “Finally, the claimant, on whom the
burden of persuasion always rests, may then come forward with additional evidence to challenge
the employer’s evidence.” Id. at 284.
Plaintiff challenges the majority’s conclusion that he failed to satisfy step two of the
Stokes test. To satisfy this second step, plaintiff was required to establish what jobs, if any, he is
qualified and trained to perform within the same salary range as his maximum earning capacity
at the time of the injury. 481 Mich at 282. Our Supreme Court offered the following guidance
on how a claimant may satisfy this step of the analysis:
The statute does not demand a transferable-skills analysis and we do not
require one here, but the claimant must provide some reasonable means to assess
employment opportunities to which his qualifications and training might translate.
This examination is limited to jobs within the maximum salary range. There may
be jobs at an appropriate wage that the claimant is qualified and trained to
perform, even if he has never been employed at those particular jobs in the past.
[Sington, 467 Mich at 160.] The claimant is not required to hire an expert or
present a formal report. For example, the claimant’s analysis may simply consist
of a statement of his educational attainments, and skills acquired throughout his
life, work experience, and training; the job listings for which the claimant could
realistically apply given his qualifications and training; and the results of any
efforts to secure employment. The claimant could also consult with a jobplacement agency or career counselor to consider the full range of available
employment options. Again, there are no absolute requirements, and a claimant
may choose whatever method he sees fit to prove an entitlement to workers’
compensation benefits. A claimant sustains his burden of proof by showing that
there are no reasonable employment options available for avoiding a decline in
wages. [Stokes, 481 Mich at 282.]
In the present case, plaintiff testified that he has a ninth grade education, that he served
two years in the military and that, upon his discharge from the military, he became an apprentice
boilermaker. After fifteen years, he earned his journeyman’s card. He worked a short stint as a
millwright after being injured while working as a boilermaker. Plaintiff further testified that his
wages earned as a boilermaker were the highest wages paid in any of the skilled trades. As a
boilermaker, plaintiff earned $28.24 per hour, unless he was working overtime, and then he was
paid $42.36 an hour. He testified that he can no longer perform the job responsibilities of a
boilermaker, or of such lesser paying trades as millwright or carpenter. The magistrate
concluded that plaintiff had satisfied the second step because “it defies common sense that the
plaintiff could find a job earning the same wages he earned as a boilermaker given his set of
skills and current physical condition.” Therefore, according to the magistrate, “[c]ommon sense
in this case suggests that the plaintiff’s sole maximum wage earning capacity is working as a
boilermaker. Therefore, he has satisfied the second element of the Stokes test by showing there
are no reasonable employment options available for avoiding a decline in wages.”
-6-
The WCAC majority rejected the magistrate’s analysis and cautioned that, under Stokes,
a trier of fact may not rely on common sense to establish a fact not otherwise ascertainable by the
record evidence. This conclusion of the majority reflects a proper application of Stokes.
Stokes clearly directed that a person seeking disability benefits “must provide some
reasonable means to assess employment opportunities to which his qualifications and training
might translate.” Stokes, 481 Mich at 282. Although it seems likely that an individual, such as
plaintiff, who has a ninth grade education and has worked close to 40 years as a boilermaker,
will be unable to find another job that pays $28 an hour, the veracity and accuracy of such a
proposition cannot be reasonably assessed without evidence in the record against which to test
the proposition objectively. The examples offered in Stokes suggesting what manner of proofs
might satisfy the second prong clearly reflect that our Supreme Court intended that a claimant
present actual proofs on the question of employment opportunities available to earn the
maximum wage. There is nothing in the language of Stokes that would suggest that indefinite
notions of common sense are sufficient, alone, to satisfy the second step of the disability
analysis.2
Under these circumstances, the WCAC majority correctly recognized that the magistrate
erred in finding that plaintiff sustained his burden of proof with regard to the second step.
Rather, plaintiff failed to sustain his burden of proof. The WCAC majority correctly reversed
the finding of disability made by the magistrate.
IV.
Plaintiff challenges the decision of the WCAC to affirm the magistrate’s denial of
attorney fees. The dissenting commissioner opined that the magistrate appropriately exercised
his discretion to deny the requested award of attorney fees under MCL 418.315(1), in part, for
the reason that defendants had a colorable basis to dispute plaintiff’s entitlement to medical
benefits. The remaining commissioners agreed with the decision of the dissenting commissioner
that the magistrate correctly denied an award of attorney fees. The reason offered by the WCAC
falls within the range of reasonable and principled outcomes, and, therefore, the denial of
attorney fees was valid. See Harvlie v Jack Post Corp, 280 Mich App 439, 446; 760 NW2d 277
(2008).
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
/s/ Patrick M. Murray
2
We are of the opinion that no one should leave “common sense” out of the equation, but,
“common sense” must be supported by objective evidence contained in the lower court record.
Without objective evidence, there exists no cornerstone to test the objectivity of the proposition.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
