Lofton v. Autozone, Inc.

756 N.W.2d 85 (2008)

Sevelta W. LOFTON, Plaintiff-Appellee,

v.

AUTOZONE, INC., and Employers Insurance Company of Wausau, Defendants-Appellants, and

Second Injury Fund (Dual Employment Provisions), Defendant-Appellee.

Docket No. 136029. COA No. 277845.

Supreme Court of Michigan.

October 1, 2008.

Order

On order of the Court, the application for leave to appeal the February 4, 2008 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE the decision of the Workers' Compensation *86 Appellate Commission mailed April 4, 2007, and we REMAND this case to the Board of Magistrates for reconsideration in light of Stokes v. Chrysler LLC, 481 Mich. 266 , 750 N.W.2d 129 (2008). If it is found that the plaintiff is disabled under MCL 418.301(4), but that the limitation of wage earning capacity is only partial, the magistrate shall compute wage loss benefits under MCL 418.361(1), based upon what the plaintiff remains capable of earning. The magistrate assigned to this case may take additional proofs upon request of either party. We DIRECT the magistrate to issue a decision and file that decision with the Clerk of this Court within 126 days of the date of this order.

We retain jurisdiction.

MICHAEL F. CAVANAGH, J., would deny leave to appeal.

WEAVER, J. (dissenting).

I dissent from the order vacating the decision of the Workers' Compensation Appellate Commission and remanding this case to the Board of Magistrates for reconsideration in light of Stokes v. Chrysler LLC, 481 Mich. 266 , 750 N.W.2d 129 (2008).

Because I dissented from the majority opinion in Stokes v. Chrysler LLC, 481 Mich. at 320 , 750 N.W.2d 129 (Weaver, J., dissenting ), I vote to grant leave to appeal in this case to consider whether a majority of this Court reached the correct decision in Stokes .

MARILYN J. KELLY, J., would grant leave to appeal to reconsider Stokes v. Chrysler LLC, 481 Mich. 266 , 750 N.W.2d 129 (2008).