Opinion
No. 161658
07-21-2021
Ahmed OMER, Plaintiff-Appellee, v. STEEL TECHNOLOGIES, INC., and New Hampshire Insurance Company, Defendants-Appellants.
Alpert & Alpert, Southfield (by Joel L. Alpert ) for plaintiff. Foster, Swift, Collins, & Smith, PC, Lansing (by Michael D. Sanders ) for defendants. Miller, Canfield, Paddock and Stone, PLC (by Paul D. Hudson, Kalamazoo, and Michael C. Simoni, Troy) for the Michigan Manufacturers Association, amicus curiae. Lacey & Jones LLP (by Gerald M. Marcinkoski ) for the Michigan Self–Insurers’ Association, amicus curiae.
Alpert & Alpert, Southfield (by Joel L. Alpert ) for plaintiff.
Foster, Swift, Collins, & Smith, PC, Lansing (by Michael D. Sanders ) for defendants.
Miller, Canfield, Paddock and Stone, PLC (by Paul D. Hudson, Kalamazoo, and Michael C. Simoni, Troy) for the Michigan Manufacturers Association, amicus curiae.
Lacey & Jones LLP (by Gerald M. Marcinkoski ) for the Michigan Self–Insurers’ Association, amicus curiae.
BEFORE THE ENTIRE BENCH
Per Curiam. The defendant-employer, Steel Technologies, Inc., asks this Court to consider whether a medical professional's conclusory declaration of a claimant's total disability, without more, can provide competent, material, and substantial evidence of "disability," as defined by the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. We decline to do so because under the facts of this case, it is unnecessary to reach that issue. We instead vacate Part IV of the Court of Appeals’ opinion discussing the issue, but we affirm its result: the magistrate relied on competent, material, and substantial evidence to find that the plaintiff-claimant, Ahmed Omer, had established a disability and was entitled to wage-loss benefits.
Omer v. Steel Technologies, Inc. , 332 Mich. App. 120, 135-142, 955 N.W.2d 575 (2020).
The WDCA defines the term "disability" as a "limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work-related disease." MCL 418.301(4)(a). Establishing a disability, then, requires more than a medical diagnosis or a physician's testimony that the claimant can no longer perform their existing job duties. See Stokes v. Chrysler LLC , 481 Mich. 266, 281, 750 N.W.2d 129 (2008). Though "there are no absolute requirements, and a claimant may choose whatever method he sees fit to prove an entitlement to workers’ compensation benefits," id. at 282, 750 N.W.2d 129, the statutory definition of "disability"—i.e., the requirement of establishing that there is a "limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training" —explains why claimants typically offer additional evidence about employment opportunities and suitability. And, contrary to the findings of the Michigan Compensation Appellate Commission (MCAC), that is precisely what the claimant did in this case. The claimant offered more than a mere medical diagnosis to support a finding of a compensable disability.
The MCAC has been replaced, in part, by the Workers’ Disability Compensation Appeals Commission. Executive Reorganization Order No. 2019-13.
The claimant suffered a workplace lower-back injury in January 2011. He aggravated the injury at work two months later and did not work from April 4, 2011 until January 2012. After a trial that featured testimony from the claimant, vocational experts, and various doctors, the magistrate ruled in the claimant's favor. He concluded that the injury arose out of and was in the course of employment, that the claimant was totally disabled, and that he was entitled to weekly wage benefits from April 12 through December 29, 2011. The magistrate cited, among other evidence: (1) a statement from the deposition testimony of the claimant's doctor, Dr. Nabil Suliman, asserting that the claimant was unable to perform his work and was "totally disabled," and (2) disability slips from the claimant's chiropractor, Dr. Mohamed Saleh, indicating that the claimant was unable to work. On appeal, the MCAC seized on the magistrate's reliance on Dr. Suliman's testimony and Dr. Saleh's disability slips to reverse the wage-loss benefit award. "[W]here a magistrate's finding of total disability is based upon [a] physician[’s] conclusory declarations of total disability, rather than quantification of limitations, described through physical restrictions, which may lead to wage loss, that finding is unsupported by competent evidence." Omer v. Steel Technologies, Inc. , 2018 Mich. ACO 15, p. 6. But the magistrate's determination was based on more than the conclusory declarations of medical professionals. Indeed, the magistrate's opinion expressly relied on the credible testimonies of the claimant, Dr. Suliman, vocational expert Barbara Feldman, and medical records that spoke to how the claimant's injury prevented him from performing all the jobs within his qualifications and training.
We find the deposition testimony of the claimant's vocational expert particularly significant. The MCAC downplayed the significance of this testimony, noting that Feldman admitted that she did not perform a labor-market survey. But Feldman also testified that the restrictions medical professionals placed on the claimant meant he was capable of performing only sedentary work. Given that restriction, she opined that the claimant would not be capable of returning to a job at which he earned his highest wages, and she "was not able to find a job that pays his maximum pre-injury rate of pay." Indeed, Feldman's testimony traced, step-by-step, the multifactor test required to establish disability that this Court laid out in Stokes . Stokes , 481 Mich. at 281-284, 750 N.W.2d 129. The magistrate deemed this expert's testimony credible, and we won't second-guess that credibility determination. The claimant's own testimony, in which he stated that he did not think he could perform any job, because of the severity of pain, further supported the magistrate's total-disability finding. There is competent, material, and substantial evidence to support the magistrate's findings.
See Omer , 332 Mich. App. at 133, 955 N.W.2d 575 (explaining that the MCAC must consider as conclusive the findings of fact made by a workers’ compensation magistrate as long as those facts are supported by competent, material, and substantial evidence on the whole record).
The Court of Appeals’ speculation about whether a magistrate's disability finding could be based exclusively on medical testimony was not necessary to its holding. Because this case does not present that question, we vacate Part IV of the Court of Appeals’ opinion, though we agree with its ultimate result: the claimant's evidence—which included medical testimony, medical records, and testimony from a vocational expert and the claimant himself—satisfied the substantial-and-competent-evidence requirement and should have been affirmed by the MCAC.
Affirmed in part and vacated in part.
McCormack, C.J., and Zahra, Viviano, Bernstein, Clement, Cavanagh, and Welch, JJ., concurred.