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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
Summary of this case from Omer v. Steel Techs.Opinion
No. 344310
04-16-2020
Ahmed OMER, Plaintiff-Appellant, v. STEEL TECHNOLOGIES, INC., and New Hampshire Insurance Co., Defendants-Appellees
Alpert & Alpert, Southfield (by Joel L. Alpert ) for Ahmed Omer. Foster, Swift, Collins & Smith, PC, Lansing (by Richard C. Kraus and Michael D. Sanders ) for Steel Technologies, Inc., and New Hampshire Insurance Company.
Alpert & Alpert, Southfield (by Joel L. Alpert ) for Ahmed Omer.
Foster, Swift, Collins & Smith, PC, Lansing (by Richard C. Kraus and Michael D. Sanders ) for Steel Technologies, Inc., and New Hampshire Insurance Company.
Before: O'Brien, P.J., and Jansen and Gleicher, JJ.
Per Curiam. What is "competent evidence"? Generally speaking, it is evidence that is relevant and tends to establish a fact at issue. In the workers’ compensation setting, competent evidence need not be admissible under the rules of evidence. Rather, the rules of evidence are followed only "as far as practicable," and "a magistrate may admit and give probative effect to evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." MCL 418.841(6).
Here, the magistrate considered the testimony of Ahmed Omer's treating physician on the question of whether Omer was disabled as a result of a work injury. Crediting that testimony and other record evidence, the magistrate issued a closed award encompassing approximately eight months of work-related disability. The Michigan Compensation Appellate Commission (the MCAC) reversed, holding that the physician's testimony did not constitute competent evidence of disability. Because the MCAC applied an incorrect rule of law, we reverse and remand for entry of an order in Omer's favor.
Our factual summary is drawn solely from the magistrate's factual findings, which specifically referenced and described the testimony and certain medical records. The facts recited are not derived from an independent review of the record.
Omer began working for defendant Steel Technologies, Inc., in 2004, when he was 18 years old. His first job was as a material handler. He progressed to a truck loader, then a crane operator, and in January 2011, he worked as a slitter operator. In that capacity, while "tearing down a set-up," Omer felt pain in his groin area. An examining physician at Concentra Medical Center noted on January 3, 2011, that Omer reported "groin pain" that "began abruptly" and radiated to his scrotum and testicles. Omer's symptoms were exacerbated by activity, pressure, or lifting, and he had no urinary complaints. The physician sent Omer back to work on restricted duty.
Omer returned to Concentra on January 10, 2011, for physical therapy. According to the therapist's note, Omer reported injuring his "lower back/groin area while lifting [a] 30-40 [pound] tool," and that "bending, kneeling, lift/carry" exacerbated his pain. Omer testified that his pain was in his mid-lower back and under his belt. He had not experienced this pain before January 2011, Omer maintained.
On March 10, 2011, Omer again felt pain in his lower back while lifting something at work. He was again sent to Concentra, where the examining physician recorded, in relevant part:
[Patient] reports the pain in his lower back is unchanged. He felt the same pain in his lower back as he had in January. While at work last night, after repeatedly lifting and bending with heavy boxes, he felt sharp pain in his lower back. Patient has been working within the duty restrictions. Patient has not been taking their meds due to not following instructions. Instructions were clarified. The pain is located on midline lower back and lumbosacral region. The pain is described as moderate, sharp and aching. Pain Intensity Level: 6/10. The pain did not radiate. The symptoms are exacerbated by flexion, bending or lifting. [Brackets omitted.]
The examiner's assessment was "lumbar strain." Omer returned to work, again with restrictions (no lifting over 10 pounds, no bending more than four times per hour, and no pushing or pulling over 10 pounds of force), and he was scheduled for physical therapy.
On April 11, 2011, Omer stopped working. He consulted Dr. Abdelkader Fares, whose notes reflect that Omer complained of "[s]evere low back pain, hard to bend on both sides for the last four weeks." Dr. Fares also noted severe tenderness and bilateral spasms. Omer then saw a chiropractor, Dr. Mohamed Saleh. In May 2011, Dr. Saleh filled out a form indicating that Omer was unable to work as of April 11. That form is part of the record; Dr. Saleh did not testify, however, and his office notes were not produced.
In August 2011, Omer consulted his primary care physician, Dr. Nabil Suliman, a specialist in internal medicine. Dr. Suliman testified that he had never treated Omer for lower-back-related problems before 2011. Dr. Suliman reviewed the report of an MRI scan obtained in April 2011, which revealed a "diffuse disk [sic] bulge at level L4-L5" and "a broad-based disk [sic] protrusion without stenosis at L5-S1." These findings were consistent with an incident occurring around the time of the MRI, Dr. Suliman opined, and likely were caused by heavy lifting or bending. He elaborated:
Based on my information like I saw him prior to this reported injury, and at that time he never had any of these symptoms or any of these presentations. So from like history, it seems like it's consistent that probably an injury took place around like that time or earlier that year which really attributed to his complaints of low back pain and leg pain.
* * *
Based on my knowledge of his condition and based on the previous like visits that we had prior to this reported injury, I see that there is a correlation between this injury and between the problems that Mr. Omer has since that
incident. Since basically all his previous office visits that we had never had any reference to any back injuries or lower extremity symptoms, so I feel that it is probably triggered by that incident.
Dr. Suliman referred Omer for physical therapy and pain management. On August 4, 2011, Dr. Suliman signed a medical certificate stating that Omer suffered from "lumbar disc disease, lumbar radiculopathy," was partially disabled, and was restricted to no excessive bending or twisting and no lifting more than 20 pounds. Dr. Suliman testified in accordance with this disability certificate that Omer was "unable to perform his work, and he was totally disabled ...."
Barbara Feldman, a vocational-rehabilitation counselor, gave a deposition on Omer's behalf. She testified to his employment background and vocational capabilities, his wage history, and his wage capabilities with and without restrictions in place. Omer's maximum wage, Feldman testified, was earned as a slitter operator. In the sedentary-work category, Feldman explained, Omer would not be capable of returning to a job at which he earned his highest wages. With a 20-pound weight restriction, Feldman was not able to locate a job that paid Omer's maximum preinjury rate of pay. She expressed that Omer's work injury played a role in his inability to return to some or all the jobs in his qualification range that paid the maximum range. For example, with his restrictions, he could not return to work as a slitter operator, as that job required him to do heavy lifting.
Sedentary work encompasses work with a 10-pound lifting restriction, primarily involving sitting.
Steel Technologies submitted the deposition of Dr. Brian Roth, who performed a defense medical examination of Omer on December 29, 2011, a few days before Omer returned to work. Dr. Roth testified that Omer demonstrated no clinical signs of injury or pain at that time and that the disk disease apparent on the MRI appeared degenerative in nature. His review of Omer's medical records was "nonspecific," Dr. Roth explained, and did not provide "clearcut medical diagnoses." In Dr. Roth's view, Omer could resume full activities without restrictions. Cindy Ballosh, a rehabilitation consultant retained by Steel Technologies, identified a number of jobs that Omer could perform, in her opinion, with light work restrictions.
Omer returned to work in January 2012 and has worked full-time since then in a restricted capacity.
II. THE MAGISTRATE'S OPINION AND THE MCAC RULING
After a brief trial and the filing of a number of depositions and medical records, the magistrate issued a 27-page opinion finding that Omer sustained a work injury on January 3, 2011, arising out of and in the course of his employment and that he was totally disabled and entitled to weekly wage benefits for a closed period from April 12, 2011 through December 29, 2011.
The magistrate found Omer a credible witness. Although the Concentra records did not initially reflect that Omer reported back pain, the magistrate gave credence to the January 10 physical-therapy report referencing his back-pain complaint. The magistrate also credited Omer's testimony that Omer had stopped working on April 11 due to back pain because "[h]e could not do it anymore."
The magistrate found Dr. Suliman credible as well and specifically quoted Dr. Suliman's expressed opinion that a correlation existed between Omer's injury and his "problems ... since that incident." The opinion continued:
Dr. Suliman's credible testimony is supported by the Attending Physician's Statement dated 7/12/2011 prepared by Dr. Saleh which stated 4/11/11 as the date he believes plaintiff was unable to work with subjective symptoms of back pain. Dr. Saleh considered the condition to be due to plaintiff's employment.
Applying the "roadmap" established by the Supreme Court in Stokes v. Chrysler LLC , 481 Mich. 266, 750 N.W.2d 129 (2008), the magistrate found that Omer had established a disability arising from the January 3, 2011 injury during the period of April 12, 2011 until December 29, 2011. In the lengthy paragraph quoted below, the magistrate identified several different factual bases for his conclusion that Omer had proven a compensable disability: the testimonies of Omer, Dr. Suliman, and Barbara Feldman; Omer's Concentra records; and the disability slips signed by Dr. Saleh. Contrary to the MCAC's later ruling, the "substantial evidence" underlying the magistrate's disability finding was not limited to Dr. Suliman's testimony, as the paragraph below reflects:
I find that plaintiff's work-related injury prevented him from performing all of the jobs within his qualifications and training which pay maximum wages. This finding is based on the credible testimony of the plaintiff, the credible testimony of Dr. Suliman, Concentra records, disability slips from Dr. Saleh and the vocational testimony of Barbara Feldman. Plaintiff credibly testified that in the late spring, summer and fall of 2011 before he returned to work, while Dr. Saleh and Dr. Suliman had him on total disability, he did not believe he was able to go back and do any job because he was in too much pain. Plaintiff testified that during the period of time that he was on total disability, he could sit for only 20 to 30 minutes at a time. Dr. Suliman credibly testified that
plaintiff was unable to perform his work and was totally disabled and needed some assistance in some housekeeping work. Dr. Suliman issued a disability certificate stating that plaintiff was totally disabled from 7/1/11 to 8/31/11. This disability slip was dated August 4, 2011. Dr. Suliman testified that the plaintiff has not been able to return to his prior job as a slitter operator at any point during the course of Dr. Suliman's care. Dr. Suliman testified he tried to get plaintiff back to work with some restrictions on February 2, 2012. The restrictions he imposed at that time were no excessive bending or twisting and no lifting more than 20 pounds. Records from Concentra show that when plaintiff was seen on March 10, 2011 he was given restrictions of no lifting over ten pounds, no bending greater than four time[s] per hour and no pushing and/or pulling over ten pounds of force. Barbara Feldman testified that sedentary work is no lifting over ten pounds and primarily sitting, but it could also include standing and walking. Pursuant to the Concentra restrictions, plaintiff would be limited to sedentary work. Barbara Feldman testified that if plaintiff were limited to sedentary work, he would not be capable of returning to a job at which he earned his highest wages. There was no evidence of any other restrictions until Dr. Suliman imposed restrictions of no excessive bending or twisting and no lifting more than 20 pounds. Barbara Feldman testified that with the 20-pound weight restriction, she was not able to find a job that pays plaintiff's maximum pre-injury rate of pay. Disability slips from Dr. Saleh/Family Wellness state that plaintiff was unable to work, low back pain due to work injury, from 4/12/11 to 6/30/11. [Citations omitted.]
The magistrate also deemed Dr. Roth credible and accepted his opinion that Omer's period of disability ended on December 29, 2011.
Defendants appealed the magistrate's decision to the MCAC, contending that the magistrate erred by concluding that Omer proved he was disabled as a result of a work-related incident and that Omer was totally disabled during the identified time period. According to defendants’ brief on appeal, "the Appellate Commission has consistently held that a medical expert may not translate his medical opinion into a vocational outcome by couching his/her ultimate opinion as one of total disability or total inability to work." In support of this proposition, defendants cited two MCAC opinions: Peterson v. Consumers Energy Co. , 2012 Mich. ACO 31, and Lewis v. United Parcel Serv. Inc. , 2013 Mich. ACO 73.
Omer filed a cross-claim arguing that he was entitled to either an open award of benefits or a remand to permit the magistrate to explain why he found Dr. Roth credible. According to the MCAC, "[e]ssentially, both plaintiff and defendants argued that the magistrate did not sufficiently articulate or establish a basis for his findings." Omer v. Steel Technologies, Inc. , 2018 Mich. ACO 15, p. 2.
The MCAC adopted the magistrate's summary of the record and left "undisturbed the magistrate's finding of a January 3, 2011, personal injury arising out of and in the course of plaintiff's employment and the award of all reasonable and necessary medical benefits related to plaintiff's back from January 3, 2011 through December 29, 2011." Id. at 5. The MCAC next considered defendants’ argument that a doctor cannot give competent testimony on the issue of disability. The MCAC adopted this position, reasoning:
The Commission agrees with defendant's reliance upon Peterson v. Consumers Energy Company , 2012 Mich. ACO 31 at 6, as well as its progeny, such as Lewis v. United Parcel Service Incorporated, et al. , 2013 Mich. ACO 73. With respect to proof of disability, the competency of testimony by treating and examining physicians as experts is in the area of identifying injury and/or disease based [on] functional limitations of a physical and/or emotional nature. Their medical training generally does
not afford them any particular expertise with respect to how such limitations translate into wage earning limitations in the workplace. Instead, it is the vocational expert who is typically possessed of the expertise to translate the medically identified limitations into employability (wage earning) outcomes. For that reason, where 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. The conclusory statements in this regard of Dr. Suliman and the chiropractor are thus not competent evidence of disability (wage loss). On that basis alone, the Commission reverses the award of weekly wage loss benefits and would likewise deny plaintiff's cross claim for benefits beyond December 29, 2011. [Omer , 2018 Mich. ACO 15, pp. 5-6.]
The MCAC then offered a second ground for denying Omer's claim for wage-loss benefits:
Were a reviewing court of appellate jurisdiction to disagree with this analysis, there remains the misallocation of the burden of proof by the magistrate in addressing the question of partial versus total disability. The burden of proof to show wage loss that results from a work injury always rests with the plaintiff. Stokes v. Chrysler LLC , 481 Mich. [266], 750 N.W.2nd [sic] 129 (2008). It is the plaintiff who must demonstrate not only the existence of a disability, but its extent. The magistrate finds a lack of evidence as to whether plaintiff could find, secure and perform jobs paying less than his maximum wage as a failure of proofs by the defendant and so awards reduced wage loss benefits. It is true that the record reveals that plaintiff's vocational expert performed no labor market survey that would gauge the existence and availability of such jobs. It is also true that the record reflects the plaintiff did not look for work of any
kind himself. But these deficiencies are failures by the plaintiff to undertake his burden to quantify the claimed work-related limitation in wage earning capacity. To the extent that this lack of evidence
bears upon quantifying the appropriate weekly wage loss benefit to award, they indicate plaintiff has failed to sustain his burden of proving any entitlement to such a benefit. In the face of such failure, no need for the defendant to present rebuttal evidence arises. For this reason as well, we reverse the magistrate to deny any award of weekly wage loss benefits in this case. [Omer , 2018 Mich. ACO 15, p. 6.]
We granted Omer's application for leave to appeal. Omer v. Steel Technologies Inc. , unpublished order of the Court of Appeals, entered December 7, 2018 (Docket No. 344310).
III. STANDARDS OF REVIEW
The standards of review applicable in this case are multilayered. We begin at ground level with the scope of administrative review by the MCAC and then address the contours of our judicial review.
The MCAC reviews "the magistrate's findings of fact under the ‘substantial evidence’ standard...." Mudel v. Great Atlantic & Pacific Tea Co. , 462 Mich. 691, 698, 614 N.W.2d 607 (2000). Substantial evidence is "such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion." MCL 418.861a(3). 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." Id. ; see also Findley v. Daimlerchrysler Corp. , 490 Mich. 928, 928, 805 N.W.2d 833 (2011).
The MCAC has limited fact-finding power. It may substitute its own factual findings for those of the magistrate when a "qualitative and quantitative analysis" of the record yields a different result. MCL 418.861a(13) ; see also Mudel , 462 Mich. at 699-700, 614 N.W.2d 607. However, the MCAC's factual review of the magistrate's opinion is not de novo. Rather, it "involves reviewing the whole record, analyzing all the evidence presented, and determining whether the magistrate's decision is supported by competent, material, and substantial evidence." Mudel , 462 Mich. at 699, 614 N.W.2d 607. In other words, the MCAC must begin by considering the "whole record" to determine whether the evidence considered by the magistrate meets the legislative standard of "competent, material, and substantial evidence." If it does, further review exceeds the MCAC's authority. The MCAC is not empowered to " ‘set aside findings merely because alternative findings also could have been supported by substantial evidence on the record.’ " Agueros v. Bridgewater Interiors LLC , 2020 Mich. ACO 4, p. 2, quoting In re Payne, 444 Mich. 679, 692, 514 N.W.2d 121 (1994).
This Court must treat the MCAC's factual findings as conclusive if there is any competent record evidence supporting them. Mudel , 462 Mich. at 701, 614 N.W.2d 607. But we are empowered to review de novo questions of law embedded within a final order. MCL 418.861a(14) ; Stokes , 481 Mich. at 274, 750 N.W.2d 129. "[A] decision of the [MCAC] is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework." DiBenedetto v. West Shore Hosp. , 461 Mich. 394, 401-402, 605 N.W.2d 300 (2000). And whether a statute permits or precludes the admission of evidence is a legal question subject to de novo review. People v. Buie , 298 Mich. App. 50, 71, 825 N.W.2d 361 (2012).
This case first presents two evidentiary questions: whether the testimony of a treating physician is competent evidence of disability in a workers’ compensation case, and whether the evidence in this case satisfied the competent-evidence standard. IV. A TREATING PHYSICIAN'S COMPETENCY TO TESTIFY REGARDING DISABILITY
The MCAC made two "competency" rulings. First, the MCAC expressed that the "competency" of treating physicians "is in the area of identifying injury and/or disease based [on] functional limitations of a physical and/or emotional nature." The MCAC continued: "Their medical training generally does not afford them any particular expertise with respect to how such limitations translate into wage earning limitations in the workplace. Instead, it is the vocational expert who is typically possessed of the expertise to translate the medically identified limitations into employability (wage earning) outcomes." Based on the MCAC's determination that a treating physician is not "competent" to testify regarding disability, the MCAC held that "where 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."
This portion of the MCAC's competency ruling conflates two different legal analyses: evidentiary competence and witness competence. Whether the "whole record" contains "competent evidence" of disability is a different question than whether an individual physician is competent to testify regarding disability. We begin with the latter question.
When Dr. Suliman was deposed, defendants did not object to his qualification to testify as an expert witness regarding disability. Without objection, Dr. Suliman engaged in the following colloquy with Omer's counsel:
Q. And what was your thinking as of the summer of 2011 as to his physical abilities?
A. That he is unable to perform his work, and he was totally disabled, and ... like he needed some assistance in some housekeeping work.
Defendant's trial brief, filed five months after Dr. Suliman's deposition, asserted that Dr. Suliman was not qualified to "translate an expert medical opinion into a vocational outcome" "by couching his/her ultimate opinion as one of total disability or total inability to work." Dr. Suliman "failed to delineate" Omer's "specific physical capabilities," defendants urged, rendering his views incompetent.
Whether the preservation requirements applicable in circuit court actions apply in workers’ compensation matters is an open question. "Generally, an issue is not properly preserved if it is not raised before, addressed, or decided by the circuit court or administrative tribunal." AFSCME Council 25 v. Faust Pub. Library , 311 Mich. App. 449, 462, 875 N.W.2d 254 (2015) (quotation marks and citation omitted). Had defense counsel objected to Dr. Suliman's qualifications to render disability-related opinions, Omer's counsel would have been afforded an opportunity to lay a foundation in that regard. But assuming without deciding that the objection was preserved by filing the trial brief, we find no legal merit to the MCAC's determination that treating physicians "generally" may not provide competent testimony regarding whether a patient's condition results in a compensable disability.
The rules of evidence, which the magistrate must follow "as far as practicable," offer several helpful guideposts. MRE 601 sets forth the general rule that "[u]nless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules." Dr. Suliman was certainly "competent" to testify under this standard. Other rules address the testimony of expert witnesses. MRE 702 provides that if a court determines that expert testimony will be helpful,
a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
MRE 704 states, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Here, one of the "ultimate issue[s] to be decided by the trier of fact" was whether Omer qualified as disabled.
We glean from these precepts that Dr. Suliman was a "competent" witness as that term is used in the rules of evidence. As a board-certified specialist in internal medicine, Dr. Suliman was presumptively qualified to offer opinion testimony predicated on "knowledge, skill, experience, training, or education." And if qualified as an expert, MRE 704 permitted Dr. Suliman to opine regarding Omer's disability.
The MCAC ruled that "treating and examining physicians" "generally" lack "any particular expertise" regarding how a patient's "functional limitations" "translate into wage earning limitations in the workplace." We find no legal support for that proposition in the rules of evidence, the Worker's Disability Compensation Act, MCL 418.101 et seq. , or the caselaw. It is certainly true that a particular physician may be unqualified to testify in a particular case regarding a particular disability. For example, an orthopedic surgeon would likely be unqualified to testify regarding the nature, extent, and disabling characteristics of a cardiac arrythmia. But we are aware of no legal or common-sense reason—and defendants have identified none—that a board-certified internist is disqualified as a matter of law from testifying that a patient's severe and lingering back pain disables the patient from lifting more than 20 pounds. Dr. Suliman testified that he personally examined Omer, identified disk abnormalities on Omer's MRI scans, and diagnosed Omer with lumbar disk disease and radiculopathy. These underlying facts supplied "sufficient facts or data" for Dr. Suliman to offer a disability opinion. The weight afforded that opinion was for the magistrate to determine.
According to the American College of Physicians, specialists in internal medicine
are equipped to handle the broad and comprehensive spectrum of illnesses that affect adults, and are recognized as experts in diagnosis, in treatment of chronic illness, and in health promotion and disease prevention—they are not limited to one type of medical problem or organ system. General internists are equipped to deal with whatever problem a patient brings—no matter how common or rare, or how simple or complex. They are specially trained to solve puzzling diagnostic problems and can handle severe chronic illnesses and situations where several different illnesses may strike at the same time. [American College of Physicians, About Internal Medicine < https://www.acponline.org/about-acp/about-internal-medicine> (accessed March 9, 2020) [http://perma.cc/JR75-EUBU].]
Furthermore, treating physicians commonly provide testimony regarding disability in workers’ compensation matters. Under MCL 418.841(6), a magistrate may admit and rely on "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." Historically, the opinion of a treating physician regarding disability—and even disability specifically caused by back pain—has fallen within that realm. For example, the workers’ compensation plaintiff in Woods v. Sears, Roebuck & Co. , 135 Mich. App. 500, 503, 353 N.W.2d 894 (1984), claimed disability caused by persistent back pain. The magistrate issued a closed award, and the MCAC ruled that the plaintiff was entitled to an open award. Id. The defendant appealed in this Court, contending that the evidence did not establish that the plaintiff suffered a permanent disability. Id. We found "ample evidence to support the appeal board's finding," including the testimony of one of the plaintiff's "treating physicians." Id. at 504, 353 N.W.2d 894. And our Supreme Court did not express any reason to discredit the disability-related testimony of a claimant's treating physicians in Walker v. Loselle Constr. Co. , 305 Mich. 121, 9 N.W.2d 29 (1943). To the contrary, the Supreme Court's opinion in that case indicates that the treating physicians’ opinions were improperly disregarded by the deputy commissioner. Id. at 126-129, 9 N.W.2d 29.
The MCAC has in other cases stated "with specificity" reasons for favoring the testimony of a claimant's treating physician. See Aaron v. Mich. Boiler & Engineering , 185 Mich. App. 687, 697, 462 N.W.2d 821 (1990).
Defendants in this case have not identified a single case holding, as a matter of law, that a treating physician cannot provide competent evidence (or a competent opinion) regarding a claimant's disability. We are unable to locate any rule of evidence, or any logical or legal principle "commonly relied upon by reasonably prudent persons," that might support the MCAC's proposed rule. Nor did the MCAC identify any. Indeed, the MCAC's reliance on this purported rule is contradicted by its rulings in other cases that a magistrate is permitted, although not required, to give greater weight to the testimony of treating physicians. Parker v. Chrysler Corp. , 1997 Mich. ACO 57. In Parker , 1997 ACO 57, p. 4, the MCAC declared: "[I]t is well within the magistrate's authority to accept the most persuasive medical testimony .... Although magistrates often place greater weight on the testimony of treating physicians, they are not compelled to do so." And in Isaac v. Masco Corp. , 2004 Mich. ACO 81, p. 4, the MCAC wrote:
The treating physicians in Parker testified that the claimant was not disabled due to a psychiatric condition and was able to return to work without restrictions.
The magistrate's choice of which medical expert opinion or opinions to adopt is within his or her discretion and we defer to that choice, if it is reasonable. The magistrate need not adopt expert opinions in their entirety but may give differing weight to different portions of testimony. And, although a magistrate may give preference to a treating expert's opinion, she need not do so. [Citations omitted.]
This Court has also weighed in on the subject, albeit somewhat indirectly. In Berger v. Gen. Motors Corp. , 159 Mich. App. 171, 175, 406 N.W.2d 264 (1987), the treating physician answered affirmatively when asked whether the claimant's disability was " ‘caused by his work for General Motors or any other employer[.]’ " The magistrate awarded benefits, and the MCAC reversed, indicating that only the plaintiff's testimony supported his disability claim as the physician's testimony "was minimal to say the least." Id. at 176, 406 N.W.2d 264. We noted that no objection had been raised to the question posed to the claimant's treating physician and that the MCAC never found that the physician's "evaluations or opinions, however cursory, were unworthy of belief." Id. at 177, 406 N.W.2d 264. Rather, we held that "[a]s the [MCAC] never rejected [the physician's] evidence, at least for a proper reason, we are inclined to regard it as undisputed and controlling." Id. Berger was decided before 1990, and therefore we are not bound by its holding. MCR 7.215(J)(1). Nevertheless, we agree with its reasoning. "Minimal" testimony by a treating physician may suffice as "competent, material, and substantial evidence" of disability.
Many other courts have also concluded that a treating physician may competently offer an opinion regarding his or her patient's work-related disability. See Plummer v. Apfel , 186 F.3d 422, 429 (C.A. 3, 1999) ("Treating physicians’ reports should be accorded great weight, especially ‘when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.’ ") (citation omitted); Lewis v. Callahan , 125 F.3d 1436, 1440 (C.A. 11, 1997) ("[T]he testimony of a treating physician must be given substantial or considerable weight unless ‘good cause’ is shown to the contrary."); Shivers v. Carnaggio , 223 Md. 585, 588, 165 A.2d 898 (1960) ("We think the sound view is that a physician who has, in addition to his medical knowledge, familiarity with and understanding of the activities and occupation of his patient, may express an opinion as to the extent to which the anatomical disability will cause personal or economic disability. Whether in a particular case the physician has such extra-medical knowledge is primarily for the trial judge to decide in the exercise of a sound discretion."); Spalding v. Dep't of Labor & Indus. , 29 Wash. 2d 115, 128-129, 186 P.2d 76 (1947) ("[A]n attending physician ... who has attended a patient for a considerable period of time for the purpose of treatment, and who has treated the patient, is better qualified to give an opinion as to the patient's disability than a doctor who has seen and examined the patient once."). We hold that a general, per se rule deeming "incompetent" the opinion testimony of treating physicians regarding disability lacks any legal basis and contravenes MCL 418.841(6).
We turn to the second issue embedded in the MCAC's ruling: evidentiary competence. Neither the Worker's Disability Compensation Act nor the rules of evidence defines the term "competent evidence." Black's Law Dictionary (6th ed.) defined the term as: "That which the very nature of the thing to be proven requires, as, the production of a writing where its contents are the subject of inquiry." The Supreme Court cited this definition approvingly in Goff v. Bil-Mar Foods, Inc. , 454 Mich. 507, 514 n. 5, 563 N.W.2d 214 (1997), overruled on other grounds by Mudel , 462 Mich. at 697, 614 N.W.2d 607. The Supreme Court added in Goff that "The New World Dictionary, Second College Edition (1974), similarly defines ‘competent’ as ‘well qualified; capable; fit ... sufficient; adequate.’ " Goff , 454 Mich. at 514 n. 5, 563 N.W.2d 214.
The MCAC grossly misapplied the "substantial evidence" standard in holding that Omer failed to present competent evidence of disability. Omer's evidence was not limited to the testimony of Suliman and the disability slip signed by Dr. Saleh. Omer himself testified regarding his disability, and that testimony, in combination with the medical evidence and the testimony of Barbara Feldman, fully satisfied the "substantial" and "competent" evidence requirements.
"The [MCAC] must consider the magistrate's findings of fact conclusive if the findings are supported by competent, material, and substantial evidence on the whole record." Blanzy v. Brigadier Gen. Contractors, Inc. , 240 Mich. App. 632, 637, 613 N.W.2d 391 (2000). To satisfy that standard, the evidence must be "more than a scintilla, but it may be less than a preponderance." Id. "Expert opinion testimony is ‘substantial’ if offered by a qualified expert who has a rational basis for his views, whether or not other experts disagree. To hold otherwise would thus neutralize all expert testimony in cases of conflict and the party with the burden of proof would automatically lose." Aaron v. Mich. Boiler & Engineering , 185 Mich. App. 687, 698, 462 N.W.2d 821 (1990) (quotation marks and citation omitted).
The MCAC ruled that Omer failed to present competent evidence in support of his disability claim because "[t]he conclusory statements ... of Dr. Suliman and the chiropractor are ... not competent evidence of disability (wage loss)." In so ruling, the MCAC failed to consider the "whole record," which included the testimonies of Omer and Feldman, as well as medical records. There is no magic formula for determining whether the evidence found in the "whole record" satisfies MCL 418.861a(3). Our Supreme Court has held that the "testimony of plaintiff and his wife, without more , and even though arguably disputed by certain medical witnesses, is sufficient to support" a finding of disability. Sanford v. Ryerson & Haynes, Inc. , 396 Mich. 630, 637, 242 N.W.2d 393 (1976) (emphasis added). More recently, the Supreme Court highlighted that to prove disability a claimant need not even hire an expert—"[T]here are no absolute requirements, and a claimant may choose whatever method he sees fit to prove an entitlement to workers’ compensation benefits." Stokes , 481 Mich. at 282, 750 N.W.2d 129.
The magistrate's lengthy and detailed disability ruling cited not only the testimony of Dr. Suliman and the disability slips signed by Dr. Saleh, but also Omer's "credible" testimony that "he did not believe he was able to go back and do any job because he was in too much pain" and that "he could sit for only 20 to 30 minutes at a time." The magistrate also relied on Dr. Suliman's August 4, 2011 disability slip restricting Omer from excessive bending or twisting and lifting more than 20 pounds, as well as Feldman's testimony and the "Concentra restrictions," which demonstrated that Omer "would be limited to sedentary work" and that "he would not be capable of returning to a job at which he earned his highest wages." The magistrate added, "Barbara Feldman testified that with the 20-pound weight restriction, she was not able to find a job that pays plaintiff's maximum pre-injury rate of pay."
The MCAC asserted that the magistrate's finding of total disability was premised on "[a] physician[’s] conclusory declarations of total disability, rather than quantification of limitations, described through physical restrictions...." The record evidence contradicts this contention, as both Dr. Suliman and the Concentra physician placed specific limitations on Omer's activities.
In sum, the MCAC erred as a matter of law in determining that the evidence underlying the magistrate's decision was incompetent. MCL 418.861a(3) compelled the magistrate to consider the "whole record," defined in MCL 418.861a(4) as "the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination." If the magistrate's findings are supported by competent, material, and substantial evidence on the whole record, the MCAC must view them as conclusive. Findley , 490 Mich. at 928, 805 N.W.2d 833. Our Supreme Court has explained that "the [MCAC] must ... give deference to the magistrate's factual determinations, and may no longer engage in de novo fact finding...." Id. Contrary to the MCAC's conclusion, the record amply supports, with competent evidence, a finding of total disability for a closed period.
V. ALLOCATION OF THE BURDEN OF PROOF
The MCAC held that if this Court rejected its competency analysis, it would nevertheless hold that Omer failed to sustain his burden of proving entitlement to total disability benefits. According to the MCAC, the magistrate "misallocat[ed]" the burden of proof by finding a "lack of evidence as to whether plaintiff could find, secure and perform jobs paying less than his maximum wage as a failure of proofs by the defendant and so awards unreduced wage loss benefits." The "deficiencies," the MCAC declared, are attributable to Omer.
The magistrate found that Omer proved that "his work-related injury prevented him from performing some or all of the jobs within his qualifications and training which pay maximum wages" for the period from April 12, 2011 through December 29, 2011. The magistrate stated that he based this finding on various sources, including Omer's testimony that "he did not believe he was able to go back and do any job because he was in too much pain" and Dr. Suliman's testimony that Omer was "unable to perform his work and was totally disabled and needed some assistance in some housekeeping work." The magistrate recounted that with the restrictions placed by Dr. Suliman and Concentra, Feldman testified that Omer would be limited to sedentary work and "would not be capable of returning to a job at which he earned his highest wages." With the 20-pound weight restriction, Feldman explained (and the magistrate accepted as fact) that "she was not able to find a job that pays plaintiff's maximum pre-injury rate of pay."
Stokes instructs that to satisfy the disability standards in MCL 418.301(4), a claimant must offer certain proofs, including a showing 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." Stokes , 481 Mich. at 283, 750 N.W.2d 129. Only if the claimant is capable of "performing some or all of the jobs identified as within his qualifications and training that pay his maximum wages" must the claimant show that he cannot obtain these jobs. Id.
Based on the testimony recapitulated in this opinion, substantial evidence supported the magistrate's finding that Omer established a disability and was entitled to wage-loss benefits. As set forth earlier, 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. MCL 418.861a(3) ; see also Findley , 490 Mich. at 928, 805 N.W.2d 833. Competent, material, and substantial evidence supported the magistrate's finding. The MCAC misapprehended and grossly misapplied the substantial-evidence standard in holding otherwise. We reverse and remand for entry of an order in Omer's favor. We do not retain jurisdiction.
Jansen and Gleicher, JJ., concurred.
O'Brien, P.J. (concurring)
To be entitled to compensation under the Worker's Disability Compensation Act, MCL 418.101 et seq. , a claimant must (1) establish a prima facie case of "disability" using the factors from Stokes v. Chrysler LLC , 481 Mich. 266, 281-283, 750 N.W.2d 129 (2008), and (2) prove a wage loss, see id. at 275 n. 2, 750 N.W.2d 129. Once the claimant establishes that he or she is entitled to compensation, the amount of that compensation depends on whether the claimant establishes "total disability" or "partial disability."
The majority reads the ruling of the Michigan Compensation Appellate Commission (the MCAC) as deciding that plaintiff, Ahmed Omer, failed to establish a prima facie case of disability, whereas I read the MCAC's ruling as deciding that Omer failed to establish "total disability." While I part ways with the majority on what the MCAC ruled, I nevertheless agree with the majority's ultimate conclusion that the MCAC's ruling should be reversed.
I. STATUTORY FRAMEWORK
To illustrate the difference between "disability" and "total disability" under the Worker's Disability Compensation Act, it is helpful to walk through the act's statutory framework. Under MCL 418.301(1), "An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act." But proving a work-related injury is not, by itself, enough to receive compensation under the act; "that injury must result in a reduction of the claimant's wage-earning capacity in work suitable to his qualifications and training." Stokes , 481 Mich. at 281, 750 N.W.2d 129. If this is established, the claimant has established a "disability" under the act. MCL 418.301(4)(a) states, in part, " ‘Disability’ means 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) goes on to explain, "A limitation of wage earning capacity occurs only if a personal injury covered under this act results in the employee's being unable to perform all jobs paying the maximum wages in work suitable to that employee's qualifications and training, which includes work that may be performed using the employee's transferable work skills." This is where the test from Stokes becomes applicable. Stokes provides a four-part test for establishing disability:
First, the injured claimant must disclose his qualifications and training....
Second, the claimant must then prove 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....
* * *
Third, the claimant must show 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.
Fourth, if the claimant is capable of performing any of the jobs identified, the claimant must show that he cannot obtain any of these jobs. [ Stokes , 481 Mich. at 281-283, 750 N.W.2d 129 (citation
omitted).][ ]
This four-part test was incorporated into MCL 418.301(5).
Stokes states, "Upon the completion of these four steps, the claimant establishes a prima facie case of disability." Id. at 283, 750 N.W.2d 129.
The majority focuses on whether the testimony of a medical doctor—here, Dr. Nabil Suliman—can be used to establish a prima facie case of disability. I agree with the majority that a medical doctor's testimony can be used to establish disability, and I further agree that the evidence Omer presented established a disability. But establishing a disability does not, without more, entitle a claimant to compensation. "Once a plaintiff makes a prima facie showing of disability, the plaintiff must also prove a wage loss." Id. at 275 n. 2, 750 N.W.2d 129. MCL 418.301(4)(a) states, "The establishment of disability does not create a presumption of wage loss." Defendants do not argue that Omer failed to establish wage loss, so I presume that defendants do not contest that it was established.
Once a claimant establishes a prima facie case of disability, a defendant can rebut that showing. See Stokes , 481 Mich. at 283-284, 750 N.W.2d 129 ; MCL 418.301(6). Defendants here did not rebut Omer's evidence, so Omer's establishing a prima facie case of disability established disability.
This still does not end the inquiry; there remains the question of what compensation Omer is entitled to receive. This, in turn, depends on whether the claimant's disability is total or partial. See Cain v. Waste Mgt., Inc. , 465 Mich. 509, 511, 638 N.W.2d 98 (2002) (explaining that once a disabled claimant establishes entitlement to compensation under the act, "one must then determine if the disability is total or partial"). MCL 418.301(4)(a) states:
If the claimant establishes "total disability," he or she is entitled to "weekly compensation equal to 80% of [his or her] after-tax average weekly wage...." MCL 418.301(7). If the claimant establishes "partial disability," he or she is entitled to "weekly compensation equal to 80% of the difference between [his or her] after-tax average weekly wage before the personal injury and [his or her] wage earning capacity after the personal injury...." MCL 418.301(8).
A disability is total if the employee is unable to earn in any job paying maximum wages in work suitable to the employee's qualifications and training. A disability is partial if the employee retains a wage earning capacity at a pay level less than his or her maximum wages in work suitable to his or her qualifications and training.
"Total disability arises ... when an employee proves that he is unable to perform all work suitable to his qualifications and training as a result of his injury." Haske v. Transp. Leasing, Inc., Indiana , 455 Mich. 628, 655, 566 N.W.2d 896 (1997), overruled on other grounds by Sington v. Chrysler Corp. , 467 Mich. 144, 172, 648 N.W.2d 624 (2002) ; see also Irvan v. Borman's Inc. , 412 Mich. 496, 503, 315 N.W.2d 521 (1982) (explaining that a totally disabled claimant would have "no earning capacity").
Sington overruled "the Haske definition of disability," Sington , 467 Mich. at 146, 648 N.W.2d 624, but a fair reading of Sington makes clear that it did not overrule Haske ’s single line about "total disability."
I read the MCAC's decision as ruling that Omer's evidence could not establish "total disability." It stated, "[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." I think the question we must address on appeal is whether Omer established "total disability," not whether Omer established "disability."
This distinction is important because some of the evidence that established Omer's prima facie case of disability does not establish that he was totally disabled. To prove that he was totally disabled, Omer had to establish that he was unable to perform any job for which he was qualified because of his work-related injury. Haske , 455 Mich. at 655, 566 N.W.2d 896. But to prove disability, Omer only needed to establish that he had a work-related injury that resulted "in a reduction of [his] wage-earning capacity in work suitable to his qualifications and training." Stokes , 481 Mich. at 281, 750 N.W.2d 129. Omer's vocational expert, Barbara Feldman, only testified about disability; she testified that, given Omer's restrictions, "he would not be capable of returning to a job at which he earned his highest wage" and that "she was not able to find a job that pays plaintiff's maximum pre-injury rate of pay." Her testimony would not prove that Omer was totally disabled and is therefore not relevant to the issue that I believe we should address on appeal.
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II. EVIDENCE OF "TOTAL DISABILITY"
To be exact, the question we should address on appeal is whether the magistrate's decision that Omer was totally disabled was supported by substantial, material, and competent evidence. The only evidence of total disability was (1) Dr. Suliman's testimony that Omer was "totally disabled" and (2) Omer's testimony that "he did not believe he was able to go back and do any job because he was in too much pain" and "he could sit for only 20 to 30 minutes at a time."
The MCAC ruled that Dr. Suliman's testimony that Omer was "totally disabled" was not "competent" evidence to support a finding of total disability. I do not disagree with that ruling.
I do not read the MCAC as ruling that a doctor can never testify about whether a claimant is totally disabled. As the MCAC recognized, a doctor who treats a claimant will be able to discuss a claimant's restrictions or physical limitations as a result of an injury. It follows that if a claimant's injury is so severe that the restrictions are that he or she cannot return to any employment, then the doctor's testimony could establish total disability.
But Dr. Suliman did not testify that Omer's injury was so severe that he could not work. Rather, Dr. Suliman testified that Omer was restricted to no excessive bending or twisting and no lifting more than 20 pounds. Barbara Feldman, Omer's vocational expert, testified that this allowed Omer to perform sedentary work. Yet Dr. Suliman described Omer as "totally disabled."
Assuming that Dr. Suliman used "totally disabled" to be synonymous with "total disability," it is unclear how Dr. Suliman could make that assessment. "Total disability" is when a claimant "is unable to perform all work suitable to his qualifications and training as a result of his injury." Haske , 455 Mich. at 655, 566 N.W.2d 896. For a doctor to testify that a claimant with restrictions other than being unable to return to any employment is "totally disabled," he or she would have to know the claimant's qualifications and training as well as all work that the claimant could perform with his or her qualifications and training. Otherwise, the doctor could not know whether the claimant's restrictions or physical limitations prevented the claimant from "perform[ing] all work suitable to his qualifications and training ...." Id. That is, the doctor would not have sufficient knowledge to offer an opinion on whether the claimant was "totally disabled." See MRE 702.
It was never established that Dr. Suliman knew Omer's qualifications and training or that he knew all work that Omer could perform with his qualifications and training. Without that knowledge, Dr. Suliman's testimony that Omer was "totally disabled" had no probative value for establishing total disability; it was a conclusory statement that did not tend to prove that Omer was "unable to perform all work suitable to his qualifications and training as a result of his injury." Haske , 455 Mich. at 655, 566 N.W.2d 896. I would therefore conclude that the MCAC was correct in deciding that Dr. Suliman's testimony did not support a finding of total disability.
But Dr. Suliman's testimony was not the only evidence establishing total disability. Omer testified that he did not think he could do any job because he was in too much pain. This testimony supports a finding of total disability. Of course, a magistrate can choose to not credit a claimant's testimony that he or she could not do any work because of a work-related injury, but the magistrate here chose to credit Omer's testimony. Given the substantial-evidence test's low bar, Omer's testimony was sufficient to support the magistrate's finding of total disability. I therefore agree with the majority's conclusion that the MCAC misapplied the substantial-evidence test and that we must reverse. III. THE MCAC'S ALTERNATIVE BASIS
As for the alternative ground on which the MCAC reversed the magistrate's opinion, I think that was error as well. The MCAC stated:
It is the plaintiff who must demonstrate not only the existence of a disability, but its extent. The magistrate finds a lack of evidence as to whether plaintiff could find, secure and perform jobs paying less than his maximum wage as a failure of proofs by the defendant and so awards unreduced wage loss benefits. It is true that the record reveals that plaintiff's vocational expert performed no labor market survey that would gauge the existence and availability of such jobs. It is also true that the record reflects the plaintiff did not look for work of any kind himself. But these deficiencies are failures by the plaintiff to undertake his burden to quantify the claimed work-related limitation in wage earning capacity. To the extent that this lack of evidence bears upon quantifying the appropriate weekly wage loss benefit to award, they indicate plaintiff has failed to sustain his burden of proving any entitlement to such a benefit.
The MCAC appears to have taken issue with the following portion of the magistrate's opinion:
Partial Wage Earning Capacity
There was no testimony from either of the vocational experts that plaintiff was capable of performing any jobs within the Concentra restrictions issued on March 10, 2011 which were the only restrictions applicable during the relevant time period.
I understand the MCAC's concern. " MCL 418.851 places the burden of proof on the claimant to demonstrate his entitlement to compensation and benefits by a preponderance of the evidence." Stokes , 481 Mich. at 285, 750 N.W.2d 129. To establish the amount of compensation to which he was entitled, Omer had to first establish by a preponderance of the evidence that he was either totally disabled or partially disabled. Total disability is when a claimant is unable to perform any job for which he or she is qualified because of a work-related injury, and partial disability is when a claimant establishes disability less than "total." They are mutually exclusive; to prove total disability requires a claimant to disprove partial disability. I read the MCAC's opinion as being concerned that the magistrate found that no evidence of partial disability constituted evidence of total disability, which would be incorrect. No evidence of partial disability is not evidence of total disability; it is a failure of the claimant to carry his or her burden of proof.
But there was evidence of total disability: Omer's testimony. His testimony that he was unable to do any work, which the magistrate credited, was sufficient to establish that he was totally disabled. Thus, the MCAC's alternative basis for reversing the magistrate was also incorrect.
For these reasons, I concur with the majority's decision to reverse the MCAC and reinstate the magistrate's decision.