Omer v. Steel Techs., Inc.
| Decision Date | 16 April 2020 |
| Docket Number | No. 344310,344310 |
| Citation | 955 N.W.2d 575,332 Mich.App. 120 |
| Parties | Ahmed OMER, Plaintiff-Appellant, v. STEEL TECHNOLOGIES, INC., and New Hampshire Insurance Co., Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
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.
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.
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:
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.2 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.
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.
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...
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