Omian v. Chrysler Grp. LLC.

• Decision Date: 26 February 2015
• Docket Number: Docket No. 310743.
• Parties: OMIAN v. CHRYSLER GROUP LLC.
• Court: Court of Appeal of Michigan — District of US

309 Mich.App. 297

869 N.W.2d 625

OMIAN

v.CHRYSLER GROUP LLC.

Docket No. 310743.

Court of Appeals of Michigan.

Submitted July 16, 2014, at Lansing.

Decided Feb. 26, 2015, at 9:05 a.m.

Mancini, Schreuder, Kline, PC, Warren (by Roger R. Kline ), and Daryl Royal for Monasser Omian.

Lacey & Jones, LLP, Farmington Hills (by Carson J. Tucker ), for Chrysler Group LLC.

Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ.

Opinion

WILDER, J.

Following remand by the Michigan Supreme Court, defendant, Chrysler Group LLC, appeals as on leave granted the order of the Michigan Compensation Appellate Commission (MCAC),¹ affirming the magistrate's denial of defendant's petition to stop the benefits of plaintiff, Monasser Omian, under the Worker'sDisability Compensation Act (WDCA), MCL 418.101 et seq. Omian v. Chrysler Group LLC, 495 Mich. 859, 836 N.W.2d 689 (2013). We reverse and remand.

I

Plaintiff qualified for workers' compensation benefits because of a back injury incurred while working for defendant on November 9, 2000. Defendant subsequently filed a petition to stop plaintiff's benefits, contending that he had been incarcerated for activities that demonstrated his physical and mental abilities to earn money, contrary to his claim of an ongoing disability. Plaintiff countered that his involvement in a criminal enterprise did not prove he was capable of performing physical labor commensurate with his previous ability or employment.

The parties presented conflicting evidence regarding plaintiff's ability to work. Dr. Philip J. Mayer examined plaintiff once and found symptom embellishment. Mayer opined that it was “improbable that [plaintiff] would have not shown any improvement over the past 6–8 years.” Mayer asserted he “would not recommend restrictions of activity” and that “[r]est is not an appropriate treatment for back pain.” On the other hand, plaintiff's treating physician, Dr. D. Bradford Barker, opined that, as a result of his back injury, plaintiff could not work on the auto line, as he had done before, or do completely sedentary work because prolonged sitting causes pain. Plaintiff's psychiatrist, Dr. Mufid Al–Najjar, opined that plaintiff's major depressive disorder

contributes to his inability to tolerate pain and results in feelings of frustration and hopelessness. Further, a certified rehabilitation counselor, James Fuller, opined that plaintiff had limited English language capability and no computer skills, making him only eligible for sedentary, unskilled employment that was not commensurate with his former earning capacity.

The magistrate admitted into evidence Exhibit C, an order of judgment reflecting plaintiff's conviction by guilty plea to Counts 1 and 4 of a federal indictment. Count 1 of the indictment alleged that plaintiff was involved in a conspiracy to commit federal crimes, whereas Count 4 alleged that plaintiff had aided and abetted the structuring of financial transactions to evade reporting requirements. Pursuant to a plea agreement, all remaining counts in the indictment were dismissed, and plaintiff was sentenced to 30 months' imprisonment. The magistrate also admitted into evidence Exhibit E, a copy of the May 11, 2006 transcript of plaintiff's arraignment and guilty-plea hearing. In pleading guilty to the felony charges, plaintiff admitted having established bank accounts in his name from which he was sending money to Yemen and Switzerland. Plaintiff also admitted that he had allowed approximately 50 deposits of less than $10,000 into his accounts by other individuals and that the dollar amount of these transactions was chosen with the intent to avoid Internal Revenue Service (IRS) reporting requirements. Plaintiff testified that, despite the sizeable deposits, he only received $10 for each transfer made, and he also claimed that the earnings occurred before he was receiving workers' compensation benefits.

The magistrate excluded defendant's proposed Exhibits B and D (the grand jury indictment and a 48–page superseding indictment² against plaintiff and three other individuals), concluding that they were not relevant, that many of the allegations did not apply to plaintiff, and that the allegations were speculative because they did not all result in convictions. The magistrate continued to refuse to admit Exhibit D, even after defendant proposed to redact it to exclude references to the three other charged individuals as well as those charges that were dismissed as a result of plaintiff's guilty plea.

In addition to excluding aspects of the indictment, the magistrate also rebuffed defendant's effort to introduce evidence of the circumstances underlying the indictment insofar as they did not directly relate to plaintiff's guilty plea, particularly during defendant's examination of plaintiff. For example, defendant was precluded from asking plaintiff whether he had five accounts at Comerica Bank, whether plaintiff and his son were the only approved signatories to the account containing $24,000, and when that account was opened.³ In addition, the magistrate sustained objections regarding Al–Najjar's and Fuller's opinions of plaintiff's ability to work when defendant presented hypothetical questions to them that included the facts underlying the indictment. Fuller was precluded from testifying about whether various activities, including repackaging controlled substances and contraband cigarettes for sale, altering stamps, and laundering profits through hawala accounts,⁴ demonstrated skills that were transferable to other employment opportunities. Also precluded was Al–Najjar's opinion regarding whether plaintiff could have been faking a flat affect during therapy while simultaneously committing outside therapy the crimes alleged.

In an opinion denying defendant's petition to stop benefits, the magistrate rejected the testimony of Mayer and found Barker, as the treating physician since 2002, credible. The magistrate further stated:

I find that Plaintiff has testified credibly with regard to all issues of his workers' compensation case.... I am cognizant of Plaintiff's guilty plea. There is no question this was a serious crime. He served a sentence of 23 months in the federal prison system. (Defendant's Exhibits C and E.) However, the question that I must answer here is whether Plaintiff has recovered from his work-related disability. I find that he has not.

* * *

Dr. Barker's diagnoses and restrictions are the same. Dr. Al–Najjar described the same man that I observed in this Agency on three different occasions. Plaintiff's presentation and his complaints are the same. I find that Defendant has failed to demonstrate by a preponderance of evidence that Plaintiff has recovered from his disability. The Petition to Stop is denied.

Adopting the magistrate's summary of the evidence under MCL 418.861a(10) and affirming the magistrate's ruling, the MCAC determined, in relevant part:

We conclude that the magistrate's findings that plaintiff remains compensably disabled are supported by competent, material, and substantial evidence on the whole record, and we therefore affirm those findings. MCL 418.861a(3). Dr. Barker's credited conclusions of disability coupled with plaintiff's credited testimony consistent with the conclusion of disability referenced by Dr. Barker are by themselves adequate to insulate the magistrate's findings of continued disability from being set aside by us. Adding the testimony of the plaintiff's vocational consultant simply provides yet a further basis for concluding that the magistrate's findings of continued disability must be affirmed.

* * *

Because we conclude that the magistrate considered the attack on plaintiff's credibility through his criminal convictions and conduct leading to same, but determined that she accepted plaintiff's testimony as credible, we conclude that MCL 418.861a(3)... insulate[s] these findings from being set aside. Flowing from this determination that these factual findings may not be set aside, we also conclude that the overall determination to deny the petition to stop must be affirmed.

* * *

... The magistrate carefully considered the proffer of defendant's proposed Exhibit D within the context of MRE 609, the evidence rule relating to impeachment by evidence of conviction of crime. We conclude that the magistrate properly exercised her discretion to allow introduction of the criminal conviction and the guilty plea transcript, but excluding the charging document which included information related to other individuals besides plaintiff and counts that did not necessarily form the basis for plaintiff's guilty plea. [Omian v. Chrysler Group LLC, 2011 ACO 98, pp. 19–20.]

In its opinion, the MCAC did not address the magistrate's exclusion of evidence of the facts underlying the counts of the indictment to which plaintiff did not plead guilty and the expert testimony based on those facts.

II

Defendant contends the MCAC erred by affirming the magistrate's decision to exclude not only proposed Exhibit D, but also the evidence, including expert testimony, that related to the facts underlying the indictment. We disagree in part, but we also agree in part.

As discussed by this Court in Moore v. Prestige Painting, 277 Mich.App. 437, 447, 745 N.W.2d 816 (2007) :

The [commission] must review the magistrate's decision under the “substantial evidence” standard, and we review the [commission's] findings of fact under the “any evidence” standard. Mudel v. Great Atlantic & Pacific Tea Co., 462 Mich. 691, 702–704, 614 N.W.2d 607 (2000). Our review begins with the [commission's] decision, not the magistrate's. Id. “Findings of fact made or adopted by the [commission] are conclusive on appeal, absent fraud, if there is any competent evidence in the record to support them.” Tew v. Hillsdale Tool & Mfg. Co., 268 Mich.App. 399, 405, 706 N.W.2d 883 (2005). We review de novo “questions of law involved in any final order of the [commission].” DiBenedetto v. West Shore Hosp., 461 Mich. 394,

...