Michigan Compensation. Appellate Commission. LC No. 10-000099.
For MONASSER OMIAN, PLAINTIFF-APPELLEE: DARYL ROYAL, DEARBORN, MI; ROGER R KLINE, WARREN, MI.
For CHRYSLER GROUP LLC, DEFENDANT-APPELLANT: RONALD A WEGLARZ, BIRMINGHAM, MI.
Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ. STEPHENS, J. (concurring). RONAYNE KRAUSE, J. (dissenting).
[309 Mich.App. 300] Kurtis T. 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), affirming the magistrate's denial of defendant's petition to stop the benefits of plaintiff, Monasser Omian, under the Worker's [309 Mich.App. 301] Disability 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.
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 [309 Mich.App. 302] 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 indictment against plaintiff and [309 Mich.App. 303] 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. 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, demonstrated skills [309 Mich.App. 304] 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 ...