                           STATE OF MICHIGAN

                            COURT OF APPEALS



VALERIE HAMMOND,                                                       UNPUBLISHED
                                                                       November 10, 2015
               Plaintiff-Appellant,

v                                                                      No. 322889
                                                                       Michigan Compensation
                                                                       Appellate Commission
DEPARTMENT OF CORRECTIONS,                                             LC No. 13-000060

               Defendant-Appellee.


Before: GADOLA, P.J., and HOEKSTRA and M. J. KELLY, JJ.

PER CURIAM.

        This case arises out of plaintiff’s effort to establish her eligibility for disability benefits
under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq. Plaintiff
appeals by leave granted a decision of the Michigan Compensation Appellate Commission
(MCAC), finding that she was not disabled as a result of her post-traumatic stress disorder
(PTSD), which arose after a prison inmate viciously attacked plaintiff while she was working as
a prison nurse. For the reasons below, we affirm.

                                   I. PROCEDURAL HISTORY

        On February 3, 2007, plaintiff was working as a nurse at the Marquette Branch Prison
when she was attacked by a prisoner while performing an examination. Corrections officers
stopped the attack before plaintiff sustained serious physical injuries, but after the event, plaintiff
began having severe panic attacks and stopped going to work. Plaintiff made one unsuccessful
attempt to return to work on October 15, 2007, which ended when she became overwhelmed by
anxiety. Plaintiff then filed an application for disability benefits, claiming she was unable to
perform any work due to her PTSD. At a trial before a magistrate, plaintiff testified that as a
result of the attack, she was hypervigilant and always afraid, particularly of men, isolated
settings, and enclosed and cluttered rooms. Plaintiff said she could not work because she could
not tolerate being around men, she had anxiety, and she lacked the ability to concentrate around
activity. Plaintiff also reported additional symptoms including panic attacks, muscle tension,
inappropriate guilt, and fear of being touched.

       In support of her disability claim, plaintiff presented the deposition testimony of
psychologist Ralph Ford III, Ed.D., who concluded that plaintiff suffered from severe and
chronic PTSD as a result of the attack, which disabled her from working. Ford explained that
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plaintiff’s test results showed that she did not exaggerate her symptoms and that she experienced
moderate to severe symptoms of anxiety, PTSD, depression, and substance abuse. Plaintiff also
offered the deposition testimony of Samuel George Field, M.A., who was plaintiff’s therapist
before and after the attack. Field believed that plaintiff was unable to manage her symptoms of
PTSD and would never be able to deal with men in isolated settings. He further opined that
plaintiff was unable to manage the social aspects of a typical nursing job, including
concentrating for lengthy periods of time and assisting male patients. Field testified that plaintiff
was totally disabled by her PTSD.

        In opposition, defendant offered the testimony of psychiatrist Richard S. Jackson, M.D.,
who concluded that plaintiff was not disabled by PTSD. Although Jackson agreed that plaintiff
should not initially work around inmates or in isolated settings due to her anxiety, he believed
she could work without restrictions in the general field of nursing. Jackson opined that plaintiff
was not motivated to return to work because of her preexisting mental health and substance
abuse issues and her enjoyment of time off work. Psychologist Manfred F. Greiffenstein, Ph.D.,
also testified on defendant’s behalf. He believed that plaintiff’s PTSD had resolved, but she
suffered from a preexisting anxiety disorder. According to Greiffenstein, plaintiff could return to
work as a nurse, but she should avoid isolated areas and contact with prisoners for a time.
Greiffenstein believed plaintiff had developed a sense of entitlement, thought she deserved
disability benefits, and resented expectations that she return to work. After reviewing the records
of plaintiff’s treatment with Field, Greiffenstein concluded that plaintiff was misattributing her
symptoms to PTSD.

        The magistrate found that plaintiff was totally disabled as a result of her PTSD arising
from the attack. Defendant appealed the magistrate’s decision to the MCAC, arguing that
plaintiff failed to present sufficient disability proofs under Stokes v Chrysler LLC, 481 Mich 266;
750 NW2d 129 (2008), because she did not identify what jobs she was suited for based on her
qualifications and training, and made no effort to seek post-injury employment. The MCAC
vacated the magistrate’s decision and remanded for further proceedings, stating the following:

               We vacate the magistrate’s finding of disability, except as to his finding
       that plaintiff met step one of Stokes, a finding uncontested by defendant. The
       matter is remanded to the Board to consider anew the proofs as they exist with
       respect to disability. If the Board on remand is persuaded that this record as a
       whole evidences total disability by a preponderance, it must explain the path it
       takes through the conflicting record evidence, the evidence adopted and why, to
       arrive at that conclusion. . . . The same is true if the Board should find that the
       record evidences either partial disability or that the record fails to persuade as to
       disability. This analysis shall be performed based upon the record as it stands and
       against the background of . . . having found the plaintiff to be a “very credible
       witness.” [Hammond v Mich Dep’t of Corrections, 2013 Mich ACO 40, p 7.]

       On remand, for reasons unrelated to the action itself, the case was assigned to a new
magistrate. After evaluating all of the record evidence, the magistrate concluded as follows:

       [B]oth doctors [testifying on behalf of the defense] opine that [plaintiff] was
       capable of returning to work in a nursing capacity but did impose restrictions

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       regarding her actual working for the Department of Corrections. I find these
       doctors[’] testimony to be persuasive. Both doctors acknowledged a diagnosis of
       post-traumatic stress disorder originating from the work event. . . . Based on the
       totality of the medical [evidence] I did not find the testimony of [Ford and Field]
       to be persuasive. I thought both witnesses were overstating her current disability.
       Whereas both [Jackson and Greiffenstein] agreed with the diagnosis of
       posttraumatic stress related to her employment, but found that she was capable of
       working in a different setting as a nurse. Therefore I find that she is not totally
       disabled or so severely impaired that she cannot do any work.

The magistrate further determined that plaintiff failed to establish any form of disability under
Stokes, 481 Mich 266, because she admitted that she had not looked for alternative work since
the attack. The magistrate concluded that although plaintiff was entitled to reasonable medical
benefits related to her work injury, she was not entitled to wage loss benefits after her failed
attempt to return to work on October 15, 2007.

         The MCAC affirmed the magistrate’s opinion, finding that she adequately explained her
resolution of conflicting evidence and “expressed reasonable choices based upon competent,
material, and substantial evidence on this record as a whole.” Hammond v Mich Dep’t of
Corrections, 2014 Mich ACO 25, p 4. Plaintiff then filed an application for leave to appeal in
this Court. On January 26, 2015, this Court granted leave on the limited issues of (1) “whether
the MCAC correctly determined whether the magistrate followed its directive to consider
plaintiff a ‘very credible witness,’ ” and (2) “whether plaintiff failed to satisfy the necessary
criteria from [Stokes, 481 Mich 266], for obtaining benefits.” Hammond v Dep’t of Corrections,
unpublished order of the Court of Appeals, entered January 26, 2015 (Docket No. 322889).

                                 II. STANDARD OF REVIEW

        Our review of a decision issued by the MCAC is limited. Rakestraw v Gen Dynamics
Land Sys, Inc, 469 Mich 220, 224; 666 NW2d 199 (2003). We will not independently review the
magistrate’s factual findings, but rather consider only the findings of the MCAC. Mudel v Great
Atlantic & Pacific Tea Co, 462 Mich 691, 702; 614 NW2d 607 (2000). In the absence of fraud,
we consider the MCAC’s factual findings conclusive if they are supported by any competent
evidence in the record. Rakestraw, 469 Mich at 224. We review de novo questions of law
pertaining to an order issued by the MCAC. DiBenedetto v West Shore Hosp, 461 Mich 394,
401; 605 NW2d 300 (2000). Generally, this Court will only reverse a decision of the MCAC if it
is based on an improper legal framework or erroneous legal reasoning. Id. at 401-402.

                                       III. DISCUSSION

        A claimant bears the burden of establishing a disability and entitlement to benefits and
compensation under the WDCA by a preponderance of the evidence. MCL 418.851. The
WDCA defines “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). In Stokes, 481 Mich at 297, our Supreme Court explained that to
establish a disability under MCL 418.301(4)(a), “the claimant must prove a work-related injury
and that such injury caused a reduction of his maximum wage-earning capacity in work suitable

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to the claimant’s qualifications and training.” To prove a reduction in wage-earning capacity,
generally, a plaintiff must (1) disclose his or her qualifications and training, (2) identify what
jobs he or she is qualified and trained to perform within the same maximum pre-injury salary
range, (3) show that the work-related injury prevents him or her from performing any of the
identified jobs, and (4) if the plaintiff is capable of performing some of the identified jobs, show
that he or she cannot obtain those jobs. Id. at 297-298. If the plaintiff establishes a prima facie
showing of disability, the burden shifts to the employer to refute the claim. Id. at 283.

         Plaintiff first argues that the MCAC’s finding that she was not incapable of any work was
inconsistent with its previous finding that she was a “very credible witness.” Plaintiff contends
that if the MCAC properly considered her testimony as being credible, it would have accepted
Field’s and Ford’s testimony and concluded that she was totally disabled. We disagree.

        Below, the magistrate concluded that plaintiff was not totally disabled on the basis of
Jackson’s and Greiffenstein’s testimony regarding the severity and existence of plaintiff’s PTSD,
not because it determined plaintiff’s testimony was incredible. Stated another way, plaintiff
provided credible testimony about the nature of her symptoms, but the witnesses interpreted her
symptoms differently to reach their conclusions regarding the severity of her PTSD. The MCAC
affirmed the magistrate’s finding that plaintiff’s witnesses overstated the extent of her disability.
This finding did not call into question the credibility of plaintiff’s testimony about her
symptoms. Rather, the magistrate chose between conflicting testimony regarding what
plaintiff’s symptoms revealed about the nature and severity of her PTSD to conclude that she
was not totally disabled.

        Indeed, defendant’s witnesses took plaintiff’s description of her symptoms into account
before providing their opinions regarding her mental status and ability to work. Accepting
plaintiff’s description of her symptoms as true, Jackson recommended that plaintiff continue in
therapy, but stated that he did not believe her PTSD was so severe that she could not work as a
nurse in most settings. Additionally, Greiffenstein acknowledged plaintiff’s description of her
symptoms, but did not attribute those symptoms to PTSD resulting from the attack. The
MCAC’s opinion properly distinguished between accepting plaintiff’s testimony as honest and
accepting her and her witnesses’ interpretation of the symptoms as revealing severe and chronic
PTSD that prevented plaintiff from performing any work. Accordingly, the MCAC’s finding
that plaintiff was capable of working as a nurse in most settings, and therefore was not totally
disabled, was supported by competent evidence in the record.

        Plaintiff also failed to establish that she was disabled under the standard set forth in
Stokes, 481 Mich 266. Plaintiff did not introduce any evidence identifying what jobs she was
qualified and trained to perform and she admitted that she did not look for any alternative post-
injury employment. Because she did not offer any proof of the available jobs she was qualified
and trained to perform, plaintiff failed in her burden to establish a loss of wage-earning capacity.
Id. at 297. The ability (or lack thereof) to perform work in light of a work-related injury can
only be judged against the range of available employment opportunities. By failing to delineate
those opportunities, plaintiff made it impossible to determine whether or not she had the capacity
to perform in an alternative employment setting.



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        Plaintiff argues that she was not required to seek alternative employment because she
believed she was totally disabled and incapable of any work. As discussed above, the MCAC’s
finding to the contrary was supported by competent evidence in the record. Although “a
claimant may choose whatever method he sees fit to prove an entitlement to workers’
compensation benefits,” Stokes, 481 Mich at 282, there is no exemption based on a good-faith
belief of total disability. While plaintiff put forward testimony to support her claim of total
disability, defendant countered that testimony with its own expert witnesses. The magistrate, and
the MCAC, credited defendant’s witnesses over plaintiff’s. Plaintiff has not shown that the
MCAC operated within the wrong legal framework or based its decision on erroneous legal
reasoning. Therefore, we will not disturb the MCAC’s conclusion that plaintiff was not disabled.

       Affirmed.



                                                           /s/ Michael F. Gadola
                                                           /s/ Joel P. Hoekstra
                                                           /s/ Michael J. Kelly




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