                          STATE OF MICHIGAN

                           COURT OF APPEALS



MONASSER OMIAN,                                                     FOR PUBLICATION
                                                                    February 26, 2015
               Plaintiff-Appellee,                                  9:05 a.m.

v                                                                   No. 310743
                                                                    Michigan Compensation
                                                                    Appellate Commission
CHRYSLER GROUP, LLC,                                                LC No. 10-000099

               Defendant-Appellant.


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

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 Workers’ Disability Compensation Act (WDCA), MCL
418.101 et seq. Omian v Chrysler Group, LLC, 495 Mich 859; 836 NW2d 689 (2013). We
reverse and remand.

                                                 I

        Plaintiff qualified for workers’ compensation benefits due to 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. Philip J.
Mayer, M.D., examined plaintiff once and found symptom embellishment. Mayer opined it was


1
  The Michigan Compensation Appellate Commission serves as the successor to the Workers’
Compensation Appellate Commission. Executive Order 2011-6, effective August 1, 2011. See
also McMurtrie v Eaton Corp, 490 Mich 976; 806 NW2d 530 (2011).


                                                -1-
“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 complete 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 of counts 1 and 4 of a federal indictment. Count 1 of the
indictment alleged plaintiff was involved in a conspiracy to commit federal crimes, whereas
Count 4 alleged plaintiff 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 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 allowed approximately 50 deposits of under $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 which were
dismissed as a result of plaintiff’s guilty plea.

        In addition to excluding aspects of the indictment as indicated above, 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




2
  Some of the charges overlap for the individuals charged and some are distinctly applicable only
to certain individuals or alleged co-conspirators, but not to plaintiff.


                                                 -2-
signatories to the account holding $24,000, and when the account with $24,000 was opened.3 In
addition, the magistrate sustained objections regarding Dr. Al-Najjar’s and Fuller’s opinions of
plaintiff’s ability to work when defendant presented hypotheticals to them which included the
facts underlying the indictment. Fuller was precluded from testifying whether activities,
including repackaging controlled substances and contraband cigarettes for sale, altering stamps,
and laundering profits through hawala accounts, demonstrated skills that were transferable to
other employment opportunities. Also precluded was Dr. Al-Najjar’s opinion regarding whether
plaintiff could have been faking a flat affect during therapy while simultaneously committing the
crimes alleged outside of therapy.

       In an opinion denying defendant’s petition to stop benefits, the magistrate rejected the
testimony of Dr. Mayer and found Dr. Barker, as the treating physician since 2002, credible.

       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 plaintiff’s vocational consultant simply provides yet a further basis for
       concluding that the magistrate’s findings of continued disability should be
       affirmed.



3
 Plaintiff did not assert a Fifth Amendment right against self-incrimination when these questions
were asked.


                                                -3-
                                              ***

               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.

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, which 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
NW2d 816 (2007):

               The [M]CAC must review the magistrate’s decision under the “substantial
       evidence” standard, and we review the [M]CAC’s findings of fact under the “any
       evidence” standard. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691,
       702-704; 614 NW2d 607 (2000). Our review begins with the [M]CAC’s decision,
       not the magistrate’s. Id. “Findings of fact made or adopted by the [M]CAC 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 NW2d 883 (2005). We review de novo “questions of law involved in
       any final order of the [M]CAC.” DiBenedetto v West Shore Hosp, 461 Mich 394,
       401; 605 NW2d 300 (2000). “[A] decision of the [M]CAC is subject to reversal if
       it is based on erroneous legal reasoning or the wrong legal framework.” Id. at
       401-402.

In addition, “This Court reviews a . . . decision to admit evidence for an abuse of discretion;
however, when the . . . decision involves a preliminary question of law, such as whether a statute

                                               -4-
precludes the admission of evidence, a de novo standard of review is employed.” Detroit v
Detroit Plaza Ltd Partnership, 273 Mich App 260, 275-276; 730 NW2d 523 (2006).

       MCL 418.841(6) provides, in relevant part: “The rules of evidence as applied in a
nonjury civil case in circuit court shall be followed as far as practicable, but 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.” See also Yakowich v Dep’t of Consumer & Indus
Servs; 239 Mich App 506, 511; 608 NW2d 110 (2000) (“[H]earsay evidence is generally
inadmissible, as provided in the rules of evidence.”).

                                                A

        The MCAC did not err in affirming the magistrate’s decision to exclude proposed Exhibit
D. In Mike’s Train House, Inc v Lionel, LLC, 472 F3d 398, 412 (CA 6, 2006),4 the Sixth Circuit
Court of Appeals determined that indictments are admissible, as an exception to hearsay, at least
to the extent they reflect a judgment of conviction. Specifically, the federal court determined:

              The . . . court records, including the indictments, are admissible under
       Rule 803(22),5 which excepts judgments of previous convictions from the general
       ban against hearsay. Several courts have held that an indictment from a previous
       conviction is properly included within the scope of Rule 803(22) and is thus
       admissible despite being hearsay. [Id. (citations omitted, footnote added).]

Given plaintiff’s voluntary entry of a guilty plea to counts 1 and 4 of the indictment, those
portions of the indictment were not inadmissible hearsay.

        Nevertheless, the magistrate did not err in finding portions of the indictment as “not
relevant” and “speculative” because the excluded evidence referenced individuals other than
plaintiff, failed to indicate whether it was applicable to all or only some of the individuals, and
did not specifically identify what monies plaintiff had actually received from his participation in
the conspiracy as alleged. MRE 402 provides, “Evidence which is not relevant is not
admissible.” Relevant evidence must be material or “related to a fact of consequence to the
action . . . have a tendency to make the existence of a fact of consequence to the action more
probable or less probable than it would be without the evidence.” Lanigan v Huron Valley Hosp,
Inc, 282 Mich App 558, 564 n 6; 766 NW 2d 896 (2009). The indictment’s allegations against



4
  “Although the decisions of lower federal courts are not binding precedents, federal decisions
are often persuasive.” Adams v Adams (On Reconsideration), 276 Mich App 704, 715-716; 742
NW2d 399 (2007) (citation omitted).
5
  “The Michigan Rules of Evidence were based on the Federal Rules of Evidence. As a result,
Michigan courts have referred to federal cases interpreting rules of evidence when there is a
dearth of related Michigan case law.” People v Katt, 468 Mich 272, 280; 662 NW2d 12 (2003).
A review of Federal Rule of Evidence (FRE) 803(22) reveals that the wording is substantially
similar to that of MRE 803(22).


                                                -5-
others and the unproven allegations against plaintiff were not material to the plaintiff’s
credibility or his ability to earn wages. Id. The MCAC reasoned that, even without evidence of
the indictment, the magistrate had an adequate opportunity to consider the attack on plaintiff’s
credibility given the evidence of his actual convictions. We cannot conclude that the MCAC’s
decision to affirm the magistrate’s exclusion of proposed Exhibit D was based on erroneous legal
reasoning or the wrong legal framework.” DiBenedetto, 461 Mich at 401.

                                                B

        However, unlike some aspects of the indictment, which were properly considered
irrelevant, some of the remaining allegations in the indictment, as well as testimony tending to
prove those allegations, might have been relevant to plaintiff’s credibility. MRE 402. Thus, the
magistrate erred in excluding this evidence. For example, plaintiff conceded during oral
argument on appeal that evidence of plaintiff’s bank records would have been relevant and
admissible, where defendant offered evidence that plaintiff opened a Comerica account with a
$24,000 deposit sometime after he suffered his injury, despite plaintiff’s testimony to the
contrary that his participation in the charged offenses occurred before he started collecting
workers’ compensation benefits. In addition, plaintiff conceded that defendant could also have
properly offered the testimony of plaintiff’s co-conspirators, insofar as it concerned plaintiff’s
capability of earning wages or securing employment. Had defendant offered evidence tending to
prove the facts underlying the indictment, which were prejudicial to plaintiff, that evidence, in
addition to the facts established by his plea agreement, would have served as the basis for expert
testimony as to plaintiff’s capability to work.
       The magistrate did not address the relevance of the facts underlying the indictment, but
excluded that evidence merely because it was information contained in the exhibits he had also
excluded. On appeal, the MCAC affirmed the magistrate’s findings of fact and the denial of the
motion to stop without addressing defendant’s argument that the magistrate erred by excluding
from evidence the facts underlying the indictment. Under MCL 418.861a(3), the MCAC was
required to consider the whole record before determining that the magistrate’s findings of fact
were conclusive. Because the MCAC did not first decide whether the facts underlying plaintiff’s
indictment should have been part of the whole record, we conclude that the MCAC operated
under the wrong legal framework. DiBenedetto, 461 Mich at 401-402. We therefore remand to
the MCAC for proper consideration of defendant’s argument.

                                               III

        Defendant also asserts the applicability of the wrongful conduct rule, contending that
plaintiff, based on his federal criminal convictions, was engaged in wrongdoing and should not
be permitted to benefit from those crimes through the ongoing collection of workers’
compensation benefits.

       Workers’ compensation issues raised for the first time in a pleading at this Court are not
preserved for review. Defendant did not raise the issue of the wrongful-conduct rule
applicability before the magistrate or MCAC. Because the issue is raised for the first time on
appeal to this Court, it is not properly preserved, Auto-Owners Ins Co v Amoco Prod Co, 468
Mich 53, 65; 658 NW2d 460 (2003). See MCL 418.861a(11) (“The commission or a panel of
the commission shall review only those specific findings of fact or conclusions of law that the

                                               -6-
parties have requested be reviewed.”), and this Court lacks authority to review it, Calovecchi v
State, 461 Mich 616, 626; 611 NW2d 300 (2000); see also Bennett v Mackinac Bridge Auth, 289
Mich App 616, 637; 808 NW2d 471 (2010).

        Even if this Court had authority to address this issue, it would be unavailing to defendant.
As discussed by our Supreme Court, for a plaintiff’s action to be precluded or barred by the
wrongful-conduct rule, ‘“[the plaintiff’s] injury must have been suffered while and as a
proximate result of committing an illegal act.”’ Manning v Bishop of Marquette, 345 Mich 130,
136; 76 NW2d 75 (1956), quoting Meador v Hotel Grover, 193 Miss 392; 9 So2d 782 (1942).
Defendant has not argued that plaintiff’s injury bears any relationship to the crimes alleged
against plaintiff or the crimes to which he pleaded guilty.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. No costs under MCR 7.219 because none of the parties prevailed in full.

                                                             /s/ Kurtis T. Wilder




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