            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS


AHMED OMER,                                                          FOR PUBLICATION
                                                                     April 16, 2020
               Plaintiff-Appellant,

v                                                                    No. 344310
                                                                     MCAC
STEEL TECHNOLOGIES, INC.,                                            LC No. 14-000013
and NEW HAMPSHIRE INSURANCE CO.,

               Defendants-Appellees,


Before: O’BRIEN, P.J., and JANSEN and GLEICHER, JJ.

O’BRIEN, P.J. (concurring)

        To be entitled to compensation under the workers’ compensation act, a claimant must (1)
establish a prima facie case of “disability” using the factors from Stokes v Chrysler LLC, 481 Mich
266, 282-283; 750 NW2d 129 (2008), and (2) prove a wage loss, see id. at 275 n 2. Once the
claimant establishes that he or she is entitled to compensation, the amount of that compensation
depends on whether the claimant establishes “total disability” or “partial disability.”

        The majority reads the MCAC’s ruling as deciding that plaintiff, Ahmed Omer, failed to
establish a prima facie case of disability, whereas I read the MCAC’s ruling as deciding that Omer
failed to establish “total disability.” While I part ways with the majority on what the MCAC ruled,
I nevertheless agree that the majority’s ultimate conclusion that the MCAC’s ruling should be
reversed.

                                I. STATUTORY FRAMEWORK

         To illustrate the difference between “disability” and “total disability” under the workers’
compensation act, it is helpful to walk through the act’s statutory framework. Under MCL
418.301(1), “An employee, who receives a personal injury arising out of and in the course of
employment by an employer who is subject to this act at the time of the injury, shall be paid
compensation as provided in this act.” But proving a work-injury is not, by itself, enough to
receive compensation under the act; “that injury must result in a reduction of the claimant’s wage-
earning capacity in work suitable to his qualifications and training.” Stokes, 481 Mich at 281. If
this is established, the claimant has established a “disability” under the act. MCL 418.301(4)(a)


                                                -1-
states in part, “ ‘Disability’ means 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) goes on to explain, “A limitation of wage earning capacity occurs
only if a personal injury covered under this act results in the employee’s being unable to perform
all jobs paying the maximum wages in work suitable to that employee’s qualifications and training,
which includes work that may be performed using the employee’s transferable work skills.”

        This is where the test from Stokes becomes applicable. Stokes provides a four-part test for
establishing disability:

                 First, the injured claimant must disclose his qualifications and training. . . .

                  Second, the claimant must then prove what jobs, if any, he is qualified and
         trained to perform within the same salary range as his maximum earning capacity
         at the time of the injury. . . .

                 Third, the claimant must show that his work-related injury prevents him
         from performing some or all of the jobs identified as within his qualifications and
         training that pay his maximum wages.

                 Fourth, if the claimant is capable of performing any of the jobs identified,
         the claimant must show that he cannot obtain any of these jobs. [Stokes, 481 Mich
         at 282-283.1]

Stokes states, “Upon completion of these four steps, the claimant establishes a prima facie case of
disability.” Id. at 283.

       The majority focuses on whether the testimony of a medical doctor—here, Dr. Nabil
Suliman—can be used to establish a prima facie case of disability. I agree with the majority that
a medical doctor’s testimony can be used to establish disability, and I further agree that the
evidence Omer presented established a disability.2

        But establishing a disability does not, without more, entitle a claimant to compensation.
“Once a plaintiff makes a prima facie showing of disability, the plaintiff must also prove a wage
loss.” Id. at 275 n 2. MCL 418.301(4)(a) states, “The establishment of disability does not create
a presumption of wage loss.” Defendants do not argue that Omer failed to establish wage loss, so
I presume that defendants do not contest that it was established.




1
    This four-part test was incorporated into MCL 418.301(5).
2
 Once a claimant establishes a prima facie case of disability, a defendant can rebut that showing.
See Stokes, 481 Mich at 283-284; MCL 418.301(6). Defendants here did not rebut Omer’s
evidence, so Omer’s establishing a prime facie case of disability established disability.



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         This still does not end the inquiry; there remains the question of what compensation Omer
is entitled to. This in turn depends on whether the claimant’s disability is total or partial.3 See
Cain v Waste Mgt, Inc, 465 Mich 509, 511; 638 NW2d 98 (2002) (explaining that once a disabled
claimant establishes entitlement to compensation under the act, “one must then determine if the
disability is total or partial”). MCL 418.301(4)(a) states:

       A disability is total if the employee is unable to earn in any job paying maximum
       wages in work suitable to the employee’s qualifications and training. A disability
       is partial if the employee retains a wage earning capacity at a pay level less than his
       or her maximum wages in work suitable to his or her qualifications and training.

“Total disability arises . . . when an employee proves that he is unable to perform all work suitable
to his qualifications and training as a result of his injury.” Haske v Transp Leasing, Inc, Indiana,
455 Mich 628, 655; 566 NW2d 896 (1997), overruled on other grounds by Sington, 467 Mich at
1724; see also Irvan v Borman’s, Inc, 412 Mich 496, 503; 315 NW2d 521 (1982) (explaining that
a totally disabled claimant would have “no earning capacity”).

        I read the MCAC’s decision as ruling that Omer’s evidence could not establish “total
disability.” It stated, “[W]here a magistrate’s finding of total disability is based upon a physician’s
conclusory declarations of total disability, rather than quantifications of limitations, described
through physical restrictions, which may lead to wage loss, that finding is unsupported by
competent evidence.” I think the question we must address on appeal is whether Omer established
“total disability,” not whether Omer established “disability.”5




3
  If the claimant establishes “total disability,” he or she is entitled to “weekly compensation equal
to 80% of [his or her] after-tax average weekly wage[.]” MCL 418.301(7). If the claimant
establishes “partial disability,” he or she is entitled to “weekly compensation equal to 80% of the
difference between [his or her] after-tax average weekly wage before the personal injury and [his
or her] wage earning capacity after the personal injury[.]” MCL 418.301(8).
4
  Sington overruled “the Haske definition of disability,” Sington, 467 Mich at 146, but a fair
reading of Sington makes clear that it did not overrule Haske’s single line about “total disability.”
5
  This distinction is important because some of the evidence that established Omer’s prima facie
case of disability does not establish that he was totally disabled. To prove that he was totally
disabled, Omer had to established that he was unable to perform any job for which he was qualified
because of his work-related injury. Haske, 455 Mich at 655. But to prove disability, Omer only
needed to establish that he had a work-related injury that resulted “in a reduction of [his] wage-
earning capacity in work suitable to his qualifications and training.” Stokes, 481 Mich at 281.
Omer’s vocational expert, Barbara Feldman, only testified about disability; she testified that, given
Omer’s restrictions, “he would not be capable of returning to a job at which he earned his highest
wage,” and that “she was not able to find a job that pays plaintiff’s maximum pre-injury rate of
pay.” Her testimony would not prove that Omer was totally disabled, and is therefore not relevant
to the issue that I believe we should address on appeal.


                                                 -3-
                          II. EVIDENCE OF “TOTAL DISABILITY”

       To be exact, the question we should address on appeal is whether the magistrate’s decision
that Omer was totally disabled was supported by substantial, material, and competent evidence.
The only evidence of total disability was (1) Dr. Suliman’s testimony that Omer was “totally
disabled,” and (2) Omer’s testimony that “he did not believe he was able to go back and do any
job because he was in too much pain” and “he could sit for only 20 to 30 minutes at a time.”

      The MCAC ruled that Dr. Suliman’s testimony that Omer was “totally disabled” was not
“competent” evidence to support a finding of total disability. I do not disagree with that ruling.

         I do not read the MCAC as ruling that a doctor can never testify about whether a claimant
is totally disabled. As the MCAC recognized, a doctor who treats a claimant will be able to discuss
a claimant’s restrictions or physical limitations as a result of an injury. It follows that if a
claimant’s injury is so severe that the restrictions are that he or she cannot return to any
employment, then the doctor’s testimony could establish total disability.

        But Dr. Suliman did not testify that Omer’s injury was so severe that he could not work.
Rather, Dr. Suliman testified that Omer was restricted to no excessive bending or twisting, and no
lifting more than 20 pounds. Barbara Feldman, Omer’s vocational expert, testified that this
allowed Omer to perform sedentary work. Yet Dr. Suliman described Omer as “totally disabled.”

         Assuming that Dr. Suliman used “totally disabled” to be synonymous with “total
disability,” it is unclear how Dr. Suliman could make that assessment. “Total disability” is when
a claimant “is unable to perform all work suitable to his qualifications and training as a result of
his injury.” Haske, 455 Mich at 655. For a doctor to testify that a claimant with restrictions other
than being unable to return to any employment is “totally disabled,” he or she would have to know
the claimant’s qualifications and training, and all work that the claimant could perform with his or
her qualifications and training. Otherwise, the doctor could not know whether the claimant’s
restrictions or physical limitations prevented the claimant from “perform[ing] all work suitable to
his qualifications and training . . . .” Id. That is, the doctor would not have sufficient knowledge
to offer an opinion on whether the claimant was “totally disabled.” See MRE 702.

        It was never established that Dr. Suliman knew Omer’s qualifications and training, or that
he knew all work that Omer could perform with his qualifications and training. Without that
knowledge, Dr. Suliman’s testimony that Omer was “totally disabled” had no probative value for
establishing total disability; it was a conclusory statement that did not tend to prove that Omer was
“unable to perform all work suitable to his qualifications and training as a result of his injury.”
Haske, 455 Mich at 655. I would therefore conclude that the MCAC was correct in deciding that
Dr. Suliman’s testimony did not support a finding of total disability.

         But Dr. Suliman’s testimony was not the only evidence establishing total disability. Omer
testified that he did not think he could do any job because he was in too much pain. This testimony
supports a finding of total disability. Of course, a magistrate can choose to not credit a claimant’s
testimony that he or she could not do any work because of a work-related injury, but the magistrate
here chose to credit Omer’s testimony. Given the substantial-evidence test’s low bar, Omer’s
testimony was sufficient to support the magistrate’s finding of total disability. I therefore agree



                                                -4-
with the majority’s conclusion that the MCAC misapplied the substantial-evidence test, and that
we must reverse.

                              III. MCAC’S ALTERNATIVE BASIS

        As for the alternative ground that the MCAC reversed the magistrate on, I think that was
error as well. The MCAC stated:

       It is the plaintiff who must demonstrate not only the existence of a disability, but
       its extent. The magistrate finds a lack of evidence as to whether plaintiff could
       find, secure and perform jobs paying less than his maximum wage as a failure of
       proofs by the defendant and so awards reduced wage loss benefits. It is true that
       the record reveals that plaintiff’s vocational expert performed no labor market
       survey that would gauge the existence and availability of such jobs. It is also true
       that the record reflects the plaintiff did not look for work of any kind himself. But
       these deficiencies are failures by the plaintiff to undertake his burden to quantify
       the claimed work-related limitation in wage earning capacity. To the extent that
       this lack of evidence bears upon quantifying the appropriate weekly wage loss
       benefit to award, they indicate plaintiff has failed to sustain his burden of proving
       any entitlement to such a benefit.

The MCAC appears to have taken issue with the following portion of the magistrate’s opinion:

               Partial Wage Earning Capacity

               There was no testimony from either of the vocational experts that plaintiff
       was capable of performing any jobs within the Concentra restrictions issued on
       March 10, 2011 which were the only restrictions applicable during the relevant
       period.

        I understand the MCAC’s concern. “MCL 418.851 places the burden of proof on the
claimant to demonstrate his entitlement to compensation and benefits by a preponderance of the
evidence.” Stokes, 481 Mich at 285. To establish how much compensation he was entitled to,
Omer had to establish by a preponderance of the evidence that he was either totally disabled or
partially disabled. Total disability is when a claimant is unable to perform any job for which he
or she is qualified because of a work-related injury, and partial disability is when a claimant
establishes disability less than “total.” They are mutually exclusive; to prove total disability
requires a claimant to disprove partial disability. I read the MCAC’s opinion as being concerned
that the magistrate found that no evidence of partial disability was evidence of total disability,
which would be incorrect. No evidence of partial disability is not evidence of total disability; it is
a failure of the claimant to carry his or her burden of proof.

       But there was evidence of total disability: Omer’s testimony. His testimony that he was
unable to do any work, which the magistrate credited, was sufficient to establish that he was totally
disabled. Thus, the MCAC’s alternative basis for reversing the magistrate was also incorrect.




                                                 -5-
       For these reasons, I concur with the majority’s decision to reverse the MCAC and reinstate
the magistrate’s decision.



                                                           /s/ Colleen A. O’Brien




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