                          STATE OF MICHIGAN

                           COURT OF APPEALS



MONASSER OMIAN,                                                     FOR PUBLICATION
                                                                    February 26, 2015
               Plaintiff-Appellee,

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.

RONAYNE KRAUSE, J. (dissenting)

        I respectfully dissent. I agree entirely with the majority’s reasoning and conclusions that
defendant’s “Proposed Exhibit D,” a copy of a federal indictment against plaintiff and several
other individuals, was technically admissible, but that the magistrate’s decision to exclude it and
the MCAC’s decision to affirm that exclusion were not clearly erroneous. I also agree with the
majority that the wrongful conduct rule is not properly before this Court and would not be of any
use to defendant if it were. I respectfully disagree with the majority’s conclusion that the
magistrate’s exclusion of certain additional evidence ostensibly supporting some of the
allegations in Exhibit D constitutes an error warranting reversal.

        As an initial matter, I am highly skeptical that a demonstrated ability to generate income
from illegal activities, standing alone, necessarily proves anything relevant to workers’
compensation benefits. In relevant part, “wage earning capacity” is defined as wages that can be
earned at “a job reasonably available.” See MCL 418.301(4)(b), MCL 418.302, and MCL
418.401(2)(c). Neither the Legislature nor our Supreme Court has precisely defined what
exactly constitutes a reasonably available job, and indeed, the word “job” is not defined at all.
However, I think as a matter of public policy, it would be dangerous to consider illegal activities
to be reasonably available jobs. For one thing, that would dramatically increase the burden of a
claimant attempting to show entitlement to compensation and benefits. See Stokes v Chrysler
LLC, 481 Mich 266, 281-285; 750 NW2d 129 (2008). For another, it could effectively
encourage illegal activity if we were to recognize such activities as in any way reasonable.
Finally, because we have functional law enforcement systems in both this state and this country,
illegal conduct, however profitable it may be in the short term, is inherently unstable and
ephemeral. Although the specific acts undertaken by a person can of course demonstrate that the
person has the ability to perform those acts, with whatever implications come therewith, the fact

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standing alone that the person has managed to derive some revenue from illegal conduct does
not, in my opinion, itself constitute good evidence of a capacity for gainful employment.

        Credibility of a witness is generally relevant. See People v Layher, 464 Mich 756, 761-
764; 631 NW2d 281 (2001); In re Dearmon, 303 Mich App 684, 696; 847 NW2d 514 (2014).
As noted, the specific acts in which a benefits claimant has engaged can certainly constitute
evidence of ability to engage in those acts. Here, however, the additional evidence would not
show that plaintiff was able to perform physical or mental feats that he contended he could not.
The medical testimony that the magistrate deemed credible showed that plaintiff was essentially
limited to sedentary activities. In other words, there was no actual dispute that plaintiff could
theoretically earn income through some hypothesized sedentary work. According to Exhibit D,
plaintiff was merely a signatory on accounts used to funnel money out of the country illegally;
evidence supporting that allegation would prove nothing of value beyond, possibly, the
profitability of the operation. The fact that an illegal activity was more or less profitable does
not, in my opinion, cast any light on plaintiff’s credibility regarding what he could actually
perform as legitimate employment.

        I do agree with the majority that the magistrate erred to the extent its decision can be
interpreted as a conclusion that plaintiff did not commit a crime purely because he did not plead
to that crime. The magistrate’s exclusion of evidence pertaining to crimes to which plaintiff did
not plead could have had the effect of excluding potential evidence of crimes plaintiff actually
perpetrated. Furthermore, I agree that excluding an exhibit, for whatever reason, does not per se
necessitate exclusion of other evidence relating to the subject-matter of that exhibit. I certainly
agree that, in principle, actual work a benefits claimant performs “under the table” can be
evidence that the claimant is capable of engaging in gainful employment, or “a job reasonably
available.” What I cannot accept is the contention that acquiring money through illegal conduct
is inherently proof thereof. Consequently, I cannot agree that the magistrate’s error warrants
reversal in this matter.

        Therefore, I appreciate defendant’s argument that it should, in the abstract, have been
permitted to show that plaintiff was physically performing actual actions that would also be
performed in the performance of gainful employment and thus proving a capacity for that gainful
employment. Practically, however, I can find absolutely nothing in defendant’s brief beyond
hyperbolic bluster and rather suspiciously pious appeals to emotion to suggest that they could
have presented evidence of any such acts. Rather, defendant refers to plaintiff as some kind of
criminal mastermind but provides not a scintilla of support for that characterization. Plaintiff is
undisputedly a criminal, there was likely little doubt that his honesty is somewhat less than
absolute, and he may very well be a “bad person,” but entitlement to workers’ compensation
benefits is in no way based on such considerations. Our role as a court is to implement the law
rather than our own whimsical personal opinions about whether any given individual deserves to
be more equal under the law than anyone else.

         Had defendant even submitted so much as a minimal offer of proof, or if the crimes were
at all related to his work with defendant, I would accept that the majority’s decision to remand
might make sense, depending on the nature of the proofs offered. Again, I agree that evidence of
the actual conduct in which a claimant has engaged is relevant and should be considered to the
extent that conduct consists of acts that would be performed in the course of gainful

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employment. Nevertheless, that would be true whether the conduct was legal or illegal.
Defendant’s argument amounts to a bare assertion, with which the majority seemingly agrees,
that profiting from a crime somehow equals proof of wage-earning capability. Defendant simply
seeks to extrapolate too much, asking me to believe that plaintiff was a “criminal mastermind”
without the basic decency to offer the slightest basis for why the existence of any supporting
evidence for that assertion is anything but hypothetical and speculative. Without any such
support, I cannot perceive any basis for undermining the MCAC’s result.

       I appreciate the majority’s position that, in theory, the magistrate should not ignore
evidence of actual conduct by a benefits claimant that tends to demonstrate an ability to engage
in gainful employment. However, beyond a perverse and disturbing implication that crime in
fact pays, I do not believe the omitted evidence that the majority deems significant here would
have possibly done so. Consequently, I would affirm.



                                                           /s/ Amy Ronayne Krause




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