VICKI L HOLLOWAY V UNITED PARCEL SERVICE
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STATE OF MICHIGAN
COURT OF APPEALS
VICKI L. HOLLOWAY,
UNPUBLISHED
December 1, 2000
Plaintiff-Appellant,
v
No. 211209
WCAC
LC No. 95-000866
UNITED PARCEL SERVICE and LIBERTY
MUTUAL INSURANCE COMPANY,
Defendants-Appellees.
Before: Jansen, P.J., and Saad and Gage, JJ.
PER CURIAM.
Plaintiff appeals by leave granted the Worker’s Compensation Appellate Commission’s
(WCAC’s) affirmance of the magistrate’s determinations that plaintiff had fully recovered from a
work related injury and therefore no longer suffered a disability for which she was entitled to
worker’s compensation benefits. MCL 418.301; MSA 17.237(301). We reverse and remand.
Plaintiff worked for defendant in various capacities from April 1976 through January
1984. Beginning in 1981, plaintiff worked in a Roseville office of defendant performing the
duties of a clerk, which included the daily handling of hundreds of packages weighing as much as
seventy pounds each. By January 11, 1984, plaintiff stopped reporting to work due to continuing
back and leg pains. Plaintiff was diagnosed with a herniated disc and in April 1984 underwent a
laminectomy. Plaintiff did not return to work for defendant.
In July 1984, plaintiff filed with the Workmen’s Compensation Bureau a petition seeking
benefits. In October 1987, a magistrate issued an opinion and order finding that plaintiff was
totally disabled after suffering work related injuries in November 1983 and January 1984, and
ordering that plaintiff receive an open award of benefits “until further order of the Bureau.” In
December 1991, the WCAC affirmed the magistrate’s decision.
Sometime during 1991 or 1992, defendants filed a petition to stop and recoup plaintiff’s
benefits. After a July 1995 hearing,1 the magistrate found as follows:
1
In June 1994, the case underwent mediation, but did not achieve a settlement.
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This is one of the few times in my experience when medical experts from
both sides appear to be in relatively substantial agreement regarding their
respective clinical findings and conclusions involving a Plaintiff. Both doctors
who testified agree that Plaintiff’s laminectomy was successful, that she is
asymptomatic and functioning well, and that she can return to work with limited
restrictions. In regard to those restrictions, I find the testimony of Dr.
Higginbotham to be the more persuasive evidence. Plaintiff’s restrictions are
merely prophylactic in nature. I am not persuaded that these cautionary
restrictions constitute a “disability” under the Act. . . . This is particularly true in
light of the fact that I believe Plaintiff, as owner/operator of two of her own
package shipping stores, for seven or eight years during a period in which she was
found to be “totally disabled” by Magistrate Cameron, did essentially the same
activities as we were required by her job with Defendant.
Accordingly,
***
I FIND Defendant has established by a preponderance of evidence that
Plaintiff was no longer “totally disabled” as of March 3, 1993, the date Plaintiff’s
own expert examined Plaintiff and found her able to return to work with
restrictions.
I FURTHER FIND Defendant has established by a preponderance of
evidence that as of that date, Plaintiff had recovered from the injuries for which
she had been granted an open award of benefits.
I FURTHER FIND, in light of the above, that the issue of whether of [sic]
not Plaintiff may have regained a wage earning capacity is moot and, therefore, no
specific findings are made in that regard.
The magistrate thus granted defendant’s petition, and the WCAC subsequently affirmed the
magistrate.
Plaintiff on appeal challenges the WCAC’s findings that plaintiff recovered from her
work related injuries and that plaintiff after her back surgery worked lifting packages weighing
up to seventy pounds.
The findings of fact made by the commission acting within its powers, in
the absence of fraud, shall be conclusive. The court of appeals and the supreme
court shall have the power to review questions of law involved with any final
order of the commission . . . . [MCL 418.861a(14); MSA 17.237(861a).]
“Review by the Court of Appeals . . . begins with the WCAC’s decision, not the magistrate’s. If
there is any evidence supporting the WCAC’s factual findings, and if the WCAC did not
misapprehend its administrative appellate role . . . then the courts must treat the WCAC’s factual
findings as conclusive.” Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 709-710; 614
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NW2d 607 (2000). This Court reviews de novo, however, questions of law involved in any
WCAC order. Id. at 732.
In concluding that plaintiff had totally recovered from her back injury and surgery, the
WCAC cited (1) the magistrate’s finding that after her April 1984 back surgery plaintiff worked
at the customer counter of a packaging business she owned lifting packages weighing up to
seventy pounds, and (2) two medical experts’ testimony that plaintiff’s laminectomy appeared
successful, plaintiff currently was asymptomatic and generally doing well, and that plaintiff could
return to her former employment with defendant United Parcel Service (UPS) under preventative
restrictions against excessive bending and lifting (over twenty-five to thirty pounds).
No evidence of record, however, supports the WCAC’s finding that after her surgery
plaintiff “work[ed] at the customer counter, including the lifting of packages weighing up to 70
pounds.” At the June 17, 1995 hearing, plaintiff testified that “[t]oward [sic] the end” of her
ownership of a packaging business in 1990 or 1991 she lifted some parcels, “[m]ost of [which]
were just small mail order” whose “average weight would be under five pounds.” Defense
counsel then inquired whether plaintiff’s business handled heavier parcels, to which plaintiff
responded that the maximum weight shipped constituted seventy pounds. It seems clear that
plaintiff merely testified that her store was involved in the shipping of packages up to seventy
pounds, not that she personally had lifted any packages weighing that much. While plaintiff
averred that most of the packages she lifted weighed approximately five pounds, the WCAC’s
finding that plaintiff herself lifted parcels weighing up to seventy pounds represents mere
speculation unsubstantiated by the testimonial record. Aquilina v General Motors Corp, 403
Mich 206, 211, n 2; 267 NW2d 923 (1978) (noting the employer bears the burden of proof by a
preponderance that a worker has recovered or that his dependency status has terminated); Wiltse
v Borden’s Farm Products Co of Michigan, 328 Mich 257, 265; 43 NW2d 842 (1950)
(explaining that if an inference favorable to the applicant can only be arrived at by conjecture or
speculation the applicant may not recover) (quotations omitted). The record is devoid of any
evidence concerning the weight of any packages plaintiff might have lifted above the average
weight of less than five pounds. Moreover, plaintiff specifically opined that she would not be
capable of returning to her former UPS job, which required her to lift packages weighing up to
seventy pounds.
With respect to plaintiff’s successful back surgery, lack of symptoms, and ability to work
under preventative restrictions, the WCAC accurately summarized the medical experts’
testimony. The WCAC also correctly observed as a matter of law that “the prophylactic
restrictions could have been a basis for disability,” see Thomas v Chrysler Corp, 164 Mich App
549, 554-555; 418 NW2d 96 (1987) (explaining that medical advice against returning to work
due to the possible recurrence of a medical condition may entitle a plaintiff to benefits, provided
that the plaintiff’s underlying disability was caused or advanced by the work),2 but found the
2
See also Woody v Cello-Foil Products (After Remand), 450 Mich 588, 596; 546 NW2d 226
(1996) (“Thomas[, supra] stood for the proposition that an employer is liable for any disability
that stems from the plaintiff’s sensitivity to chemicals if that sensitivity arose out of her
employment.”).
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existence of restrictions unpersuasive “because of the existence of additional evidence which
persuaded the magistrate that plaintiff could return to her former employment.” As we have
explained, however, no evidence of plaintiff’s post surgery lifting of seventy pound packages
accompanied the medical evidence presented.
There is no question that the suggested restrictions guarded against plaintiff’s increased
susceptibility to reinjury of a previous, work related injury. Applying the correct standard of
disability,3 the fact that plaintiff had recovered from her original work injuries to the extent that
she no longer experienced debilitating symptoms does not necessarily indicate the end of her
disability status if it remained medically inadvisable for plaintiff to return to some work because
her underlying back pathology remained more susceptible to reinjury than previously.4 Thomas,
3
With respect to the existence of a disability, the WCAC correctly noted
that the magistrate referred to the wrong [1987] statutory provision regarding
disability and erroneously quoted the Rea v Regency Olds[/Mazda/Volvo], 450
Mich 1201 (1995) case. Because her date of injury is before 1987, neither the
statutory provision nor the Rea case is applicable. In addition, since the
magistrate’s decision in this matter, the Supreme Court has supplanted its prior
definition of disability in Rea with the analysis in Haske v Transport Leasing, Inc,
Indiana, 455 Mich 628[; 566 NW2d 896] (1997).
The version of MCL 418.301(4); MSA 17.237(301)(4) in effect at the time of plaintiff’s injury
defined “disability” as “a limitation of an employee’s wage earning capacity in the employee’s
general field of employment resulting from a personal injury or work related disease.” Wright v
Vos Steel Co, 205 Mich App 679, 682; 517 NW2d 880 (1994); Corbett v Montgomery Ward &
Co, Inc, 194 Mich App 624, 628; 487 NW2d 825 (1992). The WCAC nonetheless found the
magistrate’s error harmless in light of its belief, discussed above, that the record demonstrated
plaintiff’s post surgery lifting of seventy pound parcels.
[T]his error is harmless in the context of this case because the granting of
the Petition to Stop was based on medical recovery from injury and was not
dependent upon the definition of disability. The magistrate found that the
prophylactic restrictions did not constitute disability because plaintiff had
performed “essentially the same activities as were required by her job with
Defendant.” This is a determination that plaintiff has medically recovered to the
point that she can perform her former employment. Thus, the erroneous
application of the 1987 definition of disability does not require reversal.
4
Although the WCAC recognized that prophylactic restrictions could represent a basis for
disability, the WCAC then mentioned Cann v Family Dollar Stores, 1995 ACO 113, cited by the
magistrate, as supportive of the magistrate’s opinion. The WCAC compared its Cann decision
and the instant case as follows:
In that case [the] plaintiff was given prophylactic restrictions because she
had been off work for a significant period of time. The restrictions were not
considered to be indicative of a continuing disability. The termination of benefits
(continued…)
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supra. Neither the WCAC nor the magistrate specifically determined whether the medical
evidence presented, which both the WCAC and the magistrate credited, standing alone
demonstrated plaintiff’s disability or warranted the termination of plaintiff’s benefits.5 Thus, we
must remand for the WCAC’s reconsideration whether the available evidence signified plaintiff’s
disability according to the statutory provision in effect in 1984. Mudel, supra at 712. Given the
lack of actual testimony concerning the maximum weights plaintiff lifted at her own store, we
suggest that the WCAC remand to the magistrate for further development of this factual issue, or
for the receipt of further evidence regarding the current status of plaintiff’s condition.
We reverse the WCAC’s order affirming the magistrate’s grant of defendants’ petition to
stop payment of plaintiff’s benefits, and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Henry William Saad
/s/ Hilda R. Gage
(…continued)
was affirmed in spite of restrictions given by various medical witnesses. In this
case [the] magistrate’s determination that plaintiff’s restrictions did not mandate a
finding of disability was appropriate in the context of the facts of this case and the
testimony the magistrate found to be persuasive.
We do not, however, view the instant case as analogous to the WCAC’s description of Cann.
Here, the medical witnesses recommended work restrictions because of plaintiff’s history of back
injury and corrective surgery, not the amount of time plaintiff was off work. While neither the
magistrate nor the WCAC was obliged to accept the proffered medical opinions, neither rejected
the medical experts’ recommendations as speculative or unwarranted, or concluded that it would
be unreasonable for plaintiff to refuse or avoid work exceeding the restrictions.
5
While defendant suggests that wage loss benefits are payable for disability only when a causal
link exists between the disabling injury and the injured worker’s continued unemployment,
neither the WCAC nor the magistrate ever considered the reasons for plaintiff’s continued
unemployment. Furthermore, while defendant also spends much time arguing that plaintiff’s
wage earning capacity constitutes the focus of the instant case, neither the magistrate nor WCAC
ever reached the issue of plaintiff’s post injury wage earning capacity. The instant record does
not reveal what wages, if any, plaintiff may have earned from post injury work.
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