ANNIE SWINTON V MICHIGAN STATE UNIVERSITY
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STATE OF MICHIGAN
COURT OF APPEALS
ANNIE SWINTON,
UNPUBLISHED
October 7, 2008
Plaintiff-Appellee,
v
No. 280135
WCAC
LC No. 06-000103
MICHIGAN STATE UNIVERSITY,
Defendant-Appellant.
Before: O’Connell, P.J., and Smolenski and Gleicher, JJ.
PER CURIAM.
Defendant Michigan State University (MSU) appeals by leave granted the decision of the
Worker’s Compensation Appellate Commission (the Commission), which affirmed a
magistrate’s order granting plaintiff Annie Swinton a closed award of benefits for a work-related
psychological condition. Because we conclude that the Commission misapplied the applicable
law to the facts of this case, we reverse the Commission’s decision to affirm and remand for
further proceedings. This appeal has been decided without oral argument under MCR 7.214(E).
Swinton alleged in the underlying proceedings that she suffered a continuing injury
beginning on June 19, 2003, arising from repeated harassment by her supervisor in the course of
her employment with MSU that caused, aggravated, or accelerated emotional sequelae. The
magistrate found that Swinton had shown by a preponderance of the evidence that she suffered a
work-related psychiatric condition that was significantly contributed to by actual events of her
employment. The magistrate also found that Swinton had established that she was disabled
under Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002), and granted her a closed
award of benefits for the period extending from June 20, 2003 to July 13, 2004. The
Commission then affirmed the magistrate’s award.
Our review of the Commission’s decision is limited to ensuring the integrity of the
administrative process. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614
NW2d 607 (2000). “Findings of fact made or adopted by the [Commission] are conclusive on
appeal, absent fraud, if there is any competent supporting evidence in the record, but a decision
of the [Commission] is subject to reversal if the [Commission] operated within the wrong legal
framework or if its decision was based on erroneous legal reasoning.” Schmaltz v Troy Metal
Concepts, Inc, 469 Mich 467, 471; 673 NW2d 95 (2003). This Court continues to exercise de
novo review of questions of law involved in any final order of the Commission. Mudel, supra at
697 n 3.
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MSU first argues that the Commission misapplied the test stated in Robertson v
DaimlerChrysler Corp, 465 Mich 732; 641 NW2d 567 (2002).
MCL 418.301(2) provides in pertinent part that “[m]ental disabilities … shall be
compensable if contributed to or aggravated or accelerated by the employment in a significant
manner. Mental disabilities shall be compensable when arising out of actual events of
employment, not unfounded perceptions thereof.” To establish the existence of a compensable
mental disability and to satisfy the second sentence of § 301(2),
a claimant must demonstrate: (a) that there has been an actual employment event
leading to his disability, that is, that the event in question occurred in connection
with employment and actually took place; and (b) that the claimant’s perception
of such actual employment event was not unfounded, that is, that such perception
or apprehension was grounded in fact or reality, not in the delusion or the
imagination of an impaired mind. [Robertson, supra at 752-753.]
This test is objective. Id. at 754. To determine “whether actual events occurred and
whether a claimant’s perceptions were ‘founded,’ the factfinder must assess the factual
circumstances in terms of how a reasonable person would have viewed them.” Id. at 754-755.
Thus, in applying the proper statutory test, the factfinder must first determine
whether actual events of employment indeed occurred. Then, in analyzing
whether a claimant’s perception of the actual events of employment had a basis in
fact or reality, i.e., the claimant’s perception was “founded”, the factfinder must
apply an objective review by examining all the facts and circumstances
surrounding the actual employment events in question to determine whether the
claimant’s perception of such events was reasonably grounded in fact or reality.
[Id. at 755.]
MSU does not dispute that the actual events of employment occurred, that is, that
Swinton’s supervisor denied her permission to attend a conference and withdrew her authority to
hire student assistants. Rather, MSU asserts the Commission failed to determine whether
Swinton’s perception of the actual events was, under an objective standard, reasonably grounded
in reality.
The Commission essentially adopted the magistrate’s findings with regard to the
reasonableness of Swinton’s perceptions. But the magistrate misapplied the Robertson test. The
question was not whether Swinton accurately perceived the actual happening of the events, as the
magistrate concluded, but whether Swinton’s perception of her supervisor’s actions as racist,
vindictive, and motivated by animus toward her was reasonably grounded in fact. See, e.g., Wolf
v General Motors Corp, 262 Mich App 1, 7; 683 NW2d 714 (2004) (“The second prong of the
Robertson test requires an objective review of all the facts surrounding the employment events to
determine whether plaintiff’s perception of the coworker’s behavior as ‘humiliating,’ and the
production standards as ‘stressful’, was reasonably grounded in fact.”). The magistrate made no
objective review of the facts surrounding the employment events to determine whether Swinton’s
perception of her supervisor’s actions was reasonably grounded in fact. Indeed, the magistrate
expressly declined to make a ruling regarding whether the actions could be viewed as motivated
by racial animus. Hence, the decision of the magistrate is the product of a flawed application of
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Robertson. Likewise, the Commission, by adopting the flawed findings and reasoning of the
magistrate and by failing to engage in a qualitative and quantitative review of MSU’s challenge,
misapplied Robertson.
MSU also correctly observes that any disability Swinton may have experienced ended as
of November 24, 2003. Swinton’s psychologist released Swinton to return to work as of that
date, with the restrictions that MSU not return her to the same work setting or to the supervision
of her former supervisor. MSU refused to allow her to return to work until its doctor determined
that Swinton was not a danger to other employees or her former supervisor, which has not
happened. Swinton indicated that she would return to work if MSU would honor her restrictions.
As our Supreme Court emphasized in Sington, supra at 158, “disability,” as defined in MCL
418.301, “cannot plausibly be read as describing an employee who is unable to perform one
particular job because of a work-related injury, but who suffers no reduction in wage earning
capacity.” The testimony in this case demonstrates that Swinton possessed the capacity to earn
her maximum wages as of November 24, 2003, the date her psychiatrist permitted her return to
work. The Commission’s conclusion to the contrary is not supported by the “any evidence”
standard. Hence, any disability award made on remand should be closed as of November 24,
2003.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Michael R. Smolenski
/s/ Elizabeth L. Gleicher
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