BOBBIE JEAN WHITE V CAPITOL AREA COMM SERV
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STATE OF MICHIGAN
COURT OF APPEALS
BOBBIE JEAN WHITE,
UNPUBLISHED
May 15, 1998
Plaintiff-Appellant,
v
No. 198153
WCAC
LC No. 92-000469
CAPITOL AREA COMMUNITY SERVICES
and ACCIDENT FUND COMPANY,
Defendants-Appellees.
Before: Markey, P.J., and Bandstra and Markman, JJ.
PER CURIAM.
Plaintiff appeals by leave granted a decision of the Worker’s Compensation Appellate
Commission (WCAC) that reversed a magistrate’s open award of benefits. The magistrate found that
plaintiff had a right shoulder condition that became disabling at least by March 28, 1990, and awarded
benefits from that day forward. The WCAC reversed because it found that plaintiff’s “very limited”
physical restriction, which limits the type of work she can perform, did not limit plaintiff’s ability to earn
wages within her qualifications and training. The WCAC therefore concluded that plaintiff was not
disabled. We reverse.
The WCAC did not reverse the magistrate’s factual finding that plaintiff was no longer physically
capable of performing her job as a bus driver as of March 28, 1990 in the manner she had for
seventeen years previously. Further, this finding was supported by competent, material, and substantial
evidence on the whole record. MCL 418.861a(3); MSA 17.237(861a)(3). Instead, the WCAC
reversed the magistrate because it viewed the evidence as showing that plaintiff could still drive a bus
that did not require manually operating a door with her right arm. It was the WCAC’s view that plaintiff
could not be deemed disabled merely because she could not perform some particular job within her
qualifications and training, and because plaintiff had not shown that her limited physical restriction limited
her ability to earn wages within her qualifications and training.
Since the WCAC decided this case, the dispositive question has been answered by our
Supreme Court in Haske v Transport Leasing, Inc, 455 Mich 628; 566 NW2d 896 (1997). The
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Court in Haske held that an employee is disabled within the meaning of MCL 418.301(4); MSA
17.237(301)(4) if a personal injury or work-related disease prevents the employee from performing any
work, “even a single job,” within the employee’s qualifications and training. Haske, supra at 634.
Under Haske, the reasoning of the WCAC in the present case was erroneous. The dispositive facts
under Haske, as determined by the magistrate, based upon sufficient evidence in the record, are that
plaintiff cannot perform the job that she performed for defendant Capitol Area Community Services
(hereinafter “defendant”) for seventeen years because of an injury or disease that was caused or
aggravated by her employment.
Defendant argues that plaintiff is nevertheless not entitled to benefits because plaintiff did not
establish a causal link between her work-related shoulder injury and her loss of wages. The legal basis
for defendant’s argument is Haske’s recognition that an employee must prove that his or her loss of
wages was caused by the work-related injury. Id. at 661-662. Haske recognized that an employer
can refute the causal connection with evidence that factors other than the injury are the cause of an
employee’s unemployment, such as an ailment which is unrelated to employment or malingering. Id. at
661 n 38.
Defendant argues that plaintiff’s unemployment is due to a kidney condition that is unrelated to
plaintiff’s employment. It is clear that the kidney condition was unrelated to plaintiff’s employment and
that it caused plaintiff to stop working. The magistrate well recognized these circumstances. However,
the magistrate also recognized that the evidence showed that plaintiff’s kidney problem eventually did
not prevent her from returning to work. More significantly, the magistrate found that plaintiff was
experiencing shoulder difficulties when she last worked and that those difficulties increased to the point
of disability by the time Dr. Fuksa examined plaintiff on March 28, 1990. Thus, the magistrate found
that plaintiff was unemployed because of her shoulder condition and not because of her kidney
condition. The evidence amply supported the magistrate’s findings. Moreover, as noted earlier, the
WCAC did not reverse the magistrate on the basis that plaintiff was not working because of her kidney
condition.1
There is no factual determination remaining regarding a compensable disability. The WCAC
reversed because it used an incorrect standard for disability. The WCAC did not find fault with the
magistrate’s findings. The magistrate’s decision is consistent with Haske. The decision of the WCAC
is reversed, and the magistrate’s decision is reinstated.
/s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Stephen J. Markman
1
Nor does the record support the suggestion that plaintiff was malingering or that plaintiff retired and
then filed a worker’s compensation claim as an afterthought.
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