Order Michigan Supreme Court
Lansing, Michigan
November 2, 2007 Clifford W. Taylor,
Chief Justice
133743 & (21) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
LYNELL JOHNSON, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 133743
COA: 273010
WCAC: 03-000322
SUBURBAN MOBILITY AUTHORITY
REGIONAL TRANSPORTATION (SMART),
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion to strike pleadings is DENIED. The application
for leave to appeal the March 16, 2007 order of the Court of Appeals is considered and,
pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case
to the Court of Appeals for consideration as on leave granted.
CORRIGAN, J., concurs and states as follows:
I concur with the order remanding to the Court of Appeals for consideration as on
leave granted. I write separately to point out that the Workers’ Compensation Appellate
Commission (WCAC) majority reversed the magistrate’s decision on the basis of a faulty
legal premise. The WCAC held that the magistrate’s decision granting defendant's
petition to stop benefits must be reversed because it was not supported by the medical
expert testimony. But the law does not require that a petition to stop worker’s
compensation benefit payments be supported by affirmative expert medical testimony.
For example, if an employee collecting benefits for a torn rotator cuff is videotaped
bench-pressing 300 pounds, no medical testimony confirming the employee’s recovery is
necessary. In any case, both medical and nonmedical testimony were available to the
magistrate to support his decision that plaintiff no longer had a work-related mental
disability in 1999. First, plaintiff did not receive any medical treatment through most of
1999, and defendant filed its petition to stop in May 2000. Second, the magistrate stated
that plaintiff’s anger at defendant for opposing her claim for workers’ compensation
benefits did not disable her from returning to her former job, because “neither Dr.
Lingam nor Dr. Rubin felt her anger in itself was disabling, while Dr. Kezlarian found
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her expression of anger bizarre and disproportionate.” Defendant’s expert, Dr. Kezlarian,
expressed skepticism about plaintiff’s claims of a work-related condition, and the
magistrate apparently gave more credence to Dr. Kezlarian’s opinion after learning that
plaintiff had repeatedly lied about her work and treatment history and had neglected to
tell her treating physician that she had secured a new job at a different company. Thus,
the WCAC’s decision appears to contain some serious flaws. In any case, on remand, the
Court of Appeals should closely scrutinize the WCAC majority’s ill-reasoned and
apparently result-driven decision.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 2, 2007 _________________________________________
t1030 Clerk