McKissack v. Comprehensive Health Services

*78Brickley, J.

(dissenting). The majority incorrectly characterizes the ruling of the Court of Appeals in this matter as one of fact and does not address the legal question that Court decided. The issue is whether, as a matter of law, plaintiff’s evidence that she could not perform her work to her former employer’s satisfaction is sufficient under the standard required by MCL 418.301(4); MSA 17.237(301X4).* The defining standard regarding whether a worker is disabled is broader than work history with one employer. The statute requires an impairment in the employee’s general field of employment rather than employability with one specific employer. Absent any evidence regarding the plaintiff’s general employability as a medical technologist, I would hold that the evidence presented did not, as a matter of law, meet the plaintiff’s burden of proof.

Further, for the reasons I dissented in Sobotka v Chrysler Corp (After Remand), 447 Mich 1; 523 NW2d 454 (1994), even if the plaintiff has proven a *79work-related disability, I would remand for a re-determination of whether the injury is partial or total. If partial, a determination of impairment of wage-earning capacity should be made before an assessment of the proper amount of compensation can be set.

I do not agree with the view expressed in the dissenting opinion that suggests a remand to the Worker’s Compensation Appellate Commission for a determination of whether it has jurisdiction to decide a reason for termination as it relates to causation in a worker’s compensation claim because the finding of permanent disability does not need a resolution of the issue why the plaintiff was asked to resign. A worker’s status as disabled is not dependent on the reasons for termination with a particular employer. The wcab wrote that it suspected that the reason for the termination was the disability, but it would not make a finding because it was not asked to.

The employer’s defense that it had noninjury reasons for terminating the worker is not dispositive but merely relevant as an attack on the causal connection between the work-related injury and the worker’s lack of employment.

Disabled persons are frequently returned to work. Some are able to perform the required tasks when a return is attempted and some are not. A person fitting the statutory definition of disabled might be asked to resign for legitimate reasons, but that person should not lose his disabled status because he had been functioning to the employer’s satisfaction until the time of discharge. In such a situation, the employee will, as a matter of proofs, have to overcome the strong presumption of having recovered, which can be inferred from the employment history.