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### STATE OF MICHIGAN

COURT OF APPEALS

MONASSER OMIAN,

Plaintiff-Appellee, FOR PUBLICATION February 26, 2015

v No. 310743 Michigan Compensation Appellate Commission CHRYSLER GROUP, LLC, LC No. 10-000099

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and W ILDER and S TEPHENS , JJ.

R ONAYNE K RAUSE

, J. (dissenting )

I respectfully dissent. I agree entirely with the majority’s reasoning and conclusions that defendant’s “Proposed Exhibit D,” a copy of a federal indictmen t against plaintiff and several other individuals, was technically admissible, but that the mag istrate’s decision to exclude it and the MCAC’s decision to affirm that exclusion were not clearly e rroneous. I also agree with the majority that the wrongful conduct rule is not properly before this Court and would not be of any use to defendant if it were. I respectfully disagree with the majority’s conclusion that the magistrate’s exclusion of certa in additional evid ence ostensibl y supporting some of the allegations in Exhibit D constitu tes an error warranting revers al.

As an initial matter, I am highly skeptical that a demonstrate d ability to generate income from illegal activities, standing alone, necessarily proves any thing relevant to workers’ compensation benefits. In releva nt part, “wage earning capacit y” is defined as wages that can be earned at “a job reasonably available.” See MCL 418.301(4)(b), MCL 418.302, and MCL 418.401(2)(c). Neither the Legislature nor our Supreme Court h as precisely defined what exactly constitutes a reasonably available job, and indeed, the word “job” is not defined at all. However, I think as a matter of public policy, it would be dang erous to consider illegal activities to be reasonably available jobs. For one thing, that would dra matically increase the burden of a claimant attempting to show entitlement to compensation and ben efits. See Stokes v Chrysler

LLC , 481 Mich 266, 281-285; 750 NW2d 129 (2008). For another, it could effectively encourage illegal activity if we were to recognize such activit ies as in any way reasonable. Finally, because we have functional law enforcement systems in both this state and this country, illegal conduct, however profita ble it may be in the short term , is inherently unstable and ephemeral. Although the specific acts undertaken by a person c an of course demonstrate that the person has the ability to perform those acts, with whatever imp lications come therewith, the fact-2- standing alone that the person has managed to derive some reven ue from illegal conduct does not, in my opinion, itself consti tute good evidence of a capaci ty for gainful employment.

Credibility of a witness is generally relevant. See People v Layher , 464 Mich 756, 761- 764; 631 NW2d 281 (2001); In re Dearmon , 303 Mich App 684, 696; 847 NW2d 514 (2014). As noted, the specific acts in which a benefits claimant has en gaged can certainly constitute evidence of ability to engage i n those acts. Here, however, th e additional evidence would not show that plaintiff was able to perform physical or mental feat s that he contended he could not. The medical testimony that the magistrate deemed credible showe d that plaintiff was essentially limited to sedentary activities. In other words, there was no actual dispute that plaintiff could theoretically earn income thr ough some hypothesized sedentary w ork. According to Exhibit D, plaintiff was merely a signatory on accounts used to funnel mon ey out of the country illegally; evidence supporting that allegatio n would prove nothing of valu e beyond, possibly, the profitability of the operation. The fact that an illegal activ ity was more or less profitable does not, in my opinion, cast any light on plaintiff’s credibility r egarding what he could actually perform as legitimate employment.

I do agree with the majority that the magistrate erred to the extent its decision can be interpreted as a conclusion that plaintiff did not commit a crime purely because he did not plead

to that crime. The magistrate’s ex clusion of evidence pertaining to crimes to which plaintiff did not plead could have had the effect of excluding potential evid ence of crimes plaintiff actually perpetrated. Furthermore, I agre e that excluding an exhibit, f or whatever reason, does not per se necessitate exclusion of other e vidence relating to the subject -matter of that exhibit. I certainly agree that, in principle, actual work a benefits claimant pe rforms “under the table” can be evidence that the claimant is capable of engaging in gainful em ployment, or “a job reasonably available.” What I cannot accep t is the contention that acquir ing money through illegal conduct

is inherently proof thereof. Consequently, I cannot agree that the magistra te’s error warrants

reversal in this matter.

Therefore, I appreciate defendant’s argument that it should, i n the abstract, have been permitted to show that plaintiff was physically performing actu al actions that would also be performed in the performance of gainful employment and thus pro ving a capacity for that gainful employment. Practically, however, I can find absolutely nothin g in defendant’s brief beyond hyperbolic bluster and rather suspiciously pious appeals to emo tion to suggest that they could have presented evidence of any such acts. Rather, defendant re fers to plaintiff as some kind of criminal mastermind but provides not a scintilla of support for that characterization. Plaintiff is undisputedly a criminal, there w as likely little doubt that his honesty is somewhat less than absolute, and he may very well b e a “bad person,” but entitleme nt to workers’ compensation benefits is in no way based on su ch considerations. Our role a s a court is to implement the law rather than our own whimsical personal opinions about whether a ny given individual deserves to be more equal under the la w than anyone else.

Had defendant even submitted so much as a minimal offer of pro of, or if the crimes were at all related to his work with defendant, I would accept that the majority’s decision to remand might make sense, depending on th e nature of the proofs offered . Again, I agree that evidence of

the actual conduct in which a cla imant has engaged is relevant and should be considered to the extent that conduct consists of acts that would be performed in the course of gainful-3- employment. Nevertheless, that would be true whether the condu ct was legal or illegal. Defendant’s argument amounts to a bare assertion, with which th e majority seemingly agrees, that profiting from a crime somehow equals proof of wage-earnin g capability. Defendant simply seeks to extrapolate too much, asking me to believe that plaint iff was a “criminal mastermind” without the basic decency to offer the slightest basis for why the existence of any supporting

evidence for that assertion is anything but hypothetical and sp eculative. Without any such support, I cannot perceive any basi s for undermining the MCAC’s result.

I appreciate the majority’s position that, in theory, the magi strate should not ignore evidence of actual conduct by a benefits claimant that tends to demonstrate an ability to engage in gainful employment. However , beyond a perverse and disturbi ng implication that crime in fact pays, I do not believe the omitted evidence that the major ity deems significant here would have possibly done so. Conseque ntly, I would affirm.

/s/ Amy Ronayne Krause