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Holloway v. United Parcel Service12/1/2000
UNPUBLISHED
Plaintiff appeals by leave granted the Worker 's Compensation Appellate Commission's (WCAC's) affirmance of the magistrate's determinations that plaintiff had fully recovered from a work related injury and therefore no longer suffered a disability for which she was entitled to worker 's compensation benefits. MCL 418.301; MSA 17.237(301). We reverse and remand.
Plaintiff worked for defendant in various capacities from April 1976 through January 1984. Beginning in 1981, plaintiff worked in a Roseville office of defendant performing the duties of a clerk, which included the daily handling of hundreds of packages weighing as much as seventy pounds each. By January 11, 1984, plaintiff stopped reporting to work due to continuing back and leg pains. Plaintiff was diagnosed with a herniated disc and in April 1984 underwent a laminectomy. Plaintiff did not return to work for defendant.
In July 1984, plaintiff filed with the Workmen's Compensation Bureau a petition seeking benefits. In October 1987, a magistrate issued an opinion and order finding that plaintiff was totally disabled after suffering work related injuries in November 1983 and January 1984, and ordering that plaintiff receive an open award of benefits "until further order of the Bureau." In December 1991, the WCAC affirmed the magistrate's decision.
Sometime during 1991 or 1992, defendants filed a petition to stop and recoup plaintiff's benefits. After a July 1995 hearing, the magistrate found as follows:
This is one of the few times in my experience when medical experts from both sides appear to be in relatively substantial agreement regarding their respective clinical findings and conclusions involving a Plaintiff. Both doctors who testified agree that Plaintiff's laminectomy was successful, that she is asymptomatic and functioning well, and that she can return to work with limited restrictions. In regard to those restrictions, I find the testimony of Dr. Higginbotham to be the more persuasive evidence. Plaintiff's restrictions are merely prophylactic in nature. I am not persuaded that these cautionary restrictions constitute a "disability" under the Act . . . . This is particularly true in light of the fact that I believe Plaintiff, as owner/operator of two of her own package shipping stores, for seven or eight years during a period in which she was found to be "totally disabled" by Magistrate Cameron, did essentially the same activities as we were required by her job with Defendant.
Accordingly,
*
I FIND Defendant has established by a preponderance of evidence that Plaintiff was no longer "totally disabled" as of March 3, 1993, the date Plaintiff's own expert examined Plaintiff and found her able to return to work with restrictions.
I FURTHER FIND Defendant has established by a preponderance of evidence that as of that date, Plaintiff had recovered from the injuries for which she had been granted an open award of benefits.
I FURTHER FIND, in light of the above, that the issue of whether of not Plaintiff may have regained a wage earning capacity is moot and, therefore, no specific findings are made in that regard.
The magistrate thus granted defendant's petition, and the WCAC subsequently affirmed the magistrate.
Plaintiff on appeal challenges the WCAC's findings that plaintiff recovered from her work related injuries and that plaintiff after her back surgery worked lifting packages weighing up to seventy pounds.
The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme c
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