HOLDEN v. FORD MOTOR CO.

LEVIN, J.

The question presented concerns the scope of administrative appellate review by the Workers' Compensation Appellate Commission of a decision of a magistrate, and the scope of judicial appellate review on leave granted by the Court of Appeals or this Court.

We conclude that the WCAC did not, on administrative appellate review, exceed its authority in reversing the decisions of the magistrates and in awarding benefits, and that the Court of Appeals panel in Holden1 erred in reversing, and the panel in Weiss2 did not err in affirming, the WCAC.

I

Before the reforms enacted in 1985,3 hearings in workers' compensation cases were conducted by a referee, also referred to as an administrative law judge, with de novo review by the Workers' Compensation Appeal Board. Judicial review was obtainable on application, not as of right, in the Court of Appeals and this Court.

In an effort to address the large number of backlogged appeals, the Department of Labor considered proposals for changes in the administrative appellate review process. In 1980, the Lesinski Report, summarizing the results of the department's Workers' Compensation Adjudication Project, proposed that decisions of a magistrate be made conclusive "unless fraudulently obtain[ed] or contrary to the great weight of the evidence."4 No procedural reform legislation was, however, enacted.

In 1984, Theodore J. St. Antoine, the Governor's Special Counsel on Workers' Compensation, recommended significant changes in the decision-making process. Like the Lesinski Report, St. Antoine recommended that de novo review of the hearing officer's decision be eliminated. He proposed that the question, on administrative appellate review, should be whether the decision of the hearing officer is supported by "substantial ... evidence on the whole record." He said that this standard was "deliberately designed to allow the Appeal Board a bit more latitude" than it would have had under the "great weight of the evidence" standard proposed in the Lesinski Report. St. Antoine said this would enable the reviewing panel to "remedy any serious misstep by [a hearing officer] in assessing the evidence and making factual findings."5

St. Antoine's proposals were in general adopted by the Legislature when it enacted 1985 PA 103.6 Magistrates replaced referees, and the WCAC replaced the WCAB.7

A

Under Act 103, beginning October 1, 1986, de novo review was eliminated. Henceforth, findings of fact by a workers' compensation magistrate were to be considered conclusive, on administrative appellate review by the WCAC, if supported by "competent, material, and substantial evidence on the whole record." MCL 418.861a(3); MSA 17.237(861a)(3).

This substantial evidence standard provides for administrative appellate review more deferential to the hearing officer's decision than de novo review, but for more searching review by the WCAC than judicial review under the "any evidence standard." The constitution provides for such limited judicial review:

Act 103 did not change the standard for judicial review of final decisions in workers' compensation proceedings.8 The Legislature had provided, under former law, that it was the findings of fact made by the WCAB that were to be conclusive on judicial appellate review, in the absence of fraud.9 Act 103 provides that the findings of fact made by the WCAC, not the findings of the magistrate, are to be conclusive, on judicial appellate review, in the absence of fraud.10

The Legislature, by employing the language of the constitution in stating that the fact finding of the WCAC is final subject to limited judicial review, made clear that judicial review by the Court of Appeals or this Court of a WCAC decision is to be of the findings of fact made by the WCAC and not the findings of fact made by the magistrate. And the findings of fact made by the WCAC are conclusive if there is any competent evidence to support them. As under prior law, judicial review is obtainable on application, not as of right, to the Court of Appeals and this Court.11

B

The substantial evidence standard, like the standard for judicial appellate review, is rooted in Const 1963, art 6, § 28, which provides that administrative agency decisions subject to judicial review following a hearing shall be minimally reviewed to determine whether the decision is "supported by competent, material and substantial evidence on the whole record." (Emphasis added.)12

As originally introduced in the Senate, the 1985 legislation would not have defined what constitutes "substantial evidence on the whole record."13 The House Substitute, which became Act 103, retained the "substantial evidence on the whole record" standard,14 but added definitions of "substantial evidence" and "whole record"15 taken from MERC v Detroit Symphony Orchestra, Inc, 393 Mich. 116; 223 N.W.2d 283 (1974), where this Court considered the meaning of "substantial evidence" in the context of judicial review of findings of fact by the Michigan Employment Relations Commission pursuant to the labor mediation act.16 The House Substitute also added language, again taken from Detroit Symphony, providing that the WCAC'S review of a magistrate's decision should include both a "qualitative and a quantitative" analysis of the evidence to ensure a full, thorough, and fair review.17

As enacted, the "substantial evidence on the whole record" standard largely parallels the description of substantial evidence in MERC v Detroit Symphony Orchestra. The statute provides that findings of fact made by a magistrate shall be considered "conclusive by the commission if supported by competent, material, and substantive evidence on the whole record":

In apparent recognition of the difference between judicial appellate review of an administrative agency's decision, and administrative appellate review by the WCAC of a magistrate's decision, the Legislature did not enact, as part of the substantial evidence standard for workers' compensation administrative appellate review purposes, the MERC language that review by the WCAC is to be "undertaken with considerable sensitivity" to provide "due deference to administrative expertise" and to avoid displacing a "choice between two reasonably differing views."19 MERC v Detroit Symphony Orchestra, supra, p 124.

C

The question on judicial appellate review is, in each case, whether the WCAC acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate's decision was or was not supported by competent, material, and substantial evidence on the whole record. In judging, on judicial appellate review, whether the WCAC acted properly, this Court and the Court of Appeals begin with the words of the Legislature. This Court and the Court of Appeals consider whether there are issues of credibility of live witnesses to be determined by the magistrate, the evidence considered and ignored by the magistrate and the WCAC, the care taken by the magistrate and the WCAC, and the reasoning and analysis of the magistrate and the WCAC.

We agree with the Court of Appeals in Weiss that the stringent constitutional and statutory limitations on judicial appellate review suggest that some latitude must be given the WCAC, should it find that the magistrate's findings of fact are not supported by "competent, material, and substantial evidence on the whole record," if there is to be any effective appellate review, administrative or judicial, at all. And that if the appellate courts were not to allow such latitude to the WCAC, they would find that they were increasingly called upon to perform the appellate reviewing function so that there would be effective appellate review at some level.

Due deference should be given to the administrative expertise of the WCAC, as well as to the administrative expertise of the magistrate. Recognition that a WCAC panel brings to the table the administrative expertise of more than one person may, depending on the factual or legal issue, be appropriate.

A carefully constructed opinion by the WCAC enables the Court of Appeals and this Court to determine whether the WCAC duly recognized and observed the limitations on its reviewing function contemplated by the substantial evidence standard. If the opinion is carefully constructed, a reviewing court should ordinarily defer to the collective judgment of the WCAC unless it is manifest that it exceeded its reviewing power.20

We do not now offer a judicial standard in exegesis of the legislatively stated standard. If it appears on judicial appellate review that the WCAC carefully examined the record, was duly cognizant of the deference to be given to the decision of the magistrate, did not "misapprehend or grossly misapply" the substantial evidence standard,21 and gave an adequate reason grounded in the record for reversing the magistrate, the judicial tendency should be to deny leave to appeal or, if it is granted, to affirm, in recognition that the Legislature provided for administrative appellate review by the seven-member WCAC of decisions of thirty magistrates, and bestowed on the WCAC final fact-finding responsibility subject to constitutionally limited judicial review.

II

In Holden, the magistrate denied death benefits to the widow of a Ford employee who suffered a cardiac episode at work, and died shortly thereafter. The WCAC reversed the magistrate, and was in turn reversed by the Court of Appeals which reinstated the magistrate's decision.

A

Carl Holden managed food service operations in three dining rooms and four cafeterias for Ford Motor Company. He oversaw the cafeteria and dining rooms in Ford's Renaissance Center facility and managed dining facilities in four other metropolitan Detroit locations. In addition to overseeing daily lunch preparation and service for over 1,000 Ford executives and employees, Holden was responsible for executive dinners and company-sponsored parties. Holden's supervisor testified that Holden was very conscientious.

On July 11, 1986, Holden arrived around 8:30 A.M. at his office in the Renaissance Center. First cook Daniel Micallef testified that he was in Holden's office when he arrived. Holden took off his coat and "made like a sigh." Holden did not look well and "[h]is color was like a gray, grayish color." Holden said that "he had just took [sic] the stairs and he wasn't feeling well. His hands were clammy and his chest hurt." Micallef left Holden sitting in his chair. He returned shortly thereafter to speak to Holden. Holden was lying on his desk, gasping for air. Emergency medical personnel were called; Holden was taken to the hospital, where he died within an hour.22

Holden was assigned a parking space in Renaissance Center "M" lot. To reach the elevators, Holden had to climb three flights of approximately ten stairs each. While Holden could have parked in another lot, this too would have required him to climb three flights of stairs to reach an elevator.

Dr. Werner Spitz, then the Wayne County Medical Examiner, board certified in pathology and forensic pathology, and plaintiff's expert witness, testified that Holden suffered a myocardial infarction caused by job-related stress and precipitated by stair climbing.23

Dr. Donald L. Newman, board certified in family practice and Holden's personal physician, testified on the basis of his review of records, including Spitz' autopsy report, the death certificate, a job description and witness statements. Newman opined that Holden suffered a myocardial infarction precipitated by stair climbing.

Dr. Robert A. Gerisch, board certified in internal medicine and specializing in cardiology, testified for Ford. He said that he had examined the tissue slides from the autopsy, hospital records, Spitz' deposition testimony and Holden's job description. He opined, on the basis of his examination of the tissue slides and the record of an EKG taken at the hospital shortly before Holden died, that Holden did not suffer a myocardial infarction.

Gerisch said that the tissue slides did not evidence scarring that would indicate either a recent or an old myocardial infarction. He also testified, however, that the characteristic scarring that occurs after a myocardial infarction is not reflected in the heart muscle tissue for six to eight hours after the infarction occurs. He added that the EKG indicated "an acute infarction type of pattern or ischemia24 which, if it persists, could develop into an infarction."

Gerisch opined that, given the condition of Holden's heart, there was a one hundred percent probability that he would eventually suffer a myocardial infarction, but that he actually died of ischemia that brought on arrhythmia.25 He said that the heart was depleted of all oxygen by the ischemia, caused by narrowed arteries, which brought about the arrhythmia which, corrected only temporarily at the hospital, resulted in Holden's death.26

B

The magistrate found that the claimant failed to establish the requisite nexus between the claimed injury to the heart and work.

The magistrate found that there was almost no testimony concerning specific episodes of job stress that might be related to Holden's death. He rejected testimony that Holden was a worrier as "grossly speculative and without foundation." He reviewed Micallef's testimony and concluded that Holden "had yet to engage in any physical activities following his arrival on the premises." He found that the medical testimony that climbing stairs was related to Holden's "cardiac episode" was speculative.27

The magistrate said that because of the paucity of evidence showing that "any `heart damage' or myocardial infarction" related to a specific incident in the work place, it would be superfluous for him to go into any of the medical testimony.28

C

The WCAC first set out the legal framework for its review, acknowledging that its review of a magistrate's findings was a limited review for substantial evidence. The WCAC then observed that under Miklik v Michigan Special Machine Co, 415 Mich. 364, 367, 370; 329 N.W.2d 713 (1982),29 a plaintiff must establish by a preponderance of the evidence that there is heart damage, and a relationship between the damage and specific incidents or events at work.

The WCAC reviewed the findings of the magistrate, and concluded that the magistrate had failed to find whether Holden sustained heart damage. The WCAC reviewed the magistrate's finding that Spitz' opinion that Holden suffered a myocardial infarction was unsupported. The WCAC said that it was "compel[led] ... to disagree" with the magistrate's finding that Spitz had failed to indicate a basis for his opinion; the WCAC said that its review of the record indicated that

The WCAC said that because the magistrate made no further findings regarding heart damage, it was incumbent on the WCAC to do so.30 The WCAC noted that Spitz and Newman testified that Holden suffered a myocardial infarction caused by job-related stress and precipitated by stair climbing. Conversely, Gerisch testified for Ford that Holden did not suffer heart damage, but died as a result of a disturbance in heart rhythm.

The WCAC said that it found Spitz' testimony was more persuasive because he is a trained pathologist who specializes in the microscopic examination of tissue, as was done in the instant case, while Gerisch is an internist.

The WCAC added, alternatively, that a myocardial infarction was not the only compensable heart damage, particularly in cases where "all the experts agree that the decedent suffered a heart failure which resulted in death." (Emphasis added.) The WCAC ruled that there is heart damage where the heart fails to function, resulting in sudden death, because of arrhythmia.31

The WCAC also found the requisite relationship between the cardiac damage and Holden's work. The WCAC said that the magistrate focused on the stress inherent in employment, but ignored evidence that climbing stairs precipitated the heart failure.32 The WCAC reviewed the evidence of stair climbing, noting that Holden linked it to his distress, and that Micallef testified that Holden would have climbed the stairs immediately before the cardiac episode.

The WCAC ruled that the claimant was not required, under the 1980 amendment of the statute, to establish that the claimed injury was "contributed to or accelerated the condition in a significant manner"33 because the 1980 amendment, applicable where the worker claims only that a heart or cardiovascular condition was contributed to or aggravated or accelerated, is not applicable where the claim is based on an asserted injury.

Here, observed the WCAC, the claimant did not contend that the employment contributed to or aggravated or accelerated Holden's arteriosclerosis. The WCAC concluded that stress related to the work combined with the arteriosclerosis to cause an infarction, or, alternatively, arrhythmia resulting in the failure of the heart to function. In sum, the WCAC ruled that failure of the heart to function, either as a result of an arrhythmia or as a result of an infarction, is a compensable injury.

This Court has not acted on Ford's cross appeal claiming that the 1980 amendment required the claimant in this case to show and the WCAC to find that Holden's employment contributed to or aggravated or accelerated Holden's underlying condition — arteriosclerosis — in a significant manner.34

D

We conclude that the WCAC did not exceed the legislatively prescribed reviewing function.

The WCAC acknowledged that its review of the magistrate's decision was limited by the "substantial evidence on the whole record" standard. Having determined that the magistrate's findings and conclusions were not supported by substantial evidence on the whole record, the WCAC proceeded to assess the evidence on the whole record in light of Miklik and to make its own findings.

The WCAC explained why it found Spitz' testimony more persuasive than Gerisch's. It further explained that Gerisch's testimony concerning a fatal arrhythmia also indicated the requisite heart injury.35

The WCAC similarly reviewed the magistrate's finding that the claimant failed to establish a relationship between the cardiac episode and Holden's employment. It explained why it found the magistrate's finding was not supported, stating that the magistrate focused only on evidence concerning generalized stress and ignored evidence of a specific incident.36

Finally, the WCAC noted that both Spitz and Newman testified concerning the connection between stair climbing and the arrhythmia, and resultant heart failure and death, which testimony the magistrate also ignored.

We conclude that the WCAC gave adequate reasons, grounded in the record, for reversing the fact finding of the magistrate.

E

The Court of Appeals panel in Holden, in reversing the WCAC, began its review concerning the application of the substantial evidence standard by undertaking an independent review of the record and the magistrate's opinion.37 The Court then reviewed the WCAC'S opinion. Finally, the Court explained why it found that the magistrate's findings were supported by "substantial evidence and should not have been overturned" by the WCAC.38

The review undertaken by the Court of Appeals in Holden was not the limited judicial appellate review envisioned by the Legislature. The statute clearly provides that the Court of Appeals is to review the final decision of the WCAC, not the decision of the magistrate.

III

In Weiss, a magistrate entered a closed award of benefits for personal injury. The WCAC affirmed the magistrate's finding that Weiss had suffered an injury, but modified the order to provide an open award. The Court of Appeals affirmed.39

A

Vera Weiss was employed as a registered nurse in a facility operated by the Jewish Home for the Aged.40 On November 18, 1985, she injured her lower back while moving a heavy paraplegic patient from a bed to a wheelchair. Weiss was absent from work for five days. She returned to work, but found that her back pain progressively worsened. Her supervisor sent her to an industrial clinic.41

Weiss testified that before the back injury she was continuously employed as a registered nurse in a facility where the "standard nursing duties" involved the daily dressing, transferring and feeding of patients. Weiss said that after the back injury she was unable to perform these tasks because of pain caused by lifting, twisting, and bending. Weiss is no longer employed.42

Weiss was initially treated by an orthopedist, Dr. Norman Pollak, at the industrial clinic recommended by the Jewish Home. He diagnosed Weiss on December 17, 1985, as suffering from sciatica affecting the L5 nerve root. Pollak continued to treat Weiss until April 15, 1986. Although he testified that Weiss was able to return to work on April 15, 1986, he recommended that she receive cortisone injections into the layer of tissue surrounding her spinal cord. Weiss refused this procedure because she feared complications.

From February, 1986, until February, 1987, Weiss was treated by Dr. Mark Rottenberg, board certified in physical medicine and rehabilitation. His initial diagnosis, based on x-rays, was that Weiss suffered from a lumbosacral strain involving the sacroiliac joint with possible lumbosacral disc disease and radiculopathy (pinched nerve). He also found that Weiss had problems with her right knee.

In May, 1986, Rottenberg ordered a CAT scan; then, in September, 1986, an electromyography and a thermogram, and the previous set of x-rays were repeated. Finally, he ordered a sedimentation-rate test.

Rottenberg concluded, on the basis of the results of the tests and Weiss' continuing complaints of lower back pain, that she suffered from a lumbosacral disc disease with a bulging disc and canal narrowing at L4-5 and right lumbosacral radiculopathy. He further concluded that because the rest of Weiss' tests, including the sedimentation rate for arthritis, were negative, that the disc narrowing was attributable to trauma rather than arthritic disease. Finally, he concluded that, because Weiss' February, 1986, x-rays of the lower back and right knee had been negative, while those taken in September, 1986, were abnormal, her condition was deteriorating. He concluded that Weiss' knee injury resulted from the tearing of a medial meniscus muscle due to her compensating for the right leg radiculopathy.

Clinical tests that Rottenberg performed were also positive. He testified that he found a decreased sensation to pin prick testing over Weiss' right S1 region, that the straight leg raising tests were positive after seventy degrees for the left and sixty for the right, and that the Fabere-Patrick test was positive for S1 discomfort.

A Hoover test was negative. Positive Hoover test results would have suggested that Weiss had learned to report a back problem, rather than true underlying pathology.

Rottenberg was of the opinion that Weiss was disabled as a result of a work-related injury.

Dr. William Miller, an orthopedist, examined Weiss for the Jewish Home on one occasion, September 5, 1986.43 Miller took x-rays, ordered an EMG, a sedimentation rate, and a rheumatoid arthritis factor. He testified that the x-rays showed a narrowing of the disc space between L5-S1. He did not order a CAT scan.

In addition to these tests, Miller also performed clinical tests. He performed a straight leg raising test, first with Weiss in a supine position, and then in a standing position, and found limitations in her range of motion in both positions — at seventy degrees bilaterally for the supine test. Weiss demonstrated excellent straight leg raising on her left leg, when she mounted the examination table, leading off with her left leg. He noted that she did not mount the table from the right.

Miller found that Weiss' demeanor during the office visit invalidated the results of his physical examination. He said that while he was taking her history, Weiss fidgeted and moved around in her chair, which led him to believe that her responses were less than candid. He also said that he found that during the examination her expressions of pain were "exaggerated."

Miller testified that he also obtained positive results when he performed a Fabere-Patrick test, and that the vertical compression test was positive. He observed that when he asked Weiss to walk on her toes, she had a decided limp on her right side.

Miller concluded, on the basis of these findings, that while Weiss may have had a lower back sprain with some nerve root irritation in the past, she was able to return to work when he examined her.

B

The magistrate found that Weiss had been temporarily disabled, and entered a closed award of benefits ending on September 5, 1986.

The magistrate, under the heading "findings," summarized portions of the testimony of the three physicians. The magistrate then stated, without further discussion, under the heading "conclusion," that Weiss was injured on November 18, 1985, but "based on the medical opinions as well as the demeanor of the witnesses at the trial level, it appears that the plaintiff's problems with her low back resolved as of the date of Dr. Miller's examination on September 5, 1986."44

C

Weiss and Jewish Home both filed appeals with the WCAC. The WCAC, after comparing the testimony of the three physicians, determined that Weiss had been and continued to be disabled, and modified the award to provide an open award of benefits.

The WCAC acknowledged the limited scope of administrative appellate review, and explained why it concluded that the evidence supported the magistrate's finding that Weiss established her entitlement to benefits beyond April 21, 1986. It noted that only Pollak, who saw Weiss when she was sent to his industrial clinic by Jewish Home, supported Jewish Home's claim that Weiss had failed to establish entitlement beyond April 21, 1986. Pollak, who treated Weiss between December 17, 1985 and April 18, 1986, found her disabled throughout that period. Further, when he released Weiss for unrestricted work, Pollak continued to recommend that she undergo epidural steroid injections. The WCAC concluded that Pollak's recommendation that Weiss receive epidural injections was inconsistent with his decision to return her to unrestricted work. It also concluded that Pollak's evaluation of Weiss was biased by her reasonable refusal to accept the potentially harmful injections.

The WCAC found that the magistrate, who determined that Weiss was entitled to benefits beyond April 21, 1986, "reasonably accorded less weight to Dr. Pollak's testimony than to that of Dr. Rottenberg and that consequently his conclusion that [Weiss'] disability continued beyond April, 1986 was appropriately supported."

The WCAC reviewed the magistrate's finding that Weiss' back injury was resolved by September 5, 1986. It said that while it is ordinarily required to defer to the findings of a magistrate who has had the opportunity to observe a witness testifying, where both the magistrate and the WCAC review deposition testimony, it is not required to give the magistrate's reading of the deposition "the same degree of restraint."

Reviewing the magistrate's findings, the WCAC observed that the magistrate based his opinion solely on Miller's deposition testimony. It then reviewed Miller's and Rottenberg's deposition testimony, and noted that Miller saw Weiss on only one occasion, while Rottenberg was her treating physician. Both physicians had performed clinical tests with similar results, but interpreted those results differently. The WCAC explained why it found that Miller's physical examination of Weiss was "superficial and sorely lacking." It said that while Miller concluded, solely on the basis of his observation of Weiss during the examination, that her complaints of pain were exaggerated, Rottenberg performed a clinical test that objectively supported his conclusion that her complaints of pain were real.

After reviewing Miller's testimony and comparing his conclusions with those of Rottenberg, the WCAC explained why it found that Miller "consistently, if not arbitrarily, ignored not only all of the objective evidence but also many of the clinical findings derived from his one-time physical examination of the plaintiff." It concluded that Miller's testimony was biased in favor of his employer, the Jewish Home.

The WCAC said that "`reliable testimony from a treating physician ... is always preferable,'" to that of a one-time examining physician. Finally it explained why Weiss' back injury constituted a disability under the statute.45

The WCAC concluded that the magistrate's finding that Weiss' back injury had resolved itself as of the date of Miller's examination was unsupported by substantial evidence, and modified the magistrate's award to provide for an open award.

D

We again find that the WCAC did not exceed the appropriate exercise of its reviewing function.

The WCAC, after acknowledging the limited scope of administrative appellate review, affirmed the magistrate's finding of personal injury, and explained why it found that it was supported by a preponderance of the evidence.

It next reviewed Weiss' claim that the magistrate's finding that her back injury had resolved itself was not supported by substantial evidence. It noted that while it was required ordinarily to defer to a magistrate's assessment of the testimony of live witnesses, this is not required when reviewing the testimony of experts who testify, as did the three physicians in this case, on deposition because then the magistrate is not in a better position than the WCAC to assess the evidence.

The WCAC observed that Miller saw Weiss on only one occasion, while Rottenberg was her treating physician. Both physicians had performed the same clinical tests with similar results, but interpreted those results differently. The WCAC explained why it found that Miller's physical examination of Weiss was "superficial and sorely lacking." It noted that while Miller concluded, solely on the basis of his observation of Weiss during the examination, that her complaints of pain were exaggerated, Rottenberg performed a clinical test that objectively supported his conclusion that her complaints of pain were real.

After reviewing Miller's deposition and comparing his conclusions with those of Rottenberg, the WCAC explained why it found that Miller "consistently, if not arbitrarily, ignored not only all of the objective evidence but also many of the clinical findings derived from his one-time physical examination of the plaintiff."

The WCAC added that "`reliable testimony from a treating physician ... is always preferable,'" to that of a one-time examining physician. Finally the WCAC explained why Weiss' back injury constituted a disability under the statute.

We conclude that the WCAC gave adequate reasons, grounded in the record, for reversing the fact finding of the magistrate.

E

The review by the Court of Appeals in Weiss of the WCAC'S decision is generally illustrative of an appropriate judicial review of the WCAC'S application of the substantial evidence standard.

The Court of Appeals reviewed the WCAC'S decision, noting the legal standard that it was applying, and explaining why it gave greater weight to one expert's testimony and lesser weight to another. The Court noted that the WCAC had explained why it agreed with the magistrate that Weiss was disabled, and why it modified the magistrate's order to provide for an open award.

Then, having implicitly found that the WCAC correctly applied the substantial evidence test, the Court of Appeals found that there was "some competent evidence" to support the WCAC'S factual determination that there was not substantial evidence in support of the magistrate's decision that Weiss' injury was resolved as of the date of Miller's examination in September, 1986.46

Holden, reversed; Weiss, affirmed.

CAVANAGH, C.J., and BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred with LEVIN, J.