S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION

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1 2009 ACO # 155 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION MARK T. VALESANO, PLAINTIFF, V DOCKET # IRON COUNTY, MICHIGAN COUNTIES WORKERS COMPENSATION, AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, AND BLUE CROSS BLUE SHIELD OF MICHIGAN, DEFENDANTS. APPEAL FROM MAGISTRATE MOHER. STEVEN J. TINTI FOR PLAINTIFF, PAUL J. TOMASI FOR DEFENDANT IRON COUNTY AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, MARTIN L. CRITCHELL FOR DEFENDANT MICHIGAN COUNTIES WORKERS COMPENSATION, PHILLIP D. CHURCHILL, JR., FOR DEFENDANT BLUE CROSS BLUE SHIELD OF MICHIGAN. WILL, COMMISSIONER, DISSENTING OPINION On January 14, 2008 plaintiff filed an Application for Mediation or Hearing alleging he had suffered an injury arising out of and in the course of his employment on March 24, The injury occurred while plaintiff was driving a motor vehicle as a deputy sheriff attempting to apprehend an individual with mental health issues. He and the county sheriff were driving separate vehicles and the subject of their concern intentionally struck both plaintiff s vehicle and the sheriff s vehicle with his truck. Blue Cross Blue Shield filed its own Application for Mediation or Hearing on August 18, Blue Cross Blue Shield did not appear on the trial date and took no further action in this case. This claim proceeded to trial before Magistrate Thomas G. Moher on November 5, Plaintiff was the only witness to testify. Plaintiff presented the records of Falls Clinic, P.C. covering the period of January 1, 2000

2 through September 12, Plaintiff also presented the records of Iron County Community Hospital from January 1, 2005 through September 12, Defendants only exhibit was the October 31, 2008 deposition of James Gmeiner, M.D., a board certified orthopedic surgeon. This doctor had examined plaintiff on April 28, 2008, at the request of the defendants. Pertaining to the events of March 24, 2005, it is noted that plaintiff s motor vehicle was totaled and that the impact of the crash violently threw plaintiff s head to the roof of the vehicle leaving a permanent impact on the roof of the vehicle. Unfortunately, before the crash, plaintiff had unbuckled his seatbelt so that he could quickly exit the vehicle to apprehend the subject of their chase. Plaintiff was transported from the scene of the accident to the emergency room of Iron County Hospital. At the hospital plaintiff s head wounds were treated and he was x-rayed. He declined a CT scan even though he was experiencing back pain. Prior to the March 24, 2005 motor vehicle accident plaintiff never had been treated for back pain. Accordingly, there was no occasion for him to have back x-rays, MRI s or CT scans. He was an active outdoors person engaging in weight lifting activities. Subsequent to March 24, 2005 he had nagging back pain. Notwithstanding the back pain between March 24, 2005 and January 31, 2006 plaintiff did not seek medical care for his back. On January 31, 2006, plaintiff came under the care of Dr. Smith who examined plaintiff, discussed treatment opportunities, ordered x-rays and an MRI. Dr. Smith then ordered physical therapy after plaintiff declined the opportunity of seeing a neurologist or pain management specialist. After a rough beginning, the physical therapy helped plaintiff and his back improved. At the time of trial, November 5, 2008, plaintiff continued to experience numbness or tingling in his thighs from prolonged sitting and from laying on his back. At the time of hearing, plaintiff was the sheriff of Iron County. On March 24, 2005, the date of injury, plaintiff was a deputy sheriff. As indicated, this claim was heard by Magistrate Thomas Moher on August 18, On December 8, 2008 the magistrate s decision was mailed. He granted plaintiff an award of medical only, inasmuch as plaintiff had not experienced compensable lost time as a result of his injury. The magistrate s summary of the evidence presented begins on page four of his decision and ends on page twelve thereof. I believe the summary is very accurate and pursuant to MCL a(10), I adopt it as my own. 2

3 The magistrate completed his decision with his Analysis, Findings of Fact and Conclusions of Law, which include the following that is pertinent to defendants appeal: Plaintiff bears the burden of proof by the preponderance of the evidence that he is entitled to benefits under the statute. Aquilina v General Motors, 403 Mich 206 (1978). ISSUES The parties stipulated that this case would be tried on the following issues: 1. Whether the injuries suffered on March 24, 2005 and the Plaintiff s medical treatment subsequent to March 24, 2005 for his head, neck and back is related to the injury suffered on March 24, 2005? 2. Whether the injuries suffered on March 24, 2005 were caused, aggravated, exacerbated or accelerated by subsequent work activities resulting in a January 31, 2006 date of injury? This treatment initially commenced on the date of the injury and he had no subsequent treatment until it commenced on January 31, INJURY It is undisputed that Plaintiff met with a personal injury arising out of and in the course of his employment with the Defendant on or about the date alleged of March 24, 2005 when he was involved in an auto accident. The reports and records of his treating family physician, Dr. Smith, found in his subsequent examinations, treatment, x-rays and MRI s that there was a reasonable medical certainty that the incident on March 24, 2005 was the commencement of his problems which led to his further medical treatment. Based on the credible testimony of Plaintiff, it is my finding that Plaintiff met with a personal injury on March 24, 2005 which led to treatment on that date and further treatment on January 31, 2006 and it continued until April 12, I find the records of Dr. Smith and Iron County Community Hospital more credible than Dr. Gmeiner s opinion regarding the cause of Plaintiff s injury and the need for treatment. Therefore, Plaintiff sustained his burden of proof that his medical treatment from the injury of March 24, 2005 was reasonable, necessary and related to the March 24, 2005 car accident. I further find that the treatment from January 31, 2006 until April 12, 2006 was reasonable, necessary and related to the injury of March 24,

4 I find that there was no compensable injury suffered on January 31, 2006 as there were no proofs offered to substantiate it. CREDIBILITY The only injury date found is March 24, In making the above findings about his accident and injury, I have relied heavily upon the credible testimony of the Plaintiff and his credible testimony is supported by the credible records of Dr. Smith and Iron County Community Hospital. Plaintiff was a good, honest witness and impressed me as a reasonably good historian as well. Also, the records of Dr. Smith and Iron County Community Hospital supported his credible testimony. EXPERT CREDIBILITY Plaintiff suffered a moderately severe injury on March 24, 2005 and continued to suffer from that injury until the present time. However, he was released from treatment on April 12, I find that the records of Dr. Smith and the testimony of the Plaintiff with regard to the cause of the problem, the extent of the problem and the restrictions of activity that are needed are entitled to controlling weight here. Dr. Smith was the treating physician and was well positioned having treated the injury from January 31, 2006 and having reviewed the injury right from March 24, 2005 and his records substantiate Plaintiff s claim. WAGE LOSS There was no claim for wage loss and it was stipulated that Plaintiff s claim was for medical benefits only. MEDICAL Based on the evidence submitted, I find that Defendant must pay where applicable for the medical treatment arising out of the Plaintiff s March 24, 2005 injury. It is my understanding that the treatment given to Plaintiff since March 24, 2005 until April 12, 2006 is reasonable and necessary and related to the March 24, 2005 injury. I find that Plaintiff has sustained his burden of proof on this issue. I further award Plaintiff medical care and expenses for the treatment and care he received from March 24, 2005 through and ending through the present time, as well as all related prescribed medications and testing. I find all of the same reasonable and necessary. [Magistrate s opinion at ] 4

5 On January 2, 2009 defendant employer and Michigan Counties Workers Compensation Fund filed a claim for review. On February 11, 2009 these defendants filed their brief on appeal. Defendants raised five issues in their brief on appeal: I II III IV V THE CLAIM THAT VALESANO HAD A PERSONAL INJURY ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT ON MARCH 24, 2005 WAS DISPUTED REASONABLE MEDICAL CERTAINTY IS NOT THE STANDARD FOR PROVING A RELATIONSHIP BETWEEN AN INJURY AND AN INCIDENT A PERSONAL INJURY IS NOT THE COMMENCEMENT OF HEALTH PROBLEMS DONALD W. SMITH, M.D., DID NOT ACTUALLY SAY THAT VALESANO HAD A CHANGE IN PATHOLOGY FROM THE CAR CRASH MCL (2) APPLIES TO LIMIT THE RECOVERABLE PERIOD OF MEDICAL CARE Pertaining to defendants initial claim of error, the defendants are correct in that while it is undisputed that the events of March 24, 2005 occurred it does not mean that it is undisputed that an injury occurred because where a claimant has a pre-existing condition the claimant must show pursuant to Rakestraw v General Dynamics Land Systems, Inc, 469 Mich 220 (2003), that as a result of the accident, that he has a condition that is medically distinguishable from his pre-existing status. In this case plaintiff does not claim that there is no pre-existing condition even though he has had no back pain, x-rays, MRI s or CT scans for back problems prior to March 24, Because defendants dispute the occurrence of an injury, we must look to the emergency room records of March 24, 2005 to find whether an injury occurred. In this connection, it is noted that the magistrate found the records of the emergency room credible along with the records of Dr. Smith and the testimony of plaintiff. The records of the emergency room of March 24, 2005 indicated a lumbar strain from a motor vehicle accident with muscle spasms. This would be sufficient to be an injury within the meaning of Rakestraw. Turning to defendants second argument I do agree with defendants that reasonable medical certainty is not the criterion to establish that an injury has occurred. Instead, the standard is preponderance of the evidence at the magistrate level as discussed in Aquilina v General Motors Corporation, 403 Mich 206 (1978). For the reasons set forth above, I believe that plaintiff has established an injury that can be the basis for a magistrate s decision which should be affirmed by the Commission because it is based on competent, material and substantial evidence on the whole record. 5

6 Pertaining to defendants third argument I completely agree that a personal injury is not the same as the commencement of a health problem. Certainly people develop health problems without having suffered a personal injury. Pertaining to defendants fourth issue, a review of the records of Dr. Smith confirms that Dr. Smith never actually said plaintiff had a change in pathology from the car crash but his records do indicate that such can be reasonably inferred. Turning to the entry of February 13, 2006 from his records I note the following: Pt. feels that the pain in his back is about the same. He is quite concerned over the x-ray findings on lumbar spine films from last March which showed some anterior wedging of vertebral body T12. States that he was unaware of these findings and is wondering if this could have occurred during his accident. He denies any side effects from medication but has not really noticed much change in his lower back symptoms which have been going on for a about a year now. CT scan of lumbar spine showed mild central canal stenosis at L4-5 from bulging annulus and ligamentous hypertrophy. There was also some mild central canal stenosis at L3-4 as well as a small focal disc protrusion on the left. There is facet arthropathy producing foraminal stenosis on the left at L3-4, L4-5 and L5-S1. Low back pain. Facet arthropathy with foraminal stenosis at multiple levels on the left. Focal disc protrusion. Minimal compression deformity T-12 age unknown. Have explained to pt. would be very difficult at this point to tell when exactly the compression deformity of T12 occurred. He is very concerned about this and will obtain follow-up LS spine x-ray to see if there has been any change in the interim. Will also obtain MRI of the lumbar spine to R/O nerve root impingment from foraminal stenosis and focal disc protrusion. For now will continue with Feldene 1 daily since it has only been a couple of weeks. F/U in 2 weeks after MRI. DWS/dw [Plaintiff s Exhibit 1.] A compression deformity by its nature is pathology. This would satisfy requirements of Fahr v General Motors Corporation, 478 Mich 922 (2007) if it is sequelae of the March 24, 2005 injury. It is at this point, that the credibility of the claimant becomes the focal point of inquiry. Such is true because without the claimant s history it would be almost impossible to discover the onset of pathology. In this connection I believe that the following from Kostamo v Marquette Iron Mining Company, 405 Mich 105 (1979) is applicable: We do not suggest that any or all of these factors should always be, or, are here, dispositive. Rather, we hold that the WCAB erred in giving preclusive effect to the conclusion of a medical expert and in failing to treat facts developed in lay testimony. 6

7 While medical testimony may be helpful, even, ultimately, decisive, the trier of fact is obligated to consider all the testimony in determining legal causation. Lay testimony may not be ignored when considering the causal connection between employment and a heart attack. [Id. at Footnote omitted.] Accordingly, the decision of the magistrate should be affirmed on his award of reasonable and necessary medical care to plaintiff. In so holding, I do recognize that if the magistrate had rejected plaintiff s credibility and or accepted the testimony of Dr. Gmeiner the magistrate could have come to a different conclusion. Pertaining to the defendants final issue, plaintiff agrees that MCL (2) is applicable to medical. However, he correctly pointed out that he filed his claim on January 14, 2008 and he is not seeking reimbursement for medical prior to January 31, Thus he loses no reimbursement under the two year back rule. However, as pointed out by the defendants in their reply brief received March 13, 2009, this would preclude Blue Cross Blue Shield for any reimbursement inasmuch as Blue Cross Blue Shield did not file an Application for Mediation or Hearing until August 18, It would appear that plaintiff does not dispute the untimeliness of Blue Cross Blue Shield s Application for Mediation or Hearing. [See plaintiff s brief on appeal at 6-7.] Conclusion The decision of the magistrate should be affirmed with the modification that the award to Blue Cross Blue Shield is deleted as violative of the two year back rule. In all other respects, I believe the decision of the magistrate is supported by competent, material and substantial evidence on the whole record and contains no legal error. Rodger G. Will Commissioner 7

8 MARK T. VALESANO, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # IRON COUNTY, MICHIGAN COUNTIES WORKERS COMPENSATION, AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, AND BLUE CROSS BLUE SHIELD OF MICHIGAN, DEFENDANTS. GRIT, COMMISSIONER, CONTROLLING A lay person cannot causally relate low back pathology, including mild central canal stenosis, a bulging annulus, ligamentous hypertrophy, facet arthropathy, a focal disc protrusion, a wedge deformity of the thoracic spine and foraminal stenosis to a specific injury. 1 Only a competent medical opinion can establish a causal connection between those physical problems and the plaintiff s work injury. The limited medical evidence does not link the plaintiff s low back problems to his work accident. His case fails because he did not establish one of the elements of his claim. Aquilina v General Motors Corporation 403 Mich 206 (1978). The plaintiff offered no medical depositions. Medical records were admitted, but those records do not establish a causal link between the plaintiff s injury and his multiple low back pathologies. While there is no doubt the plaintiff was in a work-related motor vehicle accident and there is no doubt he has pathology in his low back, there is no evidence linking the two. There must be evidence linking the two. The Act does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work Kostamo v Marquette Iron Mining Company, 405 Mich 105, 116 (1979). Miklik v Michigan Special Machine Company, 415 Mich 364 (1982). Mr. Valesano was seen in the emergency room on the day of his accident. An x-ray of his low back was performed. The radiologist who read the x-ray indicated that the plaintiff had a T-12 wedging deforming in the thoracic spine. The radiologist did not indicate the fracture was acute. In fact, the radiologist indicated that clinical correlation would be helpful to determine age of injury. 2 1 The plaintiff has been diagnosed with all of the mentioned low back pathologies. [Exhibits #1 and #2.] 2 Exhibit #1, March 25, 2005 AP lateral lumbar spine report. 8

9 Mr. Valesano did not seek medical treatment again for his back until January 31, Those treatment records do not establish a causal link between the plaintiff s back pain and the accident or a causal link between the plaintiff s low back pathology and his work accident. In fact, the only causation comment contained in the medical records is detrimental to the plaintiff s case. In February of 2006, the plaintiff asked his physician if one of his many low back pathologies, the T-12 wedging deformity, was caused by his work-related motor vehicle accident. The doctor s answer was that the age of the deformity was unknown and that it would be very difficult at this point to tell when exactly the compression deformity of T12 occurred. 3 The doctor was not able to draw a causal link between the accident and T-12 deformity. It seems obvious if a doctor cannot make the causal link, it is not possible for a magistrate or an appellate commissioner to do so. In summary: 1. After the emergency room visit on the day of the accident, the plaintiff did not seek medical treatment for more than 9 months. 2. When he did seek treatment, he asked his doctor if part of his low back pathology was related to his work accident. 3. The doctor told the plaintiff he did not know if the condition was workrelated. 4. The plaintiff declined to take medical testimony to establish the causal link for any of his back pathologies. 5. The plaintiff submitted medical records that debunk a causal link. The award should be reversed. Donna J. Grit Gregory A. Przybylo Commissioner Commissioner 3 Exhibit #1, office visit of February 13, 2006, emphasis added. 9

10 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION MARK T. VALESANO, PLAINTIFF, V DOCKET # IRON COUNTY BOARD, MICHIGAN COUNTIES WORKERS COMPENSATION, AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, AND BLUE CROSS BLUE SHIELD OF MICHIGAN. DEFENDANTS. This cause came before the Appellate Commission on a claim for review filed by Defendant Iron County Board of Commissioners, Michigan Counties Workers Compensation Fund from Magistrate Moher s order, mailed December 8, 2008, granting an award of medical only. The Commission has considered the record and counsel s briefs, and believes that the magistrate's order should be reversed. Therefore, IT IS ORDERED that the magistrate s order is reversed. Donna J. Grit Gregory A. Przybylo Commissioner Commissioner