CORRECTED OPINION/ORDER: CORRECTION IS ON COVER PAGE IN BOLD OPINION # 538

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1 CORRECTED OPINION/ORDER: CORRECTION IS ON COVER PAGE IN BOLD OPINION # 538 STEVEN M. MARSH, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V Docket # ADAMS OUTDOOR ADVERTISING OF LANSING, HOME INSURANCE COMPANY AND THE ACCIDENT FUND COMPANY, APPEAL FROM MAGISTRATE OLIVAREZ. THOMAS A. DOYLE FOR PLAINTIFF, MICHAEL S. BRENTON AND VINCENT P. SPAGNUOLO FOR ADAMS OUTDOOR ADVERTISING AND THE ACCIDENT FUND COMPANY, ELLIOT S. ZIPSER AND RONALD A. WEGLARZ FOR ADAMS OUTDOOR ADVERTISING AND HOME INDEMNITY COMPANY, WITTE, COMMISSIONER OPINION This matter is before the Appellate Commission on appeal by Adams Outdoor Advertising of Lansing, while insured by Home Insurance Company, from the decision of Magistrate Paula S. Olivarez, mailed January 5, 1995 granting benefits. The sole issue before us is whether liability should be lifted from defendantappellant, Home Insurance Company and assigned to defendant-appellee, The Accident Fund Company. The issue of plaintiff s disability has not been raised. Home Insurance Company states its issue on appeal as follows: Did Magistrate Olivarez improperly apply the aggravation or acceleration in [a] significant manner standard such that Home Insurance Company was responsible to pay weekly benefits and future medical benefits? While Home Insurance Company asserts its issue is a legal question, we agree with the appellee, The Accident Fund Company, that the issue is really one of fact, and affirm the

2 decision of the magistrate because it is supported by competent, material and substantial evidence on the whole record. MCL a(3). On February 14, 1989, plaintiff, who was employed by the defendant as an electrical serviceman, fell and broke his right knee and right elbow when his ladder slipped. Plaintiff was sent to Dr. Gregory Uitvlugt who placed his arm in a cast and per-formed arthroscopic surgery on his knee. Plaintiff was off from work for three and one-half months, but later returned to restricted work for a time, and then to unrestricted duty for more than three years at his previous position. The defendant was insured by The Accident Fund Company on his date of injury. On May 13, 1993, plaintiff suffered a second injury while unloading plywood with a forklift. Plaintiff attempted to grab a sheet of plywood and pull it over his head when he felt his right elbow snap and he finished the rest of the day with assistance and went home for the weekend. The following Monday plaintiff called Kyle McCor-mick, the production manager, and told him that his arm was too sore to work. Plaintiff was again referred to Dr. Uitvlugt who, on June 1, 1993, performed arthroscopic surgery on his elbow. Plain-tiff then underwent physical therapy and was released to return to work with permanent restrictions. Upon return to work, plaintiff testified that he could not do his old job because he could not climb or pull himself up. He also testified that his employer daily asked him to violate his restrictions by only offering him jobs outside his restrictions. When plaintiff pointed out his restrictions, defendant told him to do the job or lose it. Plaintiff left Adams Outdoor Advertising and obtained work at the Laingsburg IGA grocery store, both as a cleaning person and as a produce manager. Following the May 13, 1993 injury, plaintiff testified that his right elbow hurts all the time, snaps and pops daily and that weather affects his pain. Plaintiff testified that he is not able to perform his regular job duties and never returned to regular work. He also said that after the 1993 incident his recreational activities have changed and he is no longer able to bowl or bow hunt. The plaintiff also indicated that he never regained full use of his arm after the first accident, and his snapping and popping has gotten worse since then. He experiences numbness quite often in the middle, ring and little finger to the base of his hand. Plaintiff testified that the May 1993 incident caused the worst pain he had ever had in his arm and that he could not take it anymore. Therefore, following the second injury date, plaintiff again required surgery, was given permanent restrictions, quit Adams Outdoor Advertising and never returned to his former position. Home Insurance Company argues that the magistrate erred by relying on the testimony of Drs. Dean S. Louis, James Bullock and John Martin, rather than that of Dr. Gregory Uitvlugt. It contends that the medical evidence does not create competent and material evidence to substantiate the findings of a second injury or aggravation on May 13, In making its 2

3 argument that Dr. Uitvlugt s testimony was more convincing, the Home Insurance Company simply reiterates the testimony and findings of Dr. Uitvlugt, who believed that the May 13, 1993 incident was not significant. This is an inappropriate argument. As we stated in Eneix v Cadillac Rubber & Plastics, 1995 ACO # 138: Plaintiff argues for an interpretation of the evidence in a fashion she wished the Magistrate would have found. Yet, we have consistently stated that our review does not reweigh the facts, but determines instead whether the facts as found by the Magistrate are supported by the requisite evidence from the whole record. Pitts v General Motors Corp, 1989 ACO # 189. Here the magistrate was not convinced by Dr. Uitvlugt, and instead relied on the testimony of Doctors Bullock, Louis, and Martin. Specifically, the magistrate stated: I am satisfied that he [counsel for Accident Fund as appellee] clearly established that plaintiff s continued use of his arm in regular employment up through May 13, 1993 accelerated the progression of plaintiff s underlying condition to the point of disability. I note that Dr. Bullock, Dr. Martin and Dr. Louis each opined that continuous, vigorous use of the joint accelerated the degenerative process as well as the symptoms of the underlying condition. The magistrate may choose the testimony of one medical witness over another so long as the testimony is supported by the record. Westfall v General Motors Corp, 1995 ACO # 169. The magistrate has the power to accept the most persuasive medical testimony, Miklik v Michigan Special Machine Co, 415 Mich 364 (1982), and it is within the magis-trate s discretion to determine the weight given the testimony of any medical expert. Watts v General Motors Corp, Inland Division, 1990 ACO # 336. Home Insurance Company cites several cases that it believes supports its proposition. However, we agree with appellee that both cases are distinguishable from the instant case. In Ostanowski v Pigeon Manufacturing Co, 131 Mich App 728 (1984), the plaintiff, who alleged constant pain and a need for ongoing medical treatment, was awarded benefits from the earlier carrier. He never claimed a worsening of his condition and there was no medical evidence offered that proved a worsening of plaintiff s condition caused by his employment duties. The court stated that the plaintiff s testimony seems clear that the condi-tion was constant and that he simply reached the point on February 4, 1970, where he had had enough and was not content to put up with it any longer. In the instant case, Mr. Marsh continued to work without medical treatment for more than three years after the 1989 incident. Also, Mr. Marsh, unlike the plaintiff in Osantowski, had a specific second event which caused him a great deal of pain resulting in his disability. Moreover, unlike Osantowski, three medical experts agreed that the vigorous use of the joint accelerated the degenerative process as well as the symptoms of the underlying condition. 3

4 Second, Home Insurance Company cites a portion of the Mullins v Dura Corp, 46 Mich App 52 (1973), opinion, specifically the Massachusetts-Michigan rule which deals with successive injuries. However, Home Insurance Company leaves out the last paragraph which reads as follows: On the other hand, if the second incident contributes independently to the injury, the second insurer is solely liable, even if the injury would have been much less severe in the absence of the prior condition, and even if the prior injury contributed the major part to the final condition. This is consistent with the general principle of the compensability of the aggravation of a pre-existing condition. Further, in Mullins, the Court of Appeals held the first insurer liable because the plaintiff has never been able to return to his prior occupation but has only been able to perform favored work with limited success.... By contrast, the instant plaintiff returned to his job working in the same capacity for more than three years. Therefore, based on the supported opinions of the various physicians and the selections made by the magistrate, we believe that there was substantial evidence on the record to support the magistrate s decision to hold defendant Home Insurance Company responsible for plaintiff s benefits. The decision is affirmed in its entirety. Chairperson Miller and Commissioner Garn concur. Joy L. Witte Donald G. Miller, Chairperson Marten N. Garn Commissioners 4

5 STEVEN M. MARSH, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V Docket # ADAMS OUTDOOR ADVERTISING OF LANSING, HOME INSURANCE COMPANY AND THE ACCIDENT FUND COMPANY, This cause came before the Appellate Commission on appeal by defendant Adams Outdoor Advertising of Lansing, insured by Home Insurance Company, from the decision of Magistrate Paula S. Olivarez, mailed January 5, 1995, granting benefits. The Commission has considered the record and the briefs of counsel, and believes that the decision should be affirmed. Therefore, IT IS ORDERED that the magistrate's decision is affirmed. Joy L. Witte Donald G. Miller, Chairperson Marten N. Garn Commissioners