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

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1 JOHNNIE J. ANDERSON, PLAINTIFF, 1998 ACO #461 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # GENERAL MOTORS CORPORATION, SELF INSURED, DEFENDANT. APPEAL FROM MAGISTRATE JOHNSON. FLOYD W. STEELE FOR PLAINTIFF, J. WILLIAM HOUSEFIELD, JR.FOR DEFENDANT. LESLIE, COMMISSIONER OPINION This matter returns to us on plaintiff s appeal of Magistrate Cynthia R. Johnson s opinion mailed October 28, 1996 on remand from the Supreme Court. The issue on remand was whether plaintiff s eye loss from a non-occupational injury was related to a previous work-related eye injury. On the original appeal to the Commission, 1 we affirmed the magistrate s denial of benefits for the eye loss. We said: Plaintiff's first argument is a disingenuous attempt to recover for the loss of an eye during a totally nonwork-related fight at a drug house. Plaintiff attempts to link a 1983 industrial accident to his left eye from which the magistrate correctly found he had recovered fully, to the effects of a post-employment fight in a drug house when he was struck with a bottle. The magistrate correctly and succinctly summarized the evidence on this issue in her opinion, when she stated: Since December 8, 1987, the plaintiff has worked nowhere. He has been hospitalized on numerous occasions but all of the hospitalizations deal with alcohol abuse, cocaine and crack cocaine abuse, psychiatric problems and other problems related to fights that he has been in. In October of 1989, the plaintiff was admitted to Hurley 1 Anderson v General Motors Corp, 1995 ACO #124.

2 Hospital for an injury to his left eye. The plaintiff was at a drug house, was apparently robbed and then struck with a bottle in the left eye. As a result, he had to have the eye surgically removed. A prosthesis has been put in the left eye socket. There's also information in the hospital records in April of 1990 that the plaintiff was recalled by General Motors for work at the Terrytown, New York Plant. However, the history also indicated that the plaintiff was unable to go to Terrytown because of the eye injury sustained in October of There was no other testimony concerning this recall. Although he had a serious injury to the left eye, the left eye healed and the plaintiff was able to return to his regular job without restrictions. Dr. Allen Rice, an ophthalmologist, examined the plaintiff in 1984 and found that he had corrected vision to 20/20 and uncorrected vision to 20/80. There is no history that the plaintiff sought any medical treatment for that left eye after 1984 until he had the fight in 1989 that resulted in the loss of his left eye. Although the deposition of Dr. Johnson and the medical report of Dr. Thoms indicated that the left eye was weakened because of the first injury, the plaintiff is unable to overcome the fact that he worked up until his last day of work without any difficulties and in fact was fine with the left eye until he was involved in the robbery at the drug house. The fact that the plaintiff was struck in the left eye with a bottle is the cause of the loss of the eye. This blow was directly to the eye and certainly was serious in and of itself and did result in the loss of the eye. Therefore, although the plaintiff did sustain the injury in December of 1983, his disability is not related to that injury. In essence, plaintiff's argument on this issue amounts to no more than a thinly disguised attempt to reargue the evidence presented to the magistrate, urging a different interpretation. He argues in particular that the medical experts testified that the loss of his eye, due to the drug fight, would not have occurred if not for its weakened condition due to his previous industrial eye injury. However, we will not displace the magistrate's choice between reasonable, though conflicting evidence, when there is a reasonable basis for such choice, as there is in the instant case. Miklik v Michigan Special Machine Co, 415 Mich 364 (1982); Clark v Lakeview Community Nursing Home, 1992 ACO #189. We note in particular the testimony of Dr. Leroy Johnson, who indicated that while it was possible that an eye weakened by previous injury could more easily be damaged due to a blow such as plaintiff received in the fight at the drug house, it was 2

3 equally as likely that an eye with no previous trauma would have been lost in a blow such as this. Dr. Susan Thomas' [sic] opinion was in accord with that of Dr. Johnson's on this point. The Court of Appeals denied leave to appeal but the Supreme Court remanded the matter to the magistrate with the following instructions: [W]e VACATE the orders of the Workers Compensation Appellate Commission and the magistrate and REMAND this case to the magistrate with directions that she shall explicitly answer plaintiff s argument that a preponderance of the evidence establishes that the 1989 assault to his left eye would not have resulted in the loss of that eye but for the fact that it had been weakened by the 1993 work-related injury. On remand the magistrate reviewed the medical testimony, the exhibits and the trial transcript and adopted her previous opinion and order. She also gave the following additional reasons for denying benefits for the loss of an eye: First of all, although the plaintiff sustained an injury in 1983 to his left eye, he had no ongoing treatment once the treatment was completed in approximately Although the hypothetical given to Dr. Johnson indicated that the plaintiff had some ongoing problems, there is no testimony in my opinion nor medical evidence to support that the plaintiff had ongoing problems with his left eye. He may have had some loss of vision, but the loss of vision could be corrected to 20/20. This lack of ongoing treatment and the lack of testimony supporting ongoing problems corroborates the finding that the plaintiff had recovered from this work injury by Secondly, Dr. Leroy Johnson, the plaintiff's treating ophthalmologist, did testify that the plaintiff's left eye never regained 100% strength as a result of the initial injury in He further testified that a trauma to the globe will usually rupture at the site of the previous surgical incision. This would then seem to support the conclusion that the loss of plaintiff's eye occurred only because the plaintiff's eye was weakened as a result of that 1983 injury. However, Dr. Johnson also testified that the severity of the blow that the plaintiff received directly to the eye could in and of itself have caused the rupture which resulted in the loss of the eye. He agreed that the 1983 surgical site was completely healed. He also testified that the plaintiff in 1989 would have needed to have sustained a direct injury to the globe in order to result in the rupture. In my opinion, Dr. Johnson's testimony supports both conclusions as to the cause of the loss of the eye. This then means that the plaintiff has failed to prove by a preponderance of evidence. A split decision does not give the victory to the plaintiff. 3

4 Plaintiff asks: Thirdly, the medical report of Dr. Susan Thoms concludes much the same as the opinion of Dr. Johnson. Dr. Thoms stated that the blow to the plaintiff's eye was made worse by the fact that he had a previous laceration. However, she went on to state "a blow to the eye can cause rupture even without previous injury, but the previous injury most likely made the injury much more severe." In my opinion, this report by Dr. Thoms does not tip the scales in the favor of the plaintiff. The bottom line is that the plaintiff had an injury in 1983 and recovered from that injury and was able to work up until his last day of work. The fact that the plaintiff was in the drug house and sustained a direct blow to his eye is the cause of the loss of his eye. The preponderance of the evidence shows that he lost this eye because he was involved in an altercation and was struck directly in the eye. The severe blow caused the rupture and the resulting loss of the eye. (Magistrate s supplemental opinion at pages 2-3). On appeal plaintiff raises three arguments which take issue with the magistrate s fact finding. I. WHETHER MAGISTRATE JOHNSON CORRECTLY DETERMINED THERE WAS NO TESTIMONY NOR MEDICAL EVIDENCE TO SUPPORT PLAINTIFF S ON-GOING PROBLEMS WITH HIS LEFT EYE? II. WHETHER MAGISTRATE JOHNSON CORRECTLY ASSESSED THE TESTIMONY OF DR. LEROY JOHNSON AND WHETHER SHE APPLIED THE PROPER STANDARD TO THAT TESTIMONY? III. WHETHER MAGISTRATE JOHNSON CORRECTLY ASSESSED THE TESTIMONY OF DR. SUSAN THOMAS [SIC] AND WHETHER SHE APPLIED THE PROPER STANDARD TO THAT TESTIMONY? Although we find each of these arguments to be nothing more than reargument of the facts, and would ordinarily summarily affirm the magistrate, 2 in view of the history of this case, we address each question. Plaintiff first argues that because he continued to have problems with his eye in the form of continually leaking water or mucus and difficulty focusing that the magistrate s conclusion that the work injury did not play a role in plaintiff s eye loss is without evidentiary support. These continued symptoms do not relate to the specific factual scenario involved in this case, But for the fact that plaintiff s eye had been weakened by the 1993 work-related injury, would the assault have caused loss of plaintiff s eye? Plaintiff s continued symptoms do not relate to this inquiry. The magistrate 2 See, e.g., Jamison v General Foods Corp, 1997 ACO #598. 4

5 delineated the issue by focusing on the very specific question the Supreme Court posed on remand. She considered the evidence on both sides of this question and found that the blow to the eye was sufficient in and of itself to cause plaintiff s eye loss even taking into consideration the pre-existing work injury. The same is true of the question of restrictions imposed by Drs. Rice and Roth. The existence of limitations because of visual difficulty does not relate to the issue of the susceptibility of the eye structure to subsequent trauma. Moreover, the magistrate relied on the absence of treatment for five years and the medical opinion that the site of the original surgical site had completely healed. This is competent, material and substantial evidence on the whole record. As a result, there is no merit in plaintiff s contention. In his second argument, plaintiff takes issue with the magistrate s analysis of Dr. Johnson s testimony regarding the rupture of the eye being related to the original surgical site. Unfortunately, plaintiff s argument ignores the Commission s charge on review. We do not evaluate the record or particular testimony to see if another interpretation of the evidence is supported by the record. We only review the record to see if the determination actually made by the magistrate is based on competent, material and substantial evidence on the whole record. In doing so, the Commission has uniformly held that the choice of persuasiveness of medical testimony is within the discretion of the magistrate so long as the choice is reasonable. In this case we are confronted with just such a situation. The magistrate could well have found that the testimony of Dr. Johnson was persuasive and awarded benefits. She did not for reasons explained on the record in some detail. There was no error in the magistrate s evaluation of this testimony. Plaintiff raises a similar argument concerning the testimony of Dr. Susan Thoms. 3 In addition, plaintiff contends that as a defense medical examiner Dr. Thoms testimony should be given in deference as a matter of law because her testimony was favorable to plaintiff. We know of no such legal principle. The magistrate is not required to accept the conclusion of any medical witness. In this case the magistrate relied on the long passage of time between the original injury and the direct blow to the eye which precipitated plaintiff s eye loss. Coupled with the complete healing of the surgical site, this was a reasonable basis for discounting the doctor s conclusion on causal relationship. We also note the Supreme Court s remarks in the context of the cardiovascular disability cases on causal relationship that preclusive effect is not to be given to any medical expert, and the trier of fact has the obligation to consider all testimony, both lay and medical in making an assessment of causal connection between work and a medical problem. 4 We find these comments to be equally applicable to the question before us. 3 Plaintiff s brief refers to her as Dr. Thomas. 4 Kostamo v Marquette Iron Co, 405 Mich 105, (1979). 5

6 The magistrate evaluated the testimony and explained her reasons for rejecting plaintiff s claim for benefits. Her analysis is reasonable and based on competent, material and substantial evidence. We find no error and affirm the decision. Commissioners Kent and Witte concur. Richard B. Leslie James J. Kent Joy L. Witte Commissioners 6

7 JOHNNIE J. ANDERSON, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # GENERAL MOTORS CORPORATION, SELF INSURED, DEFENDANT. This matter returns to us on plaintiff s appeal of Magistrate Cynthia R. Johnson s opinion on remand from the Supreme Court, mailed October 28, 1996, again denying benefits for the loss of an eye. The Commission has considered the record and briefs of counsel, and believes that the magistrate's decision should be affirmed. Therefore, IT IS ORDERED that the decision of the magistrate is affirmed. Richard B. Leslie James J. Kent Joy L. Witte Commissioners