S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET #

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1 KENNETH A. DILTS, PLAINTIFF, 1998 OPINION #154 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET # BIG JIM S SPORTS UNLIMITED AND JOHN DEERE INSURANCE COMPANY, DEFENDANTS. APPEAL FROM MAGISTRATE MALEWSKA. PAUL PURCELL FOR PLAINTIFF, MICHAEL D. SANDERS AND MARK H. CANADY FOR DEFENDANTS. COMMISSIONER WITTE, DISSENTING OPINION This matter is on appeal by defendants from the decision of Magistrate Dale Malewska, mailed May 31, 1995, granting benefits for industrial loss of use of one eye for 162 weeks, pursuant to MCL (2)(l). I would affirm the decision. Plaintiff was injured when a piece of metal entered his left eye on August 10, By August 26, 1992, a cataract had formed, meaning the natural lens clouded and/or became inflamed, necessitating surgery. At that time the cataract was removed and a plastic lens was implanted in its place. Immediately following surgery, plaintiff s left eye vision was tested at 20/15. However, shortly thereafter, his vision began its decline, and he was measured at 20/70. By November 25, 1992, his doctor tested the eye at 20/100 corrected, 20/200 uncorrected. His treating surgeon, Dr. Robert M. Currier, admitted that objectively there is nothing wrong with plaintiff s eye, whether the retina, implant or cornea. However, he then noted that the shard of metal had pierced the capsule of the eye, and had damaged its integrity. He stated that plaintiff s continuing problem, specifically loss of the central vision of the eye, is due to the inflammation of the posterior capsule, damaged on the date of injury. On January 6, 1994, after plaintiff moved to Texas to accept employment with his brother, he saw a Dr. M. M. Porias in Houston who tested plaintiff s eye and found further deterioration of 20/400. He found a scar over the central portion of the cornea, and a retina that was abnormal due to wrinkling or swelling in its central portion. His records were admitted at trial.

2 On April 18, 1994, plaintiff was first examined by defendants choice of doctors, Dr. Conrad Moore, who stated he did not disagree with Dr. Porias findings and found 20/400 in plaintiff s left eye. He stated plaintiff claimed he had no sight in his left eye. However, plaintiff could count the doctor s fingers at a distance of four feet. On May 18, 1994, plaintiff again was sent to Dr. Moore who then concluded plaintiff s left eye was 20/30 with correction and 20/40 without. Based on his testing, he concluded plaintiff had good clear vision. However, he also stated he found that plaintiff s injured eye no longer had normal pupillary response due to the injury, that plaintiff complained that light hurt his eye, and that plaintiff could not see a[s] near as a young man normally would at 24 years of age. Dr. Moore conducted testing that he asserted showed objectively plaintiff could see much better than he believed he could with his left eye. In one test, the doctor told plaintiff that he was seeing with his good eye and plaintiff was able to accurately respond to test questions about what he could see. However, the doctor testified, he had so fogged the view of plaintiff s right eye, he could not see with it and was in fact using the injured eye. In another test, the doctor moved a drum covered with a barber pole pattern before plaintiff s left eye and the eye responded with nystagmus, an involuntary motion in response to the patterns of moving lines. The doctor said that while plaintiff claimed he had no sight in the eye, he could see with it. Because of this pattern, the doctor believed that subjective testing would yield inaccurate results in this patient. On November 21, 1994, plaintiff returned to Michigan and saw Dr. Currier. He again found plaintiff s injured eye to be 20/200 based on his subjective testing. With or without correction, plaintiff could only see the big E on the chart. Based on this record, including briefs submitted following the hearing, the magistrate wrote, I thought Plaintiff was credible, and that he in fact endures the... discomforts of headaches, blurred vision and light sensitivity. He concluded: I believe the medical testimony clearly demonstrates that plaintiff has a decreasing field of vision and that his left eye is damaged beyond 20/200 - and unfortunately beyond further repair. Since Plaintiff has endured a surgical procedure that required the removal of a natural lens and resulted in decreased vision acuity, corrected or not, of 20/200 or worse, Plaintiff satisfies the statutory requirements of 80 percent loss of vision for (constructive) total loss of that eye. 2

3 Having ruled that Plaintiff has lost fully 80 percent of his vision in his afflicted left eye, I also find that Plaintiff is squarely within the holding of Lindsay v Gleenie Industries, Inc., 379 M[ich] 573 (1967). We treat his case as one of first impression. We hold the surgical removal of the natural lens made necessary by an injury arising out of and in the course of Claimant s employment is loss of an eye within the meaning of the amended statute. Lindsay, 578. Mr. Dilts case is even more compelling when you stop to consider that unlike Plaintiff in Lindsay, our plaintiff today does not enjoy a corrected field of vision. Defendants raise two arguments. First, plaintiff did not lose industrial use of his eye since the Lindsay case is not controlling and [s]urgical procedures which restore sight to the eye [d]o not constitute corrected vision. Second, the magistrate s determination that plaintiff has lost 80 percent of vision in his left eye is not supported by competent, material and substantial evidence on the whole record. Defendants conclude, When the whole record is reviewed, it demonstrates the Plaintiff has had a successful surgical repair of his left eye and now enjoys uncorrected vision acuity of 20/40 in that eye. Accordingly, Plaintiff should not have been awarded specific loss benefits. Defendants second argument is the underpinning of the first. In other words, if there is competent, material and substantial evidence on the whole record for the magistrate s finding that there was loss of plaintiff s eye, with or without correction, then their first issue is moot. Although defendants argue that the implantation of the lens corrected plaintiff s vision, the magistrate found that plaintiff s surgery was unsuccessful. Although plaintiff had instantaneously good results, the decline of plaintiff s eyes continued, just as he testified, for about six months post-surgery, and did not improve. While the magistrate does not say it expressly, the choice between the doctors testimony rested in part on whether the results of the subjective or objective tests was more controlling in the magistrate s mind. Here, the subjective tests demonstrated considerable loss while Moore s objective tests indicated little loss. Because the magistrate chose to find plaintiff a credible witness, the subjective test results fall in his favor. Beyond this, both doctors admitted to finding physical abnormalities in plaintiff s eye that are the result of his injury. Further, plaintiff s statement to Dr. Moore that he has lost the sight in the left eye, coupled with Moore s drum test results that plaintiff s eye was responding to the pattern, does not automatically result in the legal conclusion that plaintiff has not lost the industrial use of the eye. Nowhere does the record contain the expert conclusion that an eye responding to a barber pole pattern is not 80 percent lost. Stated yet another way, just 3

4 because the left eye demonstrated nystagmus does not mean plaintiff has better than 20/200 visual acuity in that eye. Applying this point to defendants position results in the following analysis. First, defendants debate whether a specific loss determination should be based upon the uncorrected vision of the injured eye and assert that Lindsay is inapplicable because that case does not deal with surgical repair of an eye. Defendants emphasize that immediately following surgery plaintiff s vision was tested at 20/15 and on June 3, 1994 one doctor found it to be 20/40. Defendants conclude, In short, Plaintiff has neither lost his eye, nor lost 80 percent of the vision of his eye. Accordingly, the specific loss provisions of MCLA (2)(l) should not apply. Defendants then enter a long discussion of Pennsylvania law as compared with Michigan law to show that it is the degree of vision which the Plaintiff has which controls whether the specific loss provision should apply. Defendants rely on a Pennsylvania decision that determined that because the vision problem in Plaintiff s eye was correctable, he did not qualify for specific loss benefits. Defendants ask us to follow the lead of this case stating, In the instant case, Plaintiff has had the corrective surgery and from all accounts it has been successful. Because defendants first argument stands squarely on the assumption that plaintiff s eye was successfully repaired by surgical procedure, I would reject it. The magistrate s conclusion otherwise is supported by competent, material and substantial evidence on the whole record and is conclusive upon us. MCL a(3). We need not enter the debate urging us to consider plaintiff s vision only as corrected, due to the permanent nature of the implanted lens, since this attempt was not successful. Second, defendants attack the magistrate s finding that plaintiff has sufficient loss of vision to entitle him to specific loss of an eye. Defendants state that on this medical record, there is absolutely no objective indication of any problem that would explain Mr. Dilts claimed loss of vision in his left eye. Defendants next state that the opinions of Dr. Moore should be accepted over those of Dr. Currier because Dr. Moore s testing was inherently more reliable than the testing performed by Dr. Currier. I initially note the list of objective abnormalities listed in the factual portion of the decision, above. Next, I note the magistrate s discussion of the medical evidence in his decision, recited in part above. Critical to this case is the magistrate s finding of plaintiff s credibility. While it is accurate to state that Dr. Currier used primarily subjective testing to conclude plaintiff s vision was 20/200, the magistrate found plaintiff believable. Further, as I mentioned above, it is not inconsistent that plaintiff s eye still has enough vision to react to barberpole patterns but does not retain its industrial use. I do not see that it was unreasonable for the magistrate to choose the medical opinions that he did. Because that choice is based in the record, I cannot disturb it. Therefore, I would affirm the decision of the magistrate. 4

5 Joy L. Witte Commissioner COMMISSIONER GARN, CONTROLLING The facts of this case are set forth in the dissenting opinion, so we will not repeat them here. Based upon those facts, we reverse the decision of the magistrate. While it is not disputed that plaintiff was injured in the manner described, the result of that injury is not entirely clear. The magistrate found plaintiff to be credible in describing his ability to see. This opinion was supported by all examining doctors until Dr. Moore reexamined on May 18, When he examined again, Dr. Moore employed different testing designed to determine whether plaintiff s sight was really as bad as described. His tests were described in the lead opinion. The result of this testing demonstrated plaintiff s vision to be 20/40 without correction rather than 20/200 or 20/400 as otherwise found. The fact of the matter then is that plaintiff s vision is at least as good as 20/40 when tested objectively. We do not believe this matter falls into quite the same category of objective versus subjective as we normally encounter in workers compensation. Vision is a quantifiable entity when tested objectively. Therefore, we believe plaintiff s subjective complaints are less compelling under these circumstances than they might otherwise be. Consequently, we believe the magistrate s credibility findings are less than sacrosanct under such circumstances. We agree with defendant s argument regarding the (in)applicability of Lindsay v Gleenie Industries Inc, 379 Mich 573 (1967). Unlike Lindsay, plaintiff in the instant matter underwent surgical restoration of his vision. Thereafter, our plaintiff s vision was objectively measured at 20/40 as of his last examination. As defendant points out, this vision rating does not fall within the 80 percent loss of vision necessitated before relief can be granted under the Act. MCL (2)(l). Based upon the particular facts of this case and the nature of the objective versus subjective complaints in this instance, we believe that the only competent, material and substantial evidence in this record on the limited question of specific loss is constituted by the May 18, 1994 testing performed by Dr. Moore. We believe the magistrate s rejection of this evidence in turn constitutes reversible error. We reverse and deny specific loss benefits. 5

6 Commissioner Wysynski concurs. Marten N. Garn James Edward Wyszynski, Jr. Commissioners 6

7 KENNETH A. DILTS, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION V DOCKET # BIG JIM S SPORTS UNLIMITED AND JOHN DEERE INSURANCE COMPANY, DEFENDANTS. This matter is on appeal by defendants from the decision of Magistrate Dale Malewska, mailed May 31, 1995, granting benefits for industrial loss of use of one eye for 162 weeks, pursuant to MCL (2)(l). The Commission has considered the record and the briefs of counsel, and believes that the decision should be reversed. Therefore, reversed and we deny specific loss benefits. IT IS ORDERED that the magistrate's decision is Marten N. Garn James Edward Wyszynski, Jr. Commissioners