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 # 49 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION PHILLIP M. LASOTA, PLAINTIFF, V DOCKET # DAIMLERCHRYSLER CORPORATION, SELF INSURED, DEFENDANT. APPEAL FROM MAGISTRATE LOGAN. RONALD J. GRICIUS FOR PLAINTIFF, GERALD M. MARCINKOSKI FOR DEFENDANT. GRIT, COMMISSIONER OPINION The plaintiff appeals a denial of benefits for left foot and ankle conditions. 1 The plaintiff argues the magistrate s opinion is not supported by competent, material and substantial evidence on the whole record. When faced with factual challenges to a magistrate s findings, we perform a qualitative and quantitative review of the evidence. We affirm a magistrate s findings when they are supported by competent, material and substantial evidence on the whole record. MCL a(3) and (13); Mudel v Great Atlantic & Pacific Tea Company, 462 Mich 691 (2000). We affirm. Case Summary Mr. LaSota started working for DaimlerChrysler in October of He denied any preemployment leg or foot problems. He acknowledged he treated for non-work related right foot problems as early as [Trial transcript #3, p 37.] 1 The plaintiff has abandoned the denial of a left knee claim.

2 Mr. LaSota worked at two different plants during his tenure. He started at the Sterling Heights Assembly plant, transferred to a Viper plant in Detroit and finished his employment back at the Sterling Heights plant. The plaintiff performed a variety of assembly positions in both plants. The plaintiff denied injuries during his first tenure at the Sterling Heights plant or while at the Viper plant. From January of 1998 through June of 2001, Mr. LaSota treated with podiatrist Dr. Kowalchick for non-work related right foot and ankle pain. Dr. Kowalchick diagnosed right plantar fasciitis and right posterior tibial tendonitis. He treated the plaintiff with arch supports, cortisone injections and anti-inflammatory medications. Although it took several years, the plaintiff s symptoms resolved with conservative treatment. [Dr. Kowalchick s deposition, pp 5-6.] Mr. LaSota returned to work at the Sterling Heights plant in late The plaintiff alleged multiple injuries and aggravations to his left foot and left ankle during this second period of employment at the Sterling Heights plant. The plaintiff alleged an injury at work on March 6, He testified he slipped and fell at work, injuring his left knee and foot. He testified he reported the injury, was seen at the first aid department and was sent to his own physician for treatment on the day of the alleged injury. [Trial transcript #2, pp ] The plaintiff maintained that he told the company physician and his treating doctor of the injury event. Neither the first aid records nor the records of Dr. Kowalchick, the treating podiatrist, mention a specific event injury. 2 Dr. Kowalchick saw Mr. LaSota on March 6, 2001, the day of the alleged injury. The plaintiff complained of pain in his left foot with pain in the left posterior tibial tendon region. The plaintiff attributed his foot pain to a change in his job, specifically to walking on rubber mats at work. [Dr. Kowalchick s deposition, p 7.] Dr. Kowalchick again diagnosed plantar fasciitis and posterior tibial tendonitis, this time related to the left foot. [Dr. Kowalchick s deposition, p 8.] He treated the plaintiff conservatively at first, with cortisone injections, antiinflammatory medication, taping and then casting the foot. [Trial transcript #2, p 35; Dr. Kowalchick s deposition, pp 9-10.] An April 8, 2001 MRI showed a longitudinal partial tear of the posterior tibial tendon and bruising and swelling around the bone. Dr. Kowalchick felt the MRI results and his May 20, 2001 surgical findings were consistent with a traumatic tear of the tendon. [Dr. Kowalchick s deposition, pp 12, ] Mr. LaSota alleged a second specific event injury occurred on October 15, He testified he was lifting and moving axles when he slipped and twisted his left knee, injuring his 2 There are no records of a March 6, 2001 visit to the company clinic. The first visit following the alleged incident was on March 11,

3 left foot and left knee again. He was seen at the company clinic and sent back to Dr. Kowalchick. Once again, the medical records do not record a specific event injury. Mr. LaSota testified that after his surgery and return to work, the defendant consistently violated Dr. Kowalchick s restrictions and reassigned him to working on three inch thick sponge-like floor mats. The thick mats caused his feet to roll inward, irritating his symptoms. Every time he returned to work on the mats, his symptoms returned. He was taken off work, his symptoms would improve and then he would return to work. The return to work aggravated his foot, starting the cycle over again. [Trial transcript #2, pp 40-42; Trial transcript #3, pp 11, 13, 23.] The plaintiff last worked in October of He has gone on to have a fusion surgery of the left ankle. The magistrate denied the petition. She found the plaintiff failed to establish his left foot conditions were related to his employment at DaimlerChrysler. The plaintiff filed a timely appeal. Analysis The plaintiff initially argues the magistrate s opinion is not supported by the requisite evidence. Specifically the plaintiff argues the magistrate s choice of medical evidence, does not make any reasonable sense. [Plaintiff s brief, p 8.] After a very thorough and accurate review of the lay and medical testimony, the magistrate denied benefits. Initially, she noted she did not believe Mr. LaSota s claim of traumatic work injuries in March of 2001 and October of Plaintiff alleged injury dates on or about March 5, 2002, October 15, 2002, December 17, 2002, August 4, 2003, October 25, 2004 and his last day worked of February 5, Plaintiff testified on March 6, 2002, he sustained an injury to his left leg and left foot when he fell while working. He notified his supervisor who sent him to the plant medical department where he was instructed to see his personal doctor. He left the plant and went immediately to Dr. Kowalchick s office. The plant medical records do not indicate plaintiff was seen on March 5 or March 6, 2002 and the records from Dr. Kowalchick s office do not mention an injury on the job. Dr. Kowalchick s records state plaintiff was seen on March 6, 2002 for follow-up examination of plantar fasciitis and posterior tibial tendinitis on the left side. The records also state: His foot has gotten really symptomatic again. Dr. Kowalchick testified he treated plaintiff from 1998 through June 21, 2001 but all the treatment was to plaintiff s right foot. I accept that testimony, however, to state again would indicate treatment had been rendered previously for plaintiff s left foot. (DXC) 3

4 Defendant objected to the admission of PX4, the letter from Dr. Kowalchick dated September 23, 2002 as there was no date of injury stated in the letter. I overrule the objection and allow the letter as an exhibit for plaintiff as Dr. Kowalchick does not specify an injury. In the letter Dr. Kowalchick states: The mats are what contributed to his condition in the first place and continued ambivalence toward instruction will result in further injury to his foot and the resultant liability for a condition which may result in permanent disability. In plaintiff s Exhibit 5, there is an entry on September 18, 2002 stating plaintiff sustained an on the job injury on March 11, 2002, but later in that same entry, it states Above stated injury on 3/11/02 is inaccurate. Employee was treating with his personal doctor prior to his only visit to medical on 3/11/02. The entry states plaintiff had complained of pain to his left foot and had been treated by his physician for severe tendonitis of the left foot and off work from to There is no mention of a work injury. (PX5) Plaintiff testified that on October 15, 2002 he slipped and fell while working on the K Frame line. He went to medical and told the doctor that he hurt his left knee and left foot in the fall. He was taken off work for one month and then returned to the transmission line with the rubber mats. The plant medical records states: Re-exam left foot. States foot is still painful and swollen. Also c/o left knee pain. States LC is torn. Per doctor s note work is restricted to not standing on mats. There is nothing in the record regarding a slip and fall injury. (PX5) [Magistrate s opinion, pp ] Because the magistrate did not believe the plaintiff s testimony regarding the alleged specific event injuries, the only way for the plaintiff to prevail was based on an aggravation theory. The magistrate so noted: Because I find there was no specific injury, plaintiff must establish that his posterior tibial tendinitis was significantly aggravated by walking on the rubber mats while working. In Rakestraw v General Dynamics Land Systems, Inc. 469 Mich 220; 666 NW2d 199 (2003), the Supreme Court held that the symptoms standing alone do not establish a compensable injury under the Act. Rather, a claimant must establish that the symptoms complained of are causally linked to an injury that arises out of and in the course of employment. Id at [Magistrate s opinion, p 19.] 4

5 The magistrate went on to compare and contrast the opposing medical opinions on the aggravation theory. The defense examiner, Dr. Lederman, is an orthopedic surgeon. He has seen the plaintiff four times for evaluation. He testified the plaintiff s foot conditions were related to his congenital flat feet and his morbid obesity. [Dr. Lederman s deposition, pp 27, ] He did not believe the plaintiff s foot conditions were related to his employment or any alleged injuries at Chrysler. Dr. Lederman also opined the posterior tibial tendon repair surgery performed in May of 2002 was doomed to failure, given Mr. LaSota s weight. [Dr. Lederman s deposition, pp 20, 28, 44, 51.] The magistrate found Dr. Lederman s testimony on the alleged aggravation theory persuasive. The magistrate found: Dr. Kowalchick s testified plaintiff s pain and the plantar fasciitis and posterior tibial tendinitis of plaintiff s left foot were significantly aggravated by working on the rubber mats. In his letter of September 23, 2002 Dr. Kowalchick states: The mats are what contributed to his condition in the first place and continued ambivalence toward instruction will result in further injury to his foot and the resultant liability for a condition which may result in permanent disability. (PX4) While Dr. Kowalchick refers to a twisting injury, his office notes do not contain any information regarding an injury while working. (K14) Dr. Lederman stated plaintiff had bilateral congenital flat foot deformities and longstanding pre-existing posterior tibial tendon pathology. Dr. Lederman said working on the cushioned mat did not aggravate or cause any further pathology to plaintiff s foot. He said plaintiff has posterior tibial tendon insufficiency and at some point he will develop symptoms in that region of his foot and will require the same type of procedure that is recommended for his left foot. Plaintiff began working for the defendant in 1994 and worked for approximately four years before going to the Viper Plant. He returned to SHAP the latter part of Plaintiff treated with Dr. Kowalchick for his right foot from 1998 to Dr. Kowalchick testified plaintiff had some inflammation of the tendon of a posterior tibial tendon on the medial aspect of the ankle on the right foot. Plaintiff was treated with orthotics, cortisone injections and antiinflammatory medication which resolved the problem. Dr. Loder testified posterior tibial dysfunction (PTTD) is a far more serious condition than posterior tibial tendinitis. He said posterior tibial tendinitis is the beginning stage of PTTD. On June 21, 2001 Dr. Stacy Miller said plaintiff s right posterior tibial dysfunction was resolved. Plaintiff testified the problem with his left foot began when he began working on rubber mats. He had previously worked on a carpeted floor. Dr. Kowalchick and Dr. Loder testified plaintiff s PTTD was significantly aggravated by working on the rubber mats. I find Dr. Lederman s testimony more 5

6 persuasive. He said plaintiff has posterior tibial tendon insufficiency and at some point he will develop symptoms in that region of his right foot as was performed on his left foot. Based upon the medical records, I find plaintiff had PTTD in his right foot and in time he developed the same condition in his left foot and it was unrelated to the rubber mats. The rubber mats were not the cause of plaintiff s disability nor did the mats significantly aggravate plaintiff s PTTD. Based upon that evidence, plaintiff received treatment for his right foot while at the Viper facility working on carpeted floors for the same condition he has in his left foot. The rubber mats were at SHAP and plaintiff did not return to SHAP until 2001 which was after he was treated for the PTTD of his right foot. Based upon the medical records I find plaintiff s PTTD was unrelated to his walking/working on rubber mats. [Magistrate s opinion, pp ] Our review of the evidence confirms the above conclusions are supported by competent, material and substantial evidence on the whole record, namely the plaintiff s credibility problems and the persuasive testimony of Dr. Lederman, and should be affirmed. The plaintiff argues it would have made more sense for the magistrate to accept his theory of the case, since despite his obesity and his congenital flat feet, he was able to recover from similar non-work related conditions of the right foot and return to work. The plaintiff points to his ability to recover from non-work related right sided plantar faciitis and non-work related right sided posterior tibial tendonitis (despite his flat-footedness and his obesity) as proof that the rubber mats at work were an aggravating cause of his left foot plantar faciitis and posterior tibial tendonitis. The plaintiff s argument misses some obvious points. There is no question the alleged work-related left foot conditions have been more intractable than the non-worked right foot conditions. However, the underlying conditions were not identical. Mr. LaSota ruptured the tendon in his left foot, requiring surgery. He never ruptured a tendon in the right foot and never had right foot surgery. We do not know if the failure of the left foot to heal was related to a tendon rupture, but it does not come as a surprise that after a tendon rupture and surgery, it might be more difficult to return to a baseline condition. What we do know is that the rupture of the tendon was not related to the alleged traumatic events (per the magistrate s credibility findings) and that given the plaintiff s morbid obesity, the left foot tendon repair surgery was not likely to succeed (per the persuasive testimony of Dr. Lederman). Conclusion We affirm the magistrate s decision as it is supported by competent, material and substantial evidence on the whole record. 6

7 s Przybylo and Will concur. Donna J. Grit Gregory A. Przybylo Rodger G. Will 7

8 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION PHILLIP M. LASOTA, PLAINTIFF, V DOCKET # DAIMLERCHRYSLER CORPORATION, SELF INSURED, DEFENDANT. This cause came before the Appellate Commission on a claim for review filed by plaintiff and cross appeal filed by defendant from Magistrate Beatrice B. Logan s order, mailed April 28, 2008, denying benefits. The Commission has considered the record and counsel s briefs, and believes that the magistrate s order should be affirmed. Therefore, IT IS ORDERED that the magistrate s order is affirmed. Donna J. Grit Gregory A. Przybylo Rodger G. Will