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

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1 1997 OPINION # 219 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION SUSAN BARTKIW, PLAINTIFF, V DOCKET # CITY OF DETROIT POLICE DEPARTMENT, SELF-INSURED, DEFENDANT. APPEAL FROM MAGISTRATE COPE. CHARLES MANION FOR PLAINTIFF, JEANNE V. BARRON FOR DEFENDANT. WITTE, COMMISSIONER OPINION This matter is before the Workers Compensation Appellate Commission on appeal by plaintiff from the decision of Magistrate Susan B. Cope, mailed October 10, 1994, denying plaintiff benefits. Plaintiff brings one issue for our review, that is, that the magistrate s denial of general disability benefits for shoulder, neck and back injuries is not supported by competent, material and substantial evidence on the whole record. Plaintiff does not appeal the denial of her psychiatric claim. We affirm the decision of the magistrate. Plaintiff was a police officer for the City of Detroit. She was involved in two work-related car crashes, one in July 1987 when she was broad-sided, and one on April 19, 1988, in which the car in which she was a passenger rear-ended a suspect. After periods of rehabilitation, plaintiff returned to light-duty and then full duty work. She was terminated on September 26, 1989, apparently for not fulfilling the requirement that she reside within the City of Detroit. She was returned to full duties almost a year before her termination. The proofs submitted in this matter were plaintiff s testimony and the deposition and report of Erwin Feldman, D.O., who treated plaintiff on two occasions, November 2, 1989, after her last day worked, and more than two years later, on February 14, He made the following diagnoses: (1) Chronic dorsal and lumbar myositis and strain. (2) Unstable low back.

2 (3) Disc bulging and disc disease of L3-L4 and L5-S1. (4) Osteoarthritic changes in the lumbar epithocele joints. His prognosis reads as follows: PROGNOSIS : Her prognosis is guarded. This patient has a chronic unstable low back. She has evidence of a disc bulging which showed up on a MRI scan and also a CT scan. It is not uncommon with patients with these types of problems to have ongoing and chronic problems and also have exacerbations of their problems from time to time. Her restrictions at this time are: She cannot do any prolonged sitting or standing. She cannot do any pushing, pulling or heavy lifting, and she should by all means undergo a course of physiotherapy, as well as the other above-mentioned treatments. I feel that given her history and [t]he incident that she was involved in while working for the Detroit Police Department, I feel that her injuries are related to that problem, and her ongoing and chronic problems at the present time are all work-related to when she was a police officer for the Detroit Police Department. Nonetheless, the magistrate denied benefits. We quote her findings as to the shoulder, and the neck and back: Initially, I dispose of plaintiff s claim for shoulder disability. I note plaintiff did not specify any complaints of shoulder pain after the 1988 accident, nor did Dr. Feldman have any findings relative to her shoulders. Plaintiff did testify to seeing Dr. Herkowitz sometime after January, 1988 relative to shoulder complaints, but she did not depose the doctor or offer a report from the doctor. I simply cannot speculate on what, if anything, is wrong with plaintiff s shoulder[, or] when and why those alleged problems began and ended. * * * I am similarly reluctant to award plaintiff any benefits for either a neck or back condition. I was presented with no medical information contemporaneous with either of plaintiff s injuries nor from any of the follow-up treatment testified to by plaintiff. I further note that although plaintiff performed favored work for a period of time 2

3 following each incident, she ultimately returned to her regular job and was performing that job on her last day of work when she was terminated for reasons unrelated to her alleged disability. Theoretically, plaintiff could be entitled to an award of wage loss benefits during those times she remained off work, but the dates of disability were not clearly set forth on the record, nor was any wage information provided so that a benefit rate could be determined. Plaintiff correctly notes that if the magistrate s findings are supported by competent, material and substantial evidence on the whole record, they are conclusive upon us. MCL a(3). Here, while the plaintiff correctly points out that she testified that her shoulder hurt after the broad-siding accident and it also hurt at the time of trial, there was no evidence this was disabling. As the magistrate pointed out, plaintiff returned to her full duties, eventually, after each accident. Further, as the magistrate recognized, a review of Dr. Feldman s diagnoses and prognosis reveals that they only concern the low back. Despite plaintiff s complaints of pain, since she was able to return to her regular duties, the magistrate was correct in finding she had not demonstrated disability. As for her neck and back complaints, plaintiff attempts to show the magistrate s decision is not appropriately supported in this regard by stating the magistrate is mistaken in not knowing the time or place that the MRI and CT scans were done. She alleges her physician ordered them at the time of her visit and that they took place at Harper Hospital. However, while his February 9, 1990 report does state the tests were done at Harper, it does not reflect that he ordered these tests. He merely states that he reviewed the tests. While this is a fine point, we do not believe plaintiff has shown there is not competent, material and substantial evidence on the whole record for the magistrate s conclusion that she could not determine whether the tests were concurrent with his treatment. As an aside, we note that the results of the tests, the not uncommon bulging disks, as well as the degenerative arthritis, can simply be a part of the aging process, unrelated to trauma. Plaintiff also states that her testimony, coupled with Dr. Feldman s testimony, would be enough to support an award of benefits. However, this argument falls outside our scope of review. While plaintiff s allegation may be accurate, it does not demonstrate how the findings which were made by the magistrate are not supported by the record. Because the magistrate s findings are appropriately supported by the record, they are conclusive upon us. Thus, we affirm the opinion and order of the magistrate. 3

4 Commissioners Garn and Kent concur. Joy L. Witte Marten N. Garn James J. Kent Commissioners 4

5 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION SUSAN BARTKIW, PLAINTIFF, V DOCKET # CITY OF DETROIT POLICE DEPARTMENT, SELF-INSURED, DEFENDANT. This cause came before the Appellate Commission on appeal by plaintiff from the decision of Magistrate Susan B. Cope, mailed October 10, 1994, denying plaintiff benefits. The Commission has considered the record and the briefs of counsel, and believes that the decision should be affirmed. Therefore, affirmed. IT IS ORDERED that the magistrate's decision is Joy L. Witte Marten N. Garn James J. Kent Commissioners

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