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

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1 MAKRAM A. MIKHAIL, PLAINTIFF, 1999 ACO #364 S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # THORN APPLE VALLEY, SELF INSURED, PARAGON TECHNOLOGIES, INCORPORATED, CITIZENS INSURANCE COMPANY OF AMERICA, AND CPM INDUSTRIES AND CITIZENS INSURANCE COMPANY OF AMERICA, DEFENDANTS. APPEAL FROM MAGISTRATE COOKE. PLAINTIFF IN PROPRIA PERSONA, MICHAEL J. KINGSLEY FOR DEFENDANT THORN APPLE VALLEY, JUDITH FLEMING VARGA FOR DEFENDANTS PARAGON TECHNOLOGIES, INCORPORATED AND CITIZENS INSURANCE COMPANY OF AMERICA, GERALD M. MARCINKOSKI FOR DEFENDANTS CPM ELECTRONIC INDUSTRIES AND CITIZENS INSURANCE COMPANY OF AMERICA. SKOPPEK, CHAIRPERSON OPINION Plaintiff Makram A. Mikhail appeals the decision of Magistrate Molly Cooke, mailed July 22, 1997, denying his claim for benefits due to an alleged specific event hand injury on January 8, 1991 and a May 13, 1995 last-day-worked injury. We affirm the magistrate s decision and adopt her opinion pursuant to MCL a(10). Plaintiff commenced employment with Thorn Apple Valley in the fall of Plaintiff maintained grinding machines, lathes, saws, and drills. Working with these machines required plaintiff to lift heavy objects and perform repetitive tasks. 1 Plaintiff sustained an injury to the fourth and fifth fingers of his left hand on January 8, 1991, while grinding bars on the grinding machine. He testified he was taken to the hospital where surgery was performed by Dr. Ronald Rusko. 2 Plaintiff testified he was off work for three days, after which he returned to work. He continued to treat with Dr. 1 Trial transcript, p Id., p. 20.

2 Rusko for almost two months, at which point he decided to seek treatment from Dr. Thomas Magnell. 3 Plaintiff went to Dr. Magnell on February 27, 1991, for pain in his left hand and to discuss treatment options. Dr. Magnell performed an arthrodesis of plaintiff s proximal interphalangeal joint on April 7, Plaintiff testified he had not been working prior to the surgery because the doctor had given him about two and one-half months off. 4 When plaintiff first returned to work it was at one-handed jobs, such as cleaning and measuring meat hooks for height. Plaintiff was subsequently given the job of inspecting the meat trolley. On April 20, 1994, at the request of Thorn Apple Valley, plaintiff was examined by Dr. Stephen A. Kushner who gave no restrictions. In October 1994, plaintiff was reassigned from his trolley job to a scale job. Plaintiff refused this assignment, testifying that it was in a cooler and required the lifting of heavy weight, work he had not done before. He did not wish to perform this work because cold and lifting hurt him, and his hand was weak. 5 He was left on the trolley job, but three days later he was told by a supervisor to work the scale job, as he would only have to do the scale job for one week and then be returned to the trolley. Plaintiff then worked on the scale job, not just for one week, but for five months, full time. He testified he received help doing this job from fellow workers. As a result of being assigned to the scale job, plaintiff was allowed to join the union as a scale mechanic. After complaining to the union, plaintiff was reassigned again to the trolley for a period of one week. His supervisor, Stanley Bell, then assigned him to the scale job in the morning and the trolley job in the afternoon. Plaintiff s last day of work was on May 13, 1995, when he left work early because of pain in his right side. 6 He went to a doctor and subsequently received surgery for an inflamed gall bladder. He testified that on May 25, 1995, he received a letter from Thorn Apple Valley terminating him. 7 The letter indicated he was terminated from his position for an infraction of the rules. Plaintiff received unemployment benefits until October of 1995, when he went to work for an electronics company in Farmington Hills (not a party to this action). He was a computer switch tester, but was laid off, apparently shortly after being hired. 8 Plaintiff worked for defendant Paragon Technologies Inc., from January 24 through February 8, 1996, repairing circuit boards, until he was again laid off. It is stipulated that he received unemployment compensation benefits for six months after being laid off from Paragon. He testified 3 Id., p Id., p Id., p Id., p Plaintiff s Exhibit 1 is a post office receipt bearing the date May 25, 1995, however the actual letter terminating him is dated May 13, Trial transcript, pp. 32, 51. 2

3 he suffered no injury while working for Paragon. Plaintiff then went to work for defendant CPM Electronic Industries, where he also repaired circuit boards. Plaintiff worked for CPM for approximately twenty weeks, until he was laid off. 9 Plaintiff testified that, had he not been laid off or found a better job, he would still be working for CPM. 10 Plaintiff s petition, as amended at hearing, alleged a January 8, 1991, specific-event hand injury and a May 13, 1995, last-day-worked injury at Thorn Apple Valley. By petition to determine rights filed September 17, 1996, Thorn Apple Valley proposed a February 1996 injury at Paragon Technologies Inc., and an August 1996 injury at CPM Electronic Industries. The proofs presented by plaintiff at hearing did not persuade the magistrate. The magistrate was troubled with the credibility of plaintiff and she noted many inconsistencies in his testimony. The magistrate relied on the testimony of Dr. Thomas D. Magnell, M.D. and Dr. Steven A. Kushner, D.O., in determining that plaintiff had recovered from his January 8, 1991, work-related injury before his termination from Thorn Apple Valley. She was convinced there were no disabling residual effects of his work-related injury and therefore denied plaintiff s claim for benefits. The magistrate found in part as follows: Dr. [K]ushner reported that plaintiff's nerves are intact, and there is no gross evidence of neuroma palpable at examination; were it present, it would be palpable. He did not believe that the scarring plaintiff has had is significant for the type injury he received. Dr. Kushner did not think that surgical scar release along the dorsal aspect of the finger would be of much benefit. Nor would he recommend surgery for any neuroma. No job restrictions were recommended either, even though grip strength is not 100 percent in the left hand; it was, however, considered normal. I find as fact that plaintiff had recovered from his work-related injury. * * * As of his March 17, 1997, deposition, Dr. Magnell had last seen plaintiff on August 28, The doctor testified about his condition at that time: He was really doing all right. His status was he was stable. I had fused his mid joint some probably three years prior to that. He'd had a good solid fusion. All wounds were well healed. He had good blood supply to the digit; actually had a good finger. He complained of intermittent pain. He states several weeks prior to seeing me he 9 It is interesting to note that prior to beginning work with CPM Electronic Industries, plaintiff completed a physical examination, in which he did not mention any problems related to his hand. Furthermore, he acknowledged in signed forms, filled out in conjunction with his physical exam, that he had lost no time at work because of injury, nor was there any mention of restrictions concerning his hand. Trial transcript, pp Trial transcript, p

4 was having pain, but not having much pain today, so I suspect basically he demonstrated a stable fusion to his mid joint, little finger, with a good functioning finger. Dr. Magnell noted that, because plaintiff had complained of cold intolerance, he had restricted plaintiff's activities at Thorn Apple Valley's cold rooms. The doctor added, "All the wounds healed. He's had a variety of scar contractures released and those were all done [sic] fine and his only complaint really is that of cold intolerance." The doctor testified that he has encouraged plaintiff to use the hand as much as he can, certainly testimony supporting my finding that plaintiff had recovered from the disabling effects of his work-related injury. Indeed, recovery had taken place before employment at Thorn Apple Valley was terminated. Therefore, reason for that termination is irrelevant. * * * From defendant Paragon plaintiff went to defendant CPM, another electronics company, where he also repaired circuit boards. These were small boards. He testified that CPM makes the card that is a safety key to open doors. After 20 weeks, almost five months, he was laid off. At cross examination, he testified that, after he applied for work at Paragon, he took a physical examination, and said nothing about any problem with his hand. Nor did he say anything about having lost time from work because of illness or injury. He then testified that he in fact had said something about lost time, but agreed that a copy of the application bearing his signature indicates otherwise. So he testified that he had said no such lost time because he did not understand the question, that it was very difficult to understand. I reject his explanation after so many false starts; plaintiff is an educated man. Then he said he had answered the question as he had because he had in fact lost no time from work in the past two years; there might have been a question about having lost time in the past five years. Finally, he testified that he would have lost the opportunity for the job had he told the truth, but that is another issue; he added that he thought the application was referring to such injuries as broken bones, not the injury he received. In my opinion, while he may not have mentioned his injury because he thought it may hurt his chance of employment if he did, his failure to list it also allows the inference, which I draw, that its residual effects do not really impair his ability to work. * * * 4

5 Plaintiff testified that Dr. Magnell is the primary carer for his hand. So far as I can figure out, though, he has not seen the doctor in almost two years. The fifth finger does stick out and does appear incapable of fully straightening, but it does not look particularly misshapen or otherwise deformed. Indeed, residual effects of plaintiff's work-related injury seemed to me next to negligible. The fourth finger has a normal appearance in my opinion. I am satisfied that disabling residual effects of his work-related injury long ago disappeared, and benefits are denied. [Emphasis in original.] On appeal, plaintiff challenges the magistrate s determination by alleging factual error, insufficient analysis and inadequate support for her findings. Plaintiff further alleges that the magistrate conducted the hearing unfairly and allowed the admittance of evidence in a way that was advantageous to defendants. Plaintiff also raises concerns that lawyers for the defendants collaborated to do him an injustice. We find these arguments unpersuasive. In reviewing the magistrate s decision, we must keep certain basic principles in mind. The magistrate, as the fact finder, has a duty to assess the record as a whole and to determine the proper weight to be given to the testimony of every witness, whether lay or expert. Watt v GMC Inland Division, 1990 ACO #336; Casper v Wyman-Gordon Co, 1994 ACO #78. The magistrate is not obligated to accept any witness testimony as dispositive. Even unrebutted testimony must satisfy the legal burden of proof. All testimony must be weighed within the full record. Fergus v Chrysler Corp, 67 Mich App 106 (1976); Kido v Chrysler Corp, 1 Mich App 431 (1965); Cebula v Jones Transfer, 1992 ACO #135. On review, we will not weigh evidence contradictory to the magistrate s decision and then reverse on a theory of the great weight of the evidence. Butler v General Motors Corp, 1992 ACO #691. We must adhere to our statutory review standard and reverse only if the magistrate s findings lack the support of competent, material, and substantial evidence. Aaron v Michigan Boiler & Engineering, 185 Mich App 687 (1990), aff d 440 Mich 861 (1991). We are not to search the record for support for findings that could have been made by the magistrate. We may only determine whether the findings actually made enjoy the requisite support for our affirmance. Pitts v General Motors Corp, 1989 ACO #189. We may not substitute our judgment for the record-supported interpretations of the magistrate. Holden v Ford Motor Co, 439 Mich 257 (1992); Goff v Bil-Mar Foods, Inc (After Remand), 454 Mich 507 (1997). A magistrate s credibility determinations are entitled to deference because, as the hearing officer, he or she has the opportunity to view and judge witnesses. Hemontolor v Chrysler Corp, 1992 ACO #163; Wilde v Ann Arbor Public Schools, 1997 ACO #96. The magistrate s choice of expert medical testimony is within his or her discretion, as long as that choice is reasonable. Miklik v Michigan Special Machine Co, 415 Mich 364 (1982). Although a magistrate may give preference to a treating physician s opinion, he need not do so. Kleinow v McCord Gasket Corp, 1996 ACO #189. 5

6 A magistrate s opinion must demonstrate the path taken through the conflicting evidence, the testimony adopted, the standards followed, and the reasoning used to reach his conclusion. Woody v Cello-Foil Products, 450 Mich 588 (1996). The magistrate is not required to explain away every aspect of evidence tending to militate against his or her decision. A discussion of the persuasive proofs leading logically to the ultimate determination is sufficient. Jaworowicz v Greyhound Lines Inc, 1989 ACO #53. Applying these basic principles to the case at hand, we must affirm the magistrate s decision. The magistrate conducted the hearing with complete propriety and had ample support in the record for her determination. The magistrate s reliance on the testimony of Drs. Magnell and Kushner was reasonable, and based upon her selection of persuasive evidence, she reasonably concluded that plaintiff was no longer disabled by the time of his termination from Thorn Apple Valley. The magistrate s denial of benefits is supported by competent, material, and substantial evidence on the whole record. MCL a(3). There is no evidence in the record to support plaintiff s claim that opposing counsel acted illegally, inappropriately or in any other way unfairly so as to cause the plaintiff undue prejudice. The magistrate acted in an impartial, unbiased, equitable and objective manner. We therefore affirm her decision. Commissioners Witte and Leslie concur. Jürgen Skoppek, Chairperson Joy L. Witte Richard B. Leslie Commissioners 6

7 MAKRAM A. MIKHAIL, PLAINTIFF, S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # THORN APPLE VALLEY, SELF INSURED, PARAGON TECHNOLOGIES, INCORPORATED, CITIZENS INSURANCE COMPANY OF AMERICA, AND CPM INDUSTRIES AND CITIZENS INSURANCE COMPANY OF AMERICA, DEFENDANTS. This cause came before the Appellate Commission on appeal by plaintiff from the decision of Magistrate Molly Cooke, mailed July 22, 1997, denying benefits. 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. Jürgen Skoppek, Chairperson Joy L. Witte Richard B. Leslie Commissioners