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

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1 BETRICE ROBINSON, PLINTIFF, 2003 CO #177 S T T E O F M I C H I G N WORKER'S COMPENSTION PPELLTE COMMISSION V DOCKET # MGM GRND DETROIT, L.L.C., SELF INSURED, DEFENDNT. PPEL FROM MGISTRTE BRNEY. LWRENCE. MEYERSON FOR PLINTIFF, DWIGHT W. PHILLIPS FOR DEFENDNT. WITTE, COMMISSIONER OPINION This cause came before the ppellate Commission on plaintiff s appeal from Magistrate Michael J. Barney s decision, mailed ugust 13, 2002, denying benefits for plaintiff s claim of workrelated injuries to her back, left shoulder, and upper and lower extremities following a fall. 1 Plaintiff presents the following issue on appeal, The Magistrate s finding that the plaintiff lacked credibility is not supported by competent, material and substantial evidence on the whole record. We affirm. MCL a(3). The parties agreed that the chief issue was continuing disability. The magistrate found that plaintiff failed to carry her burden of proof in this regard and denied benefits. Plaintiff produced her testimony and that of her examining physician, Dr. Gordon, to support her claim. However, the plaintiff failed to tell her examiner and denied at trial that she had any prior injuries to her shoulders, neck and back (She may also have failed to tell her attorney about any prior injuries since he fashioned his hypothetical questions expressly stating plaintiff had no prior injuries.) The magistrate found that this lack of completeness and candor tainted plaintiff s proofs. The only other evidence before the magistrate was defendant s examiner s testimony. Dr. Geiringer, who was informed of plaintiff s prior injuries, found no objective evidence of disability. In his report, he noted numerous inconsistencies in plaintiff s presentation and gave no restrictions on her immediate return to work. On this record, plaintiff requests reversal. Her entire argument is as follows: Plaintiff contends that the Magistrate's rationale for rejecting Plaintiff's credibility is logically flawed. He makes much of the fact that there was a prior CT scan of the 1 This case has been ready for review since January 31, 2003.

2 lumbosacral spine on September 26 th, 2000, which demonstrated a central disc herniation at L5-S1. She readily admitted to Dr. Geiringer that she had a back injury from lifting at work. Pertinent past history shows that she had a back injury from lifting at work about one year ago and she thinks this might have been early 2000 but is not exactly certain of the date. She had an MRI scan done which was normal. She said she was then returned to work without going through physical therapy. (Dr. Geiringer Report, Page 2). Recall that the Plaintiff began her employment for MGM in June ccordingly, the incident at work would have occurred at MGM. There is no reason why the Plaintiff would deny this incident other than honestly not recalling it. s a matter of fact, Plaintiff testified in the following manner regarding any preexisting conditions: I think about a month before I did get injured again. He (Dr. Dean) should have the records. I am pretty sure I got injured once, my leg at MGM. (T-39) This is not a situation where the Plaintiff had a non-work related event and is attempting to blame the workplace for the problem. It is respectfully submitted that the incident of November 28 th, 2000, was much more significant in her mind, since this is what caused her disabling pain. Further, on cross examination, the following colloquy occurred: : Did you even experience significant discomfort or pain before November 28 th, 2000, in your back, neck or shoulder? : Maybe muscle spasms (T-47). The hypothetical given to Dr. Gordon, although not containing information regarding the earlier work injury because it was irrelevant, was sufficiently accurate to enable him to give an opinion based upon a reasonable degree of medical certainty. It is also important to note that the Defendant did not pursue the question of prior C/Scan at the Deposition of Dr. Gordon nor at trial. ccordingly, the Magistrate's reliance upon the alleged prior injury is misplaced. In conclusion, it is respectfully submitted that the Plaintiff's credibility remains untainted and that an award of continuing compensation should be entered. 2 We adopt defendant s response, that the magistrate should be affirmed because: First, Magistrate Barney determined that the petitioner was not a credible witness. Magistrate Barney based this determination on the petitioner not being truthful 2 Plaintiff s brief,

3 in regards to previous back injury she sustained. The evidence presented on the record supports this determination. The petitioner was asked on direct examination whether she had any prior back injuries. In response to the question, she denied prior injury (T, p.19). On cross-examination, the petitioner was asked whether she had any previous back injuries. In response to this question, the petitioner stated: Now, before November 28, 2000, did you ever treat with a doctor for pain or discomfort in your back, neck or shoulders? Not that I can recall, no. Before November 28, 2000, did you ever sustain any specific injuries to your back, neck or shoulders? No. Did you ever experience any significant discomfort or pain before November 28, 2000, in your back, neck or shoulders. s comfort[sic] as far as like muscle spasms? nything, yes, something along that. Maybe muscle spasms. The petitioner's denial of a previous back injury contradicts the medical records of her treating physicians, Dr. Dean and Dr. Schwartz. It further contradicts the history which she provided to Dr. Steven Geiringer. medical bill from Dr. Schwartz and Dr. Dean indicated that the petitioner had x-rays taken on her thoracic and lumbar spines on November 17, This is eleven (11) days before the slip and fall incident of November 28, Furthermore, Dr. Dean's records indicated that the petitioner had complained of back pain prior to November 28, 2000(Ge, p.8). Based upon all of the above, it is obvious that the petitioner was not truthful in regards to previous back problems. In her appellate brief, the petitioner seeks to explain this by stating that her previous back injury was minor and therefore, it was simply an oversight by her when testifying in regards to same. The petitioner further stated that she did in fact, testify to previous back problems in that she testified that she had previously experienced back spasms. This argument is disingenuous in that the petitioner's back problems were serious enough for her to give a history to two (2) different doctors as well as have x-rays performed of her lumbar and thoracic spines. She was asked several times by both her counsel and defense counsel regarding any previous injuries. The petitioner denied any previous back injuries each time she was asked this question. 3

4 The fact that the petitioner testified that she had previous back spasms still does not explain why she did not testify regarding her previous back injury. It is quite clear that this was not a mere oversight on the petitioner's part, but was a deliberate attempt by her to conceal her previous back problems. The petitioner was not truthful in her testimony regarding this aspect. s such, Magistrate Barney had competent, material, and substantial evidence to find that the petitioner was not a credible witness. * * * Magistrate Barney was correct in discerning that Dr. Gordon's opinion was based upon an inaccurate hypothetical, in that it did not include information regarding the petitioner's previous back injury. The petitioner seeks to explain this by stating that the previous back injury was irrelevant. Her reasoning for this was that any previous back injury which she may have incurred, occurred while she was employed by defendant, MGM Grand. Defendant contends the opposite. Defendant asserts that information regarding a previous back injury is extremely relevant to a doctor formulating an opinion regarding causal relationship. Furthermore, there is absolutely no evidence which shows that the petitioner suffered a previous back injury while working for defendant. There is no Incident Report, no witness testimony and no testimony from the petitioner which indicates that this occurred. Therefore, Magistrate Barney had competent, material, and substantial evidence in finding that Dr. Gordon's testimony was not credible. * * * fter finding the petitioner and Dr. Gordon not to be credible witnesses, the petitioner had no other evidence which supported her claim. Therefore, Magistrate Barney's decision should not be reversed. Because the magistrate chose to accept the testimony of Dr. Geiringer, and because plaintiff has not demonstrated that this choice was unreasonable, Dr. Geiringer's testimony provides the competent, material and substantial evidence on the whole record necessary for affirmance. s such we are bound to accept it. MCL a(3). The magistrate s decision is affirmed. Commissioners Wheaton and Martell concur. Joy L. Witte Winston. Wheaton Marie E. Martell Commissioners 4

5 BETRICE ROBINSON, PLINTIFF, S T T E O F M I C H I G N WORKER'S COMPENSTION PPELLTE COMMISSION V DOCKET # MGM GRND DETROIT, L.L.C., SELF INSURED, DEFENDNT. This cause came before the ppellate Commission on plaintiff s appeal from Magistrate Michael J. Barney s decision, mailed ugust 13, 2002, denying benefits for plaintiff s claim on workrelated injuries to her back, left shoulder, and upper and lower extremities. The Commission has considered the record and counsels briefs, and concludes that the magistrate s decision should be affirmed. Therefore, IT IS ORDERED that the magistrate s decision is affirmed. Joy L. Witte Winston. Wheaton Marie E. Martell Commissioners

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