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

Transcription

1 DEBRA CARTER-LIGE, PLAINTIFF, 1999 ACO #305 S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # METROSTAFF HEALTH CARE SERVICES, AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANTS. APPEAL FROM MAGISTRATE SHARON L. SMITH. DAVID M. ROBERTS FOR PLAINTIFF, DOUGLAS S. DOVITZ AND MITZI WEITZMAN-ROBINSON FOR DEFENDANTS. PRZYBYLO, COMMISSIONER OPINION Defendants appeal and plaintiff cross-appeals the decision of Magistrate Sharon Smith, mailed October 30, 1997, granting plaintiff an open award for her left knee injury. Defendants contend that the magistrate s decision lacks competent material and substantial evidence to support the compensable disability finding regarding plaintiff's knee injury. Additionally, defendants argue that the magistrate incorrectly found plaintiff a credible witness. Conversely, plaintiff requests a remand because Magistrate Smith failed to issue any ruling regarding plaintiff s back injury. We reject these arguments and affirm the magistrate s decision entirely. The magistrate carefully outlined all the evidence. She explained her evaluation of the knee injury and the discrepancy involving plaintiff s first complaints of knee pain. She evaluated the medical testimony as evidenced in the following: There was also a lot of discussion relative to the medical records and/or letter of Dr. Arthur I. Bouier. After hearing plaintiff s testimony, refuting a number of things in Dr. Bouier s medical records, most importantly, the notation in his letter of April 25, 1997, that plaintiff was involved in a motor vehicle accident, and plaintiff adamantly denying same, I have chosen to disregard any and all medical records by Dr. Bouier as not being reliable.

2 Plaintiff was examined by Dr. Grant Hyatt, M.D., on January 7, 1997, at the request of Liberty Mutual Insurance Company. She was evaluated relative to complaints involving her back and left knee. Per history, plaintiff related the incident of November 15, 1996, as has been previously stipulated to. Physical examination revealed a 42 year old female who was five feet, one inch tall, weighing 195 pounds. In general, the plaintiff s stance and gait were within normal limits. Examination of her back revealed no evidence of structural or postural deformity. Lumbar lordosis was normally maintained. There was no soft tissue swelling, hypertonicity or paraspinal muscle spasm. Plaintiff complained of tenderness to palpation over both the paraspinal columns and extending from level L4 to S1. Active range of motion of the back revealed flexion limited by 30 degrees, right and left lateral tilt was normal, right and left rotation was normal and extension was normal also. There was no evidence of muscle spasm, reactive hypertensity or myofascial restrictions detected in association with plaintiff s back movements. Straight leg raising test was negative bilaterally as was the Patrick s test. Dr. Hyatt felt his orthopedic examination was clinically, objectively unremarkable. He was unable to detect any objective evidence of significant abnormality or residual effects of orthopedic injury possibly related to the incident of November 15, He opined that from an orthopedic point of view, the plaintiff was capable of resuming her regular work activities as a home health care nurse. He also felt that implementation of a specific home exercise program would be reasonable in light of plaintiff s continuing subjective complaints. He saw no indication for continuation of physical therapy such as hot packs, ultrasound and electric stimulation and felt that plaintiff s overall prognosis was good. Plaintiff was evaluated again by Dr. Hyatt on June 10, 1997,... Examination of plaintiff s knees establish evidence of anteromedial or anterolateral rotatory instability. There was no soft tissue swelling, effusion, hypothermia or erythema involving either knee. All tests again were negative and there was no evidence of crepitus or clicking detected in association with active or passive movements of either knee. Dr. Hyatt was also given the MRI films to study, these films having been taken at Grace Hospital on June 28, Magnetic resonance imaging of the lumbosacral spine included sagittal and axial imaging, with axial imaging extending from level L2-3 to level L5-S1. Review of the MRI imaging reflected maintenance of normal lumbar lordosis, with vertebral configuration and alignment normal. Intervertebral disc spacing was well preserved at all levels. There was no evidence of disc bulging, 2

3 protrusion or herniation at any level. In summary, the MRI of plaintiff s lumbosacral spine was unremarkable. Magnetic resonance imaging of plaintiff s left knee was significant for altered signal intensity within the posterior horn of the medial meniscus extending to the femoral and tibial articular surface.... On cross-examination Dr. Hyatt indicated that he was completely in agreement with the MRI studies indicating that plaintiff did have a serious condition in her left knee Plaintiff was examined by Dr. Victor C. Gordon, D.O., on April 10, Examination of plaintiff s knees revealed a positive patellofemoral crepitus at both knees greater on the left than right. There was no effusion nor ligamentous laxity of the medial or lateral collateral ligaments at either knee. McMurray Test was negative. There was tenderness at the patella tendon and lateral joint line of the left knee and there was tenderness at the left sacroiliac articulation without evidence of muscle shortening.... Dr. Gordon opined that plaintiff s clinical findings were related to her traumatic incident on November 15, Dr. Gordon opined, based upon his examination of plaintiff, her history, and the hypothetical as posed by counsel at the deposition, that there was a causal relationship between the incident of November 15, 1996 and plaintiff s present left knee complaints. It appears that both Drs. Gordon and Hyatt are of the opinion that as of the MRI study plaintiff does have a meniscal tear in her left knee. This finding, however, was not clinically evidenced at the initial examinations of the doctors in January 1997 and April Dr. Hyatt is of the opinion that had the incident of November 15, 3

4 1996 caused this tear, plaintiff would have had immediate pain and complaints relative to her left knee. Dr. Gordon, however, is of the opinion that a slight tear may have incurred at the time of the incident and has been extended with additional use of the left knee. Because I am persuaded by the Concentra records that plaintiff did acknowledge pain in her left knee as early as three to four days within her treatment, and possibly even before then, I accept the medical opinion of Dr. Victor Gordon relative to the delayed extended tear. Having so found, I am satisfied and hereby find that plaintiff has established by the preponderance of the evidence a work-related disability of her left knee arising out of and in the course of her employment, most specifically the incident of November 15, Because plaintiff eloquently detailed the method and standard of review on appeal, we acknowledge this effort and incorporate the following excerpt: On review the Appellate Commission must not weigh evidence contradictory to the Magistrate s decision and then reverse on the theory of the great weight of the evidence. Butler v. General Motors Corporation, 1992 ACO 691. The Appellate Commission must adhere to its statutory review standard and reverse only if the Magistrate s findings lack the support of competent material and substantial evidence. Aaron v. Michigan Boiler and Engineering, 185 Mich App 687 (1990), aff d 440 Mich 861 (1991). It is not the function of the Appellate Commission to search the record for support for findings that could have been made by the Magistrate as long as the findings made have the requisite support. Pitts v. General Motors Corp., 1989 ACO #189. The Appellate Commission must not substitute its judgment for the record supported interpretations of the Magistrate. Holden v. Ford Motor Company, 439 Mich 257 (1992), Goff v. Bil-Mar Goods, Inc., 454 Mich 507 (1997). The Magistrate s credibility determinations are entitled to deference because, as the hearing officer, she has the opportunity to view and judge witnesses. Hemontolor v. Chrysler Corporation, 1992 ACO #163, Wilde v. Ann Arbor Public Schools (1997) ACO # 96. The Magistrate s choice of medial expert testimony is within her discretion as long as her choice is reasonable. Miklik v. Michigan Special Machine Co., 415 Mich 364 (1982). See also opinion of Member Skoppek in McClain v. Journeymen Welding & Fabricating, Inc., et al., 1998 ACO # 434. Using these standards, we must affirm Magistrate Smith s entire opinion. Without question, the opinion constantly references medical opinion and supporting medical tests when applicable. When the opinions were buttressed by the objective tests, the magistrate preferred that opinion. In the absence of a supporting objective test, the magistrate rejected that opinion. Thus, the knee injury presented a compensable injury. Conversely, the back injury did not, despite the absence of a specific reference. Further, given the magistrate s ability to observe the witnesses, we find no blatant disregard of testimony that would justify a reversal of the credibility findings. Lastly, since the 4

5 magistrate rejected Dr. Bouier s records as unreliable because the doctor wrongly assumed a subsequent injury, any error in excluding the correction letter that plaintiff offered was harmless error. Therefore, we affirm the magistrate s decision in it entirety. Commissioner Wyszynski and Chairperson Skoppek concur. Gregory A. Przybylo James Edward Wyszynski, Jr. Jürgen Skoppek, Chairperson Commissioners 5

6 DEBRA CARTER-LIGE, PLAINTIFF, S T A T E O F M I C H I G A N WORKER'S COMPENSATION APPELLATE COMMISSION V DOCKET # METROSTAFF HEALTH CARE SERVICES, AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANTS. This cause came before the Appellate Commission on appeal by defendants and plaintiff from the decision of Magistrate Sharon L. Smith, mailed October 30, 1997, granting plaintiff 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. Gregory A. Przybylo James Edward Wyszynski, Jr. Jürgen Skoppek, Chairperson Commissioners