S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION

Transcription

1 2008 ACO # 272 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION HEATHER STANG, PLAINTIFF, PROVIDENCE HOSPITAL, INTERVENING PLAINTIFF, V DOCKET # TACO BELL CORPORATION AND ACE AMERICAN INSURANCE COMPANY, DEFENDANTS. APPEAL FROM MAGISTRATE DECKER. DARYL C. ROYAL FOR PLAINTIFF, ALLAN W. BEN FOR INTERVENING PLAINTIFF GERALD M. MARCINKOSKI FOR DEFENDANTS. WILL, COMMISSIONER OPINION Plaintiff filed her Application for Mediation or Hearing on January 27, She claimed a date of injury of July 9, 2005, alleging injuries to her neck and head. Providence Hospital filed an Application for Mediation or Hearing, Form B, seeking reimbursement from defendants for medical services rendered to plaintiff for her injury. Plaintiff and plaintiff s father were the only witnesses to testify at the January 22, 2008 hearing before Magistrate Lee A. Decker. Plaintiff presented the October 23, 2007 deposition of Ashraf Mohamed, M.D., her treating board eligible neurologist. Plaintiff also presented the June 1, 2007 deposition of Jay Inwald, Ph.D., who had initially examined plaintiff on October 28, Dr. Inwald is a neuro psychologist specializing in chronic pain and traumatic brain injury. Plaintiff s final deposition was the December 10, 2007 deposition of James T. Eckner, M.D., a specialist in physical medicine and rehabilitation, who examined plaintiff on September 12 and October 2, 2007.

2 Defendants presented the June 18, 2007 deposition of John F. O Leary, Ph.D. Dr. O Leary is a licensed psychologist, board certified in rehabilitation psychology. He evaluated plaintiff at the request of the defendants on September 28, 2006 and January 5, Defendants also presented the deposition of Gerald A. Moore, M.D., board certified in neurological surgery. His deposition was taken on August 27, 2007 and he examined plaintiff on August 20, Plaintiff s exhibits, in addition to the depositions, included hospital records from Providence, Henry Ford and St. Mary Mercy Hospitals pertaining to treatment rendered to plaintiff at those hospitals. Defendants exhibits, in addition to the depositions they presented, included plaintiff s academic transcripts at Canton High School and Wayne State University, together with records from St. Mary Mercy Hospital and Henry Ford Hospital. As of January 22, 2008 plaintiff was 27 years of age. She was born on September 8, Plaintiff s employment with defendants began in May Prior to her employment with defendants plaintiff had worked as a nanny earning $ per week and as a theatre attendant earning $6.50 per hour, working part time while attending high school. While attending Wayne State University, plaintiff worked part time earning $7.50 per hour through a work study program. Plaintiff worked for defendants primarily as a cashier. Plaintiff was also attending Wayne State when hired by defendants so that some of her work was part time and some was full time. Plaintiff s injury occurred on July 9, 2005, when she slipped and fell on a puddle of water at work. She struck her head in this injury and since then she has not been allowed to drive pursuant to orders of her doctor. She has experienced seizures subsequent to her injury. Plaintiff believes that she is unable to work and has had to live with her parents. According to testimony from plaintiff s father, she did drive for a few months after the injury. He also described plaintiff as an average student in high school who was in special education due to a hearing problem. The witness has noticed a change in plaintiff s motor skills and speech after her injury with defendants. Her memory has deteriorated. As indicated, the magistrate heard this matter on January 22, On March 26, 2008 the magistrate s decision giving plaintiff an open award was mailed. The magistrate s summary of the evidence presented began on page 4 of his decision and ended on page 14 thereof. The summary is very accurate and pursuant to MCL a(10), we adopt it as our own. After summarizing the evidence presented the magistrate set forth his findings of fact which included the following: 2

3 I find the plaintiff s testimony credible. She appeared depressed and at times cried. I find she did suffer a closed-head injury when she slipped and fell on water while at work at Taco Bell. It is not clear whether she lost consciousness. However, since that fall she has been unable to live alone, concentrate enough to continue her studies at Wayne State University[,] drive a car, handle money, or prepare meals. She relies on a service dog, a pug, to detect when she is having a seizure. Since the fall she has had headaches and neck pain. She has difficulty reading and develops headaches. Admittedly plaintiff had learning and attention impediments prior to her injury. She was in special education classes from elementary to middle school. Her grades in high school and at Wayne State University were below average. But it is clear from my reading of the medical evidence submitted that plaintiff did suffer, and still suffers, significant residuals from her head injury. Jay Inwald, PhD. has treated the plaintiff since October He testified, in no uncertain terms, that plaintiff is moderately to severely impaired as a result of the fall. She currently is not fit for any type of employment. Psychologist Inwald compared his psychological testing to that of testing done on the plaintiff three years prior to her head injury. He found that she was functioning at a significantly lower level socially and intellectually. He blamed that loss of function on the head injury. Although she did suffer from attention deficit disorder prior to her fall she was still able to function as a student and in the work force as a cashier at Taco Bell. Defendant s examining psychologist, John F. O Leary, saw the claimant on only two occasions. He testified the test he administered showed the plaintiff was functioning at pre-injury levels; though her test results were inconsistent in that her test results were too low even for someone with significant brain injury. I find the testimony of psychologist Inwald more convincing and reasonable than that of psychologist O Leary. Psychologist Inwald has seen the claimant on many occasions for almost three years and has had more opportunity to thoroughly evaluate the claimant. I believe he is in a better position to judge plaintiff s ability, or lack of ability, to function in a work setting as opposed to an examining psychologist. I therefore also accept the testimony of psychologist Inwald over that of psychologist O Leary as to causation of claimants present disability and to the extent that her closed-head injury, and its residuals, prevents her from reentering the job market at the present time. 3

4 In regards to plaintiff s seizures, I find the testimony of Dr. Ashraf Mohamed more convincing than that of Dr. Gerald Moore. Unlike Dr. Moore, Dr. Mohamed sees Ms. Stang on a regular basis. He is a specialist in neurology, electromyography and pain management. He is currently treating plaintiff s neck pain, headaches and seizure disorder. The doctor emphasized that when evaluating claimant s ability to function that the seizure disorder medication sometimes makes claimant unsteady and dizzy. Dr. Mohamed found a casual relationship between claimant s fall on July 9, 2005, and her seizure disorders[,] headaches and neck pain. Dr. Mohamed also found the plaintiff to be disabled from all jobs because of her condition, primarily her seizure disorder and the side effects of the seizure disorder medication. I also accept as credible, and perhaps more optimistic, the treating physiatrist Dr. James Eckner. Dr. Eckner opined that with treatment plaintiff could perform some reasonable employment in the future. Indeed the doctor testified that with weeks to months of therapy (rather than years) plaintiff could return to her previous job at Taco Bell. Dr. Eckner, however, was quite clear that plaintiff is still in need of more therapy before she can return to the role of student and as a Taco Bell employee. I do not believe the plaintiff is prepared to rejoin the workforce at this time, and the testimony of her treating doctors clearly shows a need for further psychological counseling and monitoring of her seizure disorder. I find that because of the head injury and its residuals (the seizure disorder and the side affects of the seizure disorder medication) she is presently disabled from all jobs within her qualifications, experience and training. I find that she would be unsafe in any work environment until she receives further treatment. I do not find her disabled because of her cervical radiculopathy, cervical facet disease, or occipital neuralgia. Based on the above findings it is clear I do not believe Ms. Strang [sic] is malingering. However based on many of the medical records I received I believe plaintiff s family, although acting with good intentions, may not be helping claimant as much as they intend. Claimant s mother is mentioned numerous times in the medical records. Heather Stang needs to begin to feel and act independently. I believe she needs reassurance, on a continuous basis, from her mother and father that she is capable (with therapy) of rejoining the work force in the near future. 4

5 Defendant s examining experts, especially Dr. Moore, believe claimant is exaggerating her disability. I disagree, there is sufficient medical and psychological testimony to find there is no significant malingering and claimant is disabled at the present time. [Magistrate s opinion, pp ] As indicated, the magistrate s decision was mailed on March 26, On April 22, 2008 defendants filed a claim for review. On August 14, 2008 defendants filed their brief on appeal raising a single issue: THE COMMISSION SHOULD REMAND THE CASE TO THE MAGISTRATE BECAUSE THERE WAS NO ARTICULATION BY THE MAGISTRATE OF THE GOVERNING STATUTE OR CASE LAW BEING APPLIED TO RESOLVE THIS MATTER. AND, FURTHERMORE, THE LAW HAS CHANGED SINCE THE TIME THE MAGISTRATE RESOLVED THIS MATTER. The magistrate clearly stated that he found the testimony of plaintiff and of plaintiff s experts to be the testimony he found most credible and controlling. The magistrate clearly understood that plaintiff had a preexisting condition. However, based on the testimony he found most credible he held that plaintiff s current condition is related to her employment. Further, the magistrate set forth at the beginning of his opinion that plaintiff must establish that she is disabled pursuant to Sington v Chrysler Corporation, 467 Mich 144 (2002) and Stokes v DaimlerChrysler Corporation, 272 Mich App 571 (2006). We do recognize that on June 12, 2008 the Supreme Court decided Stokes v Chrysler LLC, 481 Mich 266 (2008) reversing certain determinations made by the Court of Appeals in Stokes because of inconsistent application of Sington standards in the past. However, the June 12, 2008 decision of the Supreme Court in no way touches on the magistrate s decision in this case because the magistrate found plaintiff to be totally disabled from all employment because of residuals of her injury. Accordingly, a remand in this case is not necessary and would be a waste of judicial resources. Again, we note the magistrate pointed towards evidence that he found credible that would establish compensable disability within the meaning of Sington and Stokes. As the Michigan Supreme Court pointed out in Mudel v Great Atlantic & Pacific Tea Company, 462 Mich 691 (2000), we do not have the power to disregard the weight given testimony by the magistrate in his or her fact finding. As pointed out in Mudel, our function on appeal is to review a magistrate s fact findings in a qualitative and quantitative fashion to discern if they are supported by competent, material and substantial evidence, as required by MCL a(3). Only if after that quantitative and qualitative review we determine the fact-finding is not supported by the requisite evidence may we substitute our finding for that of the magistrate. Nor did Mudel do anything to alter our long-standing position that we will not displace the magistrate s choice between conflicting evidence or medical opinions, when there is a reasonable basis for such choice, as there is in the instant case. It is well within the magistrate s discretion to 5

6 accept the medical testimony he finds most persuasive. As long as there is a reasonable basis for his findings and support on the record, as is the case here, we will not displace them. Affirmed. Conclusion The decision of the magistrate is affirmed. The magistrate s findings of fact are supported by competent, material and substantial evidence on the whole record. The decision contains no legal error. s Przybylo and Grit concur in result. Rodger G. Will 6

7 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION HEATHER STANG, PLAINTIFF, PROVIDENCE HOSPITAL, INTERVENING PLAINTIFF, V DOCKET # TACO BELL CORPORATION AND ACE AMERICAN INSURANCE COMPANY, DEFENDANTS. This cause came before the Appellate Commission on a claim for review filed by defendants from Magistrate Lee A. Decker s order, mailed March 26, 2008, granting an open award of 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. Rodger G. Will Gregory A. Przybylo Donna J. Grit