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

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1 JEFFREY P. GUERRIERO, PLAINTIFF, 1998 OPINION #301 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # CENTURY MACHINE INC AND SAFECO INSURANCE COMPANY, DEFENDANTS. APPEAL FROM MAGISTRATE SHARON L. SMITH. RODGER G. WILL FOR PLAINTIFF, MICHAEL J. RINKEL AND DONNA M. SEVERYN FOR DEFENDANTS. KENT, COMMISSIONER OPINION Plaintiff appeals the decision of Magistrate Sharon L. Smith, mailed March 12, 1996, denying plaintiff an award of Worker s Compensation benefits. In his appellate brief plaintiff states the following: THE MAGISTRATE S DETERMINATION THAT PLAINTIFF S DISABILITY IS UNRELATED TO PLAINTIFF S INJURY WITH DEFENDANT IS UNSUPPORTED BY COMPETENT, MATERIAL AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD; AND IN DENYING BENEFITS TO PLAINTIFF THE MAGISTRATE HAS NOT FOLLOWED THE DIRECTIVES OF THE MICHIGAN SUPREME COURT IN HER FACT FINDINGS AND CONCLUSIONS OF LAW. By way of background, we repeat the magistrate s recitation of the basic facts: Plaintiff was hired by defendant in October 1983 as a truck driver. In this capacity he loaded and unloaded stock which was delivered to various customers. This included lifting weights up to 100 lbs. On March 1, 1988, plaintiff was unloading steel burnouts at McLouth Steel. He felt a twitch in his back. Upon return to the defendant s warehouse, plaintiff

2 reported the incident to his manager and went home. The next morning plaintiff could not get out of bed due to pain. Plaintiff was paid workers compensation for a period of time. He had his doctor return him to work without restrictions but on the day he was to return he called in sick due to back pain. Later, plaintiff and defendant s president and chief operating officer, Mr. Thomas Williams, along with the approval of the union entered into an agreement to lay plaintiff off for an indefinite period of time. Plaintiff acknowledges that he wanted to pursue other work possibilities and moved north. Subsequent employment includes, A & L grinding, Ernie Wolf Construction and self-employment. Plaintiff worked for A & L Grinding from June 1989 for approximately 20 weeks. His job was to put brass tubes on a rail. The tubes weighed ounces. Plaintiff had pain performing this job, but it was no worse than the pain he had when he started the work. Plaintiff was laid off. From 1989 to May 1990 plaintiff received social services. In May 1990 he began working for Ernie Wolf Construction laying concrete blocks. This was heavy work which plaintiff performed for approximately 5 weeks. Prior to this employment plaintiff had taken a free six week course in block laying. Plaintiff stopped working for Ernie Wolf in July He still had low back pain which radiated down both legs, worse in the right leg. Plaintiff does not believe his pain was worsened by his employment with Ernie Wolf Construction. In his brief, plaintiff contends the magistrate s determination that plaintiff was not entitled to compensation was not supported by competent, material and substantial evidence on the whole record. Specifically, plaintiff argues that the magistrate failed to address Dr. Meerschaert s 1 impression of the condition of plaintiff s back. The following segment from plaintiff s brief captures the essence of his argument: It appears that the magistrate would have awarded benefits to plaintiff from defendant if a herniated disc was diagnosed prior to plaintiff s employment with Ernie Wolfe Construction and/or plaintiff had leg pain prior to his employment with Ernie Wolfe Construction. Actually, Dr. Meerschaert, plaintiff s treating doctor for plaintiff s injury with defendant, diagnosed a herniated disc in March, 1988, and noted leg pain at that time. See Dr. Meerschaert s report of March 11, 1998, which is deposition Exhibit No. 1 of Dr. Belen s deposition. The only conclusion that one can 1 Dr. Meerschaert did not testify at trial. His examination of the plaintiff was done March 11, 1988, ten days after the original injury to plaintiff. His one-page report was introduced by Plaintiff as an exhibit to the deposition of Dr. Belen. 2

3 draw from this anomaly is that the magistrate did not read Dr. Belen s deposition and did not read defendant s exhibit number 3 offered and accepted into the record at the time of trial. Contrary to plaintiff s conclusions, we find that the magistrate simply chose to discount the impressions of Dr. Meerschaert, along with those of Dr. Belen and Brandt, because the doctors impressions were not such as to establish, with any degree of medical certainty, a compensable disability. Further, the magistrate found that the plaintiff had worked several other jobs subsequent to the March 1, 1988 date of injury. It is clear to this panel that since the magistrate addressed the actions of Dr. Meerschaert, as well as the testimony of Drs. Belen, Brandt, and Cilluffo, that she reviewed all the medical evidence that was presented by plaintiff: In October 1990 plaintiff was first examined by Dr. Cilluffo. Plaintiff s history was that In 1988 he was working at Century Machine Inc. in Riverview, Michigan and when he was unloading heavy pieces of steel he developed pain in his lower back. Further, Dr. Cilluffo, reports a history of About 1 month ago for no known reason he developed leg pain.... His leg pain is in the front of the left thigh and shoots into his foot into the top of his foot and into his toes. Here is where plaintiff s lay testimony at hearing differs from the history he gave Dr. Cilluffo. As aforementioned, I accept the history given Dr. Cilluffo as accurate. Therefore, I infer from this history that plaintiff did not have any radiating leg pain until sometime in September Moreover, when Dr. Cilluffo recommended surgery, plaintiff s response was to wait until December for work purposes. Despite the fact that plaintiff s lay testimony, at hearing, negates plaintiff s working in 1990 following his termination form Ernie Wolf Construction, this statement implies that plaintiff was working in October/November On December 3, 1990, Dr. Cilluffo performed a lumbar microdiskectomy at the L4-L5, L5-S1 areas. Post-operatively, plaintiff did very well, becoming 100% pain free in his leg with restrictions of no lifting over 25 lbs due to his continued back complaints. Plaintiff is able to work now and has been engaged in self-employment activities since 1991 as a landscaper or snow remover. He continues in this line of work. While plaintiff certainly had a work-related injury with defendant in 1988, he was able to continue working after release from his than treating physician, Dr. Meerschart. Plaintiff s job with A&L Grinding was light work and I am persuaded 3

4 that this employment did not contribute to plaintiff s surgery and disability. His work with Ernie Wolf Construction, however, was admittedly heavy work. And he had engaged in this industry for approximately eleven weeks, including his training. Plaintiff did not have leg pain until after his employment with Ernie Wolf Construction and an herniated disk was not diagnosed until after his employment with Ernie Wolf Construction. Therefore, Neither Dr. Cilluffo, plaintiff s treating surgeon, nor Drs. Roland Brandt or Jack G. Belen, can say within a reasonable degree of medical certainty that plaintiff s surgery and limitations was caused by his employment with defendant. I have discounted the testimony of Drs. Brandt and Belen because they did not examine plaintiff until 1994, well after his surgery and therefore are in no position to opine on the issue of causation. It should be further noted that the medical record of Dr. Meerschaert provided by the defendant clearly shows that the plaintiff s leg pains resolved within three weeks of the accident. It is axiomatic the Appellate Commission will not reverse a magistrate for choosing between reasonable but differing views. Fisher v Clark Equipment Co, 1990 ACO #352; Couzzins v Motor Wheel Corp, 1989 ACO #341. It is well within the magistrate's discretion to accept the medical testimony she finds most persuasive. As long as there is a reasonable basis for her findings, as is the case here, we will not displace them. Miklik v Michigan Special Machine Co, 415 Mich 364 (1982); Clark v Lakeview Community Nursing Home, 1992 ACO #189. Plaintiff also contends that the magistrate s opinion lacks specificity and that we should remand so that the opinion will reflect the factual and legal analysis more clearly. However, the magistrate is not required to cite chapter and verse in making her opinions. Failure to specifically recite which test or case law she is applying is not error, where it can be determined from her analysis and conclusion that she applied the proper rule of law. Farrington v Total Petroleum, 442 Mich 201 (1993); Pitts v Port Huron Paper Co, 1993 ACO # 622 ; Thorton v Auto Alliance International Inc, 1993 ACO # 668. Our review of the magistrate s opinion reveals that she met that standard. We find there is competent, material, and substantial evidence on the whole record to support the magistrate's finding. Affirmed. Commissioners Skoppek and Leslie concur. James J. Kent Jürgen Skoppek Richard B. Leslie Commissioners 4

5 JEFFREY P. GUERRIERO, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # CENTURY MACHINE INC AND SAFECO INSURANCE COMPANY, DEFENDANTS. This cause came before the Appellate Commission on appeal by plaintiff, from the decision of Magistrate Sharon L. Smith, mailed March 12, 1996, denying 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. James J. Kent Jürgen Skoppek Richard B. Leslie Commissioners