Connaway v. Welded Const. Co.

• Decision Date: 15 December 1998
• Docket Number: Docket No. 201559
• Citation: 592 N.W.2d 414,233 Mich.App. 150
• Parties: Deborah L. CONNAWAY, Plaintiff-Appellant, v. WELDED CONSTRUCTION COMPANY and Hartford Accident and Indemnity Company, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 414

592 N.W.2d 414

233 Mich.App. 150

Deborah L. CONNAWAY, Plaintiff-Appellant, v. WELDED CONSTRUCTION COMPANY and Hartford Accident and Indemnity Company, Defendants-Appellees.

Docket No. 201559.

Court of Appeals of Michigan.

Submitted June 3, 1998, at Grand Rapids.

Decided Dec. 15, 1998, at 9:00 a.m.

Released for Publication March 12, 1999.

Martha M. Glaser, Pontiac, for the plaintiff.

Thomas J. Veum, Sault Ste. Marie, for the defendants.

Before: MacKENZIE, P.J., and WHITBECK and G.S. ALLEN, JR. ^* , JJ.

WHITBECK, J.

Plaintiff Deborah L. Connaway appeals by leave granted from a decision of the Worker's Compensation Appellate Commission (WCAC) that denied Michigan benefits to her on the basis that a successive injury in New York aggravated her prior, Michigan-based condition. We affirm.

I. Basic Facts And Procedural History

A. The November 2, 1989, Injury

Plaintiff is a resident of Illinois. Defendant Welded Construction Company is engaged in pipeline construction in several states. Plaintiff's job as a "welder's helper" involved fairly heavy labor that took place at outdoor construction sites. Welded Construction assigned plaintiff to a job in northern Michigan in November 1989. On the first day working on that job, plaintiff injured her right knee (the November 2, 1989, injury). She received Michigan worker's compensation benefits, and she was treated by an orthopedic surgeon in Illinois.

Dr. Raymond Coss, plaintiff's treating physician, performed arthroscopic surgery on plaintiff in February of 1990. Dr. Coss found that plaintiff had torn her anterior cruciate ligament and also had a problem with her patella or, in other words, her kneecap. After the surgery, plaintiff improved, although she was at risk of her knee buckling. Plaintiff went through rehabilitation and a "work hardening" program for six months after her surgery. Plaintiff was also prescribed a knee brace. In August of 1990, Dr. Coss thought that plaintiff "had achieved a maximum benefit from the work hardening" program and suggested "a trial of work." When asked what he meant by a "trial of work," the doctor explained that plaintiff could return to work and see if her knee held up:

We had some tentative feelings about her return to work as a construction worker but felt that she had proceeded with her work hardening and therapy program to a point where she could be permitted to return understanding that she, in my opinion, would have some increased percentage chance of reinjury or intolerance to the work demands.

B. The September 4, 1990, Injury

Welded Construction then assigned plaintiff to work on a pipeline project in New York State. Plaintiff started working at that job site in mid-August of 1990. Plaintiff performed the same job as a welder's helper that she did before she was injured. Plaintiff returned to work without restrictions. Plaintiff worked long days and long weeks, about ten hours a day and about six days a week. Plaintiff apparently wore her knee brace while she was working. She testified that she also carried an ice pack in her lunch box to be used on her knee. After working regularly for ten days to two weeks, on September 4, 1990, plaintiff's knee gave out when she turned suddenly (the September 4, 1990 injury). The injury occurred at the end of the work day. Plaintiff could not work the next day. Plaintiff returned home and has not worked since.

Plaintiff returned to see Dr. Coss in September of 1990. Dr. Coss testified that he felt plaintiff had "resprained" her knee. Plaintiff's knee brace was "continued," and her activities were "modified." Plaintiff was also "continued" on home exercises. Dr. Coss saw plaintiff at least through May of 1993. By October of 1990, Dr. Coss thought plaintiff's knee was "more stable ... that at any time." It seems, however, that plaintiff's condition either plateaued or gradually deteriorated after that point. Dr. Coss thought that plaintiff was disabled from her job as a welder's helper. He thought plaintiff should be restricted from climbing, working on uneven terrain, and heavy lifting. When asked for the basis for his opinion that plaintiff was disabled, Dr. Coss testified:

We know that the patient has had a significant cruciate ligament injury and we know that she has had at the time of her arthroscopy a grade three chondromalacia patella, and this coupled with the subjective performance of the knee would, in my opinion, disqualify her from heavy industry participation.

Dr. Coss related plaintiff's continuing disability to the November 2, 1989, injury. He was asked whether the knee condition for which he was then treating plaintiff was caused or aggravated by the November 2, 1989, injury. He answered:

I think that the ligamentous injury was caused by the fall, I think that the chondromalacia was most likely exacerbated.

Regarding the September 4, 1990, injury, Dr. Coss did not seem to think that injury meaningfully affected plaintiff's pathology. He was asked what effect the September 4, 1990, injury had on plaintiff's underlying knee condition. He answered:

One would have a difficult time perceiving any injury to have a beneficial effect on the knee. On the other hand, I was unable to determine any objective finding which delineated further harm to the knee.

On cross-examination it was brought out that plaintiff's condition when the doctor saw her in September of 1990, after the September 4, 1990, injury, was considerably different than when he saw her in August of 1990. The doctor said that plaintiff's condition "was certainly subjectively different." He explained that in September plaintiff was complaining of pain that she did not complain about in August and that plaintiff was complaining in September that she could not perform all the same activities she could in August.

Plaintiff was examined by Dr. Eugene Cisek in November of 1992. Dr. Cisek thought that plaintiff was disabled from heavy labor because of her knee condition. Dr. Cisek further testified that he thought that plaintiff's knee disability was a result of the November 2, 1989, injury and that the September 4, 1990, injury had no permanent effect on plaintiff. Dr. Cisek testified:

Yes, I did not feel that there was any permanent--permanency associated with the accident of 9/4/90, I felt that that particular accident represented an aggravation of her preexisting condition, which occurred as a result of the November, 1989 accident, namely the rupture of the anterior cruciating ligament and aggravation of patella chondromalacia.

The doctor testified that the September 4, 1990, injury "would result in a temporary aggravation of her preexisting condition." When asked on cross-examination about the fact that plaintiff had returned to work without restrictions and had worked her regular job for about two weeks before she was again injured, Dr. Cisek replied:

Well, she had been working only a short time before this 9/4/90 injury, and there is no way in telling whether that knee would have continued to hold up for her with the type of pathology she had in her knee joint, given a longer period of stress on her knee.

The doctor then agreed, however, that the September 4, 1990, injury "did have some effect" on plaintiff. Dr. Cisek's view of the two injuries is summarized in a paragraph at the conclusion of his medical report, which was an exhibit to his deposition:

APPORTIONMENT: I find no apportionment between her injuries of 9/4/90 and 11/2/89, as I find no permanent disability due to her trauma of 9/4/90. The 11/2/89 injury was the initiating factor resulting in ligamentous instability of her right knee. The accident of 9/4/90 was merely a temporary aggravation of her initial injury of 11/2/89.

The third doctor who examined plaintiff was Dr. Bert Korhonen, who examined her in May of 1993. Dr. Korhonen thought that plaintiff did not have a continuing problem with the ligaments in her knee. He thought that plaintiff's only problem was the patella problem, which was a congenital anomaly. Dr. Korhonen thought that the tear in plaintiff's ligament had healed. Dr. Korhonen would not have placed any restrictions on plaintiff's employment on the basis of the ligament injury. Dr. Korhonen further testified that it was his opinion that the September 4, 1990, injury did not result in damage or injury to plaintiff's anterior cruciate ligament.

C. The Magistrate's Decision

Plaintiff received some sporadic benefits under the New York Worker's Compensation Act, but defendant Hartford Insurance Company disputed her entitlement to benefits in New York. Plaintiff filed a petition for reinstatement of her Michigan benefits as a result of the November 2, 1989, injury and a hearing was held before a magistrate, who thereafter issued a decision granting an open award of benefits pursuant to the Michigan Worker's Disability Compensation Act (WDCA). The magistrate found that plaintiff was disabled as a result of the November 2, 1989, injury. The magistrate found both plaintiff and the testimony of Drs. Coss and Cisek to be credible. Regarding the September 4, 1990, injury, the magistrate found that the injury did not aggravate plaintiff's underlying condition. The magistrate stated:

Further, all three of the medical examiners who testified were of the opinion that the September, 1990 incident in New York did not aggravate plaintiff's underlying condition. Further, the credible testimony of both doctors Coss and Cisek related Plaintiff's current disability to her 1989 injury at Welded Construction Company.

D. The WCAC Decision

Welded Construction appealed to the WCAC. Welded Construction argued that Michigan did not have jurisdiction to award benefits to plaintiff because plaintiff was injured in New York, there was no contract of hire made in Michigan, and plaintiff was not a resident of Michigan. The WCAC viewed the question as "whether there is a continuing disability from a Michigan injury or a new and...