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					                                                1997 OPINION # 411

                           STATE OF MICHIGAN
                  WORKERS' COMPENSATION APPELLATE COMMISSION

DAVID G. HEINS,
           PLAINTIFF,

                V                                                                  DOCKET #94-0441

MC LOUTH STEEL PRODUCTS CORPORATION,
MICHIGAN MUTUAL INSURANCE COMPANY,
NORTHWESTERN NATIONAL INSURANCE COMPANY,
AND SILICOSIS, DUST DISEASE, AND LOGGING
INDUSTRY COMPENSATION FUND,
           DEFENDANTS.

APPEAL FROM MAGISTRATE MARCAVAGE.

MICHAEL J. KINGSLEY FOR PLAINTIFF,
SANDRA L. REWALT AND DAVID A. LEWSLEY FOR
DEFENDANT MC LOUTH STEEL PRODUCTS CORPORATION
AND MICHIGAN MUTUAL INSURANCE COMPANY,
MARTIN L. CRITCHELL FOR DEFENDANT MC LOUTH STEEL
PRODUCTS CORPORATION AND NORTHWESTERN NATIONAL
INSURANCE COMPANY, MORRISON R. ZACK FOR DEFENDANT
MC LOUTH STEEL PRODUCTS CORPORATION AND SILICOSIS,
DUST DISEASE, AND LOGGING INDUSTRY COMPENSATION FUND.

                                               OPINION

GARN, COMMISSIONER

                                                 This case comes before the Appellate Commission on
plaintiff’s appeal from the decision of Magistrate Susan C. Marcavage, mailed June 13, 1994, denying
plaintiff’s claims of a work-related right shoulder disability, cardiac condition, and chronic bronchitis.
Plaintiff argues the magistrate erred in finding no shoulder or pulmonary disability. We affirm.

                                              This Commission is to determine whether there is
competent, material, and substantial evidence on the whole record to support the magistrate’s findings
of fact. MCL 418.861a(3). In the instant case, we find the requisite support.

                                             Plaintiff began work with defendant on October 1, 1969.
He eventually became a bricklayer’s helper, which entailed occasionally tearing out and installing the
brick liners of defendant’s furnaces. Plaintiff suffered an injury to his right shoulder in October, 1983
and alleged that exposure to asbestos contributed to his pulmonary problems.

                                               This case was tried before Magistrate Wyolean Geffrard
in 1991. She was not, however, available to write the decision before leaving the bench and the case
was handed over to Magistrate Marcavage, who reviewed the transcripts before issuing her opinion.
In that opinion, Magistrate Marcavage summarized the testimony of Drs. Winkler, Mozen, Newman,
Katz, DeSousa, and Schuchter. She did not mention the testimony of Dr. Bowles, whose deposition
was clearly admitted at the close of the trial. Defendant’s Exhibit #4 consists of records from the
University of Michigan. This exhibit was also admitted into evidence, but not mentioned by the
magistrate in her opinion.

                                                   We first take up the issue raised in plaintiff’s
supplemental brief; i.e., plaintiff is entitled to a hearing on the whole record and, since the testimony
of the morning of April 11, 1991 is not available, the magistrate’s credibility conclusions are not
sustainable. The testimony in question consisted largely of plaintiff’s direct testimony. This very
question was a point of contention when, on February 2, 1995, defendant McLouth-Northwestern
filed a motion to dismiss plaintiff’s appeal for failure to file all the transcripts. Plaintiff’s response,
filed February 15, 1995, stated in pertinent part:

                3. That in response to paragraph three, Plaintiff denies the same
                   in that it was the parties which submitted the transcripts and
                   agreed that it was not necessary to submit the transcript of
                   December 6, 1989 since this was merely a hearing to adjourn
                   the trial based on the adding of an additional Defendant, and
                   the April 29, 1991 transcript is unavailable because of the
                   unavailability of the court reporter and the notes therefrom.
                   That testimony, however, is contained in other areas of the
                   transcripts.

                3. That in response to paragraph three (the second paragraph
                   three), Plaintiff denies the same and, in fact, trial counsel for
                   the Defendant has agreed that the matter be decided without
                   the morning session of April 29, 1991.

This Commission issued orders dated March 24, 1995 and August 29, 1995 in which, respectively,
the withdrawal of defendant’s motion was memorialized and plaintiff’s motion to remand was denied.
It appears to us that the parties inadvertently referenced April 29, 1991 in their 1995 arguments rather
than the correct date of April 11, 1991. Technically, as an issue for consideration on the appeal on
the merits, the matter is moot in light of the Commission’s previous orders. However, we believe
plaintiff cannot successfully make an argument on appeal which is diametrically opposed to the
position he took in arguing against defendant’s original motion to dismiss. In fact, that motion was
withdrawn as a result of plaintiff’s representations in his response. Furthermore, defendant points out


                                                    2
that Magistrate Marcavage presented the parties with the opportunity to retry the case in its entirety
if they so wished. Both sides declined the offer. Plaintiff’s supplemental argument is without merit.


                                               Plaintiff next argues that Dr. Newman’s findings of
adhesive capsulitis with underlying osteoarthritis in the right shoulder constitute competent, material
and substantial evidence supportive of a finding of an orthopedic disability. While this could in fact
be true, our standard of review requires us to examine the record for competent, material and
substantial evidence supporting the findings of the magistrate - not an alternative theory. It is well
established that we will not on appeal weigh evidence contrary to the magistrate’s decision and then
reverse on a theory of the “great weight of the evidence.” The magistrate relied on the testimony of
Drs. DeSousa and Katz in finding that plaintiff did not suffer from any right shoulder disability. Dr.
DeSousa stated in his deposition that the nerve function in plaintiff’s right arm and leg was normal.
Upon review, we find the magistrate’s reliance on Drs. Katz and DeSousa rather than Dr. Newman
to be fully reasonable. As we have noted before, the magistrate is free to select the medical
testimony she finds most persuasive, when, as here, there is a reasonable basis for the choice. Miklik
v Michigan Special Machine Co, 415 Mich 364 (1982).

                                             The magistrate then considered plaintiff’s pulmonary
complaints. She concluded that he has a chronic bronchitis which “in no way is related to his
employment with the defendant.” The magistrate was especially bothered by the fact that plaintiff
had given a history of no smoking to every single doctor who examined him for lung complaints.
The evidence established, however, that he had indeed been a smoker. This is, of course, critically
important information for an expert examining for pulmonary complaints.

                                                Plaintiff nevertheless urges great reliance on the
testimony of the examining doctors in arguing that the employment aggravated plaintiff’s chronic
bronchitis. As noted, the magistrate found that “any difficulty plaintiff has with his pulmonary system
is found to be directly related to a chronic non work related bronchitis.” In coming to this
determination, the magistrate relied on the testimony of plaintiff and Dr. Schuchter.

                                                We note plaintiff’s credibility, or lack thereof, has
bearing on the weight to be attributed to the medical testimony as far as the latter relies upon a history
provided by plaintiff. A magistrate’s credibility determinations have historically been given a great
deal of deference. Drs. Bowles, Schuchter, Katz, DeSousa, Newman, and Winkler all testified to the
fact that plaintiff’s not being a smoker had bearing on their determinations regarding plaintiff’s
pulmonary condition. For example, Dr. Helen Winkler testified that pollutants present in plaintiff’s
general industrial environment played a significant role in his development of the chronic obstructive
bronchitis, “especially in view of the fact that he is a nonsmoker.”

                                                The credibility of plaintiff is validly called into question
where plaintiff testifies on direct examination that he is not a smoker and then on cross-examination
testifies that he smoked for many years and further has stated in an earlier medical examination that


                                                     3
he was a smoker. A review of the record shows that the magistrate’s finding of non-work-related
chronic bronchitis is supported by competent, material and substantial evidence.

                                                We next address plaintiff’s contention that the record
does not support a finding of no asbestos exposure. Plaintiff testified that he did work around
asbestos, but also admitted to working with asbestos while repairing a roof on his parent’s house.
Plaintiff’s supervisor, John Chittum, contradicted plaintiff in testifying that there was no asbestos in
the bricks or in the mortar used to reline the furnaces. He did testify that the insulation liner in the
furnace, which would occasionally have to be torn out, did contain asbestos. Plaintiff, however, never
testified that he ripped out the insulation. Plaintiff did testify that he scraped down the steel liner.
Since there is inconsistency in the testimony regarding exposure to asbestos, we cannot attribute error
to the magistrate on this point. It should also be noted that all the examiners who would disable
plaintiff on the basis of asbestosis were given a history of extensive asbestos exposure. In fact, Dr.
Schuchter noted in his report that:

               Mr. Heins’ father was with him and indicated that both he and his wife
               have asbestosis, which they caught from Mr. Heins as he brought the
               asbestos home in his clothing. Mr. Heins, that is the father of David
               Heins, states he got it by wearing his clothes and his wife got it by
               washing his clothes.

The same history states earlier:

               Mr. Heins does not smoke cigarettes.

Despite plaintiff’s urgings, we agree entirely with the magistrate’s credibility findings.

                                                Based upon the foregoing, we are convinced that
competent, material, and substantial evidence does indeed support the decision of the magistrate. We
affirm the decision of the magistrate in its entirety.

Commissioners Witte and Kent concur.

                                               Marten N. Garn

                                               Joy L. Witte

                                               James J. Kent                           Commissioners




                                                   4
                           STATE OF MICHIGAN
                  WORKERS' COMPENSATION APPELLATE COMMISSION

DAVID G. HEINS,
           PLAINTIFF,

                V                                                                  DOCKET #94-0441

MC LOUTH STEEL PRODUCTS CORPORATION,
MICHIGAN MUTUAL INSURANCE COMPANY,
NORTHWESTERN NATIONAL INSURANCE COMPANY,
AND SILICOSIS, DUST DISEASE, AND LOGGING
INDUSTRY COMPENSATION FUND,
           DEFENDANTS.

                                                 This cause came before the Appellate Commission on
plaintiff’s appeal from the decision of Magistrate Susan C. Marcavage, mailed June 13, 1994, denying
plaintiff’s claims of a work-related right shoulder disability, cardiac condition, and chronic bronchitis.
The Commission has considered the record and the 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.

                                                Marten N. Garn

                                                Joy L. Witte

                                                James J. Kent                            Commissioners

				
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