Dickey v. Delphi Automotive Systems, LLC, 051019 MIWC, 7315

Case DateMay 10, 2019
PATRICK K. DICKEY, SSN: XXX-XX-XXXX, Employee-Respondent,
No. 7315
Michigan Workers Compensation
State of Michigan Department of Licensing And Regulatory Affairs Michigan Office of Administrative Hearings And Rules Workers’ Compensation Board of Magistrates
May 10, 2019
         The social security number and dates of birth have been redacted from this opinion.           For Plaintiff: Mitchell J. Cicurel (P44151)           For Defendant: Denice M. LeVasseur (P32137)           OPINION & ORDER           DAVID H. WILLIAMS, MAGISTRATE (253G) JUDGE.          HEARING DATES:          Trial in this matter was conducted over the course of three dates. It began on January 14, 2019 and continued February 15, 2019, with lay testimony, admission of exhibits and depositions being admitted, along with the testimony of one expert witness having been completed on the latter date as well as admission of additional medical records. The hearing was concluded with submission of trial briefs and closing arguments on March 11, 2019 at which point the case was submitted for decision.          PROCEDURAL HISTORY:          This case was previously before the Workers’ Compensation Board of Magistrates. The same related to a claim by then-Plaintiff, Patrick K. Dickey, which sought continued workers’ compensation benefits from then-Defendants, Delphi Automotive Systems, LLC and its insurer, Insurance Company of the State of Pennsylvania. The matter was tried to completion before this Magistrate over the course of numerous dates in the Fall of 2015. The claim was granted, and an award of ongoing benefits issued December 8, 2015 (mailed Dec. 23, 2015).          The proceedings referenced above involved a claimed emotional or psychological condition (Post-Traumatic Stress Disorder) which resulted from what was found to be a work-related event and injury which occurred on May 7, 2013. The incident found to be a compensable injury concerned a shooting (by multiple individuals with numerous victims injured or fatalities) which took place at a restaurant in Juarez, Mexico where Mr. Dickey, his counter-parts from the plant in Mexico and Delphi customers (from John Deere) were dining that evening following a plant tour and meeting(s) earlier in the day. While no one in his party was physically injured or killed, it was found that this incident caused Mr. Dickey to suffer from PTSD which, at the time of trial, persisted to a significant degree and as a result, he continued to be “totally disabled”.1 Delphi and Insurance Company of the State of Pennsylvania appealed that decision to the Michigan Compensation Appellate Commission (“MCAC”). The award was subsequently affirmed in its entirety by the MCAC.2 No further appeal was taken.          CURRENT PROCEEDINGS:          The instant matter returns to the Board of Magistrates pursuant to an Application for Mediation or Hearing–Form C filed by Delphi and its insurer on February 17, 2017 seeking to terminate payment of benefits. The same was based upon a medical report authored by Dr. Michael J. Freedman following a psychiatric examination this physician conducted on December 6, 2016 (a copy of the report prepared in connection therewith along with the ledger of benefits paid up to that date was submitted with the AFH–Form C). Therein, Petitioners effectively alleged that the employee (now Respondent in these proceedings) Patrick Dickey no longer had ongoing disability due to the earlier work-related injury.3          There were numerous adjournments requested by one or both sides over the course of the ensuing year and a half. Additionally, in the interim, the MCAC affirmed the underlying decision, upholding the award. Further, various Motions were filed about procedural matters. These include one relating to the extent of Petitioner’s ability to compel Respondent to appear personally for a vocational evaluation and in relation to such expert conducting a labor market survey; to preclude another defense medical (psychiatric) exam and admission of expert testimony associated with the same and finally, Respondent seeking to have Petitioners’ Application for Hearing-Form C (Petition to Stop) dismissed and essentially bar said party from proceeding. The first two were basically decided in favor of Respondent, with the last held in abeyance and pending completion of trial and to be determined in connection with the ultimate decision issued in this matter. Meanwhile, depositions of experts, medical and vocational in nature, were taken and the case proceeded, per the details set forth infra.          ISSUES TO BE DECIDED:          Whether the fact that while Respondents’ Application for Hearing – Form C was pending there was a brief period of time during which certain medical bills and related items such as medication refills were temporarily disputed or not paid in a timely fashion such that said party was allegedly in violation of Administrative Rule 10(1) of the Workers’ Compensation Agency; R 408.40(1), thereby requiring Dismissal and effective denial of said Petition to Stop?          In the event Respondent’s Motion to Bar Petitioners from proceeding is denied, such that the matter is to be decided on the merits, whether Petitioners have established that weekly benefits are no longer payable to Mr. Dickey, or otherwise if payable are at different, lesser amount, than those previously awarded as well as a like question with respect to the extent, if any, of further medical benefits to which Mr. Dickey is entitled?          STIPULATIONS:          Given the nature of the current claim there were no Stipulations by the parties.          WITNESSES LIVE AT TRIAL:          For Petitioners:          Patrick K. Dickey (as an adverse party-witness)          John Stokes, MA          For Respondent:          Patrick K. Dickey          Barbara Feldman, MA, LPC, CCM          WITNESSES TESTIFYING BY DEPOSITION:          For Petitioners:          Michael J Freedman, MD          Harvey Ager, MD          John Stokes, MA          For Respondent:          Rebecca Ehle, LMSW, CSW          Dan Guyer, MD          Barbara Feldman, MA, LPC, CCM          EXHIBITS:          Petitioners:4          A. Deposition of Michael J Freedman, MD taken on August 29, 2017          B. Deposition of Harvey Ager, MD taken on October 25, 2018          C. Deposition of John Stokes, MA taken on December 6, 2018          D. Continued deposition of John Stokes, MA taken on January 4, 2019          E. “Green Sheet” Order of Magistrate Decision mailed December 23, 2015          F. Rivers’ Bend/Dr. Hamzavi chart note dated November 2, 2016          G. Miscellaneous bills for medical, prescription and other services          H. Letter from atty. Cicurel to Sedgwick dated June 27, 2016 w/medical note and request for reimbursement of Assoc. in Neurology bill          I. Petitioners cumulative ledger for benefits re: medical & related bills          J. Notice of Intent and subpoenaed records of Dr. Howard H. Schubiner          K. Records from Clarkston Hot Yoga from 4/27/17 to 12/8/18          L. Notice of Intent and subpoenaed records from Kroger Co. Pharmacy          M. Medical records of Associates in Neurology for dates in 2015-2016          N. Records of the Henry Ford Cottage Hospital Day Program – 2017          O. Office note of Dr. Guyer (Psychiatric Services of Grosse Pointe, P.C.) for visit of October 4, 2018          P. Select office notes & records from Rivers Bend P.C. from 3/9/16 to Oct. 8, 2018          Respondent:5          1. Deposition of Rebecca Ehle, LMSW taken on Sept. 11, 2017          2. Supplemental/Continued Deposition of Rebecca Ehle, MSW, CSW taken on December 7, 2018          3. Deposition of Dan Guyer, MD taken on November 29, 2018          4. Continued Deposition of Dan Guyer, MD taken on January 3, 2019          5. Deposition of Barbara Feldman, MA, LPC, CCM taken January 4, 2019          6. Select records of Rivers Bend, PC from 5/1/15 to 6/26/18          7...

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