PATRICK K. DICKEY, SSN: XXX-XX-XXXX, Employee-Respondent,
v.
DELPHI AUTOMOTIVE SYSTEMS, LLC and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Employer/Carrier-Petitioners.
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...