Charles Finkler SS# xxxPlaintiff,
v.
Synergis Technologies Group/ Metalworking Industries of Michigan/Self-Insured, Citizens Management, Inc., Defendants.
No. 2017-174
Michigan Workers Compensation
State of Michigan Department of Labor and Economic Growth Worker’s Compensation Agency Board of Magistrates
April 5, 2007
THE
TRIAL DATE: January 17, March 5, and March 23, 2007 (no
record).
THE
PLAINTIFF Frederick W. Bleakley (P38860)
THE
DEFENDANTS Jane C. Hofmeyer (P44352)
OPINION
TIMOTHY MCAREE, MAGISTRATE (221G) JUDGE
THE
CLAIM
Plaintiff
filed a 104-A on July 8, 2005 alleging an injury date of
October 2004. The application includes two separate claims,
one involving exposure to various fumes, gases, particulates,
resulting in cancer. The second claim alleges that various
activities caused orthopedic problems, primarily in the low
back. Plaintiff amended the application on November 30, 2005
to add an injury date of September 2000 wherein the plaintiff
indicates he fell six-feet off of a platform onto his back,
precipitating his low back problems.
At the
time of trial, the plaintiff did amend to specify the actual
last day of work as October 4, 2004.
THE
STIPULATIONS
As to
both alleged injury dates, it was stipulated that the parties
were subject to the Act, that the self-insured carried the
risk through the Metalworking Industries of Michigan
Self-Insured Fund, and that the defendant employed the
plaintiff. It was stipulated that timely notice and claim
were made as to the 2004 date, but not as to the 2000 injury
date. The average weekly wage for the 2004 date was
stipulated to be $1,378.51. It was also stipulated that the
plaintiff received short-term disability benefits in the
weekly amount of $600.00 form October 7, 2004 through April
7, 2005 and LTD benefits in the amount of $174.23 from April
7, 2005 continuing through the date of the trial, with this
relating to the October 2004 alleged date. As to both injury
dates it was stipulated that the plaintiff’s IRS filing
status is single and that he has no dependents. Defendants
denied that a personal injury arose out of and in the course
of employment and that any disability is due to said alleged
personal injury relative to both dates.
PRELIMINARY
ISSUES
The
parties agreed before trial began that the defendant would be
able to take a deposition of a Dr. Malinoff presently
scheduled for February 8, 2007 with the transcript to be
submitted at a later date. During the course of the trial it
was also agreed that the plaintiff may take the deposition of
the technician who performed the lab studies on a filter
performed on October 8, 2004 as set forth in Proposed Exhibit
3.
THE
EXHIBITS
THE
PLAINTIFF
1.
Deposition of Todd L. Helle, M.D.
2.
Deposition of R. Michael Kelly, M.D.
3-A.
Deposition of Robert H. Stevens.
3-B.
Addendum Report of Bio-Chem Laboratories, Inc., dated 3/5/07.
This is discussed in the deposition of Robert Stevens.
4.
Records of Yuri P. Fedorenko, M.D. Dr. Fedorenko first sees
the plaintiff as a new patient on 5/20/03 with complaints of
low back pain and a history of trauma two years prior. He is
given anti-inflammatories and is sent to physical therapy. He
is next seen on 8/11/04 with a chief complaint of high blood
pressure, but also complains of swelling neck, burning
sensation and headaches associated with exposure to paint at
work. He is seen next on 8/23/04 with increased neck
swelling, and again on 9/2/04 with a rash all over his body
associated with using silicon and painting in his cottage.
This is thought to be an allergic dermatitis to those
substances. On 9/16/04, he reports initial reduction of
swelling in the neck following Prednisone, but now has
increased swelling. He is sent for an MRI and consult with an
otolaryngologist, who suspects lymphoma. Biopsy revealed
non-small cell carcinoma. Dr. Fedorenko recommended immediate
surgery, but the patient decided to go to MD Anderson in
Texas. There he was diagnosed with metastatic nasopharyngeal
carcinoma.
5.
Records of Hikmet Sipahi, M.D. Dr. Sipahi is an oncologist in
Muskegon, Michigan. These records cover the time frame of
10/25/04 through November 28, 2005. Initially the plaintiff
preferred to treat at the University of Michigan and was
referred there by Dr. Sipahi. The plaintiff did receive
chemotherapy and radiation treatment at the University of
Michigan in late 2004 and early 2005. This file does contain
flow charts of the chemotherapy showing some initial
reduction with a recurrence in June of 2005, resulting in
additional chemotherapy through the last visit and office
note of November 28, 2005.
6.
Records of the MD Anderson Cancer Center. These records begin
with a note of 10/12/04 where the patient is seen in
self-referral for neck swelling. It gives a history of ten
pack years of smoking, but having quit 20 years prior and
indicates “he drinks two to three beers per day and two
glasses of wine per week.” He gives a history of multi
chemicals and carbon monoxide exposure at work. Besides an
MRI and biopsy, an audiogram is performed given “the
patient’s longstanding history of hearing loss.”
A CT scan also showed lesions on the liver and there was
suspicion of involvement in the armpits as well as the
nasopharynx. The MRI of the brain was done because of
complaints of memory loss. On 10/13/02 he tells the
audiologist that he has been aware of significant hearing
loss for each ear for at least 40 years, having significant
difficulty understanding normal conversation and he also gave
a history of “significant stuffiness” for his
right ear. He does give a history of noise exposure at work
and development of bilateral tinnitus following exposure to a
sudden loud noise two or three years prior, which
subsequently resolved. He is found to have little to no
mobility of the tympanic membrane and middle ear structures
for the right ear and has bilateral high frequency hearing
loss. On 10/13/04 he is also seen by the oncologic dentistry
specialist to rule out infection in the jaws before beginning
radiation. He is told he has a number of
“carious” (decayed) teeth and periodontal disease
and will need multiple extractions before beginning radiation
treatment.
A Dr.
Garden also sees plaintiff on 10/14/04. The plaintiff tells
him of some right ear pressure “but has not had
significant hearing changes.” On 10/15/04, Dr. Weber
reports that the MRI did not show any obvious lesions in the
brain. On 10/18/04, Dr. Sabichi writes that the center is
recommending chemotherapy and radiation but the plaintiff was
just to return to Michigan to have it done. On this date he
tells Dr. Sabichi that he believes that he has had chronic
hearing loss in the right, but feels his hearing has
diminished bilaterally more than usual. Dr. Sabichi
recommends a liver biopsy to determine if in fact there is
metastasis there. He is discharged on that date. There is a
follow-up telephone note of 10/21/02 where he reports a new
“bump” in the left armpit area.
7.
Foust Case Management records. This report is dated 1/16/05.
Mary Foust is a medical case manager assigned to plaintiff.
She first met him on 12/16/04. There are follow-up reports of
1/31/05 and 2/28/05 discussing the extraction of the teeth
and some delays before chemotherapy and radiation began and
his initial reaction to the chemotherapy. A final report of
3/31/05 notes Ms. Foust does indicate that “there are
many days where his mentation is not good. He flutters from
thought to thought…”. She reports having
obtained all of the records from the doctors in Texas and the
U of M and reports finding nothing in the records indicating
the cause of the cancer.
8.
University Hospital records. These records begin with a
report of 12/6/04 by Resident Surgeon Matthew Rontal and his
Professor Carol Bradford. He tells the doctor that he has
already undergone two to three courses of Carboplatinn Taxol
chemotherapy with traumatic response with resolution of all
palpable adenopathy as well as resolution of his right serous
otitis media. He again gives a history of ten pack years of
smoking and drinking two to three beers per day, plus two
glasses of wine per week. The impression is that plaintiff
has stage four nasopharyngeal carcinoma, although tissue
diagnosis of distant metastasis has yet to be made.
Additional pathology reports are done and still the primary
site of the cancer was not established. He is put into
another course of chemotherapy, with his third cycle starting...
