Lilo Hoelzel-Seipp SS# XXX-XX- XXX Plaintiff,
v.
Michigan Home Health Care, Inc./ Accident Fund Insurance Company of America, Defendants.
No. 2009-159
Michigan Workers Compensation
State of Michigan Department of Labor, Energy and Econmic Growth Workers’ Compensation Board of Magistrates
June 10, 2003
The
social security number and dates of birth have been redacted
from this opinion.
THE
TRIAL DATES: July 15, 2009 and September 1, 2009 (no record).
THE
PLAINTIFF Mark W. Viel (P29292)
THE
DEFENDANTS Keith P. Theisen (P59411) for Michigan Home Health
Care & Accident Fund Joseph J. Zimmerman (P22736) for
SIF/Dual Employment Provisions
OPINION
TIMOTHY MCAREE, MAGISTRATE (221G) Judge.
THE
CLAIM
Previous
application filed in 2002 was concluded with a Voluntary
Payment Agreement dated June 10, 2003. Current application
received on December 12, 2007 involved three issues: (1)
Unpaid medical bills, with request for attorney fees; (2)
mileage; (3) nursing/attendant care.
THE
STIPULATIONS
The
Defendant employer stipulated to virtually all of the
standard requested stipulations, and both parties stipulated
that the sole issue to be presented to this Magistrate was
whether massage therapy previously reimbursed by the
Defendant was reasonable, necessary and related to her
injury. Because the sole remaining issue did not involve any
wage claim, counsel for the Second Injury Fund/Dual
Employment Provisions renewed a Motion for Dismissal, and
because neither of the remaining attorneys objected, the
Motion was granted and the Second Injury Fund/Dual Employment
Provisions were dismissed from this case. Also, all remaining
counsel stipulated that none had objected, and in fact all
had encouraged this Magistrate to have discussion with the
Plaintiff on an earlier scheduled trial date relative to
concerns she had about the possibility of accepting an offer
to settle this case.
THE
ISSUES
The
sole issue in this case is whether massage therapy, which
Plaintiff has received in the past, and for which the
Defendant had reimbursed her prior to its filing of a Notice
of Dispute, is reasonable, necessary and related to her work
injury.
THE
EXHIBITS
THE
PLAINTIFF
1.
Deposition of G. Mahoney, D.O.
2. Two
pages of office notes of Christopher L. Schaiberger, M.D.,
dated 7/3/66 & 10/16/66, respectively. Defense counsel
objected to this exhibit, which had been offered pursuant to
Notice of Intent, on the following two bases: (1) That the
office notes were irrelevant because they were so old. The
office notes are dated 1996, and Plaintiff indicates they
bear no relevance to the issue of unpaid massage therapy
subsequent to 2006; (2) Defendant also argues that the office
notes are irrelevant because the Defendant has stipulated to
causal relationship. Plaintiff’s counsel indicated he
was offering this exhibit solely for the purpose of
establishing the fact that at one time a doctor had
recommended massage therapy to the Plaintiff as a treatment
alternative to physical therapy, pain medication, et cet.
This Magistrate indicated he would allow the records and
would determine the weight, if any, to be given to the
exhibit after having an opportunity to review all of the
remaining evidence in the record.
3.
Report of an independent medical evaluation dated 11/17/98 of
John Whiffen, M.D. The Defendant raised identical objections
as were raised in reference to Exhibit 2. The
Plaintiff’s response was identical and this
Magistrate’s decision to allow admission of Exhibit 3
was based on the identical rationale indicated in reference
to Exhibit 2.
THE
DEFENDANTS
A.
Deposition of Jeffrey Middeldorf, D.C., D.O.
THE
WITNESSES TESTIFYING AT TRIAL
THE
PLAINTIFF Lilo Hoelzel-Seipp
THE
DEFENDANTS None.
THE
WITNESSES TESTIFYING BY DEPOSTION
THE
PLAINTIFF Gerard J. Mahoney, D.O.
Dr.
Mahoney is board certified in family medicine, began
practicing in Traverse City in September 2003, after
performing his internship, residency and work as a staff
physician with the U.S. Navy from 1992 through August 2003
(GM-4, 5). At that time he joined the Crystal Lake Health
Center, a family practice, with offices in Frankfurt,
Benzonia and Interlochen, Michigan. He joined as a partner of
Craig Weisse, who had practiced for that clinic for many
years, and who retired in 2005. The Plaintiff had been a
patient of Dr. Weisse and ended up under the care of Dr.
Mahoney, as well as being seen on many occasions by a
Physician Assistant, Robert Herbst (GM-6-8). Dr. Mahoney
began seeing the Plaintiff regularly on or about August 1,
2006, but notes that she winters in the south and sees her
only during the warmer months of the year (GH-12).
Dr.
Mahoney was aware that the Plaintiff had injured her back in
an overhead reaching injury, had had resultant radiculopathy,
followed by back surgery, which left her with fecal
incontinence, some resultant radiculopathy, and chronic back
pain (GH-14-16). He does note that she has “pretty
constant” back pain with stiffness, mild tenderness to
palpitation. Sometimes she has muscle spasm. She walks with a
limp, occasionally uses a cane, and he has recommended
over-the-counter medication. At her request, he had written
his recommendation that she continue massage therapy based
upon the patient telling him how much it helps her symptoms
and how much tighter her back is when she does not have
massage therapy on a regular basis (GM-17-19). He explained
that the massage therapy is not going to cure her of her
incontinence, or cure her neurological condition, but he
believes that she is being truthful when she tells him that
it helps her with her symptoms, and further notes that he is
aware that “certain myofascial
techniques”…can actually help relieve muscle
spasm…”(GH-21).
He
wrote a letter to Mary Ellen Discala, of Therapeutic Muscular
Rehabilitation, Inc., dated February 1, 2008, indicating this
recommendation that she undergo massage therapy continued to
be his opinion when he last saw her ( on September 16, 2008),
prior to the deposition of January 8, 2009 (GM-20-23). He did
testify that she would be unable to work because of the
incontinence, would require lifting restrictions of not
lifting more than ten pounds, and could not perform work that
required her to stand or walk. These issues are, of course,
moot, based upon the stipulation that the issue would be
limited to whether massage therapy was reasonable, necessary
and related to her injury.
On
cross-examination, again there were numerous questions and
answers concerning precisely what activities she is or is not
capable of, which likewise are moot, for the reasons stated
above. As far as massage therapy is concerned, this doctor
was “not completely aware that she was getting this for
years” but only that she had been receiving massage
therapy on a regular basis from the time he began treating
her in 2006 (GM-33). He did not try to adjust the number of
visits up or down, and he concedes that even during the time
that she was receiving regular massage therapy, there were
complaints of back pain from time to time (GM-33, 34).
Likewise, there would be occasional spasms, which she was
unable to relate to any specific activity. He agreed that the
massage therapy would not cure her condition, and that there
was no scientific data supporting long-term use of massage
therapy (GM-34). He also conceded that other than the one
letter from the massage therapist, he did not have records
from any massage therapist (GM-35). He did agree with counsel
that when he last saw her on September 16, 2008, she did not
“appear to be overall globally worse” (GM-38,
39).
On
redirect examination, he indicated that as expected, she has
had worse days and better days, with some underlying
consistency relative to her back condition (GM-39).
THE
DEFENDANTS
Jeffrey
Middeldorf, D.C., D.O.
Dr.
Middeldorf is board certified in chiropractic, physical
medicine, rehabilitation and pain management. He saw
Plaintiff in May 2001, prepared a seven-page report on May 8,
2001, and a three-page addendum dated May 22, 2001 (JM-4-6).
The Plaintiff tells him by way of history that she receives
massage therapy once weekly, and has for the past five or six
years (JM-11). His diagnoses are: (1) Status post L5-S1 micro
discectomy, January 18, 1996...
