             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                             COURT OF APPEALS


 MATTHEW D. WARREN,                                                      UNPUBLISHED
                                                                         February 25, 2020
                 Plaintiff-Appellant,

 v                                                                       No. 345005
                                                                         MCAC
 A. D. TRANSPORT EXPRESS, INC.,                                          LC No. 16-000011

                 Defendant-Appellee.


Before: BORRELLO, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

        Plaintiff appeals by leave granted the order of the Michigan Compensation Appellate
Commission (MCAC) reversing the order of the magistrate. Warren v AD Transport Express, Inc,
unpublished order of the Court of Appeals, entered January 11, 2019 (Docket No. 345005). The
magistrate issued an order awarding plaintiff worker’s compensation benefits. Defendant appealed
the magistrate’s decision to the MCAC, which reversed the magistrate’s order awarding benefits.
For the reasons set forth in this opinion, we vacate the MCAC’s order and remand to the MCAC
for further proceedings consistent with this opinion.

                                         I. BACKGROUND

        The background facts in this case are mostly undisputed and come from the magistrate’s
opinion. In his opinion the magistrate wrote that plaintiff testified that he has a history of injuries
that occurred before two incidents in 2013 that are the basis of his claim for workers’ compensation
benefits. When he was 16 years old, he broke “one thoracic and one lumbar vertebrae wrestling
with a friend.” He was treated and recovered. He later joined the Army, passing a physical before
doing so. Plaintiff testified that in 1997, he was injured in a car accident. In that accident, he broke
his neck and suffered a closed head injury.

         Plaintiff began working for defendant in January 2011. On January 30, 2013, plaintiff
allegedly injured himself at work. While pulling a tandem pin, plaintiff felt “a sharp pain in [his]
low back and across [his] back and up into [his] shoulders.” Plaintiff went to a clinic recommended
by defendant and received pills. Plaintiff did not take any time off work or receive any work
restrictions. Plaintiff experienced pain and stiffness in his neck, which radiated down into his left


                                                  -1-
arm. He also experienced pain in his lower back which radiated down his right leg and affected
“[his] butt and [his] hips.” On April 6, 2013, plaintiff allegedly sustained another injury at work.
Plaintiff was sitting at a traffic light when he was rear-ended. Plaintiff did not experience pain at
first, but woke up “in extreme pain” and went to the emergency room. X-rays did not show any
injuries to plaintiff’s neck. Plaintiff’s doctor took him off work on April 17, 2013, “[d]ue to lower
back pain and the sciatic pain in [his] leg and [his] foot.”

        Plaintiff treated with Dr. Craig Peppler who testified that after his various examinations of
plaintiff, he believed that plaintiff suffered injuries to his spine: “In this case, I felt that everything
was concordant. The MRI revealed disc protrusion at the L5/S1. The EMG indicated evidence of
an S1 radiculopathy. The physical exam showed ankle reflex changes that would be expected with
this type of finding. So I believe they all fit together to equal the diagnosis of lumbar radiculopathy
or S1 radiculopathy[.]” Dr. Peppler believed that plaintiff’s injuries were caused by the two work-
related accidents in 2013.

       Defendant’s expert, Dr. Maynard Buszek, initially evaluated plaintiff on August 26, 2013.
A report from that visit explains that plaintiff broke his neck in 1995 in a car accident. In 1982 or
1983, plaintiff suffered a “compression fracture of the lumbar spine from a fight.” Before 2013,
he had “back pain and muscle pain for years, dating back to the prior injuries as stated above.” Dr.
Buszek reviewed an MRI report dated March 15, 2013, and compared it to an MRI report dated
March 14, 2008. In sum, Dr. Buszek concluded that the MRI results showed degenerative changes,
not any evidence of an injury in 2013, concluding that there was: “no manifestation of pathology
that would relate to the motor vehicle/work event of April 16, 2013.” Ultimately, Dr. Buszek
believed that plaintiff was not injured in 2013. Rather, his symptoms were consistent with
degenerative changes. To the extent there was any alteration to plaintiff’s ankle reflex, Dr. Buszek
opined that this was likely related to plaintiff’s past injuries, although he did not explain how or
why he reached this conclusion.

        Following review of this testimony, the magistrate found that plaintiff:

        has sustained his burden of proving a personal injury to his neck, back and shoulder
        arising out of and in the course of his employment with the [d]efendant on January
        30, 2013 and April 6, 2013. . . . Plaintiff has sustained his burden of proving a
        work-related disability from April 18, 2013 through July 9, 2015.

                Plaintiff credibly testified that he was injured on January 30, 2013 while
        trying to pull the tandem pin on a trailer. Plaintiff credibly testified that he felt a
        sharp pain in his low back and across his back and up into his shoulder. Plaintiff
        credibly testified that he reported the injury and went to the company clinic for
        treatment.

                 Plaintiff credibly testified that he had another injury at work on April 6,
        2013 when he was sitting at a stop light and was rear-ended. Plaintiff credibly
        testified that he woke up that night in extreme pain and he went to the emergency
        room.



                                                   -2-
                Plaintiff’s credible testimony is supported by the credible testimony of Dr.
         Peppler. Dr. Peppler treated [p]laintiff for his injuries and credibly testified that his
         diagnosis was causally related to [p]laintiff’s work injuries.

                  Plaintiff has sustained his burden of proving a work-related disability from
         April 18, 2013 through July 9, 2015 on which date Dr. Buszek examined [p]laintiff
         and credibly testified that there was no manifestation of a foundation for limitations,
         restrictions or a disability from activities.

       Following issuance of the magistrate’s opinion, defendant appealed to the MCAC.
Defendant stated that the sole issue on appeal as: “Was there a change in pathology after the
incidents at work?” Defendant argued that the magistrate failed to apply the holding of Rakestraw
v Gen Dynamics Land Sys, 469 Mich 220; 666 NW2d 199 (2003), which was later codified in the
second sentence of MCL 418.301(1), which states, “A personal injury under this act is
compensable if work causes, contributes to, or aggravates pathology in a manner so as to create a
pathology that is medically distinguishable from any pathology that existed prior to the injury.”
Defendant further argued that this failure was an error of law that the MCAC could correct under
a de novo standard of review.

         The MCAC concurred with defendant and reversed the magistrate. In its statement of the
facts, the MCAC explained that the magistrate relied on Dr. Peppler’s testimony, which the MCAC
commission found incomplete because Dr. Peppler did not have a complete medical history,
including all of plaintiff’s past injuries, “thus leading to the erroneous avoidance of an analysis
under Rakestraw infra. Thus, we review under a de novo standard.”

        Following its review of the record, the MCAC found that Dr. Peppler was given an
incomplete medical history and that his theory of causality was made without regard for or
comparison to the objective MRI findings from 2008. In sum, other than subjective complaints of
pain, the MCAC concluded that there was no evidence of any objective manifestation of new injury
to the plaintiff’s neck and shoulder. Accordingly, the MCAC reversed the magistrate in a
unanimous decision. This appeal then ensued.

                                                 II. ANALYSIS

        The Michigan Legislature has created two standards of review in worker’s compensation
cases, one that applies to the MCAC’s review of the magistrate’s decision and one that applies to
this Court’s review of the MCAC’s decision. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich
691, 730; 614 NW2d 607 (2000).

         The “substantial evidence” standard governs the WCAC’s[1] review of the
         magistrate’s findings of fact, while the “any evidence” standard governs the
         judiciary’s review of the WCAC’s findings of fact. The WCAC enjoys statutory
         authority to make independent findings of fact, regarding issues that have been
         addressed or overlooked by the magistrate, as long as the record is sufficient for


1
    The Workers Compensation Appellate Commission (WCAC) is the predecessor to the MCAC.

                                                   -3-
       administrative review and does not prevent the WCAC from reasonably exercising
       its reviewing function without resort to speculation. The role of the WCAC is to
       ensure that the factual findings in worker’s compensation cases are supported by
       the requisite evidence. The role of the judiciary is to ensure that the WCAC
       properly recognized and exercised its administrative appellate role. [Id. at 730.]

In sum, “the judicial standard of review is extremely deferential[.]” Id. at 703.

       [T]he judiciary must ensure that the WCAC did not misapprehend its administrative
       appellate role in reviewing decisions of the magistrate. As long as there exists in
       the record any evidence supporting the WCAC’s decision, and as long as the
       WCAC did not misapprehend its administrative appellate role (e.g., engage in de
       novo review; apply the wrong rule of law), then the judiciary must treat the
       WCAC’s factual decisions as conclusive. [Id. at 703-704. (footnote omitted).]

This Court reviews questions of law de novo. DiBenedetto v West Shores Hosp, 461 Mich 394,
401; 605 NW2d 300 (2000). The standard for the MCAC’s review of a magistrate’s findings of
facts is found in MCL 418.861a(3), which provides:

       Beginning October 1, 1986 findings of act made by a worker’s compensation
       magistrate shall be considered conclusive by the commission if supported by
       competent, material, and substantial evidence on the whole record. As used in this
       subsection, “substantial evidence” means such evidence, considering the whole
       record, as a reasonable mind will accept as adequate to justify the conclusion.

The “whole record” is “the entire record of the hearing including all of the evidence in favor and
all the evidence against a certain determination.” MCL 418.861a(4). “The commission or a panel
of the commission shall review only those specific findings of fact or conclusions of law that the
parties have requested to be reviewed.” MCL 418.861a(11). The MCAC’s review “shall include
both a qualitative and quantitative analysis of th[e] evidence in order to ensure a full, thorough,
and fair review.” MCL 418.861a(13).

       The “crucial difference between the administrative and judicial standards of review” is that
“the role of the [commission] is to ensure that factual findings are supported by the requisite
evidence, while the role of the judiciary is to ensure the integrity of the administrative process.”
Mudel, 462 Mich at 701. Thus, the judicial standard of review is “extremely deferential[.]” Id. at
703.

       If it appears on judicial appellate review that the [commission] carefully examined
       the record, was duly cognizant of the deference to be given to the decision of the
       magistrate, did not ‘misapprehend or grossly misapply’ the substantial evidence
       standard, and gave an adequate reason grounded in the record for reversing the
       magistrate, the judicial tendency should be to deny leave to appeal or, if it is
       granted, to affirm, in recognition that the Legislature provided for administrative
       appellate review by the seven-member [commission] of decisions of thirty
       magistrates, and bestowed on the [commission] final fact-finding responsibility
       subject to constitutionally limited judicial review. [Id. at 703 (quotation omitted).]

                                                -4-
       This Court must adjudicate whether the MCAC misapprehended its administrative
appellate role by engaging in de novo review of the magistrate’s factual findings or applying the
wrong rule of law. Mudel, 462 Mich at 703-704. Our review leads us to conclude that the MCAC
did both. The MCAC’s decision appropriately cited the “substantial evidence” standard, and
explained that the commission was to accord due deference to the magistrate’s credibility
determinations. But after briefly summarizing the facts of the case, the MCAC held:

               However, it is plaintiff’s prior history of incidents and analysis of the
       objective evidence, namely, the MRI results, that are of import to defendant’s issues
       on appeal. Specifically, the plaintiff testified that when he was 16 years old, he was
       wrestling with a friend and fractured a vertebra in his lower back. Then, in 1997,
       he was in a significant car accident in which he broke his neck and received a closed
       head injury. He testified that he was out of work following that incident for a year
       and a half to two years.

              This appeal hinges upon the testimony of two doctors, Dr. Craig Peppler
       and Dr. Maynard Buszek and how the magistrate applied the law to their testimony.

               Our review of the record demonstrates that the magistrate relied on the
       testimony of Dr. Peppler who was possessed of an incomplete medical history of
       the plaintiff thus leading to the erroneous avoidance of an analysis under Rakestraw
       infra. Thus, we review under a de novo standard.

       Thus, the MCAC appears to have concluded that the magistrate erred by relying on Dr.
Peppler’s testimony because Dr. Peppler was unaware of plaintiff’s entire prior history of injuries.
The MCAC then concluded this reliance caused the magistrate to avoid analyzing the case under
Rakestraw, and that this omission then allowed the MCAC to disregard the magistrate’s factual
findings and apply a de novo standard of review. This was error by the MCAC because this case
was not a Rakestraw matter.

        In Rakestraw, the facts were simple and uncontested: “At the time [E. Wayne Rakestraw]
began working for defendant in 1996, he had a preexisting neck condition that was asymptomatic.
According to [Rakestraw], his work for defendant caused his neck pain to return and increase.”
Rakestraw, 469 Mich at 222 (footnote omitted). Specifically, Rakestraw “suffered from a
herniated cervical disk that required surgeries in December 1991 and April 1992.” Id. at 222 n 2.
A magistrate awarded benefits “for the aggravation of his symptoms.” Id. at 223. The magistrate
explicitly found that Rakestraw’s postsurgical changes to his spine were not aggravated by his
employment, and that the proof presented would not establish any change of pathology related to
a workplace injury or activity. Id. at 223. Regardless, the magistrate awarded benefits based on a
finding that Rakestraw’s “employment aggravated the symptoms of the preexisting neck
condition.” Id.

       Our Supreme Court began by explaining that “an employee must establish that he has
suffered ‘a personal injury arising out of and in the course of employment’ in order to be eligible
for compensation benefits.” Id. at 225, citing MCL 418.301(1). The Court explained that
“symptoms such as pain, standing alone, do not establish a personal injury under the statute.
Rather, a claimant must also establish that the symptom complained of is causally linked to an

                                                -5-
injury that arises ‘out of and in the course of employment’ in order to be compensable.” Id. After
discussing several prior cases, the Court explained that “where an employee claims to have
suffered an injury whose symptoms are consistent with a preexisting condition, the claimant must
establish the existence of a work-related injury that extends beyond the manifestation of symptoms
of the underlying preexisting condition.” Id. at 228 (quotation marks and citation omitted). The
Court rejected opinions of this Court that seemed to hold that “the aggravation of symptoms of a
preexisting condition is compensable without finding a work-related injury . . . .” Id. at 230.
Summarizing its decision, the Court wrote:

               We reaffirm today that an employee must establish the existence of a work-
       related injury by a preponderance of the evidence in order to establish entitlement
       to benefits under § 301(1). A symptom such as pain is evidence of injury, but does
       not, standing alone, conclusively establish the statutorily required causal
       connection to the workplace. In other words, evidence of a symptom is insufficient
       to establish a personal injury “arising out of and in the course of employment.”

               The text of the statute does not specifically demand that a claimant prove
       that his injury is “medically distinguishable” from a preexisting condition.
       However, the clear language of the statute does require the establishment of “a
       personal injury arising out of and in the course of employment.” Where a claimant
       experiences symptoms that are consistent with the progression of a preexisting
       condition, the burden rests on the claimant to differentiate between the preexisting
       condition, which is not compensable, and the work-related injury, which is
       compensable. Where evidence of a medically distinguishable injury is offered, the
       differentiation is easily made and causation is established. However, where the
       symptoms complained of are equally attributable to the progression of a preexisting
       condition or a work-related injury, a plaintiff will fail to meet his burden of proving
       by a preponderance of the evidence that the injury arose “out of and in the course
       of employment”; stated otherwise, plaintiff will have failed to establish causation.
       Therefore, as a practical consideration, a claimant must prove that the injury
       claimed is distinct from the preexisting condition in order to establish “a personal
       injury arising out of and in the course of employment” under § 301(1). [Rakestraw,
       469 Mich at 230-232 (footnotes omitted).]

        Our review of the MCAC’s opinion leads us to conclude that the MCAC erred when it
found this matter to be controlled by Rakestraw. Unlike in Rakestraw, here, plaintiff did not argue
that a work incident aggravated a preexisting condition. Rather, plaintiff argued that the two work
incidents caused him to suffer from new injuries. Even though plaintiff had suffered prior injuries
to his neck and back, his theory was not that the work incidents aggravated any preexisting
conditions, but rather that he suffered new injuries at work and that his old injuries had healed
prior to his work injuries. This testimony was supported by Dr. Peppler. On the basis of this
testimony, we conclude that the MCAC erroneously faulted the magistrate for failing to engage in
a Rakestraw analysis, and to then conduct a de novo review of the magistrate’s factual findings.
Accordingly, the MCAC erred when it reviewed the magistrate’s findings of fact de novo and
when it found that a Rakestraw analysis was relevant to this case.



                                                -6-
       The MCAC order reversing the magistrate is vacated and we remand for further
proceedings consistent with this opinion. Plaintiff having prevailed, may tax costs. MCR 7.219.
We do not retain jurisdiction.

                                                          /s/ Stephen L. Borrello
                                                          /s/ Patrick M. Meter
                                                          /s/ Michael J. Riordan




                                              -7-
