Boatwright v. Maxx, 122006 MIWC, 2007-116

Case DateDecember 20, 2006
CourtMichigan
DELANO L. BOATWRIGHT, SSN: xxx, Plaintiff,
v.
T J MAXX/AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA, Defendants.
No. 2007-116
Michigan Workers Compensation
State of Michigan Department of Labor & Economic Growth Workers' Compensation Agency Board of Magistrates
December 20, 2006
         HEARING DATES October 10, 2006; December 5, 2006           Allen J. Wall (P-21926) on behalf of plaintiff           Daniel Peterson (P-256052) on behalf of defendant           OPINION           VALENCIA L. JARVIS, MAGISTRATE (213G) JUDGE          STATEMENT OF CLAIM          By petition dated December 16, 2004, plaintiff alleged uncontrollable seizures, headaches, and post-traumatic stress arising out of a September 6, 2004, injury.          STIPULATIONS          The parties stipulated that both were subject to the Act; that the insurance carrier carried the risk; that defendant employed the plaintiff; that timely claim was made by petition; that the average weekly wage excluding fringe benefits was $673.00; that plaintiff's IRS filing status was single, and he had no dependents.          WITNESSES TESTIFYING PERSONALLY          Plaintiff          Delano L. Boatwright          Defendants          None          EXHIBITS          Plaintiff          1. Deposition transcript of Kathy Conley          2. Deposition transcript of J. Barry Rubin, D.O.          3. Redford Police Department Incident Report          Defendants          A. Deposition transcript of Harvey Ager, M.D.          B. Narrative report of Lucius Tripp, M.D., M.P.H.          DISCUSSION          Plaintiff was 36 years old at the time of trial. He is a high school graduate and has obtained an Associates degree in Applied Science. Plaintiff went into the Army in 1988, and, during the last week of boot camp, he was discharged from the Army because of asthma. He received no income for it.          Plaintiff was upset and sad with that outcome. He talked to psychologists and psychiatrists for several months.          After leaving the military, he went to the National Institute of Technology (NIT) seeking an Associates Degree. He did not finish. He later went to Baker College, but still did not complete the requirements for the degree.          After he first got back from the military, he worked as a lot man and service porter at Al Bennett Ford. He worked there for seven or eight months. The store has since closed.          From 1990-1993, plaintiff worked at Premier Auto Body while attending NIT. He prepped cars and performed buffing and painting. He does not recall what he made. He worked at the Flint Board of Education as a program assistant and substitute teacher. He did this for four years until budget cuts cost him his job. As program director, he was responsible for all the school activities and he substituted throughout the day. He earned the same as he earned with the defendant.          He then worked in the grocery department at Meijer’s. He worked there for six or seven months or one year. He does not recall his pay.          Prior to working with the Board of Education, he worked as a manager of the carpet department at Goody Barn. He worked there for approximately one year. He does not recall his pay or the specific dates of employment, but he earned less pay than at T.J. Maxx.          Around 1995, he worked as a press operator at Royal Oak Boring. He was there for seven months to one year.          He worked as a road manager for DMG Records. His pay varied. He arranged and scheduled shows.          He also worked at Imperial Sports as a stock person. He worked two months as an assistant manager and was then made manager. This company was bought out by Foot Star. Plaintiff was a general manager at Foot Star until budget cuts. He did have an injury at work involving the knee and went off work. He earned more as a general manager than he had earned when working for defendant. His pay as a manager was about the same as it had been with defendant.          There was a two year period of unemployment after he left Foot Action because of his workers’ compensation claim. That case settled in October of 2003. A couple of months after that he went to Mr. Alan’s.          Plaintiff worked as a part-time sales associate and was training to become an assistant manager at Mr. Alan’s. He did this for three to four months and was then offered a job at A. J. Wright/T J Maxx, which would have paid more than the job at Mr. Alan’s. Plaintiff began work as an assistant manager at T J Maxx in July of 2004. He was not required to undergo a pre-employment physical.          Plaintiff ran the front half of the store at the service counter where he had to deal with customers, make cash counts, hire and discipline employees, as well as open and close the store.          Plaintiff was still assistant manager when an incident occurred in September of 2004. On that date, plaintiff recalls discussing cleanup with employees at the end of the day. He heard one of the associates yell and she kind of jumped. Plaintiff saw someone running toward them wearing a ski mask. This individual told all of them to get on their knees behind the counter. This person asked for the manager. He saw the key rings on plaintiff and hit him in the back of the head with a gun and asked where the safe was. Plaintiff pointed and he was then manhandled and pulled around the corner to where the safe was. He was ordered to open it. Plaintiff opened it and was taken to the back loading dock area where someone hit him. He woke up to a Redford police officer holding a12-gauge shotgun in his mouth. Plaintiff had a seizure and was taken to Garden City Hospital where he was placed on an IV. He also testified that he was taken by police to an all-night interview after his release from the hospital.          Plaintiff was interviewed by Channel 4 the next day. He said that the store had had theft issues, both, before and after this incident. He was called by the new district manager, Durham, and told that he was being terminated for talking to the media. Plaintiff asked for an employment package at that time and was told that he would receive it. Plaintiff was later told that he should not have been terminated right then. He was then paid for another week. Plaintiff was also told that he did not pass the pre-employment screening.          Plaintiff has had seizures in the past. However, he had been seizure free for six to seven months. Since the incident, he was hospitalized for seizures and has them three times a week. They are now more controlled because he is on new medication.          His memory was also fine before the incident. He now has to write everything down, including doctor’s appointments, zip codes, and where he is going. He has migraines and problems sleeping, anxiety attacks, and is bothered by loud noises and bright lights, which bring on headaches. He has nightmares where he relives that night over and over again. He also has flashbacks. He said that it makes it worse because his brother was killed that way. There is no family history of mental illness or depression. There are no other instances of depression or anxiety attacks other than the army incident when he was depressed. He has nightmares two to three times a week, although the medication helps him stay asleep.          Plaintiff had psychiatric treatment before working for defendant. It was after he left the Army, but he does not recall how long he treated. He does not recall the diagnosis he was given.          He is currently treating with Kathy Conley, a crime victim advocate. She is the first person he saw following the incident. She helps him with his condition by helping him relax and get by what is happening to him. He sees her one or two times every other week.          He also sees Kristy LaDronka, a mental health clinician, who helps him deal with anxiety attacks. He sees her and Dr. Guy and Kathy Kildow through Easter Seals. Dr. Guy is his psychiatrist and prescribes some medication. Kathy Kildow is a mental health professional. In talking about the 2004 criminal conviction, he did tell her he was nervous, scared and frustrated that he had all this evidence showing he did not do it and his attorney did not help. It was also because he was in and out of the hospital so frequently.          He has seen Dr. Jeffrey Loeb for a seizure disorder. Dr. Loeb prescribes medication for his migraines and seizures...

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