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...