Brown v. Ajax Paving, Industries, Inc., 021407 MIWC, 2007-99

Docket Nº:2007-99
Case Date:February 14, 2007
Jay Brown, SS# xxx, Plaintiff,
Ajax Paving, Industries, Inc., and Ward North America/ACIG Insurance Company Defendants.
No. 2007-99
Michigan Workers Compensation
State of Michigan Department of Labor and Economic Growth Worker’s Compensation Agency
February 14, 2007
         The trial was conducted on 10-13-06 and continued on 10-16-06. The parties submitted briefs pursuant to the court ordered briefing schedule. Closing arguments were heard on 12-19-06.           PLAINTIFF Mr. Ronald J. Gricius (P25268)           DEFENDANT Mr. Steven L. Kinsley (P15991)           OPINION           VICTOR A. MCCOY, MAGISTRATE (232G) JUDGE          CLAIM          The plaintiff, by Application for Mediation or Hearing – Form A, filed on or about 8/17/05, alleged an injury date of 7/19/05 as follows: Grabbed water cooler as it fell off roller. Rotator Cuff Injury. Lost Wages Medical Bills. The application was amended at trial to reflect as follows: Block 8: A. Single; Block 11: 0 dependents; Block 24: Duration of Disablement from 7/19/05; and Block 25: Injured shoulder. There were no other amendments to these pleadings.          Defendants Ajax Paving Industries, Inc., and Ward North America/ACIG Insurance Company, filed their carrier’s response, appearance, answer and affirmative defenses on or about 9/13/05. Defendant’s pleadings were amended to conform to the amended Form A.          STIPULATIONS          The parties, Plaintiff Jay Brown and Defendant, Ajax Paving Industries, stipulated that, on 7/19/05:
1. Plaintiff and Defendant were subject to the Worker’s Disability Compensation Act; that the Ward North America/ACIG Insurance Company was the insurance company for the defendant employer; and that defendant employed plaintiff.
2. Defendants received timely notice of the claimed personal injury. Defendant admitted that the plaintiff made timely claim for compensation benefits with regard to the 7/19/05 injury date.
3. Plaintiff’s average weekly wage on 7/19/05 was $1,059.72. Plaintiff did not receive fringe benefits. The appropriate compensation rate is $589.10.
4. Plaintiff received benefits under section 354 or 358 for coordination or offset; specifically, plaintiff received worker’s compensation benefits.
         The following issues were left to proofs, and are thus the issues for trial:
1. Whether a personal injury arose out of and in the course of plaintiff’s employment on 7/19/05.
2. Whether plaintiff’s disability, if any, was due to his alleged injury on 7/19/05.
3. Whether plaintiff was engaged in dual employment.
4. Plaintiff’s IRS filing status.
5. Whether plaintiff has dependents.
         PROCEDURAL POSTURE          Initially, this matter had been resolved by entry of a voluntary payment agreement (dated 5/11/06) which I approved on 5/22/06. Subsequently the application was withdrawn pursuant to that agreement and my opinion/order of 5/22/05 (mailed 6/6/06). Thereafter, the parties stipulated that the voluntary pay agreement “should be set aside and held for naught.” By its order granting this stipulation (mailed 7/7/06), the Appellate Commission reinstated the case and remanded the matter for further proceedings. The matter was returned to me and I immediately placed it on the trial docket.          WITNESSES TESTIFYING AT TRIAL          PLAINTIFF          Mr. Jay Brown          Mr. Gerald Quick          Mr. Willie Shields          Mr. Patrick Haley          Mr. Tim McDonald (Rebuttal)          DEFENDANTS          Mr. David Garrison          Mr. Patrick Stawara          Ms. Kathy Prahler          Dr. Paul Drouillard, D.O.          Mr. Dustin O’Neill          Mr. Joe Landino (Rebuttal)          WITNESSES TESTIFYING BY DEPOSITION          PLAINTIFF          Dr. Glenn Moore, M.D. (4/26/06)          DEFENDANTS None          EXHIBITS          As a preliminary matter, I note that I was provided with a copy of the trial transcript for 10/13/06 and 10/16/06. Although not marked as an exhibit, references to particular testimony relate to this transcript.          PLAINTIFF          1. Deposition of Dr. Glenn Moore, M.D.          2. Medical Records – William Beaumont Hospital          3. Medical Records – Concentra          4. Employment Records – Ajax Paving Industries, Inc.          5. Adjuster Haley’s Notes          6. Beaumont Hospital Billing.          DEFENDANTS          A. Drug Screen          B. Interrogatories          C. Video Surveillance          D. CV of Ms. Prahler          E. Report of Dr. Drouillard, D.O.          F. Investigation Report          ADMISSION OF DEPOSITIONS/EXHIBITS          All depositions were admitted into evidence subject to the objections contained in the deposition transcripts.          The Counselors were given a chance to review all remaining proposed exhibits and make objections prior to their admission. The remaining exhibits were admitted into evidence without objection. Defense counsel did not provide a copy of the video tape surveillance until late January 2007 because the tapes had to be copied in a format viewable by the court.          Review of the trial transcript reveals that the listing of exhibits is inconsistent with the Court’s record (reflected above). The Court’s record is the proper listing of exhibits.          MOTIONS          Defendant brings a motion pursuant to Section 222 of the Act relative to plaintiff’s alleged failure to identify subsequent employment by way of an amended application and/or through answers to interrogatories. Defendant argues that this failure should serve as a bar to plaintiff’s claim and result in dismissal of plaintiff’s application. I disagree.          MCLA 418.222(3) states in pertinent part:
The application for mediation or hearing shall …. Contain factual information regarding… whether the employee had any other employment at the time of, or subsequent to, the date of the personal injury and the names and addresses of the employers….
         Defendant’s motion is premised solely on the allegation that Mr. Brown was employed doing work for Mr. McDonald after his 7/19/05 injury. The trial testimony establishes, and I find, that Mr. Brown was not employed by Mr. McDonald. Further, I accept Mr. Brown’s testimony that he has not been employed since his last day of work with Ajax Paving Industries, Inc.          Defendant’s motion is hereby denied.          FACT FINDING: I have reviewed the entire record and summarized the relevant information upon which I relied in arriving at my decision as follows:          PLAINTIFF’S CASE IN CHIEF          Testimony of Mr. Gerald Quick          Mr. Quick is employed by Ajax Paving Industries, Inc. He has worked for Ajax for the last 25 years. He has been employed as an asphalt supervisor/foreman since 1994. He was the job supervisor/foreman relative to Mr. Brown’s crew in 2005. Mr. Brown was employed as a laborer. He characterized Mr. Brown as a good employee, who showed up for work, did what he was told and was not a disciplinary problem.          Mr. Quick disputed that adding fuel and water to the rollers were part of a laborer’s job.          He indicated that Mr. Brown may have moved a roller on occasion; however, he did not operate one. Typically, Mr. Brown would move a roller when the operators were tied up and needed help.          He did not recall whether Mr. Brown ever mentioned being in an automobile accident prior to 7/19/05. He recalled no prior on the job injury for which Mr. Brown sought medical treatment. He recalled an incident where Mr. Brown’s elbow was cut due to an air hose snapping loose and striking him, however, he indicated that no incident report was filled out, and that Mr. Brown neither asked to go to the clinic, nor did he miss any time. He also recalled that Mr. Brown had said he’d gotten a shot because his right arm was bothering him. Mr. Quick did not recall the exact condition and guessed it was “pleurisy.” He testified that the shot was cortisone and was for pain. ...

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