Coppock v. Menard, Inc., 091318 MIWC, 2018-30

Docket Nº:2018-30
Case Date:September 13, 2018
Kathryn J. Coppock, SS# XXX-XX-XXXX, Plaintiff,
Menard, Inc./ XL Insurance America, Inc., Defendants.
No. 2018-30
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Workers’ Compensation Board of Magistrates
September 13, 2018
         The social security number and dates of birth have been redacted from this opinion.           THE PLAINTIFF- Frederick W. Bleakley (P-38860)           THE DEFENDANTS- Jane C. Hofmeyer (P-44352)           OPINION           LISA L. WOONS, MAGISTRATE (254G) JUDGE.          TRIAL:          A Trial was held on July 18, 2018 in Grand Rapids, Michigan. The parties were given until August 13, 2018 to submit post-trial briefs. Briefs were submitted, and the record was closed and submitted for decision on August 13, 2018.          STATEMENT OF CLAIM:          An Application for Mediation or Hearing – Form A was received by the Agency on February 23, 2017. Plaintiff claimed dates of injury of September 24, 2016, October 10, 2016, October 16, 2016 and January 4, 2017. On September 24, 2016, claimant injured low back, legs and nervous system lifting and twisting with an approximate 45-pound object. On October 10, 2016, claimant injured low back, legs and nervous system when she attempted to catch the weight of a heavy box as it tipped off a cart. On October 16, 2016, work activities involving heavy lifting, bending, twisting, prolonged standing, working in awkward positions, etc., significantly aggravated, accelerated or contributed to the aforementioned impairments involving claimant’s low back, legs and nervous system, resulting in the imposition of work-related, work restrictions causing wage loss. On January 4, 2017, her last day of work, she claimed that bending, lifting, twisting, prolonged standing/walking on a concrete floor, stooping, reaching, working overhead, pushing, pulling, etc., significantly aggravated, accelerated or contributed to the aforementioned impairments involving claimant’s low back, legs and nervous system, resulting in total disability and wage loss. She is seeking all benefits under the Act, including an award of attorney fees on ordered medical.          Defendant duly filed an Appearance and appropriate Responsive Pleadings placing this matter in dispute. An Amended Application was received by the Agency on November 13, 2017, alleging the same dates of injury. The Amended Application also alleged, “claimant’s use of pain medication as a result of the aforementioned work injury caused or contributed to constipation which lead to the development of hemorrhoids for which claimant has required medical treatment.”          Again, Defendant duly filed the appropriate Responsive Pleadings disputing the Amended Application.          STIPULATIONS:          The stipulations were the same for all dates of injury. It was stipulated that the parties were subject to the Act, the carrier carried the risk, and the plaintiff was employed by defendant at the time of the alleged personal injuries. It was denied that a personal injury arose out of and in the course of the employment. It was stipulated that the employer had timely notice and claim of the alleged personal injury. The parties stipulated that the average weekly wage, excluding fringe benefits was $573.60. Plaintiff did have fringe benefits which were valued at $39.23. Fringe benefits were discontinued effective April 30, 2017. The appropriate workers’ compensation rate, including discontinued fringe benefits, is $391.42. Plaintiff was not engaged in dual employment, nor was she paid benefits that were subject to coordination. It was denied that the disability is due to the alleged personal injury. Plaintiff’s IRS filing status is single/head of household with one dependent, Joshua. The plaintiff was not paid any workers’ compensation benefits.          ISSUES FOR TRIAL          1. Did plaintiff prove that she sustained a personal injury within the course and scope of her employment on September 24, 2016, October 10, 2016, October 16, 2016 and January 4, 2017?          2. Did plaintiff prove a medical impairment and disability which arose out of the personal injury on the alleged dates of injury?          3. Did plaintiff prove a wage lose caused by her disability?          4. Did plaintiff refuse an offer of favored work?          5. Does plaintiff retain a wage earning capacity in employment suitable for qualifications and training?          6. Is plaintiff’s counsel entitled to a fee on medical bills?          WITNESSES TESTIFYING PERSONALLY:          Plaintiff: Kathryn J. Coppock          Defendants: Joe Alston          WITNESSES TESTIFYING BY DEPOSITION:          Plaintiff: Mark J.R. Moulton, M.D.          Defendants: Randolph B. Russo, M.D.          Susan J. Rowe, M.A., CDMS, (offered jointly).          EXHIBITS:          Plaintiff:          Plaintiff’s Exhibit #1: Work Comp Form – 105.          Plaintiff’s Exhibit #2: Records from 1995 and 1998 – Dr. Korhonen and Butterworth Hospital          Plaintiff’s Exhibit #3: Vail treatment records from 2011 and 2012.          Plaintiff’s Exhibit #4: Holland Hospital and Holland Urgent Care Records.          Plaintiff’s Exhibit #5: Records from Dr. Sanjeev Mathur.          Plaintiff’s Exhibit #6: Physical therapy records from Hanneken Full Potential.          Plaintiff’s Exhibit #7: Deposition of Mark J.R. Moulton, M.D.          Plaintiff’s Exhibit #8: Hackley Hospital records from March 15, 2017 surgery.          Plaintiff’s Exhibit #9: Physical therapy records from Nephew Physical Therapy.          Plaintiff’s Exhibit #10: Work restriction slips from Dr. Moulton dated April 17, 2018 and June 12, 2018.          Plaintiff’s Exhibit #11: June 16, 2017 job offer, e-mails and Menard’s calendar from My Workbrain.          Plaintiff’s Exhibit #12: September 14, 2017 job offer.          Plaintiff’s Exhibit #13: Job Logs.          Plaintiff’s Exhibit #14: Records of Jennifer L. Bradley, M.D.          Plaintiff’s Exhibit #15: Records of United Rehab Consultants.          Plaintiff’s Exhibit #16: Deposition of Susan J. Rowe, M.A., CDMS (previously offered jointly).          Plaintiff’s Exhibit #17: Company records of Menard’s.          Plaintiff’s Exhibit #18: Humana claim denial dated April 4, 2017.          Plaintiff’s Exhibit #19: Workers’ Compensation Fee Agreement/Application for Hearing and a Value Code Report.          Defendants:          Defendants’ Exhibit “A”: Application to Smith Haughey Rice & Roegge.          Defendants’ Exhibit “B”: Plaintiff’s Facebook posts.          DISCUSSION OPENING STATEMENTS          Attorney Bleakley offered an opening statement. Plaintiff was in a serious motor vehicle accident in 1995. She sustained multiple injuries as outlined in Plaintiff’s Exhibit #2. She had the first of four low back surgeries. Fifteen years later, plaintiff moved to Vail, Colorado and had additional treatment in 2011. Plaintiff had an additional surgery, with complications. A follow-up procedure was done four days later. She stopped treating in 2012.          Since that time, plaintiff has obtained a terrific fitness level. She is in competitions and did well. She obtained work at Menards and it was heavy work. She has a slight frame and she would be lifting weights up to 50 percent of her body weight. Plaintiff had a good record and no issues with attendance until she injured her back on September 24, 2016. Plaintiff had an immediate onset of back pain and she has never been the same since. She underwent surgery by Dr. Moulton on March 15, 2017. He saw the hardware that Dr. Corenman from Vail had placed in her. Dr. Moulton testified it was a little larger than he would have done. When plaintiff caught a heavy item, the metal pierced her paraspinal muscle. It was a soft tissue injury. The injection that Dr. Moulton did confirmed that that was the source of her pain. He removed the hardware. Plaintiff’s recovery has been slow, but she has continued to have improvement. Dr. Moulton stated the proof is in the pudding. The injury caused the hardware to pierce the muscles.          Plaintiff is a go-getter. She underwent physical therapy and worked back into very...

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