Kathryn J. Coppock, SS# XXX-XX-XXXX, Plaintiff,
v.
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...
