Curry v. Collins & Aikman, 011706 MIWC, 2007-49

Case DateJanuary 17, 2006
CourtMichigan
JOSEPH G. CURRY, SSN: xxx, Plaintiff,
v.
COLLINS & AIKMAN / INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Defendant.
No. 2007-49
Michigan Workers Compensation
State of Michigan Department of Labor & Economic Growth Workers’ Compensation Agency Board of Magistrates
January 17, 2006
         TRIALS DATES This matter was tried in Mt. Clemens on September 11, 2006, continued on October 9, 2006 with briefs submitted on November 14, 2006.           Paul S. Rosen, P29943, for plaintiff           Jeffrey R. Reem, P38723, for defendant           OPINION           BEATRICE B. LOGAN, MAGISTRATE (231) JUDGE          STATEMENT OF CLAIM          The plaintiff, by Application for Mediation or Hearing – Form A, filed on March 16, 2005, alleged injury date and last day worked of January 13, 2005 as follows:          Injury to back while turning and picking up a door to put on the line.          STIPULATIONS          For the date of injury alleged, January 13, 2005, the parties stipulated that both the plaintiff and defendant were subject to the Worker’s Disability Compensation Act; that the Insurance Company of the State of Pennsylvania insured the employer, and that defendant employed plaintiff.          Defendant denied that a personal injury arose out of and in the course of plaintiff’s employment. Defendant denied that plaintiff’s disability, if any, was due to his alleged injury.          Left to proofs that the employer had notice of the alleged personal injury within the statutory period.          Stipulated that the claim was made within the statutory prescribed period.          Plaintiff was not engaged in dual employment on alleged date of injury and that plaintiff’s IRS filing status on the alleged date of injury was single with no dependents..          Plaintiff’s average weekly wage was $554.66          WITNESSES TESTIFYING AT TRIAL          PLAINTIFF          Joseph B. Curry          Felicia Portis          DEFENDANT          Larry Barch          Delores Kalis          WITNESSES TESTIFYING BY DEPOSITION          PLAINTIFF          Dr. Devon A. Hoover, neurosurgeon, board-eligible.          DEFENDANT          Paul J. Drouillard, D.O., Orthopedic surgeon, board certified          EXHIBITS          PLAINTIFF          2. Dr. Matthew Sciotti’s medical records DEFENDANT          B. Mercy Hospital – medical records          C. Port Huron Hospital medical records          D. Dr. Paul Somerville’s medical records          E. Appendix I OSHA Respirator Medical Evaluation Questionnaire          F. Man Power records          G. Collins & Aikman employment application H. Port Huron Industrial Health records          I. Collins & Aikman Incident Report Completed by Plaintiff          J. Collins & Aikman Incident Report Completed by Larry Barch and Delores Kalis          Testimony of Joseph Curry          Plaintiff, 32 years old, was born xxx. He earned his GED in either 1995 or 1996 at the Adult Learning Center. He was placed by Man Power at the defendant as a temporary employee in September 2004. In November 2004 he was hired as a full time employee by the defendant. He testified that he was not given a pre-employment physical examination when he was a temporary employee of Manpower but he was given a physical examination when he was hired full time by the defendant. His health was good and he had no work restrictions.          Plaintiff testified that when he completed the employment application for Manpower, he lied about previous criminal convictions. He also lied when he was asked about past criminal convictions when completing the employment application for the defendant. He testified that he lied because he wanted a job and he believed that had he answered truthfully he would not have been hired.          Plaintiff testified that he did assembly work as an employee of Manpower. He assembled interior door panels on an assembly line. The job involved twisting, bending, and standing. He said he worked on a line either putting in a door, door handle, or a reflector light. The work was fast paced at 400 doors a day. The door job involved putting doors in a machine, taking them out and then giving the doors to the person behind him. He put the parts in by hand and the machine keeps the parts together. He testified that he had no difficulty doing the job.          In November, 2004, he was hired by the defendant as a full time employee and transferred to a new job. The new job involved putting vinyl on the interior panel of the door. The door weighs approximately five pounds. His job was a stand up job requiring constant twisting, bending, and lifting. The doors came down a conveyor belt and he had to bend over and pick up the door and place the door on a mold. Plaintiff testified that he had to push a button to the left of the mold once the door was in place. The production quota was 400 doors a day if the machine was working properly.          Plaintiff testified that he had place the door on the mold and was turning around to push the button when he felt pain in his lower back that went down his right leg, He testified that he had never had pain down his right leg like that. He said that he pulled a back muscle in either 1996 or 1997 but he did not have pain or numbness down his leg and he did not miss any time off work. He said that when he pulled the muscle in his back that in a couple of weeks the pain ended. He said the pain was not similar to the pain in January 2005. He said he sat for a few minutes, placed the door on the side and tried to work but the pain got worse. He told Larry, his line leader and then went to the supervisor. Plaintiff testified that he told the supervisor that he hurt his back. He said he told him that he was loading a part, went to turn around and felt pain in his back. He testified that he was sent to Mercy Hospital where he was given a couple of test, some pills, and an examination and then sent home. He said no x-rays were taken.          The next day he reported to work and was sent to Industrial Health Services. At Industrial Health Services, x-rays were taken, an examination was performed and he was returned to work. He started work at either 2:00 p.m. or 2:30 p.m., but the pain started at the small of his back and went down his leg. He worked for four hours and went home after telling his foreman, Larry, that his back was hurting and he couldn’t do the job. He testified that the fast movement and performing all parts of his job was hurting his back.          Plaintiff testified that he saw Dr. Paul Somerville who referred him to Dr. Matthew J. Sciotti, a back doctor. Dr. Sciotti prescribed physical therapy and epidural shots in his back. Plaintiff testified that he had physical therapy until March 1, 2005 when he lost his job and his benefits stopped. He testified that the physical therapy consisted of heating pad/ultra sound, ice bag, stretching, weight lifting and traction. The physical therapy did not alleviate his pain. He testified that he last saw Dr. Sciotti the end of March 2005. Dr. Sciotti referred him to Dr. Devon Hoover, the surgeon.          Plaintiff testified Dr. Hoover ordered two MRIs. The first MRI was on February 9, 2005 and the second MRI was in April 2005. Plaintiff testified he last saw Dr. Hoover in June 2005. He said Dr. Hoover did not perform surgery as he did not have health insurance after March 31, 2005. He testified that he was scared of having surgery but he would have the surgery if it would help. He also stated that he did not have Medicaid and had not applied for it.          He testified Dr. Hoover’s evaluation was approximately 30-45 minutes. He said that he was seen by Dr. Drouillard and the evaluation took approximately 20 minutes and ten to 15 minutes of that time was spent taking the history.          Plaintiff testified that in May 2005 the pain was pretty bad, that he was in constant pain, he couldn’t lie down or stands up or sit up for long periods of time. He testified that the pain now is not as intensive as it was but it still goes down the back of his leg. He said that he can now sleep at night and can walk a little bit. He said his present symptoms are pain in his leg and down his back. He said the pain comes and goes depending on what he is doing.          He said that when he was seen by Dr...

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