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...