JOHN DELAY SS #XXX XX XXX Plaintiff,
v.
BURNS INTERNATIONAL SECURITY SERVICES CORP, and LUMBERMEN’S MUTUAL CASUALTY COMPANY, Defendants.
No. 2009-74
Michigan Workers Compensation
State Of Michigan Department Of Energy, Labor & Economic Growth Workers’ Compensation Agency Board Of Magistrates
2009
The
social security number and dates of birth have been redacted
from this opinion
THE
PLAINTIFF Robert Crites, P 12341, for Plaintiff.
THE
DEFENDANTS Janet Standing, P 36644, for Defendant.
OPINION
Michael T. Harris, MAGISTRATE, 199
THE
TRIAL
Trial
was held on 6/10/09 in Flint, Genesee County Michigan on
Defendant’s Petition to Stop which was filed on
5/21/07. Defendant suggests that a change of circumstances
justifies cessation or modification of the Open Award
rendered by this Magistrate 11/04, which was affirmed by the
Workers Compensation Appellate Commission by decision mailed
8/17/06.
SUMMARY
OF THE EVIDENCE
JOHN
DELAY, the plaintiff, admitted that he has a valid Michigan
driver’s license and owns a 2002 Olds Alero and two
more cars that are in his name and at his house, but are
driven by his sons. He has had no training, arrests,
convictions or additional education since he last testified.
His wife prepared a resume’ for him so that he could
look for jobs.
In the
last 30 days he has not submitted his resume online. He
doesn’t know how to use a computer. He doesn’t
know if he has submitted it in the last 60 days. He has
applied for work to businesses in the town of Davison. He has
not personally applied recently. He says his wife helps him.
Asked for the name of any business he has applied to recently
he says he cannot recollect and his wife has all the
information.
To try
to get a job he personally makes phone contacts. His wife has
all that information. Ross Automotive is one place he
applied. He can’t remember dates. He names Auto Zone,
Kroger Grocery Store, gas stations and other places in
Davison as places he has contacted or dropped off
applications.
He
hasn’t been back to Dr. Mosier-LaClair since August
2007 or received any other medical treatment. He hasn’t
been in any new injuries or accidents. He has double
pneumonia in 2008 and was hospitalized. He had surgery in
2008 for his lungs.
He is
not under active medical treatment for any condition at the
present. He takes Darvocet pain pills occasionally for his
ankle, and they are prescribed by his family doctor. He pays
his neighbor to mow his lawn and shovel his snow. Mrs. Delay
takes out the garbage, buys the food and cooks. She does the
dishes, and on a typical day he gets up about noon or 1. He
goes to bed about 1:00 a.m. He sits around and watches TV.
Occasionally they eat out. His two sons live at the house.
John is 20; Justin is 18. His wife and sons work. She works
from about 8:30 to 4:30. He is home alone most of the time.
He looks through the paper. They subscribe to the Flint
Journal and get it three days a week. He has a landline phone
at his residence and a computer. He doesn’t have any
problems with sitting but does with standing and walking.
Cross
by his attorney: His lawnmower is a Craftsman walk-behind,
self-propelled. He has a small front yard but a larger back
yard. It takes about 10 minutes to cut the front lawn. He
thinks it has been at least two years ago he has cut the lawn
himself. He may have taken out garbage a time or two in the
last couple of years. His driveway is about 35 feet. He could
take out garbage but usually leaves it to his wife.
To
clear snow, he hires his neighbor. If the neighbor
doesn’t do it then he will try to clear it if the snow
is light.
He is
still taking Dilantin for a seizure disorder from injuries
suffered in a car wreck in 1983. He still has some seizures
and takes 4 pills a day. The seizures occur when he is
sleeping.
Plaintiff
takes Prednisone since having his lung surgery last year. He
went into the hospital in spring 2008 and then had the lung
surgery in July 2008. He was on pure oxygen for a time, and
breathed it through a nasal cannula. He was on the oxygen
until August.
His
wife works for Davison schools. Her workplace is six blocks
away. Though there is a computer in his home, he has no idea
how to use it. His wife is good with it.
Plaintiff
can read and write. He is a high school graduate. In the last
few months he noticed his handwriting was shaky. It has
gotten worse progressively. He is 47 years old. He has lived
in the home he lives in for 29 years. He got married in 1989.
He
worked for Richfield and Atlas townships as a police officer.
He stopped working for Richfield Township when he was in a
car wreck, and when he went back to work he no longer could
handle it.
He was
in a collision with a Semi truck and was in a coma for
several days. Though a therapist eventually told him he could
go back to work without restrictions he could not handle the
work and left.
Plaintiff
then went through a list of all the jobs he has held and
described the duties. All of them required standing on his
feet.
He says
there is not a single one of those jobs he could do with his
ankle in the shape it is in.
Plaintiff
demonstrated his foot motion in the hearing room. He has
basically dorsiflexion to neutral and has some rotation with
pain. His right foot motion is normal.
He can
stand about 15 minutes before the pain gets too bad to stand.
It starts with sharp pain and then swelling. If he walks, the
pain occurs more quickly because he bears weight on the bad
foot. The pain with walking is a true 10.
He can
walk about 4 blocks before he has to sit. He doesn’t
treat with Dr. LaClair anymore because she told him she had
done the best she could with his foot and that statement
meant to plaintiff that she was done with her treatment.
Plaintiff’s
exhibit 5 is a document prepared by his wife. He kept a list
of all...
