Dunkin, Timothy L., SS# XXX-XX- XXX, Plaintiff,
v.
Georgia-Pacific Corporation, Defendant.
No. 2009-69
Michigan Workers Compensation
State of Michigan Department of Energy, Labor And Economic Growth Board of Magistrates
July 6, 2000
The
social security number and dates of birth have been redacted
from this opinion.
Hearing Date: June 30, 2009
Floyd
Steele (P45357) for Plaintiff
Charles F. Grzanka (P27973) for Defendant
Statement
of Claim: Plaintiff drove fork truck in a truck
trailer when same collapsed causing herniated disc in his
neck. Defendant refuses to pay differential and medical.
Lay
Witnesses: Timothy Dunkin
Exhibits:
Plaintiff’s #1 – Deposition of Margaret Snow,
M.D.
Plaintiff's
#2 – Employer Basic Report of Injury Plaintiff’s
#3 – Records of Dr. Flood (proposed*)
Plaintiff's
#4 – North Street Medical records (proposed*)
Plaintiff's
#5 – Blue Cross/Blue Shield lien (proposed*)
Plaintiff's
#6 – Photos Plaintiff’s #7 – Wage
calculations
Defendant’s
A – Deposition of Grant Hyatt, M.D.
Defendant’s
B – Rule 5 offer of records
Defendant’s
C – Wage calculations
*See
Procedural Background infra.
Stipulations:
July 6, 2000
Employer/employee
subject to act: Yes
Insurance
carrier/self insured carried risk: Yes
Employee
in employ of respondent: Yes
Personal
injury arose out of and in course of employment:
Denied
Employer
had notice of injury within period: Yes
Claim
made within statutory period: Yes
Gross
wage excluding fringe benefits: See Wage Calculations
discussion below
Value
of discontinued fringes: Date fringes discontinued:
Appropriate compensation rate:
Dual
employment: N/A
Employee
received any benefits subject to Section 354 or 358:
None
Disability
due to alleged personal injury: Proof
IRS
filing status: Married filing status: Single head of
household: Married filing joint: Single: X
Dependents
(date of marriage/birth): None
OPINION
Garry
Goolsby 228G
Procedural
Background
Before
testimony commenced the parties raised a number of issues.
Plaintiff amended to state plaintiff was off to July 13,
2001. Plaintiff also requested an attorney fee on the Blue
Cross Blue Shield lien which is Plaintiff's proposed
Exhibit #5.
Plaintiff
offered three exhibits which defendant objected to: the
records of Dr. John Flood (proposed #3); the records of North
Street Medical (proposed #4) and the Blue Cross Blue Shield
lien documentation (proposed #5). I heard the party’s
respective positions on these proposed exhibits and indicated
I was deferring my ruling. Pursuant to R 418.55, a party
intending to introduce the record, memorandum, report, or
data compilation shall furnish copies to all parties and send
a notice of intent to the magistrate not less than 42 days
before a hearing. That was not done by plaintiff in this
case. Accordingly, plaintiff’s proposed #3, the records
of John Flood, D.O.; proposed #4, the records of North Street
Medical, and proposed #5, the Blue Cross Blue Shield lien, is
not admitted. Plaintiff argued his proposed #4, the North
Street Medical records, should be admitted because they are
kept in the ordinary course of business. However, there was
no showing that such records are kept in the course of a
regularly conducted business activity of defendant. I have
segregated the proposed exhibits in a separate envelope for
appeal purposes.
On
August 21, 2008, I issued an order from the bench, in
response to a motion by defendant to suspend any partial
weekly benefits until plaintiff showed up for an independent
medical evaluation. Any entitlement to partial benefits was
ordered suspended from July 1, 2008; the day plaintiff missed
a second appointment until plaintiff attended the evaluation.
Plaintiff finally appeared at an evaluation on October 22,
2008.
Defendant
specifically asked for application of the one-year back rule
based on the receipt date of the plaintiff's application.
Lay
Testimony
Plaintiff
testified he was hired by defendant on August 29, 1994. He
said he passed a physical examination and had no
restrictions. Plaintiff said he worked at the Owosso facility
in production bundling and stapling boxes for six months to a
year. He said he worked in shipping loading and unloading for
a year or two. Plaintiff stated he worked the corrugators or
down stacker for the 11 to 12 years. He said he would check
sheet measurements of cardboard. He said the job changed in
2000 and there was a line of progression and he would drive a
fork truck moving rolls of paper from trailers to the
corrugators. He said on the day of his injury he drove the
fork truck into a trailer (Plaintiff’s Exhibit # 6)
which split. He said a beam or board hit him in the neck.
Plaintiff
said defendant took him to North Street Medical for
treatment. He said that's where the company sent injured
workers. Plaintiff said he felt good for about a week. He
said he kept working during that period but started having
problems with his neck and shoulder. He said he went to a
chiropractor on his own and he was referred to Dr. Food. He
said he has treated with Dr. Stevens and then Dr. Snow with
whom he continues to treat. Plaintiff said he did his regular
job but was in pain. He stated Dr. Snow placed him on
restrictions for his neck and left shoulder problems. He said
the restrictions were placed on him in December 2001.
After
his injury plaintiff said he operated a plant truck which is
bigger than the fork lift and is apparently easier to operate
as there are more safety features. Plaintiff said he works on
the down stacker that requires him to check the dimensions of
the cardboard and write a number with a marking crayon.
Plaintiff said there is bending and twisting required with
the job.
Plaintiff
testified he has lost money because part of his restrictions
included limiting the number of hours he could work. He also
said he could not move up the line of progression and thus
his wages have remained essentially the same. Plaintiff
testifies that he continues to work on a regular basis with
defendant.
On
cross-examination plaintiff testified that he had been a 2 to
3 pack per day smoker for approximately 20 years but he cut
back to one pack per day last year. Plaintiff stated he had
had a slip and fall at a store, resulting in a low back
injury and requiring two back surgeries. The first surgery
was in 2004 or 2005. He said the second was approximately 11
months after the first one. He said he does take pain
medication which is for both his low back and his neck. He
also testified that he was released after his second low back
operation without restrictions for same.
Plaintiff
said he would work more than 40 hours per week if his neck
did not hurt him. He testified that he saw Dr. Flood on April
20, 2001 and had an MRI in May 2001. He also had another MRI
on March 16, 2005.
Plaintiff
said he continues to work the down stacker and his
restrictions have not changed over the years.
Medical
Testimony
Margaret
Snow, M.D., Board certified in physical medicine and
rehabilitation, stated she first saw plaintiff on July 13,
2001. She said planet's initial complaints included pain...
