ROBERT E. ELDE, SS# XXX XX XXX, Plaintiff,
v.
CASTLES BROTHERS INC, Self-Insured, Defendant,
And
STATE OF MICHIGAN, SECOND INJURY FUND, Dual Emp. Prov. Defendant.
No. 2010-198
Michigan Workers Compensation
State Of Michigan Department Of Energy, Labor & Economic Growth Board Of Magistrates
October 13, 2010
The
social security number and dates of birth have been redacted
from this opinion.
THE
TRIAL: Trial was commenced on April 14 2010 in Flint, Genesee
County, Michigan. Trial was continued to May 10 2010.
Robert
MacDonald, (P 54801) attorney for Plaintiff.
Larry
Cianciosi, (P 41328) attorney for Defendant Castles Brothers.
Andrew
Lemke, (P 71272) for Defendant, SOM/SIF--Dual Emp. Prov.
OPINION
Kenneth A Birch, Magistrate Judge
THE
CLAIM:
Plaintiff
claims injuries on 3/08 and 7/08 resulted in lost wages and
medical benefits while he was employed by defendant.
Defendant denies plaintiff was an employee, as well as the
facts of notice, injury and disability.
STIPULATIONS:
1.
Claim was timely made by way of filing of the petition.
2.
Defendant has self-insured coverage for its employees, but
denies that plaintiff is an employee and denies that he is
covered under their self-insured coverage.
ISSUES:
1.
Whether the parties are subject to the Michigan workers
compensation laws for this claim.
2.
Whether the legal relationship of employer and worker existed
at the time of the alleged injuries, or either of them, or
whether plaintiff was and independent contractor.
3.
Whether notice was received, and if not, whether prejudice
resulted from lack of formal and timely notice.
4.
Whether plaintiff met with personal injury, arising out of
and in the course of his employment, on or about the date
alleged.
5.
Whether plaintiff has a disability, and if so, what is the
term of compensation to be paid as a result thereof, if any.
6.
Medical treatment.
7.
Coordination of Benefits.
8. Back
Rules
FINDINGS
OF FACTS AND LAW:
ROBERT
ELDE, Plaintiff, testified that from 1990 to 2008 he made a
living working for Castles Brothers installing kitchens and
baths. Before that he worked for Ken’s Kitchens.
Plaintiff was born on XXX and graduated from Northwestern
High School in 1970. He attended a few courses at community
college but never received a degree or certificate. He has
played as a musician at a few local clubs and now is the
music director at his church. By 1989 he had become a skilled
carpenter and worked installing kitchens for Ken’s
Kustom Kitchens and went to work for Defendant in 1990. He
started working there as a result of a contact with a guy
named Skip. Plaintiff testified that he worked regular hours
for Defendant for 18 years, going to work around 8:00 am and
quitting at 4:30 or 5:00. Several times during this period,
he was approached by friends and his church to perform jobs
for them. He usually did these projects on weekends and
evening hours. At least one time he took time off his work
with Defendant, to work on an outside project.
Plaintiff
started working at $20 an hour and then $28 an hour at the
end. He would just turn in the hours to Skip, who would sign
the sheet and get him paid. From March 2007 to March 2008 he
made about $40,000 working for Castles Brothers. He performed
the work for Castles Monday through Friday, 8:30 to 4:30 or 5
o’clock. Skip was always his supervisor. Castles
Brothers hold themselves out as doing kitchens and baths. The
work he did for them was an integral part of their business.
As far as he knows Castles Brothers does commercial
construction and remodeling besides doing residential
kitchens. He thinks Castles Brothers has 8 or 9 people
working in the building and he doesn’t know how many
outside carpenters they had.
Castle
Brothers had two workers doing home installations most of the
time. If there was a lot of work they would take on another
guy. Over the years his job stayed pretty much the same. On
the first day of a project, he would meet with Skip who would
show him plans. Then, they would do tearing out and
rebuilding except for the electrical and plumbing, which he
did not do. Plaintiff had a printout sheet of everything that
needed to be done. He used company materials and would pick
them up at lumber yards where Castles Brothers had accounts.
He had a Castles Brothers card for Home Depot. He used his
own truck or a Castles Brothers truck depending on what he
had to pick up. He used the tools in the shop on occasion.
Over
the years he was with Castles Brothers, he was pretty much
dependent on their work for his income. The church
didn’t pay that much but it did pay his health
insurance. He started with the church twelve to fifteen years
ago. He worked at home on worship planning, during the church
service, and sometimes in the evenings. He made around $100 a
week. When he had nights or Saturdays open he would on
occasion do a bath or kitchen for friends. He might make a
couple of thousand on these little jobs. He would only do
that work in the evenings. He never took off time from
Castles unless he didn’t have anything scheduled with
Castles and could do something for a friend.
Plaintiff
does not currently have a business card. He used to have one.
It is a 313 area code and Flint has an 810 area code for at
least the last ten years. His business checking account was
closed out in 1999. The closeout check is exhibit 6. He had
magnetic signs made that said Bob Elde Remodeling for his van
and when he started work for Castles Brothers he was asked to
remove those signs. Skip was the manager of Kitchen and Bath
and his immediate supervisor. Skip said it wasn’t
coming from him. Plaintiff never had employees, but sometimes
used helpers assigned by the Defendant on big projects.
In late
February or early March 2008 he was working on a very big
tile project. The customer driveway was covered with snow
with glare ice underneath. He went into the garage and began
to carry tile in. He tweaked his back doing that and
mentioned it to Tim July. His back was sore and he just
thought it would go away. Later on that day Tim slipped on
the ice and broke a bone. Plaintiff finished his shift that
day. He took over the counter medications. His legs started
giving him trouble a month or so later. It began with pain in
the back of his legs, mostly the left leg; he kept working.
He thinks he had a conversation about his back in May or June
with Skip. On the last full job he had with Castles Brothers
he told Sylvia, the designer, he was having back problems;
she is a Castles Brothers employee.
Before
March 2008 he had back problems on occasion. But they always
went away. Between March and July his symptoms continued to
get worse and he eventually went to the doctor. Dr. Gomez
sent him for an MRI and then sent him to Dr. Palavali.
Between that time and the Palavali appointment he got worse
and tried to get in earlier. His back and legs went out
before he saw Dr. Palavali. On a Sunday morning he was
readying to go to church, got out of his car, and his legs
hurt so bad that he could hardly walk. He sat down and waited
for someone to come along and they helped him to his car. His
legs went numb and his sister picked him up at his home and
took him to McLaren Hospital. There, they looked at him and
then he went to his sister’s house. He didn’t get
better and went back to the hospital where he was admitted
and spent three weeks in the hospital. Around this time he
took steps to ask for workers compensation. His sister made a
contact about it. His sister completed an employer’s
basic report of injury. She had the information to fill it
out and he was heavily medicated. The form is undated. He
says his sister took the form to Castles and talked to Skip
and Kim and Dave he thinks.
Plaintiff
could not walk for a time and took therapy for a year. He was
in a wheelchair initially and then to two canes. He is doing
some better now. He can walk around a store by holding onto a
shopping cart. He can go about a hundred yards with his
canes. He has no back pain to speak of. The backs of his legs
and his feet are numb except for the front of his thighs. He
wears foot drop braces on both feet. So far as lifting and
carrying he could lift ten to fifteen pounds if it had a
handle. He can sit and bend. He goes to a McLaren owned
physical therapy place for an hour at a time. He is on
Neurontin and Tramadol currently...
