ELIZABETH M. ERICKSON, SSN: XXX-XX-XXXX, Plaintiff,
v.
ASSOCIATED COMMUNITY SERVICES and TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, Defendants.
No. 2017-16
Michigan Workers Compensation
State of Michigan Department of Licensing And Regulatory Affairs Michigan Administrative Hearing System Workers’ Compensation Board of Magistrates
April 14, 2017
The
social security number and dates of birth have been redacted
from this opinion.
Plaintiff: Michael McManus (P29544)
Defendant: James Schoener (P29753)
OPINION & ORDER
DAVID
H. WILLIAMS, MAGISTRATE (253G) JUDGE
TRIAL
DATE(S):
Trial
in this matter began on March 10, 2017. Testimony of four (4)
lay witnesses was given at that time, along with admission of
expert medical testimony by Dr. Grant and numerous Exhibits
as are further detailed in the following sections of this
Opinion. An issue arose with respect to potential rebuttal
evidence by Plaintiff and who was allowed to seek same via
subpoena, with admissibility being deferred until the closing
date and at which time trial briefs were also due. The case
was concluded and submitted for decision on March 31, 2017.
CLAIM:
The
case was initiated by Plaintiff's filing of an
Application for Mediation or Hearing–Form A
("AFH") on April 29, 2015. Therein she claimed to
have sustained a work-related injury on March 28, 2015 while
in the employ of Defendant Associated Community Services
("ACS"). The specific nature and basis of the claim
for benefits is stated to be that:
"Plaintiff
tripped and fell, causing left leg and ankle disorder,
leading to disability."
At that
time disability of an ongoing nature was alleged.
Medical-related expenses were also claimed, the amount of
same at that point being "undetermined".
Information about additional particulars, such as wages,
identification of medical providers, etc., was as per the
other pertinent sections of said AFH.
At the
outset of trial Plaintiff amended the AFH to claim that only
a closed period of weekly (indemnity) benefits was being
sought. Specifically, said party admitted that any such
period ended as of August 17, 2015 when she was authorized to
return to work by her treating orthopedic surgeon, Dr. Grant.
STIPULATIONS:
The
parties stipulated to most basic jurisdictional matters.
These included that: they both were subject to the Act;
Travelers Indemnity Company of Connecticut insured the
employer; Associated Community Services employed Ms. Erickson
at the time; the employer had notice of the alleged injury
and claim for benefits was timely made. There was no dual
employment involved and Plaintiff agreed that her IRS tax
filing status was single with no dependents. The occurrence
of a personal injury which "arose out of and in the
course of employment" was denied by Defendant, as well
as leaving to "proofs" whether the disability was
due to the alleged personal injury.
An
average weekly wage ("AWW") was agreed by the
parties to be $617.00. No discontinued fringe benefits were
involved. With respect to alternative benefits Plaintiff had
received and which were subject to coordination under WDCA
Sec. 354, Old Age Social Security in the amount of $195.58
per week was likewise agreed to. This amount represents 50%
of the total monthly social security benefit (expressed on a
weekly basis).
WITNESSES
TESTIFYING AT TRIAL:
Called
by Plaintiff:
1.
Elizabeth M Erickson
2.
Thomas E. Cook
Called
by Defendants:
1.
De'Andre Love
2.
Stephen Sergaent
WITNESSES
TESTIFYING BY DEPOSITION
Plaintiff:
Kevin M. Grant, M.D.
EXHIBITS:
Plaintiff:
1.
Deposition testimony of Kevin Grant, M.D. taken on October
26, 2016
2.
Subpoenaed Records from Blue Care Network
3. One
Page depicting 4 black and white photos (entrance to
building)
4. WC
Agency Form 105-A; Work History, Qualifications, History
& Training Questionnaire along with four (4) Job Detail
Forms
Defendant:
A.
Lease agreement between Vanguard Owner, LLC
("Landlord") & Associated Community Services
("Tenant")
B. Site
plan of parking lot and building
C.
Assoc. Comm. Services work schedule signed by Plaintiff on
11/09/2012
TRIAL
TESTIMONY:
Elizabeth
M. Erickson:
Ms.
Erickson was born xx/xx/xx. She testified that she began her
employment with the Defendant Associated Community Services
on March 17, 2003. During the course of her employment with
this company she worked in three different areas: sales, old
business and verification; the last position and which she
had been in for a period of approximately four years or so.
Ms. Erickson indicated that the employer is in the business
of charity fundraising. She went on to describe her last job.
It basically entailed taking calls referred from the sales
department in order to verify the donor's address,
amount, credit card information and things of that nature.
Her work setting was basically in front of a computer
utilizing a phone or headset. She would work Monday through
Friday and one mandatory Saturday per month. Her supervisor
in that position was Mr. Steve Sergaent, which had been the
situation for about the last two years.
Plaintiff
went on to indicate that on many other Saturdays during any
given month she would work in a different department for
another supervisor, Mr. De'Andre Love. This was generally
on an "as needed" basis. On those Saturdays Mr.
Love would be her supervisor. Ms. Erickson's later
testimony clarified that both her regular position and the
Saturday only, as needed, position were basically within the
same general department, but different divisions or sections
of the same, and for which there were different supervisors.
Her main or primary supervisor was Mr. Sergaent, with Mr.
Love only doing so directly on the Saturdays she would work
in his division/section. She also testified that for the past
18 months or so prior to her injury in March, 2015 she would
work most Saturdays. This included the one mandatory Saturday
per month, along with the majority of other optional
Saturdays unless she herself had conflicting personal plans
or things of that nature. She stated that she generally tried
to work as much as she could for financial reasons.
Plaintiff
indicated that she last performed regular work duties for the
Defendant on Friday March 27, 2015. The following day, March
28th, was a Saturday and the date on which the
injury occurred. Upon her testifying with respect to the
location of this incident, versus the site where she had
previously worked over the course of years while employed by
the Defendant, it brought out facts and circumstances
relating to an office "move" which was in process
at the time of her injury.
With
respect to the actual office location where she worked for a
number of years prior to late-March, 2015 this had been
located in Southfield on Telegraph Road. The company had been
located at that office since approximately 2008. The employer
had secured a different office space, still in Southfield but
approximately 2–3 miles away, which was located at Ten
Mile and Berg Road.
Plaintiff
stated that at the time of the move scheduled for the
division/section of her department from the Telegraph to Ten
Mile and Berg Road location in late March 2015 there were
problems with the computer system at that new location.
Accordingly, that entire portion of the department was
instructed to work out of a different facility in Dearborn,
Michigan. This is where she had reported to and worked out of
the entire day of her assigned shift on Friday March
27th. Her direct supervisor on the day before,
March 26th, was Mr. Sergaent when they were
working out of the Telegraph Road, Southfield location. He
also acted in that same capacity, but was doing so out of the
Dearborn, Michigan location on the following day, Friday the
27th. She stated that the next day, Saturday March
28th, was not a mandatory Saturday such that she
would necessarily work for Mr. Sergaent.
Ms.
Erickson went on to testify that she desired to work on
Saturday March 28th. However, in order to do so
she would have to determine whether the individual
supervising that...
