Erickson v. Associated Community Services, 041417 MIWC, 2017-16

Docket Nº:2017-16
Case Date:April 14, 2017
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...

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