Hendra v. Galaxy Transport Inc., 032309 MIWC, 2009-113

• Case Date: March 23, 2009
• Court: Michigan

DARIN E. HENDRA, SSN: XXX-XX- XXX, Plaintiff, v. GALAXY TRANSPORT, INC., CHEROKEE INSURANCE COMPANY, Defendants. No. 2009-113 Michigan Workers Compensation State Of Michigan Department Of Labor & Economic Growth Workers’ Compensation Agency Board Of Magistrates March 23, 2009          The social security number and dates of birth have been redacted from this opinion.           HEARING DATES October 6, 2008 December 2, 2008           Raymond J. Andary (P-31597) on behalf of plaintiff.           Richard D. Wilson (P-39344) on behalf of defendant.           OPINION           VALENCIA L. JARVIS, MAGISTRATE JUDGE.          ALLEGATION          Motor vehicle accident on May 23, 2006, caused or aggravated head, neck, and right shoulder.          STIPULATIONS          The parties stipulated that both were subject to the Act; that Cherokee Insurance Company carried the risk; that defendant employed plaintiff; that defendant had timely notice of the alleged personal injury; that a timely claim for compensation was made; that the average weekly wage, excluding fringe benefits, was $761.58, and the appropriate compensation rate would be $448.05; that plaintiff received weekly benefits from May 24, 2006, through March 4, 2007, at a weekly amount of $448.05 and totaling $19,405.40; that plaintiff’s IRS filing status was single; and that he had no dependents.          WITNESSES TESTIFYING PERSONALLY

Plaintiff Darin Hendra

Defendant Dr. Alan Hendra Eddie Smith

         EXHIBITS          Plaintiff

1. Deposition transcript of Dr. Gerald Shiener

2. Deposition transcript of Dr. Brent Smith

3. Deposition transcript of J. Alan Robertson, M.D.

4. Deposition transcript of Jerome V. Cuillo, M.D.

5. Records from the office of Dr. Klein

6. Photographs of semi-truck driven by plaintiff

         Defendant

A. Deposition transcript of W. John Baker

B. Deposition transcript of Dr. Ronald Lederman

C. Records received from Concentra Medical Center

D. Concentra record for June 20, 2000, date of service

E. Concentra record for March 14, 2001, date of service

F. Resignation of Employment, Waiver of Seniority and Release of all Claims

G. Medical Examination Report dated August 12, 2002

H. Medical Examination Report dated August 13, 2004

I. Letter of Interrogatory – March 13, 2007

         Joint

1. Mt. Clemens General Hospital records

2. Amerisure Insurance Company records

3. Records from Bon Secours/Cottage Hospital

4. Records from the office of Dr. Robert M. Amsler

5. Records from St. John Macomb Hospital

6. Groesbeck Industries

7. Records from Concentra Medical Centers

8. Records from Modernistic Carpet & Upholstery

9. Records from the office of Dr. John L. Zinkel

10. Michigan Neurology Institute records

11. Records from the office of Dr. Policherla

12. Records from the office of Dr. David Gilboe

13. Records from the office of Dr. Vijayakumar

14. Records from St. Mary Mercy Hospital

15. Records from Bally’s Total Fitness

16. Student transcript from Grosse Pointe Schools

17. Student transcript from Macomb Community College

         DISCUSSION          At hearing, the parties stipulated that plaintiff had recovered from the neck injury. There was a request that a finding be made as to whether or not the condition was work related, but it was understood that there might not be any potential benefits owing.          At the time of hearing, plaintiff was 44 years old and not working. May 23, 2006, is the last day he worked for defendant. Plaintiff worked as a local tractor/trailer driver performing in-state driving. He had no specific route, and drove to various destinations. He was coming up on his fourth year with defendant at the time of the accident.          Plaintiff attended Joe Carney Trucking School between 1998 and 1999. He passed with a 3.0 grade point average. He obtained certification and a Class A license with Hazmat certification in June of 1999.          Plaintiff worked at Cuzmano Brothers, Inc., as a truck and delivery driver, loading and unloading produce. Within one year, the company went out of business. He earned $12.00 per hour.          Plaintiff worked at Flint Special Services working as a local route manager and driver as well as tractor/trailer driver. He drove the same route every day. He was there approximately one year when they decided to cut back on local drivers.          Plaintiff then worked as a local driver for defendant. He was hired on August 14, 2002. At first, he drove different trucks and then later he drove his own truck. He had a Department of Transportation physical. His license indicates that he needs corrective glasses.          Between 2002 and 2006, there were a few times he showed up late for work due to traffic, but most of the time he was there early. He was late two times, and he was talked to by a supervisor, Dennis Pallos.          At the beginning of his employment he earned $13.50 per hour. His hours varied. At the time of the accident, he was earning $15.00 per hour.          On May 23, 2006, plaintiff went in at his 5:30 a.m. starting time. He had eaten that day and had no ailments and, in fact, was completely fine. The trailer was one that was provided by the employer and one that he normally took every morning to its destination. His destination was the Ford Livonia Plant in Livonia. He always took the same route, and it took approximately 30 minutes to go from the yard to the plant. He would take Haggerty to Middlebelt to I-94 West and then onto 275 North. He would get off at Ann Arbor Road and go to Newburg and Plymouth and to the same gate. He always backed his trailer into the same dock. There, a hi-lo driver would unload it. It would take approximately an hour to an hour and a half, and he would then pick up his new paperwork. He had been advised that he could not sit in his truck while in the hi-lo area.          Plaintiff had gone to the cafeteria room around the corner to eat a turkey sandwich. He felt fine while he waited on the hi-lo driver to unload.          Plaintiff went back to Galaxy Transport, arriving at approximately ten minutes to twelve (11:50) or five minutes to twelve (11:55) in the morning. There, plaintiff was given another route to the same destination. Plaintiff pulled out between 12:30 and 12:33 to head to the Ford Livonia Plant. He recalls that there was a lot of traffic and he merged onto Ann Arbor Road and got off the freeway. The last thing he remembers is getting off the freeway to head to Ann Arbor Road and he cannot recall anything after.          Plaintiff’s next recollection is waking up at the hospital. He was told by his parents that it was a little after 7:00. His father and mother were coming into the room when he woke up. He had no recollection of the accident. He was at St. Mary’s Hospital and he had a neck brace on.          Plaintiff has no recollection of the next day except a memory of hospital personnel trying to get him to walk down the hall.          Plaintiff hurt mainly in the neck area and in the area of the right triceps. While in the hospital, he could raise his arm about shoulder level but could not raise it beyond that. He was discharged from the hospital on May 26, 2006.          Though plaintiff had his own apartment, and had been paying his bills on time prior to May 26, 2006, he went to his parents’ home because he could not live on his own. He continued to see Dr. Martin Kornblum for follow-up visits mainly with respect to the neck. His father, Dr. Alan Hendra is a family physician.          Plaintiff was placed on morphine for pain and then put on Vicodin ES. He was told to keep his neck brace on 24 hours a day. He was also told not to work.          Plaintiff switched doctors and began to see Dr. Leheta, a neurologist. He had seen this doctor prior to the accident. His father and Dr. Leheta referred him to Dr. Zinkel, who is also a neurosurgeon. Plaintiff testified that his balance was shot. Dr. Zinkel prescribed surgery, which he underwent on July 18, 2006. Surgery was at the C6 level. He spent the day at the hospital and was released on July 19, 2006.          Plaintiff recalls that he complained about his right shoulder the whole time that he was at St. Mary’s. His right shoulder...