Hughes v. Detroit Board of Education, 040512 MIWC, 2012-139

Docket Nº:2012-139
Case Date:April 05, 2012
DETROIT BOARD OF EDUCATION, Self Insured, Defendant.
No. 2012-139
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Workers' Compensation Board of Magistrates
April 5, 2012
         The social security number and dates of birth have been redacted from this opinion.           PLAINTIFF Mitchell J. Cicurel, (P) 44151           DEFENDANT Kristin A. Lusn, (P) 68997           OPINION           JOY TURNER, Magistrate Judge          TRIAL DATE          The case was tried on 12/19/11, 1/11/12, 1/23/12 and 2/16/12 on the record in Detroit, Michigan. A closing date was held off the record when briefs were submitted on 2/28/12.          CLAIM          Plaintiff, by Application for Mediation or Hearing – Form A, filed, on 11/28/08 alleged 1/22/07 and 3/08 dates of injury as follows: Claimant has disability in her bilateral upper extremities due to overuse.          STIPULATIONS          The parties stipulated that, on 1/22/07 and March 2008 plaintiff and defendant were subject to the Worker's Disability Compensation Act, that defendant was self insured and that defendant employed plaintiff.          Defendant denied that a personal injury arose out of and in the course of plaintiff's employment on 1/22/07 and left to proof whether an injury arose out of and in the course of plaintiff's employment in March of 2008. Defendant denied that plaintiff's disability, if any, was due to his/her alleged injury dates.          Defendant left to proof the issues of receiving timely notice and claim of both of the alleged injury dates.          Plaintiff was not engaged in dual employment on either 1/22/07 or 3/08. Plaintiff did not receive benefits subject to coordination.          Plaintiff's cash average weekly wage on 1/22/07 was $632.47. Plaintiff's cash average weekly wage in 3/08 was $632.47. The parties left to proof the issue of fringe benefits. The parties did stipulate that fringe benefits were discontinued on 1/30/09 Plaintiff's IRS filing status on both dates was married filing joint. Plaintiff has no dependents.          WITNESSES TESTIFYING AT TRIAL          PLAINTIFF          Evelyn Hughes          Donald Hughes          DEFENDANT          Jennifer Dillingham- Riviera          Cody Renfoe          WITNESSES TESTIFYING BY DEPOSITION          PLAINTIFF          Jeffrey R. A. Fishman, M.D.          Barbara Feldman M.A.          DEFENDANT          Richard Singer, M.D.          Kimberley Thompson, MS, LPC, CRC          EXHIBITS          PLAINTIFF          1. Records, Dr Hall          2. 4/3/07 Report Dr Rusko          3. Records Dr Culik           4. Records Dr Hinderer          5. Personnel file documents          6. Deposition Dr Hall          7. Deposition Barbara Feldman, MA, C.R.C.          8. Fringe benefit information          DEFENDANT          A. Personnel file          B. Deposition Dr Singer          C. Deposition Kimberley Thompson, MS. LPC, C.R.C.          D. Labor Market Assessment          E. Plaintiff's resume          F. Investigative reports          G. Surveillance DVD          CASE SUMMARY          Plaintiff has alleged two injury dates: 1/22/07 and 3/08. This case essentially involves six questions: (1) whether plaintiff sustained bilateral upper extremity injury on 1/22/07; (2) whether plaintiff sustained a bilateral upper extremity injury in 3/08; (3) disability; (4) does plaintiff have a residual wage earning capacity? (5) is there a connection between the work injury and wage loss during the period of disability? (6)what are plaintiff's fringe benefits?          Based upon the evidence presented and the applicable law I find (1) plaintiff sustained a bilateral upper extremity injury on 1/22/07; (2) plaintiff did not sustained a bilateral upper extremity injury in 3/08; (3) plaintiff is disabled from earning her maximum wages; (4) plaintiff has a residual wage earning capacity of $400.00 per week; (5) there is a connection between the work injury and partial wage loss during the period of disability; (6) plaintiff's fringe benefits amount to $400.31 a week.          Summary of the Evidence          Plaintiff Evelyn Hughes testified on her own behalf. Ms Hughes began working for defendant, the Detroit Board of Education in October 1971. She left for a period of time to raise her children in 1978 and then came back to work in 1988 when her youngest started school. In 1988 Ms Hughes was working as a school bus driver as a substitute driver for the first two years. After two years she obtained her own route. Ms Hughes explained that as a substitute driver she drove everyday but she did not have a regular established route. Routes were distributed based upon seniority.          Ms Hughes testified that she would typically arrive at 5:45 am and would go to dispatch to get her keys and pre-trip slip. She would carry a flashlight and do a pre-trip inspection for safety reasons. Ms Hughes testified that she would bend down to look for leaking fluids. Next she would board the bus and turn on the ignition to make sure the bus would start. She would then climb up on and open the hood release latch, push over the grab pole, pull herself up and check the fluids and look for broken belts. She would pull out the oil and transmission dip sticks and determine if the oil levels were normal. If not she would drive the bus to the garage and tell them what she needed.          After inspecting the under the hood area plaintiff would then shut the hood, secure the latch and get on the bus and turn on the lights, headlights and turn signals. She would walk around the perimeter of the bus checking the body for damage. She would check the tires and warning buzzer and overhead flashers and windshield wipers. If all was in order she would get on the bus and pull on each seat to make sure each one was secure. Plaintiff would then check the emergency exit door and the gages. Plaintiff would then start the bus up, put it in drive and check to make sure the air pressure dropped to the right level to make sure the vehicle would stop during the day.          To start driving one had to release the air break with a knob using the hand and proceed out of the yard. Plaintiff testified pressure is exerted to push in when the brake is released. Plaintiff testified she would then leave the yard and would use her blinker to exit the area. She would then drive to her first stop, put the blinker on and then when traffic was clear pull the air brake to set it. Plaintiff testified she would use both a foot brake and an air brake operated by hand. Plaintiff testified once the bus stopped the overhead lights were activated. She would have to open the door using her hand. Plaintiff testified some of the doors opened by using the hand while others required she flip a knob and hit and release it. Plaintiff testified to open the door by hand she would have to physically put her hand on the knob, push the release button down and then open the door.          Plaintiff testified that when she had to pick up a special education student she would get off the bus because the driver operated the bus lift on the outside of the bus. She would have to unlatch the door, open the door and then use the devise that operates the lift. Plaintiff testified she would then get back on the bus, check for traffic put the blinker on then release the brake and pull into traffic. Plaintiff testified the number of stops she made on a given day varied depending on the route. She might stop 15 to 20 times. Routes were chosen by seniority and a good route would pay 7 ½ hours of work. Plaintiff testified when she last worked she was working 7 ¾ hours a day. Plaintiff explained that she would pull out of the yard at 6:30 do the morning route, and get back around 9:45. She would then have a mid day route at 11:45 do the route and go home and come back at the end of the day. She would punch out at 12:45 and come back at 3:00 to do the evening shift. Sometimes she might also do a field trip in the middle of the day as well. Plaintiff also testified that she would have to wash and clean the bus at...

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