EVELYN HUGHES, SS# XXX XX XXXX, Plaintiff,
v.
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...
