Hurt v. OAK Park, 102510 MIWC, 2010-155

• Case Date: October 25, 2010
• Court: Michigan

TIMOTHY M. HURT SS# XXX-XX- XXX Plaintiff, v. OAK PARK, CITY OF AND MI MUNICIPAL LEAGUE WORKERS COMPENSATION / MEADOWBROOK INC., Defendants. No. 2010-155 Michigan Workers Compensation State of Michigan Department of Energy, Labor and Econmic Growth Workers’ Compensation Board of Magistrates October 25, 2010          The social security number and dates of birth have been redacted from this opinion.           THE TRIAL DATE May 26, 2010 and September 2, 2010 in Pontiac, Michigan           THE PLAINTIFF Arthur A. Borella, (P29172)           THE DEFENDANTS James R. Geroux, (P13934)           OPINION           LEE A. DECKER, MAGISTRATE Judge          THE CLAIM          The plaintiff by way of Application for Mediation or Hearing, signed by the claimant on July 2, 2009, received by the Bureau on July 7, 2009, alleged the following date of injury; December 12, 2008, claiming the following:

“Injury to back with resulting sequelae. I slipped and fell on an icy driveway.”

         An Application for Hearing, form C, was filed on behalf of Blue Cross Blue shield of Michigan for a claim of reimbursement of medical expenses in the amount of $1092.18 as of the date of filing.          THE STIPULATIONS          The parties stipulated that on all dates alleged Timothy M. Hurt and the City of Oak Park were subject to the Worker’s Compensation Disability Act, that MI Municipal League of Workers Compensation insured the defendant, and that the defendant employed the plaintiff.          Defendants requested proofs that a personal injury arose out of and in the course of plaintiff’s employment on December 12, 2008. Defendants denied that plaintiff’s disability, if any, was due to his alleged injuries.          Defendants stipulated that the employer had notice of the alleged personal injury within the statutory period. Defendants stipulated that the plaintiff made timely claim with regard to the claimed injuries.          The plaintiff was not engaged in dual employment on the dates alleged. Plaintiff received workers compensation benefits from December 14, 2008 through June 19, 2009 in the amount of $739.00 per week. Plaintiff received short term disability benefits from August 16, 2009 through March 5, 2010 and long term disability benefits from March 5, 2010 to date in the amount of $3,851.00 per month. No lump sum benefits, under Section 835 of the Worker’s Disability Compensation Act were received.          The parties stipulated to an average weekly wage of $1479.33 per week as of December 12, 2008. The parties stipulated to an IRS filing status of Single Head of Household. The defendants requested proofs as to the dependency of Megan, Alexandra, and Johnathon, plaintiff’s children.          THE WITNESSES TESTIFYING AT TRIAL          THE PLAINTIFF          Timothy M. Hurt          THE DEFENDANTS          None          THE WITNESSES TESTIFYING BY DEPOSTION          THE PLAINTIFF          Ricky E. Olson, M.D.          Robert B. Ancelll, Ph.D.          THE DEFENDANTS          Dr. Louis Jacobs          Dr. Shlomo Mandel          Charles S. Miller, M.A., C.D.M.S.          THE EXHIBITS          THE PLAINTIFF          1. Work History, Work Qualifications & Training Disclosure Questionnaire          2. Job Description of a City of Oak Park Public Safety Officer          3. Employers Basic Report of Injury dated March 21, 1997          4. Incident / Prosecution Report dated August 2, 2004          5. Supervisor’s Accident Investigation Report dated August 3, 2004          6. Medical records from Providence Hospital          7. Emergency Department Discharge Instructions from St. John Health / Providence Hospital, Southfield dated December 13, 2008          8. Supervisor’s Accident Investigation Report dated December 15, 2008          9. Employer’s Report of Injury dated December 15, 2008          10. Subpoenaed records of Providence Hospital          11. Subpoenaed records of Rehabilitation Physicians Dr. McElroy          12. William Beaumont Hospital Royal Oak Discharge Summary          13. Letter from Oakland Neurosurgical Associates, P.C. dated March 3, 2009          14. Medical reports from Dynamic Back and Neck Therapy          15. Physical Therapy reports from Beaumont Hospitals          16. Subpoenaed records from Michigan Interventional Pain Associates and Dr. Steven Wiener          17. Medical note from Specialist in Rehabilitation Medicine, P.C.          18. Billing from Blue Cross Blue Shield of Michigan          19. Deposition of Ricky E. Olson, M.D. taken on May 6, 2010          20. Deposition of Robert B. Ancelll, Ph.D. taken on May 24, 2010          21. Subpoenaed records of Specialists in Rehabilitation Medicine, P.C.          THE DEFENDANTS          A. Activity logs          B. Medical reports from Providence Medical Center          C. Color Photos          D. Notice of Dispute dated June 19, 2009          E. Letter to Timothy Hurt dated June 19, 2009          F. Deposition of Dr. Louis Jacobs taken on May 20, 2010          G. Deposition of Dr. Shlomo Mandel taken on May 18, 2010 H. Deposition of Charles S. Miller, M.A., C.D.M.S taken on May 19, 2010          THE ISSUE          Did plaintiff suffer an injury arising out of and in the course of his employment with defendant, City of Oak Park.          THE TESTIMONY          LAY WITNESSES          Timothy Hurt – Plaintiff          Mr. Hurt testified on direct examination that he currently lives at the same address listed on the Application for Hearing; 4296 Fallow, West Bloomfield, Michigan.          He is currently engaged to be married. He has three children; Megan born XXX Alexandra born XXX, and Jonathan born on XXX. He has joint custody with his ex-wife and pays child support for all of the children, for a total of $430.00 per month. His IRS classification is single head of household.          Mr. Hurt identified plaintiff’s exhibit #1 as the 105A Work History Work Qualifications and Training Disclosure Questionnaire. He testified that the information he disclosed in that questionnaire is correct.          The claimant testified that he is a high school graduate and that he attended Oakland Police and Fire Academy. At the Academy he earned fifty college credits.          His duties at Oak Park as a public safety officer were; a) police runs, b) fire duties, and c) medical first responder.          The claimant identified plaintiff’s exhibit #2 as a Job Description of his duties as a public safety officer. Mr. Hurt testified that his physical duties as a public safety officer would include running after suspects, arresting suspects, lifting a fire bag used for fighting fires weighing twenty to thirty pounds, lifting individuals that could weigh up to four hundred pounds, lifting of hoses and jaws of life which would weigh up to forty pounds. After a fire he would have to break down the walls of the burned structure to make sure there was no fire remaining in the walls. He would then repack the equipment.          His first injury occurred in 1997, when he slipped on ice in the police parking lot. He injured his lower back. Mr. Hurt went to a chiropractor and missed two weeks. He identified plaintiff’s exhibit #3 as the City’s Injury Report claiming an injury to his back and left knee.          In 1999 he was “t-boned” in his car. He hurt his low back, was treated and missed about two to three weeks. He was paid benefits, and returned to work without restrictions.          In 2004, he was helping lift a very obese man who had fallen in his bathroom and became wedged between the toilet and bathtub. He hurt his back at that time but missed no time. Mr. Hurt identified plaintiff’s exhibit #4 as dealing with that incident.          Claimant also identified plaintiff’s exhibit #5 as the Supervisor’s report of the same incident.          On December 12, 2008, he responded to a call at an...