DARCEY JACOBS, SS# xxx, Plaintiff,
v.
MACKINAC STRAITS HOSPITAL AND HEALTH CENTER, SAFETY NATIONAL CASUALTY CORP. and BLUE CROSS BLUE SHIELD OF MICHIGAN, Defendants,
No. 2007-240
Michigan Workers Compensation
State of Michigan Department of Labor & Economic Growth Workers’ Compensation Agency Board of Magistrates
October 25, 2006
HEARING
DATES: September 18, 2006 in Sault Ste. Marie
For
Plaintiff: Michael D. Nelson, Atty. (P29037)
For
Defendant: Keith P. Theisen, Atty. (P59411)
For
Blue Cross Blue Shield of Michigan: John J. Hays, Atty.
(P14782)
OPINION/ORDER
THOMAS
G. MOHER, MAGISTRATE (222G) JUDGE
WITNESS
TESTIFYING IN PERSON:
Darcey
Jacobs
Colleen
T. Horn
David
Wright
Joseph
Rautio
WITNESSES
TESTIFYING BY DEPOSITION:
David
L. Morris, M.D. taken on September 8, 2006
Stephen
E. Boodin, M.D. taken on September 14, 2006
TRIAL
EXHIBITS:
Plaintiff’s
Exhibit 1 - Medical Records of Northern Neurosurgery Group,
P.C./Craig T. Coccia, M.D. dated February 21, 2005
Plaintiff’s
Exhibit 2 - Medical Records of James R. MacKenzie, M.D.;
Diagnostic Consultation; Operative Report by David L. Morris,
M.D. and David J. Rynbrandt, M.D. dated September 27, 2005;
Physical Medicine & Rehabilitation Clinic Note dated
December 28, 2004
Plaintiff’s
Exhibit 3 - First Recovery Group Lien Letter on behalf of
Upper Peninsula Health Plan dated August 18, 2006
Plaintiff’s
Exhibit 4 - Deposition of David L. Morris, M.D. taken on
September 8, 2006
Defendant’s
Exhibit A - Deposition of Stephen E. Boodin, M.D. taken on
September 14, 2006
Defendant’s
Exhibit B - Mackinac Straits Hospital & Health Center
Employment Offers to Plaintiff
Defendant’s
Exhibit C - Plaintiff’s Work Schedule
STATEMENT
OF CLAIM
Plaintiff
Darcey Jacobs claims a disabling injury to her lower back as
a result of a work related injury on January 12, 2004.
STIPULATONS
The
stipulations taken by the Court in regard to the January 12,
2004 date of injury were as follows:
1. It
was admitted that both the employer and the employee were
subject to the compensation law on the date of injury
alleged.
2. It
was admitted that the respondent insurance
carrier/self-insured carried the risk.
3. It
was admitted that the employee was in the employ of the
respondent at the time of the alleged personal injury.
4. It
was left to proofs that a personal injury arose out of and in
the course of employment.
5. It
was admitted that the employer had notice of the alleged
personal injury within the statutory period.
6. It
was admitted that the claim was made within the statutory
prescribed period.
7. It
was stipulated that the gross average weekly wage excluding
fringe benefits was $560.18; that the value of discontinued
fringe benefits was $185.48; that the date fringe benefits
were discontinued was May 1, 2005 and that the proper rate
previously paid was $465.18 per week.
8. It
was stipulated that there was no dual employment.
9.
There were no proofs that the employee received any other
benefits including UIA benefits under Section 354 or 358 for
coordination or offset.
10. It
was denied that the disability is due to the alleged personal
injury.
11. It
was stipulated that the IRS tax filing status is married
filing joint.
12. It
was stipulated that there is one dependent daughter; Jasmine
Orr, date of birth xxx.
ISSUES
1. Did
the Plaintiff meet with a personal injury arising out of and
in the course of her employment on or about the date alleged
of January 12, 2004?
2. Did
a disability result from the alleged injury?
3. Was
a wage loss incurred and if so, what is the term and amount
of compensation to be paid as a result?
4. What
is Plaintiff’s entitlement to medical expenses and
treatment?
SUMMARY
OF EVIDENCE
Plaintiff
Darcey Jacobs testified on her own behalf that she started
her employment at the Defendant in February of 1994. Prior to
this employment she had worked at a motel in housekeeping. At
the time of her hiring she had a pre-employment physical with
x-rays of her back. At the time of her hiring she did not
have any back problems.
Plaintiff
was employed and worked at the Defendant from 1994 until
January 12, 2004 with a break in seniority for the birth of
her child in xxx. Her job was that of a certified
nurse’s assistant which she described as a very
physical job. She stated that there was lots of lifting,
walking, bending and manually lifting patients. She did not
have any treatment on her back for any reason until January
12, 2004. At that time she was in the dining room lifting or
assisting an Alzheimer’s patient and experienced
extreme pain in her lower back as she grabbed the arms of the
chair that the patient was in and pulled her. Plaintiff
stated that she has been in constant pain in the right hip
and right side since that date. She suffered an injury to her
lower back while lifting and assisting a patient. She
underwent surgery in 2005 with Dr. David L. Morris and she
has had therapy treatment and also three shots were injected
into her lower back. There have been several attempts to
return to work and on one occasion she returned to work for
four weeks. She has been off and on between January and May
of 2005. This work was light duty which included shredding
paper and dealing with the lunch money of patients. She
testified that she experienced pain on this light work from
various things and could not tolerate the employment.
Plaintiff
also testified that her back was worse after the surgery and
that she has been in continued pain from her spine to her
right hip since the surgery. She also...
