Johnson v. Greektown Casino, LLC., 072011 MIWC, 2011-136

Docket Nº:2011-136
Case Date:July 20, 2011
LaDonna Johnson, SS# xxx xx XXX, Plaintiff,
Greektown Casino, LLC./Self-insured, Accident Fund Insurance Co. of America Defendant.
No. 2011-136
Michigan Workers Compensation
State of Michigan Department of Licensing And Regulatory Affairs Michigan Administrative Hearings System Workers’ Compensation Board of Magistrates
July 20, 2011
         The social security number and dates of birth have been redacted from this opinion.           The case was tried on 6/1/2011 and 6/15/2011 in Detroit, Michigan.           Plaintiff Howard Weingarden, (P51914)           Defendant Murray Feldman, (P23274)           OPINION           DAVID GRUNEWALD JUDGE          CLAIM          Plaintiff, by Application for Mediation or Hearing – Form A, filed 4/14/09, alleged dates of injury as follows:
8/4/05, 6/9/08, 1/22/09 – Due to repetitive lifting, bending, twisting and turning, petitioner injured neck, shoulders, back and legs.
         Plaintiff withdrew the injury date of 6/9/08 on the first trial date.          STIPULATIONS          The parties stipulated that on 8/4/05 and 1/22/09, plaintiff and defendant were subject to the Worker’s Disability Compensation Act, and that defendant was self insured and the defendant employed plaintiff.          Defendant denied that a personal injury arose out of and in the course of plaintiff’s employment on 8/4/05 as well as on 1/22/09. Defendant denied that plaintiff’s disability, if any, was due to her alleged injuries.          Defendant denied timely notice of the claimed personal injuries. Defendant admitted that plaintiff made timely claim for compensation benefits with regard to both dates of injury.          Plaintiff was not engaged in dual employment on either claimed injury date. Whether plaintiff received benefits that are subject to coordination was left to proofs. (The parties agreed to work out those amounts in the event of an award of benefits.)          Plaintiff’s cash average weekly wage including fringe benefits on 8/4/05 was $637.72. Plaintiff’s cash average weekly wage including fringe benefits on 1/22/09 was $582.25.          WITNESSES TESTIFYING AT TRIAL          Plaintiff LaDonna Johnson          Defendant Kim Robinson          WITNESSES TESTIFYING BY DEPOSITION          Plaintiff Dr. Steven Plomaritis Elie G. Khoury, M.D. Robert Ancell, Ph.D.          Defendant Joseph Salama, M.D. Guy Hostetler Maynard C. Buszek, M.D.          EXHIBITS          Plaintiff          1. 2/7/11 letter from defendant regarding 2005 pay          2. Subpoenaed records of Dr. Noel Upfall          3. Subpoenaed records of Henry Ford Health          4. Form 105A completed by plaintiff          5. Deposition transcript of Dr. Plomaritis          6. Deposition transcript of Elie Khoury          7. Deposition transcript of Robert Ancell          Defendant          A. Deposition transcript of Dr. Buzsek          B. Deposition transcript of Guy Hostetler          C. Deposition transcript of Dr. Salama          REVIEW OF WITNESS TESTIMONY          LaDonna Johnson          Plaintiff testified that her taxes were filed jointly with her husband. She has two children, Shamone, DOB XXX, and Jamone, DOB XXX. Her oldest attends school at this time, as well as on the claimed injury dates and that she provides her support. Her youngest is 17 and she has and continues to provide all his care.          She testified to having obtained an associates degree from Wayne County Community College in 2001. She also attended Wayne State University for two years but did not obtain any degree. Plaintiff testified that she had been studying criminal justice during her schooling at Wayne State University.          Her lifetime maximum wage was obtained at the defendant Greektown Casino. When her tips were added in she made approximately $17.00 per hour. Her base rate was $15.89 per hour.          Her prior work included Charter Bank from 1998 through 2001. Her duties included working as a teller and serving customers of the bank. She also filled out paperwork. Her earnings were $11.00 to $13.00 per hour. Prior to that she worked from 1995 through 1998 for National Bank of Detroit (now known as Chase). Her work duties were similar to those at Charter Bank, although she did have to carry some coins and money in a box on a regular basis. She was paid approximately $9.00 per hour for this job. Prior to this work she was a cashier at Kmart from 1993 through 1995 and earned $8.00 per hour. Her prior work experience also included work at Randazzo’s Market from 1988 through 1989 where she worked as a cashier, and also had to do some lifting of groceries weighing in the area of 5 to 10 lbs. She was paid $4.00 to $5.00 per hour for this job.          Plaintiff was hired in 12/01 at the Greektown Casino as a cashier. Her duties there included lifting money bags repetitively; overhead lifting was required to move the bags which weighed up to 10 to 12 lbs. She was also required to push money carts which were much heavier. Plaintiff was required to reach overhead to get her keys out of a cupboard on a daily basis. She was also required to fix kiosks when needed. She would pull money trays which weighed 40 lbs. and was a job done by one person. She did this job all day long from 2001 through August 2005. Plaintiff testified that she was in good health when she hired in with the defendant.          Pain in her arms first developed in 2005 and she later came under the care of Dr. Plomaritis who performed surgery on her shoulders in 3/06 and 3/07. Plaintiff was off work from 8/5/05 through her return to work on 2/19/08.          The job she returned to was similar however they used U.S. money bags instead of coin bags. No more tokens were used. All aspects of her job with this exception remained the same. Plaintiff testified that she tried to do her duties as she was told to perform them. She did take off work from 6/10/08 until a return to work date of 8/5/08. This was for a non-work related issue and a short layoff occurred as well during this time period. Plaintiff testified that her shoulder pain was bad and she did complain to a supervisor often during this period of return to work. She indicated that she would be told to take a short break and sit down to rest for 15 minutes or so when she complained. Plaintiff testified that the breaks were not documented but that she would complain 1 to 2 times per day. She had many different supervisors so it was difficult to name them. She said they were all gone now.          Plaintiff testified that she did seek medical care in the emergency room at St. John’s Hospital on 1/2/09, and that she was prescribed medicine for her shoulder pain at...

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