Johnson v. Kennedy Care Management Inc., 101619 MIWC, 7340

• Case Date: October 16, 2019
• Court: Michigan

Lecia Johnson SS# XXX-XX-XXXX Plaintiff, Auto-Owners Insurance Company Intervening Plaintiff, v. Kennedy Care Management Inc., Accident Fund General Insurance Company And Second Injury Fund/Dual Employment Provisions Defendant, No. 7340 Michigan Workers Compensation State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates October 16, 2019          The social security number and dates of birth have been redacted from this opinion.           TRIAL DATE: September 12, 2019           Paul Valentino (P34239), attorney for the Plaintiff           Cleveland Simmons (P77941), attorney for Auto-Owners           Jeffrey Atkin (P66224), attorney for Accident Fund           Jason Welch (P61094), attorney for SIF/Dual Employment Provisions           OPINION           E. LOUIS OGNISANTI, MAGISTRATE (246G) JUDGE.          The Plaintiff by way of Application for Mediation or Hearing, signed by the claimant on August 14, 2018, received by the Agency on August 15, 2018, alleged the following date of injury: October 19, 2016, claiming the following:

I injured my back, neck, shoulders, right hand carpal tunnel, left hand torn ligaments, right knee, left ankle after having been hit by a car as a pedestrian.

         An Application for Mediation or Hearing – Form C was filed by Accident Fund Insurance Company and was received by the Agency on October 19, 2018 stating:

Plaintiff is claiming dual employment with E3 Care and, therefore, the Second Injury Fund/Dual Employment Provisions should be made a party to this litigation, pursuant to Section 418.372.

         Another Application for Mediation or Hearing – Form C, Petition to Recoup was filed by Auto-Owners Insurance Company and was received by the Agency on December 18, 2018 stating:

Auto-Owners Insurance Company asserts that Lecia Johnson was in the course and scope of her employment at the time of the subject motor vehicle accident. Auto-Owners is not highest priority to pay benefits and seeks to recoup benefits paid to and/or on behalf of Ms. Johnson.

         STIPULATIONS:          While there were no trial stipulations, the parties did agree that the sole issue for decision is whether Plaintiff’s injury on October 19, 2016 arose out of and in the course of her employment with Kennedy Care Management, Inc.          WITNESSES TESTIFYING PERSONALLY:          Plaintiff:          Lecia Johnson, Plaintiff          Defendant:          None          EXHIBITS:          Plaintiff:          None          Auto-Owners:          A. Exhibit A attached to Auto-Owners’ amended trial brief dated September 6, 2019          B. Exhibit C attached to Auto-Owners’ amended trial brief dated September 6, 2019          Defendant:          None          DISCUSSION          LECIA JOHNSON, PLAINTIFF          Plaintiff was struck by a motor vehicle on October 19, 2016 which will be described in more detail hereinafter. At that time she was a home care CNA although not licensed. She described her duties as assisting clients in bathing and lifting them and also providing transportation for things such as medical appointments, prescription drugs, and other items of transportation. Her duties would also include cleaning and washing clothes and dishes and assisting clients in the activities of daily living. Plaintiff was employed by Kennedy Care Management and also employed by E3 Care at the same time.          On the day of the motor vehicle accident, she had worked in the morning for E3 and when her shift ended, the time of which she was unsure, she called in to E3 when she left the client’s home. She then went to the home of her next client for Kennedy Care which was located at an apartment in Madison Heights, Michigan named Concord Apartments. She received no mileage reimbursement or any pay for driving from the E3 client to the Kennedy Care client. Her son was driving her and the trip took about one hour. She made no stops in between. She testified that her job for Kennedy was essentially the same as it was for E3 as set forth above. She reiterated that she received no pay when she drove to the clients’ residence and received no pay when she drove from the client of E3 to the Kennedy Care client. She acknowledged that she had a mileage agreement with both of her employers which she understood to be reimbursement for mileage if she took the client shopping or to a medical appointment or to pick up a prescription or taking the client to physical therapy.          She exited the vehicle that her son was driving and began walking across the parking lot at Concord Apartments when she as struck by a motor vehicle. She testified that she was “not on the clock” for Kennedy Care. She testified that her pay did not start until she was inside the client’s home and called Kennedy Care to say she was there. She would also call Kennedy Care when she was leaving. The same procedure was used when she worked for clients for E3. She performed no services for E3 at the time of the accident and she...