Lori Luce, SS# XXX-XX- XXX, Plaintiff,
v.
Linjul, Inc. and MLBA Mutual Insurance Company, Defendant.
No. 2009-231
Michigan Workers Compensation
State of Michigan Department of Labor And Economic Growth Workers’ Compensation Agency Board of Magistrates
December 29, 2008
The
social security number and dates of birth have been redacted
from this opinion.
TRIAL:
Trial was held on August 5, 2008, Michigan.
THE
PLAINTIFF-Michael A. Roth (P41411)
THE
DEFENDANTS- Craig R. Petersen (P37941)
OPINION
Lisa
A. Klaeren, Magistrate Judge.
CLAIM:
On
08/08/06, plaintiff, Lori Luce, filed an Application for
Mediation or Hearing-Form A alleging an injury of 05/18/06.
Plaintiff alleges she was pulling on a keg of beer and
ruptured five discs. At trial, plaintiff amended her
Application to add a date of injury of 05/11/06, with the
same allegation that she was pulling on a keg of beer and
ruptured five discs.
STIPULATIONS:
For
both dates of injury, the parties stipulated that all were
subject to the Act, MLBA Mutual Insurance Company carried the
risk, and Linjul, Inc. employed the plaintiff. The parties
left to proofs whether or not a personal injury arose out of
and in the course of employment, and whether or not Linjul,
Inc. had timely notice of the alleged injuries. It was agreed
a timely claim for compensation was made. The parties left to
proofs the average weekly wage excluding fringe benefits, the
existence of fringe benefits, the value of discontinued
fringe benefits, the date of discontinuance and the
appropriate compensation rate. The parties also left to
proofs whether or not plaintiff was paid any benefits subject
to coordination, whether the disability is due to the alleged
personal injury, and whether there are any dependents. The
parties did stipulate to an IRS tax filing status of single.
ISSUES:
1. Did
plaintiff meet with a personal injury on 05/11/06 or
05/18/06?
2. Did
a disability arise as a result of the alleged injuries?
3. Did
a wage loss occur as a result of either or both of the
alleged injury dates?
4. Was
plaintiff entitled to medical expenses and treatment?
LAY
WITNESSES:
Plaintiff:
Scott Waskom, Lori Luce
Defendant:
Linda Mullins, Chris Harris
EXPERT
WITNESSES:
Plaintiff:
Dr.
Howard S. Wharton, deposed on 11/01/07
Defendant:
Dr.
Ronald Jakubiak, deposed on 03/22/07
Dr.
Wallace Broadbent, deposed on 11/12/07
Dr.
James B. Wessinger, deposed on 03/24/08
Dr.
Manoj Mithal, deposed on 07/09/08
Dr.
Dennis Szymanski, deposed on 07/31/08
EXHIBITS:
Plaintiff:
Plaintiff’s
Exhibit #1: 05/23/06 lumbar spine MRI report. This
report concludes there exists a small to moderate sized left
foraminal disc herniation at L3-4 and L4-5. In addition, a
small left paramedian disc herniation at L5-S1 is identified.
Plaintiff’s
Exhibit #2: 07/18/06 physical therapy initial
evaluation, Three Rivers Health medical records. This
document identifies a history of ongoing low back pain and
left knee pain following an injury on 05/11/06 when plaintiff
was pulling what she thought to be an empty keg, with
immediate pain in the low back and left knee which she
handled with bed rest for about two months. At the time of
the 07/18/06 report, plaintiff was complaining of less low
back pain, but the pain in the medial left knee was still
significant. Plaintiff also complained of pain in the lateral
left hip and proximal thigh, along with numbness in the left
medial lower leg. She reported increased low back pain while
sitting and standing which also increased the knee pain. An
examination was undertaken and plaintiff was instructed in a
home exercise program.
Plaintiff’s
Exhibit #3: 05/12/06 three page emergency department
record of Three Rivers Health. On 05/12/06 plaintiff had a
chief complaint in the emergency room that she was moving a
keg last night at work and had sudden onset of left sided
back pain radiating to the left leg. The diagnosis was acute
sacroiliitis (strain).
Plaintiff’s
Exhibit #4: 05/12/06 Employee Work Status Form from
CorpFit. This report repeats the diagnosis of an acute
sacroiliitis. Plaintiff was taken off work one day and
advised to return to work on 05/13/06 in a restricted
capacity. Plaintiff was to have a follow-up appointment on
05/15/06.
Plaintiff’s
Exhibit #5: 05/12/06 Three Rivers Health patient
information sheet. This document appears to be a cover sheet
for plaintiff’s admission to the emergency room on
05/12/06.
Plaintiff’s
Exhibit #6: 05/22/06 Three Rivers Health physician
worksheet statement. This identifies a principal diagnosis of
sacroiliitis with a secondary diagnosis of tobacco use
disorder.
Plaintiff’s
Exhibit #7: 05/22/06 Emergency & Trauma Department,
Three Rivers Health medical record. Plaintiff’s chief
complaint at the 05/22/06 Emergency & Trauma Department
was lower back pain. The history provided at that time was
that the back pain was in association with a pulled muscle
which occurred one week previously. Plaintiff reported having
been seen in the emergency room regarding the pain which had
waxed and waned and was worse that day. She reported
radiating pain down the left leg. The concluding diagnosis
was lower back pain.
Plaintiff’s
Exhibit #8: 05/24/06 Emergency Department record of
Three Rivers Health. The chief complaint that plaintiff
reported to the emergency department was low back pain
radiating down the leg with shooting pain. She reported
having been seen by a chiropractor on Friday. Plaintiff
reported onset of the pain one week previously. The
concluding diagnosis is noted to be lower back pain.
Plaintiff’s
Exhibit #9: 05/22/06 Assessment from the emergency room.
This document identifies the location of plaintiff’s
pain as back and left leg.
Plaintiff’s
Exhibit #10: 05/22/06 nurse’s note from the
emergency room. The nurse’s notes confirm
plaintiff’s complaint of left sided pain shooting to
the left leg with improvement of pain following medications.
Plaintiff’s
Exhibit #11: 05/22/06 Patient Information Sheet from
Three Rivers Health. The Patient Information Sheet provides
general information regarding plaintiff’s admission of
05/22/06.
Plaintiff’s
Exhibit #12: 05/30/06 Three Rivers Health physician
worksheet statement. This reflects the 05/22/06 visit
providing a principal diagnosis of lumbago with a secondary
diagnosis of tobacco use disorder.
Plaintiff’s
Exhibit #13: Medical examination report, State of
Michigan, Department of Human Services, three pages. The
medical examination report signed by Dr. Wharton on 06/15/06
identifies a chief complaint of severe low back pain
radiating to the leg, with a diagnosis of a herniated disc in
the low back with radiculitis. Plaintiff’s condition
was noted to be improving and she had limited physical
abilities for an unknown period of time. Plaintiff was unable
to stand and/or walk less than two hours of an eight hour
work day. Medications were noted to be Narco and Elavil.
Plaintiff’s
Exhibit #14: 05/23/06 Auburn, Indiana Emergency
Department record, two pages. Plaintiff’s chief
complaint at the Auburn, Indiana Emergency Department was
back pain radiating down the left leg. She reported being
injured on 05/19/06 and having an MRI earlier in the day,
with an inability to tolerate the ride home. She was
complaining of numbness and tingling in the left leg.
Plaintiff’s diagnosis was acute sciatica and she was
discharged to follow-up with the family physician.
Plaintiff’s
Exhibit #15: 05/23/06 DeKalb Memorial Hospital Emergency
Department notes, three pages. The typewritten note of DeKalb
Memorial Hospital of 05/23/06 reflects a history of a
05/18/06 injury to her back while lifting a keg of beer.
Plaintiff’s pain radiated down her left leg distal to
the left knee, with no radiation to the toes. She had no
numbness or tingling. She reported having been seen in the
emergency room on two occasions for the same thing. Plaintiff
reported getting ready to drive home following the MRI when
the pain became intolerable. She was prescribed Prednisone
and Soma. She was advised to continue using the...
