James A. McGaughy, SSN: xxx-xx-XXXX Petitioner, 1]
v.
State of Michigan Department of Corrections, self-insured, Respondent.2]
No. 2016-78
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Workers' Compensation Board of Magistrates
November 21, 2016
The
social security number and dates of birth have been redacted
from this opinion.
Steven
J. Pollok (P27592) for Petitioner
Andrew
J. Lemke (P71272) for Respondent
OPINION
Robert
C. Timmons, Magistrate No. 250G, Judge.
HEARING
DATE(S)
A
hearing was held on October 6, 2016 in Okemos, Michigan.
Briefs were requested by the parties and they were given two
weeks to brief the case. The record was closed on October 20,
2016, and the case was submitted for decision.
STIPULATIONS
For
injury date of March 9, 2009 (Old Act). The parties are
subject to the Act and The State of Michigan carries the risk
as a self-insured. Employment is admitted, personal injury,
disability, and wage loss connected to the injury are denied.
Notice and claim are admitted. The parties stipulate to an
average weekly wage of $1206.41 cash, and fringe benefits of
$686.64, for a total average weekly wage of $1893.05. The
proper compensation rate(s) is left to proofs. There was no
dual employment and there is nothing to coordinate or credit.
Tax filing status is married, filing joint, with three
dependents. The parties reserve reasonableness, necessity and
amounts of past medical expenses and bills. In the event they
are unable to resolve these issues, they may return to the
Board of Magistrates without res judicata effect.
For
injury date of March 18, 2014 (New Act). The parties are
subject to the Act and The State of Michigan carries the risk
as a self-insured. Employment is admitted, personal injury,
disability and wage loss connected to the injury are denied.
Notice and claim are admitted. The parties stipulate to an
average weekly wage of $1059.72 cash, and $686.64 fringe
benefits for a total average weekly wage of $1746.36.
Compensation rate(s) is left to proofs. There is no dual
employment, no benefits were paid and there is nothing to
coordinate or credit. Tax filing status is married filing
joint with three dependents. The parties reserve
reasonableness, necessity and amounts of past medical
expenses and bills. In the event they are unable to resolve
these issues, they may return to the Board of Magistrates
without res judicata effect.
CASE
SUMMARY: CLAIM, ISSUES PRESENTED AND DECISION
The
claims. Mr. McGaughy filed his initial application on October
10, 2012 in which he alleged an injury date of October 2009.
A carrier's response was filed on November 15, 2012 in
which it asserted that the date of injury was March 9, 2009.
A Voluntary Payment Agreement was entered on February 12,
2014 for date of injury of March 9, 2009 and the case was
dismissed on February 12, 2014. The Voluntary Payment
Agreement resolves all issues from March 9, 2009 through
February 12, 2014. Mr. McGaughy filed another application on
April 7, 2014 in which he alleged injury dates of October
2009 and March 18, 2014. Mr. McGaughy filed an amended
application on March 23, 2016 in which he alleged injury
dates of March 9, 2009 and March 18, 2014. It appears from
the Agency file that the "October 2009" injury date
was effectively withdrawn by the subsequent amended
application and the parties have verified that fact. There is
no "October 2009" injury allegation or claim in
this case.
Mr.
McGaughy claims that he injured his right calf and right knee
while breaking up a prisoner altercation and that repetitive
activities thereafter caused and aggravated knee and leg
pathology. He seeks wage loss benefits, medical benefits and
attorney's fees.
The
dates of injury alleged in this case compel the application
of the "new and old act" and the amendments
effective for injuries occurring before and after December
19, 2011 are applicable. In this opinion Mr. McGaughy will be
referred to by name or as "Petitioner" and the
State of Michigan, Department of Corrections will be referred
to as "DOC" or "Respondent." The Workers
Disability Compensation Act will be referred to as the
"Act."
The
parties stipulate to three dependents, all children of Mr.
and Mrs. McGaughy. They are Andrew, born xx/xx/xx, Lillian,
born xx/xx/xx and Samantha, born xx/xx/xx.
Issues
presented.
√ Did Petitioner prove that he sustained a personal
injury to his right knee while in the course and scope of his
employment on March 9, 2009 or March 18, 2014 or neither or
both? Yes and No.
√ Did Petitioner prove a medical impairment and
disability which arose out of a personal injury on an alleged
date of injury? Yes.
√ Did Petitioner prove a wage loss that was caused by
his injury or disability? Yes.
√ Does Petitioner have a residual wage earning
capacity, and if so, what is that capacity? Yes.
√ Did Petitioner prove entitlement to medical expenses
and treatment? Yes.
√ Is Petitioner entitled to attorneys fees and
interest? Yes.
At the
commencement of the hearing and again at the close of proofs,
counsel were instructed to identify all issues to be tried,
and that any issue not identified would be deemed waived.
This includes issues raised by the pleadings, identified
before testimony was taken, identified during the taking of
testimony and identified at the close of proofs. Issues not
identified during one of these trial phases are deemed
waived.
3 The parties are deemed to
have waived any error arising from their affirmative conduct
or inaction such as failing to identify issues to be
decided.
4 A party may not harbor
error by creating an appellate parachute by stipulation or
waiver or failing to identify trial issues when directed to
do so, including the failure to state specific evidentiary
objections which could have been cured during the testimony
of any witness. This is a use-it-or-lose-it
system.
5A Magistrate can only
decide the case as it exists at the close of proofs.
Decision.
After a
careful review of all the evidence presented, and faithful
application of the law, I find that Petitioner proved an
injury that occurred in the course and scope of his
employment on March 9, 2009, but that he did not prove an
injury that occurred in the course and scope of his
employment on March 18, 2014. No benefits of any kind are due
or payable prior to February 12, 2014 in accordance with the
parties' Voluntary Payment Agreement.
Petitioner
proved a medical impairment to his right knee, a torn medial
meniscus, and total disability from March 19, 2014 to
September 15, 2015 at the weekly rate of $668.64
6 less credit for wages and benefits
paid during this period, if any, and on a partial disability
basis from September 15, 2015 until further order of the
agency at partial rates, the partial rate to be adjusted
according to wages earned, and no less than each year in
accordance with section 361(1) of the Act and the rate
tables. Linton v Schaffer Bakeries, 252 Mich.App.
41, 656 N.W.2d 185 (2002); Brust v Ritz-Craft
Corporation, 2012 ACO 42. Partial rate calculations must
be adjusted each year when the new rate book is published.
Petitioner
proved a causal connection between injury and actual wage
loss during the period(s) of disability; Petitioner's
residual wage earning capacity is determined by wages earned,
currently at Kroger Company. Petitioner proved entitlement to
medical expenses and treatment for his right knee medial
meniscus injury and sequelae, and Petitioner is entitled to
an attorney's fee.
WITNESSES
TESTIFYING AT TRIAL
For Petitioner: James A. McGaughy, III;
Susan McGaughy; Johnny Lee Hall, Jr.; Lorraine Emery
For Respondent: Veronica Perez
WITNESSES
TESTIFYING BY DEPOSITION
For Petitioner: John Sauchak, DO; Susan
Rowe, MA CDMS; Michael D. Austin, MD;
For Respondent: John N. Flood, DO (twice);
Ayad M. George, MD; Steven, Johnson, DO; Amy Shelton, MA CRC
LPC; John Callegari, PA.
SUMMARY
OF EVIDENCE
Testimony
at the hearing.
James
A. McGaughy III direct examination.
Mr.
McGaughy testified that he was born on xx/xx/xx. He is
married to Susan K. McGaughy and they have three children. Ms
McGaughy is not a claimed dependent in this case. Mr.
McGaughy grew up in Memphis, Tennessee. He was dyslexic in...
