Robert L. McMurtrie, SS# XXX-XX- XXX, Plaintiff,
v.
Eaton Corporation and Old Republic Insurance Co., Defendant.
No. 2009-212
Michigan Workers Compensation
State of Michigan Department of Energy, Labor and Economic Growth Workers’ Compensation Agency Board of Magistrates
October 28, 2009
The
social security number and dates of birth have been redacted
from this opinion.
THE
PLAINTIFF- James T. Haadsma (P-36939)
THE
DEFENDANT- J. Patrick O’Neill (P-40057)
OPINION
Lisa
A. Klaeren, Magistrate (238G) Judge.
TRIAL:
Trial
began on February 25, 2009, with continued trial dates on
March 25, 2009 and April 2, 2009 in Kalamazoo, Michigan.
CLAIM:
On
08/15/06, plaintiff Robert L. McMurtrie filed an Application
for Mediation or Hearing-Form A alleging dates of injury of
09/97, 06/28/05, 08/17/05 and 07/28/06. Plaintiff claimed
that in 09/97 he suffered a work related low back/left leg
injury when trying to pull an approximately 500 pound tub of
parts from another tub, experiencing a sharp pain in the low
back with later pain down the left leg. Plaintiff alleged
further that on 06/28/05 he again suffered a work related
lower back/left leg injury upon slipping on a wet floor,
twisting his low back, causing pain in the low back and down
his left leg.
In
addition to the specific event injury, plaintiff claimed that
continued performance as a machine operator, involving
occasional walking, frequent bending, twisting, lifting and
carrying of 20 to 25 pound parts, through 09/97, 06/28/05 and
08/17/05, along with continued performance of modified
machine operation activities through 07/28/06 caused,
contributed to or aggravated plaintiff’s low back/left
leg impairments to the point of disability from work within
his qualifications and training.
Plaintiff
alleged that performing restricted work duty between 12/05/05
and 07/28/06, and upon that work being eliminated, he is
entitled to a resumption of wage loss benefits pursuant to
Section 301(5)(e) of the Act. Plaintiff made application to
attain an Agency Order compelling Eaton to pay workers’
disability compensation benefits.
STIPULATIONS:
For all
four dates of injury, the parties stipulated that all were
subject to the Act, the carrier carried the risk and the
defendant employed the plaintiff. It was left to proofs
whether a personal injury arose out of and in the course of
employment. It was agreed that the employer had timely notice
of the alleged injuries and that a timely claim for
compensation was made.
For the
September 1997 date of injury, the average weekly wage was
stipulated to be $996.94 per week. For the 06/28/05 date of
injury, the average weekly wage was agreed to be $912.53 per
week. For the 08/17/05 date of injury, the parties agreed
that the average weekly wage was $882.39 per week, and for
the last day of work injury of 07/28/06, the average weekly
wage was stipulated to be $728.75 per week.
Dual
employment was not an issue for any of the dates of injury.
It was agreed that plaintiff was paid benefits subject to
coordination for all dates of injury. It was left to proofs
whether or not the claimed disability was due to the alleged
personal injuries. Plaintiff’s tax filing status for
all dates was married/joint and dependency was not an issue
for any of the alleged dates. For the September 1997,
06/28/05 and 08/17/05 dates of injury, it was agreed that
plaintiff was paid workers’ compensation benefits. The
payment of workers’ compensation benefits was denied
for the 7/28/06 date of injury.
ISSUES:
1. Did
plaintiff meet with a personal injury in September 1997,
06/28/05, 08/17/05 and/or 07/28/06?
2. Did
a disability arise as a result of the alleged injuries?
3. Did
a wage loss occur, and if so, what is plaintiff’s
residual wage earning capacity?
4. Was
plaintiff entitled to medical expenses and treatment?
LAY
WITNESSES:
Plaintiff:
Robert L. McMurtrie
Defendant:
Donald E. Hassan Gary Schwarz
EXPERT
WITNESSES:
Plaintiff:
Amy Shelton, MA, CRC, LLPC, deposed on 11/10/08. Jon Wardner,
M.D., deposed on 12/05/08. Mark E. Meyer, M.D., deposed on
01/20/09.
Defendant:
Shlomo S. Mandel, M.D., deposed 07/15/08. Shannon Smith, MA,
LLPC, CRC, CTRS, deposed on 02/10/09.
EXHIBITS:
Plaintiff:
None.
Defendant:
Defendant’s
Exhibit “A”: Release agreement signed by
plaintiff on 07/11/06. This agreement indicates plaintiff
accepts permanent lay-off (termination), waves seniority
rights and releases any claims against the company.
Plaintiff’s employment is to cease with the company
effective 07/30/06. As consideration for this agreement,
plaintiff is to be paid a lump sum severance payment of
$11,370.00 and benefit continuation. Plaintiff acknowledges
that the consideration is extra compensation for signing the
release. The release agreement is countersigned by Marie A.
Williams, human resources manager for Eaton Corporation.
Defendant’s
Exhibit “B”: DVD formatted surveillance of Robert
McMurtrie on 09/03/08 and 10/01/08. On 09/30/08, plaintiff is
seen carrying a garbage bag and dropping it on the ground.
Also seen is a small structure, later identified as a deer
blind.
Video
shot on 10/01/08 begins at 6:24 a.m. Plaintiff is seen
preparing to go hunting and trying to get into his camouflage
pants. Plaintiff does not appear to be bending over real
well, and it looks as though he is leaning on the truck to do
it. Plaintiff is then seen leaning and bending into the truck
and holding a vest up in his hand. Plaintiff put his
camouflage coat on and propped his foot into the truck,
possibly to tie his shoes. Thereafter plaintiff is seen
taking his bow out of the case and setting it on the ground.
He picked up the bow and moved behind the truck. He is then
seen spraying a substance on a fellow hunter, and he places
his back-pack on and reaches down with his left leg extended
to pick up his bow.
The
total time on the DVD is stated to be 8 minutes, 41 seconds.
Defendant’s
Exhibit “C”: Department of Natural Resources,
certified copies of hunting and/or fishing licenses issued to
Robert L. McMurtrie. For the years 2000 through 2008,
plaintiff has consistently purchased a fishing license in the
spring of the year, and various deer licenses in the fall of
every year. In February of 2005, plaintiff purchased a spring
turkey license, with that license not being purchased again
until 02/01/08.
SUMMARY
OF EVIDENCE
Robert
L. McMurtrie.
Mr.
McMurtrie was 62 years of age on the first day of trial,
02/25/09. When trial completed on 04/02/09, plaintiff had
turned 63. In August of 2006, when plaintiff last worked, he
was 60 years of age.
Plaintiff
quit high school in 12th grade in 1964, and joined
the Marines. He was in the Marines for four years. He did
complete night school at Lakeview and earned his diploma when
he was 32 years of age. He accomplished this while employed
at Eaton.
Plaintiff
has had no specific skills training or college classes. His
work experience, prior to going into the Marines in 1964, was
baling hay and doing the types of odd jobs that high school
kids generally do. While baling hay, he earned $0.50 per
hour.
When he
joined the Marines in 1964, he completed basic training in
San Diego at Camp Pendleton. His first year he was in Vietnam
and the second year he was in North Carolina. The last part
of his career in the Marines was spent in Cuba. He was
honorably discharged as an E4 corporal in 1968. While in the
Marines he worked as a voice radio operator; skills he has
not used since that time.
Following
his discharge from the Marines, plaintiff went to work at
Eaton, beginning 10/17/68. At the time he began employment,
plaintiff did not have any low back or left leg symptoms. His
recollection was that he had a physical prior to beginning
employment.
For
approximately his first twelve years employment at Eaton,
plaintiff worked as a machine operator. The first department
he worked in was 072 Housing Machine running a turret lathe.
Performing this job, there was a lathe on either side of him
and he would turn from side to side. Over the years, he moved
around to different jobs as he...