McMurtrie v. Eaton Corp., 102809 MIWC, 2009-212

Case DateOctober 28, 2009
CourtMichigan
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...

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