MxeTcalf v. Newberry Lumber Co., 221210 MIWC, 2011-229

Docket Nº2011-229
Case DateDecember 10, 2022
No. 2011-229
Michigan Workers Compensation
State of Michigan Department of Energy, Labor & Economic Growth Workers’ Compensation Agency Board of Magistrates
December 22, 2010
         The social security number and dates of birth have been redacted from this opinion.           August 23, 2010 in Sault Ste. Marie           November 1, 2010 in Sault Ste. Marie           For Plaintiff: Gary A. Kozma – P34625           For Defendant: Douglas M. Feldman – P49338           OPINION ORDER           THOMAS G. MOHER, MAGISTRATE JUDGE          WITNESSES TESTIFYING IN PERSON:          For Plaintiff: Debra J. Metcalf Linda Metcalf          For Defendant: Elizabeth Zorza Charles Popovich Steven Peterson          WITNESSES TESTIFYING BY DEPOSITION:          For Plaintiff:          David H. Janda, M.D. taken on June 10, 2010 (Plaintiff’s Exhibit 1) Mansour A. Miky, M.D. taken on September 27, 2010 (Plaintiff’s Exhibit 1A)          For Defendant:          Michael E. Holda, M.D. taken on July 27, 2010 (Defendant’s Exhibit A)          EXHIBITS OTHER THAN DEPOSITIONS:          For Plaintiff:          Plaintiff’s Exhibit 2 – Plaintiff’s Work Schedule for the week of May 3-7, 2010 and the week of May 10-15, 2010.          For Defendant:          Defendant’s Exhibit C – Besse Forest Products Group Temporary Modified Work Schedule          Defendant’s Exhibit B – Work Schedule for Debra Metcalf Defendant’s          Exhibit D – Attorney Feldman’s Letter to Attorney Kozma dated November 23, 2009          Defendant’s Exhibit E – Job Offer          Defendant’s Exhibit F – Shack Attendant Job Description          Defendant’s Exhibit 2A - Attorney Feldman’s Letter to Attorney Kozma dated October 18, 2010 Outlining Proposed Job with Restrictions          Defendant’s Exhibit 2B – Surveillance Video          Defendant’s Exhibit 2C – Surveillance Video          Defendant’s Exhibit 2D – Surveillance Video          Defendant’s Exhibit 2E – Surveillance Video          STATEMENT OF CLAIM:          On June 13, 2008, Plaintiff filed an Application for Mediation or Hearing – Form A. Plaintiff alleged that she suffered injuries during the course of her employment on or about March 28, 2007. Plaintiff alleges that the injuries suffered during the course of her employment were sustained while moving a 12 foot kant. The Plaintiff injured her right shoulder and has worked intermittently since that date.          Plaintiff filed an amended Application for Mediation or Hearing – Form A on December 1, 2009 alleging that it was filed for wage loss correction, nursing care and alleging a specific loss claim.          Plaintiff is requesting an award for wage loss benefits, medical treatment to her right shoulder and the sequelae thereof, nursing care and specific loss benefits.          The case proceeded to trial on August 23, 2010 at Sault Ste. Marie, Michigan and a continuation of the trial was held on November 1, 2010 in Sault Ste. Marie, Michigan.          At the commencement of trial, Plaintiff’s counsel stated that the wrong date of injury of March 28, 2007 was indicated on the Applications for Mediation or Hearing – Form A. The parties agreed that the correct date of injury was April 2, 2007.          STIPULATIONS:          The stipulations taken by the Court as to the alleged date of injury of April 2, 2007 were as follows:          It was stipulated that the parties were subject to the Act; that the Defendant was self-insured; that the Defendant employed the Plaintiff; that a personal injury arose out of and in the course of employment; that the employer had notice of the alleged personal injury within the statutory period; and that the claim was made within the statutory prescribed period.          It was further stipulated that workers’ compensation benefits were paid from April 2, 2007 through November 29, 2009; that the average gross weekly wage excluding fringe benefits was $338.73; that the value of discontinued fringe benefits was $58.11; and that the date fringe benefits were discontinued was May 1, 2007.          It was further stipulated that there was no dual employment and that the employee has not received any social security, self-insured plan, wage continuation plan, disability insurance policy or pension or retirement payments or any other benefits under Section 354 or 358 for coordination or offset.          It was further stipulated that there were short periods of re-employment.          It was further stipulated that the Plaintiff is disabled; that the disability is due to the alleged personal injury; and that the IRS filing status is single.          ISSUES          1. Whether the employee is refusing an offer to return to reasonable employment?          2. Whether the employee has suffered the specific loss of use of her right arm?          SUMMARY OF PLAINTIFF’S LAY TESTIMONY          Debra J. Metcalf          Plaintiff, Deborah J. Metcalf, testified that she resides in Newberry, Michigan and at the present time she is not employed. She testified that she resided at her address alone and that she has a son who lived in Marquette at the time of the hearing.          Plaintiff testified that she received a significant injury to her right shoulder while moving a 12-foot kant log at the Defendant employer. The Defendant has stipulated that Plaintiff is disabled. Plaintiff testified that she is restricted to a permanent avoidance of use of her right arm. She testified with regard to a job offer by Defendant which consisted of counting logs.          Plaintiff testified that on December 5, 2009 pursuant to an offer of employment by the Defendant for the position of log yard/scale shack attendant that she worked 16 hours on December 5, 2009. On that date, she was not able to carry a tablet in her right hand and she suggested a counter. She testified that her arm was painful and she was put off work by Dr. Miky, her physician. She testified that the employment in the log yard/scale shack attendant position was outside work and that the cold irritated her arm.          She further testified that from December 21, 2009 until April 1, 2010 she did not work due to doctors orders. This information is contained in Defendant’s Exhibit B.          She was released to return to work on April 10, 2010 and she could count the logs with the use of a hand clicker. She further testified that she is right-handed and that she had to write with her left hand.          She went on to point out that the job duties that she was cleared for by Dr. Miky were changed by the Defendant. She testified that she worked with a stack of paper counting logs and that the stack of paper was 10 or 12 inches thick. She testified that she had severe pain that night and that Dr. Miky again put her off work on May 28, 2010. She last worked during the week ending May 8, 2010 and the records would indicate that she worked 14½ hours.          The Defendant’s paid workers’ compensation from April 2, 2007 through November 29, 2009. The Defendant’s Exhibit B indicates that Plaintiff worked for some periods of time between December 5, 2009 and the week ending May 8, 2010 and that she has not worked since that time.          The original job offer is contained in Defendant’s Exhibit F. There is a further offer to Plaintiff through her counsel which is contained in Defendant’s Exhibit E. There is also an offer contained in a letter to her counsel dated November 23, 2009. Defendant’s Exhibit C contains a modified work schedule.          Plaintiff testified that she suffers from a brachial plexus injury and that her treating physician is a Dr. Miky, who is located in Marquette, Michigan. She further testified that she takes Norco, a pain reliever four times a day and Neurontin, which is for nerve pain. She testified that the pain she has is severe and that driving her automobile irritated it. With regard to the pain, she further testified that she is in pain all the time and that at times it is throbbing and intense. She further testified that her pain is affected by...

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