DEBRA J. METCALF, f/k/a DEBRA J. BLAKELY, SSN: XXX-XX- XXX, Plaintiff
v.
NEWBERRY LUMBER COMPANY and FIRST LIBERTY INSURANCE CORP., Defendants,
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...