MICHELE PATERNO, SSN: XXX-XX-XXXX, Plaintiff,
v.
CITY OF FLAT ROCK/SELF-INSURED, Defendant.
No. 7332
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
September 3, 2019
The
social security number and dates of birth have been redacted
from this opinion.
HEARING DATES: June 20, 2019, July 12, 2019, July 18, 2019,
July 22, 2019
For
Plaintiff: Alex Berman (P10736)
For
Defendant: Danial Hébert (P44642)
OPINION ORDER
Jane
S. Colombo, Magistrate (252G) Judge.
STATEMENT
OF CLAIM
This
matter commenced with the filing of an Application for
Mediation or Hearing - Form A October 29, 2018. Michele
Paterno (hereinafter “plaintiff”) alleged a
work-related injury on September 6, 2007 when she injured her
left hand and arm, ultimately developing regional pain
syndrome causing total disability while working for the City
of Flat Rock (hereinafter “defendant”). Attendant
care payments were wrongfully denied, according to the
application. An amended application filed October 31, 2018,
alleged the same date and nature of injury, but claimed all
benefits were wrongfully terminated, and plaintiff was now
seeking wage loss and medical benefits. Defendant filed an
answer and appearance, and raised affirmative defenses as
well.
Trial
in this matter commenced June 20, 2019, continued July 12,
and July 18, 2019, and July 22, 2019. The record was closed
and the parties were given two weeks to submit trial briefs.
The parties entered into a Voluntary Payment agreement on
August 6, 2019 resolving all mileage, attendant care and
vocational rehabilitation claims through June 20, 2019. All
other pending issues are to be addressed in this decision.
The case was submitted for decision on August 6, 2019.
STIPULATIONS
The
parties stipulated to jurisdictional issues, that the parties
were subject to the Act, defendant is self-insured, and
defendant employed plaintiff. Timely notice and claim of the
alleged injury were stipulated; defendant denied plaintiff
sustained a personal injury arising out of and in the course
of employment.
The
average weekly wage was stipulated at $704.82 per week; the
value of the discontinued fringe benefits was left to proofs.
It was stipulated fringe benefits were discontinued in 2010
and plaintiff was paid $535.47 per week from September 10,
2007 until October 9, 2018 when benefits were terminated.
Defendant denied disability related to the alleged injury and
denied a connection between wage loss and the personal
injury. The parties stipulated to a tax filing status of
single, no dependents, denied dual employment, and left
retained wage-earning capacity to proofs.
ISSUES
1.
Whether plaintiff sustained a work-related injury arising out
of and in the course of her employment with defendant on or
about September 6, 2007, and, if so, whether she is disabled
due to that work-related injury.
2.
Whether plaintiff has established a need for medical
treatment associated with the alleged work-related injury;
whether her current medical treatment is reasonable,
necessary, and related to the alleged work-related injury.
WITNESSES
TESTIFYING IN PERSON
For
Plaintiff: Michele Paterno, Derek Chambers, Hannah Rogers
For
Defendant: Shana Lynch
EXHIBITS
ADMITTED
For
Plaintiff:
1.
Deposition of Ross Nochimson, D.O., taken February 21, 2019.
2.
Deposition of James Fuller, M.A., taken May 23, 2019.
For
Defendant:
A.
Deposition of Shelley Freimark, M.D., taken April 22, 2019.
B.
Deposition of Guy Hostetler, M.A., taken June 17, 2019.
C.
Payroll worksheet regarding fringe benefits.
D.
Attendant Care Logs submitted to defendant for payment,
covering December 2016 through January 31, 2018.
E.
Attendant Care Logs submitted to defendant for payment,
covering February 1, 2018 through September 30, 2018.
F. Five
Surveillance reports prepared by Superior Investigative
Services, covering August 2018 through March 20, 2019.
G. DVD
surveillance videotaped by Superior Investigative Services
between August 2018 and March 20, 2019.
REVIEW
OF WITNESS TESTIMONY
Plaintiff
testified she graduated high school, took vocational business
classes and attended several different community colleges;
she earned a certificate as a legal secretary. She has three
children, all of whom were over 18 when wage-loss benefits
were terminated, October 9, 2018.
Hired
by defendant in 2000 as a part-time employee, plaintiff
testified she worked a second job on and off during that
time. Previous jobs were mostly clerical or waitress, as
primary or secondary jobs. On September 6, 2007, she worked
in defendant's building department. She testified she was
moving envelopes when she smashed her left middle finger in a
drawer, not thinking much of the incident at that time. She
went to the clinic across the street from defendant, x-rays
were taken, and medication was prescribed. She returned to
work the next day, but overnight, she testified, she lost all
feeling in her finger and in the morning, she had lost all
feeling in the whole hand. She described the left hand as
becoming “claw like” with no feeling. She drove
to Henry Ford Hospital and was sent by ambulance to the main
campus. Tests were ordered, and she may have stayed
overnight, she could not recall. The symptoms worsened to
include the left forearm, wrist and fingers, and a burning
sensation in the forearm and wrist. She continued to treat at
Henry Ford Hospital and Dr. Sczecienski at two different
locations over several months. She also saw Dr. David Kim, at
Henry Ford, and underwent numerous tests.
Plaintiff
described developing contracting spasms in the hand and feet
not long after the injury. She also suffers from anemia, and
had a trial run of use of a spinal cord stimulator. She
described feeling weird burning sensations in the left upper
and lower extremity. Initially, plaintiff testified, the
stimulator would take the edge off her symptoms. She still
has the nerve stimulator in her system, but no longer uses
it. She experienced a broken lead that had to be relocated
several times, and added that changing batteries or tweaking
the stimulator requires surgical intervention.
When
she tried to return to work, she was assigned to the
receptionist job rather than her regular job. She described
working off and on until one day when she had an incident at
work producing pain and panic. Every day was different, she
testified, with the episodes lasting five minutes, or all
day, and she also went into a panic mode following a surge of
pain into the affected area.
Examined
on two occasions by Dr. Freimark, July 14, 2017 and May 16,
2018, plaintiff described the last IME as located some
distance from her house. She recalled the doctor asking her
questions for about 15 minutes, followed by a short
examination but she could not recall if her arm was better or
worse on that day. She initially denied telling Dr. Freimark
that she could not drive at all, then testified that at some
time, she may have been unable to drive.
Plaintiff
also reported problems sleeping, particularly on her bad
days. On good days, she testified she tries to do whatever
she can, when she is not experiencing as many spasms or
contractions, and she sleeps better when she has fewer
symptoms. She can use her left upper extremity on “good
days.” She cuts her own grass, using a sitting mower,
and she tries to do normal things every day. On good days,
she goes grocery shopping or does simple tasks such as
picking up a glass of water. On a bad day, it is difficult
for her to use either the left or right hand, and even
lifting a gallon of milk produces pain and spasms lasting
five minutes or longer, 15-20 times per day. A good day could
mean symptoms just in one arm, or the pain could move and
impact both arms. The spasms were very debilitating,
interfered with her job answering the phone, and taking
messages. She may feel edgy, and cannot anticipate when she
will have symptoms such as spasms. She cannot work with the
public because when she has symptoms she tends to act or
speak out. Despite this reaction, she did, over a period of
two weeks, try to work a half day each day.
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