Peppers v. Metaldyne/Self-Insurers' Security Fund, 120911 MIWC, 2012-191

Case DateDecember 09, 2011
CourtMichigan
VALENTINE PEPPERS, SS# XXX XX XXX, Plaintiff,
v.
METALDYNE/ SELF-INSURERS' SECURITY FUND, Defendant.
No. 2012-191
Michigan Workers Compensation
State of Michigan Department of Licensing And Regulatory Affairs Michigan Administrative Hearings System Workers' Compensation Board of Magistrates
December 9, 2011
         The social security number and dates of birth have been redacted from this opinion.           PLAINTIFF Lorenzo D'Agostini (P) 42782           DEFENDANT Gad Holland (P) 26655           OPINION           JOY TURNER, MAGISTRATE JUDGE          TRIAL DATE          The case was tried on August 18, 2011, September 12, 2011, and September 29, 2011. A closing date to submit briefs was held on 11/1/11. We did not go on the record on 11/1/11.          CLAIM          Plaintiff, by Application for Mediation or Hearing-Form A, filed on 4/7/08 alleged a 3/8/00 date of injury as follows: See copy of notice of dispute. In addition, pursuant to the Act there was no written offer of favored work. Defendant failed to comply by the statue. A second Application for Mediation or Hearing- Form A filed on 5/12/10 alleged injury dates of 7/1/96 and 3/8/00 as follows: Claimant while in the course of his employment on 7/1/96 suffered an injury to his left eye as a result of metal shaving flying into his eye that were covered with corrosive chemicals causing permanent damage and disability to his eye. Further, on 3/8/00, Mr. Peppers while in the course of his employment suffered a significant injury to his lumbosacral back with bilateral radiation, right shoulder, right hand, and left hip injuries when he fell through some metal grating during the course of his employment. Plaintiff filed two additional applications for Mediation or Hearing- Form A. On 3/8/11 an application was filed against Metaldyne Corporation adding a claim for specific loss benefits as well as disability benefits for an injury to the eye on 7/1/96 and 3/8/00. An initial application for Mediation or Hearing form-A dated 1/21/11 against Masoc Technologies was filed alleging the specific loss benefits of the eye for injury dates of 7/1/96 and 8/8/00. It was determined by the agency that any claim for Masoc Technologies was in fact a claim against Metaldyne Corp.          An Application for Mediation of Hearing Form C was filed on 7/15/10 by Gary Schmalzried on behalf of Blue Cross for reimbursement of medical expenses in the amount of $2,555.48.          STIPULATIONS          Defendant Self-Insurers' Security Fund indicated the Fund would not stipulate to any facts regarding this case.          WITNESSES TESTIFYING AT TRIAL          PLAINTIFF Valentine Peppers          DEFENDANT None          WITNESSES TESTIFYING BY DEPOSITION          PLAINTIFF Peter Samet, M.D. Matthew Citron, D.O. Steven P. Dunn, M.D. James Fuller, CRC          DEFENDANT Nathan Gross, M.D. Jonathan Trobe, M.D. JoAnne White, M.S.          EXHIBITS          PLAINTIFF          1. Deposition Dr Samet taken 12/16/02          2. Deposition Dr Samet taken 1/12/09          3. Deposition Dr Samet taken 10/12/10          4. Deposition Dr Dunn          5. Deposition Dr Citron          6. Deposition James Fuller          7. Medical Records Sinai Grace          8. Medical Records Concentra          9. Medical Records Dr. Dhingra          10.Medical Records Oakwood Hospital          11.Medical Records Dr Plagens          12.Medical Records Dr Barker          13.Medical Records Straith Hospital          14.Medical Records Dr Zukerman          DEFENDANT          A. Deposition Nathan Gross          B. Deposition Jonathan Trobe          C. Report William Higginbotham, M.D.          D. Report Jeffrey Meddeldorf, D.C., D.O.          E. Report Maury Ellenberg, M.D.          F. Ergonomic Job Analysis          G. Deposition JoAnne White, M.S.          Case Summary          Plaintiff has alleged two injury dates: 7/1/96 and 3/8/00. This case essentially involves six issues: (1) Whether plaintiff sustained a work related injury to his eye on 7/1/96; (2) specific loss of the eye; (3) Whether plaintiff sustained a work related injury to his back, hip, hand and right shoulder on 3/8/00; (4) disability (5) Does plaintiff have a residual wage earning capacity and (6) Is there a connection between the work injury and wage loss during the period of disability.          Based on the evidence presented and the applicable law I find that: (1) Plaintiff established a work related injury to his eye on 7/1/96 ; (2) Plaintiff sustained a specific loss of his eye; (3)) plaintiff sustained a work related injury to his back on 3/8/00; (4) Plaintiff established a disability from 3/8/00 to the present ;(5) Plaintiff has no residual wage earning capacity and (6) Plaintiff has established there is a connection between the work injury and wage loss.          Summary of the Evidence          Plaintiff Valentine Peppers was 64 years old at the time of trial. He and his wife filed a joint tax return. Plaintiff testified his wife worked at the time of his injuries and he did not claim any dependents. Plaintiff dropped out of school in the 9th grade. Plaintiff testified he has dyslexia and cannot read well and never obtained a GED. He eventually went into the military at age 18 and spent one year in Korea. He then went to Vietnam and later spent 2 ½ years in the reserves. He was discharged from the army in 1969. Upon discharge from the army plaintiff worked a variety of heavy labor jobs performing lifting of steel and stock work at a Sears Warehouse. He earned approximately $2.25 per hour. In 1971 two years after his discharge from the army he began working for Braun Engineering which eventually became Masco Tech and Metaldyne Corporation.          Plaintiff testified when he first began his employment he was working in yard control running and overhead crane and driving a hi-lo. The job required lots of climbing and the use of a typewriter for metal tags. The driving of the hi-lo required lots of bending and contorting to see and maneuver. Plaintiff was also required to climb steps into the back of the semi truck. Plaintiff did the job for 26 years and then in 1997 went to work on the furnaces. Plaintiff testified that on 7/1/96 while working he got a piece for steel in his eye. He told the supervisor and was sent to the clinic. They could not get all the steel out and plaintiff was sent to an optomologist. Plaintiff did not miss any time from work as he was scheduled for vacation. He wore a patch over his eye and could not drive during the vacation due to swelling. Over the years plaintiff had various laser surgeries to his eye all done by Dr Dunn. Plaintiff testified his medical bills at that time were paid by his employer. The injury did not affect plaintiff's ability to perform his job in yard control. Plaintiff then transferred to the furnace operator job as it paid better money.          Plaintiff testified as a furnace operator he would stack steel containers three high on the furnaces 18 cans at a time. The job involved climbing hooking up chains on the canisters with a crane. The job was very heavy and he would use a 6000 lb hi-lo to move the cans. Plaintiff testified that in 2000 he was earning $21 an hour and grossing $1900 a week. Back in 96 he earned $17.00 an hour and worked 12 hrs a day 7 days a week. Plaintiff testified the furnace operator job required him to climb a 12 ft ladder to hook up the steel containers          On 3/8/00 plaintiff had just finished reading all the instruments on the furnace. He went to get a cup of coffee and as plaintiff stepped on a steel grating the grating broke and he fell into a 10 ft pit. Plaintiff was knocked out when he hit the cement. He testified he could not move. A coworker tried to pull him out and plaintiff complained about his back. EMS was called and plaintiff was put on a backboard and removed from the building and taken to Sinai Grace Hospital. Plaintiff was first put on short term disability and then on workers disability compensation. Plaintiff began treating with Dr Joe Weiss. Plaintiff testified the first three months after his injury he was in pain. He had sharp pain in his low back and buttocks and a toothache pain in the cheek of his buttocks. The pain radiated down his leg and he had numbness in his toes...

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