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...