Ronnie Powell ss# xxx-xx-xxxx Plaintiff,
v.
Nexteer Automotive Corporation, Hartford Insurance Company of the Midwest Defendant,
NO. 2018-39
Michigan Workers Compensation
State of Michigan Department of Licensing And Regulatory Affairs Michigan Administrative Hearings System Workers' Compensation Board of Magistrates
December 17, 2018
The
social security number and dates of birth have been redacted
from this opinion.
TRIAL
DATE: August 14, 2018; September 28, 2018; October 2, 2018;
and October 16, 2018 (Briefs due)
Timothy S. Burns (P45661), attorney for the Plaintiff
Denice
LeVasseur (P32137), attorney for the Defendant
CORRECTED OPINION
LUKE
A. McMURRAY, MAGISTRATE (305G)
STIPULATIONS:
The
parties stipulated as follows:
1. That
the parties stipulated that both were subject to the Act -
Yes
2. That
the self-insured carrier was on the risk - Yes
3. That
the Defendant employed the Plaintiff - Yes
4. That
a personal injury arose out of and in the course of
employment -Proofs
5. The
employer had timely notice of the alleged personal injury -
Yes
6. That
a timely claim for compensation was made - Yes
7.
Average weekly wage excluding fringe benefits - Proofs
8. That
Plaintiff was engaged in dual employment - Denied
9. That
Plaintiff was paid benefits pursuant to Section 354 and
Section 358 of the Act that are subject to coordination -
Proofs
10.
That any disability is due to the alleged personal injury -
Proofs
11.
Filing status - Proofs
12.
Dependents - Proofs
13.
That the Plaintiff was paid weekly workers' compensation
benefits -Yes
a. The
Plaintiff was paid weekly workers' compensation benefits
at the rate of $583.22 from November 11, 2013 to January 5,
2014; March 5, 2014 to January 4, 2015; and June 18, 2015 to
November 2, 2015.
WITNESSES
TESTIFYING PERSONALLY:
Plaintiff:
Ronnie
Powell, Plaintiff
Tina
Cherwinski
Defendant:
None
WITNESSES
TESTIFYING BY DEPOSITION:
Plaintiff:
Dr.
Paul Cullis
Michelle
Robb
Defendant:
Dr.
Jeffrey Lawley
John N.
Stokes
EXHIBITS:
Plaintiff:
1.
Deposition transcript - Dr. Paul Cullis
2.
Deposition transcript - Michelle Robb
3.
Plant medical records from December 23, 2015 to April 1, 2016
4.
Plant medical records from November 17, 2015 to April 1, 2016
5.
Medical records - Covenant Hospital
6.
Medical records - St. Mary's Hospital
7.
Nexteer injury questionnaire
8.
Medical notes from Defendant regarding the Plaintiff from
July 8, 2013 to November 7, 2013
9.
Medical records - Neurosurgery POB
10.
Results from three MRIs
11.
Plant medical from January 7, 2014 to November 17, 2015
12.
Medical records - Dr. Abdulhak
13.
Discharge notice from Defendant
14.
Plaintiffs job log
Defendant:
A.
Deposition transcript - Dr. Jeffrey Lawley
B.
Deposition transcript - John N. Stokes
C.
Grievance form
D.
Termination papers
E.
Report of disciplinary action from Defendant
F.
Plant medical record of July 8, 2013
G.
Surveillance notes H. Investigator's report
I.
Medical records - Dr. Robert Rees
DISCUSSION
TINA
CHERWINSKI
Tina
Cherwinski was called to testify by the Plaintiff. Ms.
Cherwinski has been employed at the Defendant Nexteer for 12
years. She was initially hired as an operator and switched to
a salaried worker in 2013. She was initially a work
supervisor and is now a scheduler and materials planner.
From
November 3, 2015 to April 5, 2016 (the Plaintiffs last day of
work) Ms. Cherwinski was working as a floor supervisor, and
was the Plaintiffs floor supervisor. She testified that
Plaintiff was brought back under restrictions which were
lifting 3 to 5 pounds of weight, no bending or turning, and
sitting or standing at will.
The
Plaintiffs job that she was performing under restrictions was
a real job in her department. This was one of the jobs in
rotation (different people would rotate to different jobs)
and they took this job out of rotation and gave it to the
Plaintiff because it fit her restrictions. Plaintiff then put
in Plaintiffs Exhibit 3, which was the plant medical
restriction notes from November 3, 2015 to April 6, 2016.
Plaintiffs
job was to produce a stub shaft which was 5 to 6 inches long,
2 inches in diameter and made of steel. It weighed about 1 to
5 pounds. In doing this a chair was provided to the Plaintiff
which was a rotating factory chair with a back on it and
height adjustable. She did not really recall how often the
Plaintiff sat in the chair.
Plaintiffs
job station was a freestanding induction hardener. The doors
would open and she would put a part on a spindle. The
incoming parts were on her right, and the outgoing parts
would be placed on her left. The machine is 8 to 10 feet
high, and the doors open automatically. The part is placed
inside, and would be level to where Plaintiff would set the
machine. The machine is about 2 % feet deep, and the
Plaintiff would put one part in, hit a toggle switch and the
door would close. In doing so she would have to reach about
one foot in roughly arms length to place the part in. She
testified the Plaintiff could do this job sitting or standing
and without bending. The Plaintiff worked for her for about 6
months. The Plaintiff told her about her back problems but
never told her that the job was bothering her. Plaintiffs
Exhibit 4 was then submitted which were the plant medical
records from November, 2015 through April, 2016, revealing
Plaintiff had 45 trips to plant medical in that time.
She
further testified that the Plaintiff was aware she was
terminated because she had accumulated 18 points. She also
noted that she knew Plaintiff slipped and fell in the plant
but did not remember the exact date. On March 18, 2016, she
noted the Plaintiff went to plant medical. She is aware that
Plaintiff was using the plant medical bathrooms instead of
the regular bathrooms so she did not have to use the stairs.
She also knew that the Plaintiff had fell on March 21, 2016
in the plant when her recollection was refreshed by the plant
medical, and a Covenant Hospital record was put in as
Plaintiffs Ehxibit 5.
The
witness testified that when any employee reaches 18 points
they are discharged. She also testified that Plaintiff
contacted her toward the end of her employment and told her
that she would be late because of her back. The production
rate on Plaintiffs job was roughly 250 to 300 parts per day.
On occasion Ms. Cherwinski would have to encourage the
Plaintiff to speed up.
Ms.
Cherwinski recalled that the Plaintiff did ask for FMLA once
and Ms. Cherwinski helped her request time off per FMLA.
RONNIE
POWELL, PLAINTIFF
The
next witness to testify was the Plaintiff, Ronnie Powell.
Plaintiff testified that her average weekly wage was $982.50.
Her fringe benefits of $270 per week were terminated as of
May 1, 2016.
Plaintiff
was born on xx/xx/xx and was accordingly 50 years old at the
time of trial. She did graduate high school in 1987 with no
further formal education thereafter.
Plaintiff
then testified to the following jobs preceding her employment
at the Defendant. She worked at the IGA in Mayville from 1985
to 1987 as a bagger/stocker. She then worked at
McDonald's in California in 1987 making minimum wage. She
would unload the truck and work the register. Plaintiff then
went back to Caro and worked at the McDonald's there,
doing the same type of job as in California at the same rate
of...
