Gloria Rocha SSN: XXX-XX- XXX PLAINTIFF,
v.
Sackett Ranch, Inc./ Farm Bureau Mutual Insurance Company of Michigan, DEFENDANT.
No. 2010-72
Michigan Workers Compensation
State Of Michigan Department Of Labor, Energy & Economic Growth Workers’ Compensation Agency Board Of Magistrates
July 20, 2010
The
social security number and dates of birth have been redacted
from this opinion.
Michael W. Podein (P30492) for plaintiff.
Thomas
H. Cypher (P12425) for defendant.
OPINION
G. JAY
QUIST, MAGISTRATE JUDGE #192G
CASE
SUMMARY
On
February 27, 2009, plaintiff filed an Application for
Mediation or Hearing – Form A. Plaintiff alleged that
she suffered a left upper extremity amputation arising out of
her employment on May 16, 2007. Plaintiff alleged that
defendant was voluntarily paying specific loss benefits, but
there are three ongoing disputes or issues in this case: (1)
What type of prosthesis is reasonable and necessary to treat
the plaintiff’s work-related injury; (2) whether the
plaintiff needs psychological treatment arising out of the
injury; and (3) whether plaintiff is entitled to an attorney
fee, based on Section 315(1).
The
case proceeded to trial in Grand Rapids on May 11, May 26,
June 8, and July 20, 2010. Based on the evidence presented
and the applicable law, I find that: (1) Plaintiff is
entitled to an i-LIMB prosthetic because it is reasonable and
necessary to treat the plaintiff’s work-related injury;
(2) plaintiff needs psychological treatment, consistent with
the opinions of Ms. Kremer; and (3) plaintiff is entitled to
an attorney fee, based on Section 315(1), for the treatment
and outstanding bill incurred at Dr. Kremer’s office,
but is not entitled to an attorney fee based on the cost of
the i-LIMB prosthetic.
STIPULATIONS
May
16, 2007 Injury Date
The
parties stipulated that:
1. They
were subject to the Act.
2.
Defendant Sackett Ranch, Inc., was insured by Farm Bureau
Insurance Company.
3.
Defendant employed the plaintiff.
4. A
personal injury arose out of and in the course of employment.
5.
Defendant received timely notice of plaintiff’s
personal injury.
6.
Plaintiff made a timely claim for compensation benefits.
LAY
WITNESSES
John
Carpenter Gloria Rocha
EXPERT
WITNESSES
Robert
Wagner, BOCP, for plaintiff. Ann Kremer, LSW, ACSW, for
plaintiff. Carl Brenner, for defendant. R. Scott Stehouwer,
Ph.D., for defendant.
EXHIBITS
Plaintiff
1.
i-LIMB Hand Training Protocol for Therapists.
2.
i-LIMB Evaluation Program.
3.
Deposition of Robert Wagner, BOCP.
4.
Deposition of Ann Kremer, LSW, ACSW.
5. Bill
from Wright & Fillippis, Inc.
6.
Photos of plaintiff’s arm immediately following the
injury.
7.
Photos of the machine involved in plaintiff’s injury.
8. Bill
of Edwin F. Kremer, Ph.D., PC.
9.
Notice of Dispute.
10.)
Fax from Farm Bureau Insurance dated January 12, 2009.
11.)
Letter to Attorney Cypher from Attorney Podein dated August
5, 2009.
12.)
Same as Exhibit 5, with the exception of the writing on the
last page of the exhibit.
13.)
Deposition of Robert Tuck.
14.)
Correspondence from Robert Tuck dated June 8, 2010, with
attachments.
15.)
Pre-Payment document signed by the plaintiff on May 28, 2010.
Defendant
A.
Deposition of Carl Brenner.
B.
Deposition of R. Scott Stehouwer, Ph.D.
C.
Letter to Attorney Cypher from Carl D. Brenner.
D.
Facsimile to Attorney Podein from Attorney Cypher’s
office.
SUMMARY
OF EVIDENCE
Plaintiff
Gloria Rocha testified on the second day of trial, May 26,
2010. Although she was not the first lay witness to testify,
this opinion will follow a more logical flow if her testimony
is summarized first.
Plaintiff
testified that she was born on XXX, making her 45-years-old
at the time of trial. She is five-feet, eight-inches tall and
weighs 220 pounds. She is single. She has a tenth-grade
education, but obtained a graduate equivalency degree in
1982. From age 18 through May 2007, the plaintiff performed
factory work and also worked at Sackett Ranch, the defendant
in this matter. Sackett Ranch is a potato grower.
Plaintiff’s job there involved sorting potatoes. The
job required two hands and arms.
The
case arises out of an injury which occurred on May 16, 2007.
The plaintiff was working on a machine called a potato seed
cutter. The machine slices potatoes. At the end of her
workday, plaintiff was cleaning the machine when the hand and
fingers of her left arm got caught in the machine and pulled
her into it. Plaintiff tried to get her hand out of the
machine, but could not reach the stop button. She screamed
for help, but no one heard her initially. Eventually, one of
her co-workers found her. Emergency personnel were called.
The machine was eventually stopped. Plaintiff was in shock.
She was caught in the machine for 20 to 30 minutes before she
was freed by the fire department. During this event, the
plaintiff prayed that she wouldn’t die.
Immediately
after the incident, the plaintiff was taken to the hospital
where attempts were made to save her arm. Unfortunately, they
were not successful, and the plaintiff’s left arm was
amputated just below the elbow.
After
the incident, the plaintiff’s treating physician, Dr.
Julien Kuz, referred the plaintiff to Dr. Kremer for
counseling. Plaintiff began treating with Ann Kremer, who has
a Master’s Degree in social work, in the summer of
2007. The plaintiff believed that she needed psychological
care during this period of time. She has benefited from the
counseling. It helps her understand her feelings and helps
her to cope with her injury. Ms. Kremer has encouraged the
plaintiff to overcome her injury. Plaintiff has suffered from
depression and has had thoughts of suicide. She has
difficulty sleeping and dreams about the accident. Plaintiff
has diminished energy as a result of the incident, and it has
affected her self-worth. She feels ugly and cannot look in
the mirror sometimes. The injury has affected her ability to
find a man. Sometimes she dreams about the accident or about
being caught in a machine. Plaintiff went back to Sackett
Ranch on one occasion after the injury, but felt faint and
started sweating.
Ultimately,
defendant stopped paying for the plaintiff’s care with
Ann Kremer. The plaintiff was devastated. Fortunately, Ms.
Kremer has continued to treat the plaintiff. She has received
psychological benefits from the treatment. Ms. Kremer has
encouraged the plaintiff to overcome her injury and get back
to work. Ms. Kremer gives her tips and helps her cope with
her injury. Plaintiff feels comfortable with Ms. Kremer.
Plaintiff believes that she still needs psychological care
and will continue to benefit from it. The plaintiff wants to
return to work someday, and Ms. Kremer encourages her to do
so.
After
the injury, the plaintiff was initially fitted with a
prosthetic at Mary Free Bed Hospital in August or September
2007. The first prosthetic was a body-powered shoulder
harness, which allowed her to pinch with her prosthetic hand.
This type of prosthetic is known as a three-jaw chuck,
because it allows pinching with the thumb and the first two
fingers of the hand. Plaintiff used this prosthetic for two
to three months, but it is hard to grasp and hold things with
it. She stopped using it because it caused her physical pain
and was frustrating to use. In addition, the plaintiff
received a second prosthetic known as a passive arm. It does
not have much functional ability. It is primarily for
cosmetics. It looks real and prevents people from staring at
her.
To
date, the plaintiff does not have a myoelectric arm. A
myoelectric arm uses the nerves which remain in the arm,
combined with electricity, to create a functional hand. The
plaintiff learned about it on the Today Show. She has
received a prescription for a myoelectric i-LIMB from her
treating physician, Dr. Kuz. Plaintiff also...
