Sowles v. Inventory Recovery System, Inc., 102611 MIWC, 2011-38

Docket Nº:2011-38
Case Date:October 26, 2011
Court:Michigan
 
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Dawn M. Sowles, SS# XXX-XX- XXX Plaintiff,
v.
Inventory Recovery System, Inc.,/ Zurich-American Insurance Company, Defendants.
No. 2011-38
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Workers’ Compensation Board of Magistrates
October 26, 2011
         The social security number and dates of birth have been redacted from this opinion.           THE TRIAL DATE: September 28, 2011           THE PLAINTIFF Steven L. Skahn (P33502).           THE DEFENDANTS James R. Geroux (P13934).           OPINION           TIMOTHY MCAREE, MAGISTRATE (221G) JUDGE          THE CLAIM          Plaintiff’s application alleges that repetitive and strenuous work caused injury to the nerves in her elbow and that following her elbow surgery she developed RSD (now known as complex regional pain syndrome). Plaintiff claims that she cannot use her arm (right) at all. The November 2009 date represents the first onset of elbow complaints and the March 2010 date represents a time when she felt the pop develop swelling and she indicates that her arm or hand turned blue, resulting in medical treatment, leading to surgery, leading to her RSD.          THE STIPULATIONS          Prior to taking testimony, Plaintiff’s counsel confirmed that he was withdrawing the claim of an injury date of April 2011, and would proceed solely on the claimed injury dates of November 2009 and March 2010. Both of these injury dates were under the coverage of Zurich. As to these two remaining injury dates, the parties stipulated that they were both subject to the Act, that the carrier carried the risk, that the Defendant employed the Plaintiff, that the employer had timely notice and that claim was made timely. The Defendant left to proofs as to whether a personal injury arose out of and in the course of employment on either of these dates. As to both dates it was stipulated that the cash average weekly wage was $453.20. The parties agreed that there was no dual employment, that the Plaintiff was paid weekly workers’ compensation benefits in the weekly amount of $313.13 from March 29, 2010 until March 7, 2011. The parties left to proofs the question of whether or not any disability is due to the alleged personal injuries, as to what the Plaintiff’s IRS filing status is and to whether or not she can rightfully claim two dependents as indicated in her application. There were no further stipulations.          THE ISSUES          1. Whether a personal injury arose out of and in the course of employment on either of the remaining two alleged injury dates.          2. Whether the Plaintiff has established disability and wage loss due to either of the alleged personal injuries.          3. Whether the Plaintiff has established not only her IRS filing status, but dependency of the two claimed dependents, son, Steven Sitkiewicz, and granddaughter, Makayla Cryderman.          THE EXHIBITS          THE PLAINTIFF          1. Deposition of John Mogor, M.D.          2. Deposition of Daniel Mankoff, M.D.          3. Deposition of Benjamin Bruinsma, M.D.          4. Deposition of Susan J. Rowe, M.A.          5.Defendant’s letter to the Plaintiff of 6/29/11.          6. Statement of mileage claimed.          7. Earnings statement and copy of pay check for pay period ending 3/19/11.          8. Earnings statement and copy of pay check for pay period ending 4/16/11.          9. Summary of days worked.          THE DEFENDANTS          A. Deposition of Patrick Ronan, M.D.          B. Workers’ Compensation Agency filings of Forms 107 and Forms 701.          C. Deposition of Michael Joseph Fontaine, M.A.          JOINT          1.Records of Casey Bartman, M.D.          2.Records of Donald Condit, M.D.          THE WITNESSES TESTIFYING AT TRIAL THE PLAINTIFF          Dawn Sowles          The Plaintiff testified that she was married at the time of the alleged injury of March 2010, that she filed her income tax as married filing separate. She testified that at the time of her injuries, her son, Steven Sitkiewicz, lived with her. He was born on XXX, making him 17-years-old at the time of the trial. She says he has learning disabilities which seem to amount to dyslexia and later indicated that he has a heart condition as well. This prevents him from playing sports. In addition to claiming her son Steven as a dependent, she claims as a dependent her granddaughter, Makayla Cryderman, born XXX. Makayla is the daughter of the Plaintiff’s daughter, Jessica, who at one time she said was 21-years-old and later indicated was 24-years-old. She says that Makayla’s father has never paid any child support. She says her daughter Jessica has two children and one child lives with that child’s father and that the only thing Jessica receives by way of income is about $10.00 a week for food and milk through the WIC Program. She says Makayla lived with the Plaintiff at the time of the injuries and when the Plaintiff was at work, her daughter Jessica would watch Makayla.          As far as education is concerned, she did graduate from Johannesburg Lewiston High School, indicating that it was a special education program. She has no certifications and no further training other than on-the-job training.          Her vocational history includes patient care at a nursing home, cleaning houses, working briefly at a Burger King, cooking and cleaning restrooms and seven years of assembly work at Electrolux before that plant closed. At Electrolux she was earning $16.20 an hour.          After Electrolux she began working at Defendant Keystone through a temporary service for six months and then was hired directly by the Defendant, where she worked as a sander for a few weeks, then doing mudding and blocking and then pulled dents on bumpers. Pulling dents on bumpers was a repair job. These are fiberglass or plastic bumpers which are placed in a heated tank in order to first attempt to easily remove imperfections and dents. If the heat tank fails to correct the problem, then the dents have to be worked out with wooden and metal tools. Where there are broken or missing sections on a bumper, she would have to cutout a piece of scrap plastic, which would be “welded” with some sort of hot glue to the bumper. Then she would have to use a bondo-type putty called mudding. This would then be sanded in order to get rid of imperfections prior to priming and painting. One other job that she did for awhile was sorting bumpers and tagging them so that they could be sent to Ford or Chrysler or some other customer.          She says she first developed problems with her elbow in November of 2009. She went to the medical center and was off for one week, and then was returned to work where she did fine until March 2010. At that time, she was working on dents, says she felt a pop, developed swelling, and that her arm or hand turned blue. A supervisor took her to the emergency room in Greenville, from there she was sent to Carson City Hospital for further testing, she then went to see Dr. Bartman, who sent her for an EMG. Dr. Bartman performed one surgery in June of 2010. She later had a second surgery by Dr. Condit on November 30, 2010. She says that her case manager told her she had to go and treat with Dr. Condit, and she indicated she had been perfectly happy with the treatment by Dr. Bartman. Neither of these surgeries, however, helped her much. She said she liked physical therapy with Dr. Bartman because it was at a convenient location, but after the surgery by Dr. Condit, she was sent for physical therapy at a distance from where she was at, which caused her to miss appointments because she could not obtain a ride or did not have enough gas money. She also missed physical therapy dates because of a funeral, because of other sicknesses, and that is when her workers’ compensation benefits were cutoff. She says that she tried to return to work in March and April of 2011, but they had her working outside where it was cold, and this bothered her right upper extremity, so that she would have to go home early. She said she did come in to work inside on one occasion when an individual called, Bruce, who told her to come inside and count sandpaper. She claims she was never paid for that day of work, but she did not know what that date was and had no other specifics.          Since April 2011 she has had no income at all, other than $300.00 a...

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