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...
