Bradley R. Tanner, SS# xxx xx-xxxx, Plaintiff,
v.
United Road/Ace American Insurance Co. Defendants.
No. 7331
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
September 10, 2019
The
social security number and dates of birth have been redacted
from this opinion
William W. Watkinson, Jr. (P-53733) for plaintiff.
Mark
J. Pletkovic, (P-34668) for defendant.
OPINION
David
Grunewald, Magistrate 242G Judge.
TRIAL
DATE(S):
Trial
was held on this case August 9, 2019 in Detroit, Michigan.
STATEMENT
OF CLAIM:
In his
Application for Mediation or Hearing plaintiff claimed an
injury date in May 2017 to his left knee and lower extremity.
The injury date was amended on the trial date to April 26,
2017 without objection.
STIPULATIONS:
The
parties stipulated that they were subject to the Act, that
the insurance company carried the risk and that the defendant
employed the plaintiff on the injury date. The parties also
stipulated and agreed to timely notice and claim. The parties
stipulated to a gross average weekly wage of $1, 538.64 and
to the appropriate compensation rate as $870.00 per week. The
parties also stipulated that benefits were paid at varying
rates from June 25, 2017 to October 30, 2017.
EXHIBITS:
Plaintiff:
1.
Plaintiff's Attorney's Fee Agreement and
Authorization
2.
Records of St. Vincent Hospital
3.
Records of Concentra
4.
Records of All-Pro Physical Therapy
5.
Deposition transcript of Daniel W. Olenchak, D.O. taken
January 18, 2019
6.
Deposition transcript of James Fuller, MA, CRC taken May 31,
2019
Defendant:
A.
Deposition transcript of Terry Weingarden, D.O. taken
February 14, 2019
B.
Deposition transcript of Andrew P. Nay, Ph.D., C.D.M.S.,
C.R.C., ABVE/F taken July 29, 2019
WITNESSES:
Plaintiff:
Bradley
R. Tanner
Defendant:
None
REVIEW
OF WITNESS TESTIMONY:
The
plaintiff testified that he is married, his wife's name
is Shelly. They had a child born of that marriage xx/xx/xx by
the name of Austin. At the time of the injury they were
married filing jointly and Austin was living with them. Since
that time, they have separated.
Mr.
Tanner testified that he worked for the defendant as a car
hauler. He described his job duties as picking up one to two
loads per day usually consisting of nine cars in each load.
He would pick up the cars at various locations including rail
heads and auctions. His duties would involve driving them on
and off the truck, climbing onto the truck and strapping down
the cars making certain that they were all secured on the
trailer. His job would involve walking three to five miles
per day. As a part of his duties he would inspect the cars to
make sure there was no visible damage. He would lower the
truck's deck to the proper level and strap the cars onto
the deck. His duties included the use of a ladder to get on
the truck. He would use a wrench to ratchet the load down
onto the truck to secure the cars. He testified that it would
take him approximately two to three hours to load the truck.
He would then drive to the locations and unload the truck.
The unloading process was similar to the loading process but
in reverse order. Unloading the vehicles would also require
either climbing a ladder or walking up the truck ramp. He
testified that typically there were multiple stops to drop
off the cars in his charge.
He
would drive as close to 70 hours per week as possible.
Drivers were not allowed to drive any longer than that time
period in a week. He indicated that loading and unloading the
vehicles hours were flexible and not necessarily a part of
the overall 70 hours. He testified he was always in a hurry
to keep under the allowed drive time in order to maximize his
pay.
Plaintiff
testified that there was a brief break in his employment with
the defendant. He began his employment with the defendant in
approximately September 2013. The break in his employment was
for the purpose of having carpal tunnel surgery. He did
return to work after that surgery without incident. He
testified he was able to do anything and everything required
by the job until the time of injury. Plaintiff said he had no
prior lost time due to his knee.
Mr.
Tanner testified that he met with Mr. Fuller, a vocational
expert and provided him with a complete and accurate history
of his qualifications, training and education.
Mr.
Tanner testified that on April 26, 2017, he was injured while
he was up on his truck. He said that the injury occurred, he
believed in Ohio. The truck was in the unloading position as
he was walking up the ramp and he tripped on a hook connected
to one of the straps used to strap down the cars. His left
knee was injured when it struck the ramp of the trailer. He
testified he heard his knee rip. He called his boss Lou
Labouda to advise him of the injury. He was told to try to
finish the day and then go by cab to the hospital, which he
did. He testified that his symptoms at the time included
swelling and pain in the knee. When he was examined, he was
told there were no fractures and that he was okay to return
to work. He testified he continued to muscle through and
continued to work. He believes he later went to Concentra for
a further evaluation of his knee. He did not recall when that
occurred. He continued to work until after he had an MRI and
was taken off work for surgery by Dr. Olenchak. Plaintiff
testified that from the injury date until he took off work
his knee was swollen the entire time and very painful. After
he had surgery to his knee he went through therapy.
Mr.
Tanner testified that his current problems include swelling,
locking and much pain. He said his knee feels like it is very
fragile and it continues to worsen. He stated that he ices
the knee and keeps it elevated as much as possible. This he
does several hours each day. The more activity he engages in
the worse the pain and swelling in the knee. He testified he
tries not to use his cane but he does baby his knee as much
as possible. It feels very fragile to him and he fears that
he will blow it out. He states that in his current condition
with his left knee he would be unable to go up and down the
truck or ladder. He does not feel he could get up into or on
the truck. Mr. Tanner testified that the doctor refused to
fix his leg. Due to its continuing problems and this refusal
he is not working at this time. He testified that he is not
on any medications for his knee at this time. He stated he
does not like opioids and just deals with the pain. He stated
further that the symptoms in the knee have never resolved and
that they have gotten worse since the surgery. He said he is
unable to jog now which was an activity he engaged in prior
to his injury. Mr. Tanner testified that the injury has
destroyed his life. He does not see his son now since the
family has separated. He cannot provide for his family
anymore and stated he is practically divorced. He testified
he was staying with his brother-in-law. The address on his
license is his brother-in-law's, but he is no longer
welcomed there.
He does
not feel he could return to any of his prior work or jobs due
to the pain and inability to focus. His knee feels like it
gets stuck and he can't move it at all. He testified he
has not had any work in the past year and currently lives on
a bridge card. He currently stays with a friend or in his
vehicle.
On
cross-examination, plaintiff testified that previously he
owned a tree service for approximately 11 years. He utilized
independent contractors, approximately two at any given time,
to perform the work. He stated his job was finding the jobs...
