Tuttle v. Sams Wholesale Club Store, 120106 MIWC, 2007-549

• Case Date: December 01, 2006
• Court: Michigan

NICOLE K TUTTLE SS # xxx Plaintiff, v. SAMS WHOLESALE CLUB STORE #8291, AND AMERICAN HOME ASSURANCE COMPANY, Defendants. No. 2007-549 Michigan Workers Compensation State of Michigan Department of Labor & Economic Growth Workers’ Compensation Agency Board of Magistrates December 2006          The social security number and dates of birth have been redacted from this opinion.           THE TRIAL Trial was held on November 14 2006 in Flint, Genesee County Michigan.           THE PLAINTIFF John C Chowning, P 38093, for Plaintiff.           THE DEFENDANTS Brian Boyle, P 32810, for Defendants.           OPINION           MICHAEL T. HARRIS, MAGISTRATE, 199, JUDGE          THE CLAIM          Plaintiff claims injury resulting from a specific event occurrence on 1/2/05, while lifting boxes of pickles, and an injury from a last day worked of 2/1/05 have caused her to be unable to work since that time. She asks for an award of medical and disability benefits from 2/02/05 until further order. Defendant denies that plaintiff is disabled and contends that she needs no restrictions that would keep her from doing her regular employment.          STIPULATIONS:

1. The parties are subject to the Michigan compensation laws on the dates of injury alleged, 1/2/05 and 2/1/05 (LDW).

2. The defendant was insured by American Home Assurance Company.

3. Plaintiff was in the employ of defendant on the date of injury alleged.

4. The gross wage is $289.88 for the 1/2/05 alleged injury and $224.67 for the 2/1/05 alleged injury.

5. There is no dual employment.

6. The tax status is single, no dependents.

         ISSUES:

1. Whether plaintiff met with personal injury arising out of and in the course of her employment on or about either or both of the dates alleged.

2. Whether notice was given and claim made within the statutory prescribed period, and whether prejudice resulted from lack of any timely notice.

3. Whether a disability resulted from the alleged injury or injuries.

4. Whether a wage loss has been incurred, and if so, the term and amount of compensation to be paid as a result.

5. Plaintiff’s entitlement to medical expenses and treatment.

6. Whether any benefits were paid or furnished for which coordination or offset would be appropriate under Section 354 or 358.

         SUMMARY OF THE EVIDENCE          NICOLE TUTTLE, plaintiff, testified on her own behalf. She said she was basically hired by the defendant to stock shelves and do cleanup work. She began working a 9 p.m. to 5 a.m. shift. Her job required her to be able to lift up to 100 pounds. She had no physical problems when she was hired.          On the date of injury she was working with large jars of pickles in the vegetables area of the store. These jars weighed an estimated 15 to 20 pounds each and came 4 to a box. She was stacking them on the shelf. She asked for help from co-workers because these were heavy. She talked to her team leader about taking these out of the boxes and handling them individually and the team leader told her to stock them in the boxes as they came. She went to pick up one of the boxes and felt something snap in her right hand.          She kept working because the job had to be done, though her pace slowed down.          Plaintiff finished her shift and went home. When she woke up from her sleep the pain had traveled up into her elbow. She was having pain into her shoulder and clear up into her neck as she tried to lift. She reported this to Jeremy and later on she let Beth know. These are her supervisors. She told Jeremy first, on the same day she had her injury, and Jeremy told her to go home and to let him know if it was still hurting—and they would fill out a report.          Plaintiff’s exhibit 5 is a basic report of injury. She filled it out and gave it to the employer.          Plaintiff kept trying to work and couldn’t go very fast due to the pain. She went off work on 1/14/05. That was when Beth told her to take a couple of days off and let her know if it got better. On 1/17/05 she told Beth it wasn’t better and they took her to McLaren Occupational to get checked out. They gave her a 10 pound weight restriction, some anti-inflammatories and returned her to work. Sam’s Club put her to work folding clothes.          Next they switched her to a door greeter position. She continued to treat at the occupational clinic. The doctor gave her a wrist splint and put her on a five pound lift restriction.          On January 26 the clinic changed her to a 20 pound restriction so she could go back to work, which she did 2/5/05. Sam’s put her back to work stocking and she couldn’t do it due to the pain. She told her team leader, who referred her to a manager, who told her she could either work or go home. She went home and went to see Dr. Gomez. He treated her shoulder, gave her anti-inflammatories, and took her off work. Sam’s Club was paying her medical at this point but not any weekly compensation benefits.          On 2/28/05 she received a letter telling her to return to work. She picked up a medical leave form, turned it into Mandy at personnel, and Mandy told her everything was taken care of.          Plaintiff kept treating with Dr. Gomez, who referred her to specialists to get an EMG and MRI, and eventually referred her to Dr. Martin. She went to physical therapy, lifted weights, worked with bands, and did exercises. Dr. Rao was next to treat her. She gave plaintiff cortisone injections into the right shoulder blade.          Sam’s Club stopped paying her medical bills and told her they didn’t think her problem was work-related.          She cannot lift anything today. She doesn’t think she could do any of her regular jobs since they required lifting.          Plaintiff took some EMT training. She completed the training in 3/05 but was unable to take the performance test because it required lifting. Currently, she could do some EMT functions if she had taken the test, because she would have a partner. But, she doesn’t think she could lift...