Ruth Umlor SS# xxx Plaintiff,
v.
Amicare Home Health Services West/Trinity Health Michigan Self-Insured, Defendants.
No. 2007-548
Michigan Workers Compensation
State of Michigan Department of Labor and Econmic Growth Workers’ Compensation Board of Magistrates
July 24, 2007
The
social security number and dates of birth have been redacted
from this opinion.
THE
TRIAL DATE: June 6, 2007 and July 23, 2007
THE
PLAINTIFF Michael P. Szczytko (P35179)
THE
DEFENDANTS Walter F. Noeske (25942)
OPINION
TIMOTHY MCAREE, MAGISTRATE (221G), JUDGE
THE
CLAIM
By
application dated June 6, 2006, plaintiff alleges that on
July 3, 1996 she tripped and fell in the course of employment
and developed reflex sympathetic dystrophy, chronic right
lateral epicondylitis.
THE
BACKGROUND
A
previous application had been filed on September 26, 2003,
but had resulted in a withdraw pursuant to a voluntary
payment agreement on May 11, 2004. Benefits were continued
until a dispute arose effective May 22, 2006, terminating
weekly benefits.
THE
STIPULATIONS
The
parties stipulate that they were subject to the Act, that the
employer carried the risk and employed the defendant on the
date of injury. Defendant also stipulates that workers’
compensation benefits were paid through May 22, 2006, in the
amount of $493.16 per week, and that the plaintiff’s
IRS filing status is single, and that she has no dependents.
The parties agree that there was no dual employment, nor any
benefits paid that would be subject to coordination. The
defendant leaves plaintiff to prove that a personal injury
arose out of and in the course of employment, that employer
had timely notice and that claim was made timely and further,
that any disability is due to the alleged personal injury.
THE
EXHIBITS
THE
PLAINTIFF
1. The
deposition transcript of Stephen C. Bloom, D.O., taken on
December 15, 2007, which includes as a deposition exhibit the
prior deposition of Dr. Bloom that was taken on March 24,
2004.
2. An
e-mail from JoAnn Krista to plaintiff dated December 19,
2006. JoAnn advises that defendant’s client “has
asked that we stop all calling on their project for
now”, that the client “will revisit the new
structuring of their business sometime in January” and
that plaintiff should “feel free to utilize the PTO
time …available”.
THE
DEFENDANTS
A. The
deposition transcript of Stanley Sczecienski, D.O., taken on
January 4, 2007.
B.
Records of Dr. Toriello.
First,
there is a three-page, 12/2/03 IME report in which she
reports that “a few” of the “at least one
dozen nerve blocks” were ‘helpful” for a
“very short duration”. The physical examination
revealed no swelling or skin discoloration, no shininess, no
unusual hair pattern, no edema, unrestricted range of motion,
no atrophy or weakness, and grip strength 50 pounds on the
right compared to 60 pounds on the left. He saw no clinical
evidence of RSD “or other variations of a chronic pain
syndrome”.
Secondly
there is an addendum report of 12/10/03 in which Dr. Toriello
reviewed a 12/5/03 bone scan and reported “no findings
suggestive of “RSD, discomfort that “appeared to
be quite minimal”, that did not require “any
specific treatment” and he “questioned the
relationship between the lateral elbow pain and her reported
initial injury”.
C. The
original deposition of Dr. Sczecienski taken on April 29,
2004.
D. A
letter of termination from defendant to plaintiff dated
August 13, 2003.
This
letter informs plaintiff that she reached her maximum
allowance for medical leave and continues: “since you
have not notified us of your ability to return to
work…no alternative than to process your
separation”. It continues: “ if/when you are able
to return to work, feel free to contact me about job
opportunities we may have at that time. I would look forward
to having you rejoin our team”.
E.
E-mails between JoAnn Krista and the plaintiff on January 2,
2007.
Plaintiff
writes to “JoAnn & Tracy” at 8:44 AM and asks
how much vacation time she has coming so she can fax time
sheets to the office. JoAnn responds at 8:46 AM that she will
email the total “PTO time available just as soon
as” she can.
THE
WITNESSES TESTIFYING AT TRIAL
THE
PLAINTIFF
Ruth
Umlor
The
plaintiff grew up working on the family farm. She graduated
from West Catholic High School in 1973. Upon graduation she
worked as a nurse assistant at the Beacon Nursing Home in
Marne, Michigan, until 1975, when she quit to attend Junior
College full-time. She completed an Associate Degree in
Nursing at Grand Rapids Junior College in 1977.
Her
first job upon graduation was with Metropolitan Hospital,
then known as Osteopathic Hospital. She was hired as a team
leader and within a month became a charge nurse, earning
about $8.00 at the start. She described working in the
recovery room and developing a program for teaching patients
about what to expect before, during and after surgery. She
continued in this position until 1980 when her first child
was born.
Her
husband was working 50-60 hours a week, so she cut back to
working for various staff relief agencies where she could
work eight hour shifts when she was needed and when she was
available. She continued working for the temporary agencies
until her third pregnancy sometime in 1983, at which point
she became a full-time mother until her youngest child
entered first grade in 1989. She then resumed work for staff
relief agencies until 1990 when she became a full-time
employee of the Cascade Care Center, which was a residential
facility. She worked there as a charge nurse until May of
1993 when she left due to differences of opinion relative to
ethical priorities and obtained her employment with the
defendant.
At
Amicare she worked as a case coordinator. She would assess
patient needs, she would do lab work, she would notify
doctors about patient’s needs. She would arrange for
various types of therapy to cover patient’s physical,
emotional and social needs. These were homebound patients,
although some lived in assisted care facilities.
She
began in Grand Rapids and then transferred to Muskegon where
she assumed more duties. She would drive at least 100 miles
per day. She would have to assist the transfer of patients
from bed to chair et cetera. She did wound care, dealt with
contractions and did lab work, which she later explained
meant drawing blood or taking specimens to the hospitals for
evaluation.
She
reported no problems whatsoever with her upper extremities
until July 3, 1996, when she was walking into a mobile home
belonging to a patient. She was carrying equipment, her shoe
lace caught on something in the screen door causing her to
fall face first.
She
went to Occupational Health, but did not lose time initially.
She went on vacation for two weeks, but on the last day of
vacation she was doing some vacuuming, experienced an
increase in symptoms and went to the emergency room. She was
off several weeks before she could be seen by Dr. Hoeksema.
She said that the emergency room had recommended that she see
a doctor, but she had been released to return to work without
restrictions, but that her arm went purple, and she went to
work and showed her employer what had happened to her upper
extremity. She said that is when she was sent to see Dr.
Bloom, with whom she treated in 1996 and 1997. She was paid
workers’ compensation benefits. Dr. Bloom referred her
to Dr. Fitzgerald, a pain specialist.
She
eventually returned to work with restrictions and continued
working with restrictions from sometime in 1996 until 2003.
She had restrictions as to the number of hours she could work
per day, the number of days she could work per week. She
would not work more than three consecutive days. She also had
limitations in terms of the number of admissions, discharges
or other duties that required paperwork because the extra
writing would cause flare-ups. She would only assist patients
who were able to ambulate.
In 2003
she had a flare-up and was off work. She said Dr. Fitzgerald
changed her medications, which prevented her from being able
to drive. She missed too many days and was terminated...
