Cristela Valencia SSN: XXX-XX-XXXX PLAINTIFF,
v.
Sherwin-Williams Company, Gallagher Bassett Services, Inc., DEFENDANTS.
No. 7341
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
December 6, 2019
The
social security number and dates of birth have been redacted
from this opinion.
DATES
OF ORAL ARGUMENT
March
18, 2019
June
24, 2019
DATES
OF TRIAL
September 5, 2019
September 30, 2019
Cristela Valencia (In Pro Per).
Ronald
A. Weglarz (P33357) for Sherwin-Williams Company.
OPINION
ON MOTIONS TO DISMISS APPLICATION FOR HEARING AND FOR HEARING
ON THE MERITS
CHRIS
D. SLATER, MAGISTRATE #245G JUDGE
CASE
SUMMARY
Procedural
History
The
procedural history in this case is complicated. In short
Cristela Valencia (the “Plaintiff”) was awarded a
closed period of benefits for work-related, right-sided
carpal tunnel syndrome in an Opinion and Order authored by
Magistrate G. Jay Quist and mailed on April 2,
2002.1 Benefits were awarded against
Sherwin-Williams and Kandu Industries. The Workers’
Compensation Appellate Commission (the “WCAC”)
later modified this decision by extending the closed period
for three weeks, and remanding the case to Magistrate Quist
to address his findings related to Plaintiff’s
left-sided carpal tunnel syndrome.2 Magistrate Quist later
issued a Supplemental Opinion to explain the reasoning behind
his decision finding Plaintiff’s left-sided carpal
tunnel syndrome non-occupational in nature in an Opinion
mailed on January 28, 2003.3 This decision was later
partially affirmed on appeal.4 The end result of this
first round of litigation resulted in Plaintiff being awarded
a closed period of benefits for right-sided carpal tunnel
syndrome (including surgery in December 2001.) Benefits were
awarded against Sherwin-Williams from November 4, 1999 (LDW)
through July 27, 2000. Kandu Industries was found responsible
for an aggravation to Plaintiff’s right-sided carpal
tunnel syndrome from July 28, 2000 through January 21, 2002.
The WCAC extended benefits for the right-sided carpal tunnel
syndrome through July 23, 2002. Plaintiff’s left-sided
carpal tunnel syndrome was never found to be a work-related
condition. The Michigan Court of Appeals denied leave by
Order dated September 3, 2003. The Michigan Supreme Court
denied leave on April 30, 2004.
Subsequent
to this initial round of litigation, Plaintiff continued to
pursue essentially the same claims Pro Per.
Magistrate Quist denied her claims against Sherwin-Williams
and Kandu Industries in an Opinion mailed on July 1,
2010.5 Plaintiff appealed and the WCAC issued
an Order mailed September 27, 2010 denying Plaintiff’s
Delayed Claim for Review.6 Plaintiff appealed again and the
Court of Appeals issued an Order mailed on January 25, 2011
Dismissing Plaintiff’s Delayed Application for Leave to
Appeal for lack of jurisdiction.7
Plaintiff
continued to file new claims which essentially reiterated
pervious allegations of injury, disability, and unjust
treatment by various persons involved directly or
tangentially with her earlier claims. Plaintiff continued to
represent herself. I denied her two most recent claims in my
Opinion and Order mailed on April 2, 2014 and in my Opinion
and Order mailed on January 14, 2016.8 The bases of the
three most recent denials was Plaintiff failed to establish a
change in her condition which would potentially create a way
around Magistrate Quist’s initial decisions which
either awarded a closed period of benefits or denied the
claimed injury altogether against Defendant and Kandu
Industries. In my Opinion and Order mailed on January 14,
2016 I also awarded Defendant costs and attorney fees in the
amount of $3,540.00.
The
Present Case
Plaintiff’s
most recent Application for Mediation or Hearing – Form
A was received by the Agency on October 5, 2018. She
identified the employer as “Diversified Brands,”
but this is the same entity as the prior named Defendant
Sherwin-Williams. While she lists her employment with this
employer as running from September 1984 to November 1999, she
lists December 3, 2001 and April 28, 2005 as dates of injury.
The description of the injury and disability is as follows:
“Bilateral carpal tunnel syndrome both hands due to
excessive heavy duty work for years. Had therapy and surgery
on both hands which was unsucessful (sic) and has caused side
effects.” A letter addressed to me was attached to the
Application for Mediation or Hearing – Form A wherein
Plaintiff explains that she had right-sided carpal tunnel
surgery in December 2001, and she had left-sided carpal
tunnel surgery in April 2004. She stated that she still
suffers from carpal tunnel syndrome “and all its side
effects,” which includes fibromyalgia. She is
requesting wage loss and medical benefits. The Agency file
indicated that Defendant continued to be self-insured for
these new dates of injury.
The
Agency file also contains an Entry of Appearance, Answer, and
Carrier’s Response filed by Mr. Weglarz on behalf of
Defendant and its TPA, Gallagher Bassett Services, Inc. These
pleadings were received by the Agency on November 16, 2018,
and they set forth general and standard answers and
affirmative defenses.
The
Agency file also contains an odd assortment of documents
prepared by Plaintiff and apparently filed with the Michigan
Court of Appeals and/or the United States District Court,
Western District of Michigan. These documents were received
by the Agency on January 30, 2018. A letter addressed to
Ellen Carmody, U.S. Magistrate dated January 24, 2018 makes
various allegations of how she was hurt at work and itemizing
various elements of damages totaling in the hundreds of
thousands of dollars. The caption for the federal court
action is: “Cristela Valencia v Worker’s
Compensation,” and an Order To Proceed In Forma
Pauperis was issued by U.S. Magistrate Judge Ellen S. Carmody
on January 12, 2018. This case is assigned to Honorable Janet
T. Neff, Case No. 1:18-cv-45. This packet contains a cover
letter from Ms. Valencia to Judge Carmody dated January 24,
2018. I do not know who sent these materials to the Agency.
A
Pre-Trial Hearing occurred on the record on January 7, 2019.
Plaintiff and her husband were present. During the course of
this hearing, Defendant indicated its intent to file a Motion
to Dismiss Plaintiff’s claim based upon her failure to
pay assessed costs and attorney fees. I explained to
Plaintiff to the best of my ability what this Motion was and
what would happen if I granted it. The next hearing date was
scheduled for March 18, 2019 with an interpreter to be
present.
Defendant
filed its Motion to Dismiss Application for Hearing (with
Exhibits), and it was received by the Agency on March 4,
2019. The Affidavits were prepared for Natalie
Hoffman9 and Anthony J.
Colangelo.10 Both of these individuals swear and
affirm that neither Gallagher Bassett Services nor
Sherwin-Williams Company has received payment of the
$3,540.00 assessed against Plaintiff for costs and attorney
fees. Neither Affidavit was signed or notarized at that time.
On
March 5, 2019 I wrote a letter to Plaintiff explaining to her
the importance of retaining counsel and filing a written
response to Defendant’s Motion. I also explained if I
granted the Motion, her claim would not proceed for another
hearing.
Plaintiff
filed a written response which was received by the Agency on
March 11, 2019. In this response Plaintiff stated that she
could not pay the assessed fees and costs because she has not
had steady income since November 5, 1999. She also summarized
and attached records relating to her medical conditions.
Oral
argument took place in the Grand Rapids Agency on March 18,
2019 with the aid of an interpreter. Plaintiff was not
represented by counsel. Mr. Weglarz represented Defendant. I
indicated that I was not prepared to rule on the Motion at
that time, noting that I was treating this Motion as a very
serious matter. The Agency file did not contain the pleadings
filed with either the Court of Appeals or the Michigan
Supreme Court, and I requested copies of these.[11] I also
verified with Plaintiff that she did retain an attorney named
Roberto Alvarez to help her with her appeal. She also
acknowledged paying him $5,500.00 for his services, although
she was again dismissive of his efforts. She also indicated
that she did not know the...
