Vogel v. Aldi, Inc., 092019 MIWC, 123

Case DateSeptember 20, 2019
CourtMichigan
DIANA VOGEL, PLAINTIFF SSN: xxx-xx-xxxx
v.
ALDI, INC. / TRAVELERS INDEMNITY COMPANY DEFENDANT
No. 123
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
September 20, 2019
         The social security number and dates of birth have been redacted from this opinion.           Plaintiff Robert S. Strager (P30896)           Defendant David W. Nowinski (P24527)           OPINION           PHILIP S. DELLA SANTINA, MAGISTRATE (259G), JUDGE.          PROCEDURAL HISTORY          The matter commenced with an Application for Mediation or Hearing, Form-A filed by plaintiff, Diana Vogel against Aldi, Inc. via Attorney Robert Strager dated by the Agency 6/26/17. It alleges on or about April 20, 2016 as follows:
“unloading pallet - neck, shoulders, arms”
         An appearance, answer and carrier’s response from Attorney David Nowinski was issued on behalf of Aldi, Inc. and its insurance carrier Travelers Indemnity Company of Connecticut were filed and received at the Agency on July 26, 2017. The pleadings present the standard answers and affirmative defenses.          Trial was held on July 16, 2019. Trial Briefs were received from the parties on August 1, 2019 without reopening the record. The record was closed on that date.          LAY - WITNESSES TESTIFYING AT TRIAL          Plaintiff          Diana Vogel          Defendant          None          WITNESSES TESTIFYING BY DEPOSITION          Plaintiff          Dr. Mark Bergin          Elizabeth Pasikowski, MRC, CRC          Defendant          Dr. Jeffrey E. Lawley          EXHIBITS:          Plaintiff          1. Deposition Transcript of Dr. Mark Bergin, taken on March 6, 2019          2. Deposition Transcript of Elizabeth Pasikowski taken on June 11, 2019          Defendant          A. Deposition Transcript of Dr. Jeffrey Lawley taken on April 3, 2019          B. CIGNA Short Term Disability Claims Form dated April, 2016          C. Aldi Leave of Absence Request Form dated April 26, 2016          D. St. Clair Orthopedics New Patient Form dated May 18, 2016          E. Records from Advanced Orthopedics          F. Records from St. Clair Orthopedics          STIPULATIONS:          1. Both parties are subject to the Act.          2. The Insurance Carrier carried the Risk.          3. The Defendant employed the plaintiff on the Date of Injury.          4. That a timely Claim for Compensation was made.          5. The plaintiff’s average weekly wage (excluding fringe benefits) for the Date of Injury was $552.80.          6. There were Fringe Benefits.          7. The value of discontinued Fringe Benefits was $186.87.          8. Fringe Benefits were discontinued on 6/23/17.          9. The appropriate compensation rate from 6/21/16 to 6/23/17 was $365.15.          10. The appropriate compensation rate thereafter is $431.54.          11. Plaintiff was not paid weekly workers’ compensation benefits.          Issues:          1. Did plaintiff suffer a personal injury on April 20, 2016?          2. Did Defendant receive proper notice of plaintiff’s injuries?          3. Did a disability arise as a result of the alleged injuries?          4. Did a wage loss occur?          5. Is plaintiff entitled to medical treatment and care benefits?          SUMMARY OF EVIDENCE          LAY TESTIMONY - Plaintiff          Diana Vogel (Plaintiff)          Plaintiff is a forty-eight-year-old, divorced female. She was married at the time of her injury but filed a separate tax return.          Plaintiff attended school until she was in eleventh grade. She left school when she moved to Tennessee to care for her ill father. She eventually returned to Michigan and obtained training and employment at Faith Medical in St. Clair, Michigan. She received training and eventually took an oral and written test and became a Certified Nursing Assistant. She was employed with Faith Medical for a few years and left, had a child and got divorced.          She eventually returned to the work force and worked in various markets and grocery stores. She also did some private duty nursing in private homes. She continued in this line of work for about five years.          Eventually she obtained employment at Aldi as a cashier in 2003. In 2006 she was promoted to Shift Manager. At some point, she remarried and moved to Lansing. She eventually left Aldi for reasons pertaining to her District Manager being terminated by Aldi.          She then found employment with UPS unloading trucks at the Airport. Later she moved to North Carolina with her husband who had obtained employment there. Once in North Carolina she became re-employed by Aldi as a Shift Supervisor.          In 2014, plaintiff and her husband became separated and she returned to Michigan at that time. She remained employed by Aldi as a Floater for a while and was ultimately assigned to the Fort Gratiot Aldi Store as a Shift Supervisor.          Her job duties as a Cashier and a Shift Supervisor were primarily the same. Additionally, a large part of her job required stocking all types of merchandise. This included sugar, 24-bottle-cases of water, pop, gardening supplies and special buy products which she indicated all of which were heavy. Some things like gazebos weighed up to 125 pounds and patio furniture at times weighed up to 150 lbs. She was also required to move standard grocery items as well as frozen foods, meat and produce.          The product moving and stocking was mostly done between 5:00 a.m. and 9:00 a.m. which is when the store opened around 9:00 a.m.          Some of the popular items such as sugar, water and pop as well as meat and produce sometimes had to be stocked periodically during the workday. Sometimes she would be required to help customers take their purchases to their cars.          These products were moved onto jacks some of which were electronic and some were manually powered. Plaintiff did ten to thirteen pallets per day. There were seven cases to a layer on the pallets. She had to work at shoulder level or above fifty to seventy percent of the time.          The pallet loaded carts weighed several hundred pounds. She mostly used manual-mechanical pallets that required her to use her entire body to pull.          There was a rule that when they got to the last layer of pallets on a jack, that they were required to take it to the back room and place it on the top layer of the next load. Sometimes when stocking shelves, she had to step up onto the jack to place merchandise on the high shelves.          The pallets when empty had to be stacked in the back room, fifteen in a stack to be taken away. Many were stacked above shoulder level. The pallets weighed fifty to sixty pounds and were three to four feet wide.          When merchandise trucks arrived, she was required to check to make sure the delivery was correct. A truck arrived everyday at the Fort Gratiot store, except for on Sundays. These were usually twenty-four to twenty-six pallets per delivery.          Plaintiff was required to clean the floor using a floor scrubber. Cardboard boxes had to be broken down and placed in a bailer where they were wired together. Sometimes they would stick in the bailer and had to be yanked out. This was difficult to do.          There was at least one bale made each day. They were placed two to three bales at a time on a manual jack and taken to the back room.          Other jobs described were stocking wine and meat. Both of these jobs required lifting merchandise which weighed at least twenty pounds.          On April 20, 2016 plaintiff was in Aisle #1 by the milk door. She grabbed a case of pickles with her left hand on the bottom. She lifted it above shoulder level and felt a pop, followed by pain in her left arm from the elbow to the shoulder. There was enough pain that it produced tears in her eyes.          She immediately went and advised her supervisor Elizabeth...

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