Walton v. Nexteer Automotive Corp., 083019 MIWC, 7329

Case DateAugust 30, 2019
CourtMichigan
Donald Walton SS# XXX-XX-XXXX Plaintiff,
v.
Nexteer Automotive Corporation, Hartford Insurance Company of the Midwest Defendant,
No. 7329
Michigan Workers Compensation
State of Michigan Department of Licensing and Regulatory Affairs Michigan Administrative Hearings System Board of Magistrates
August 30, 2019
         The social security number and dates of birth have been redacted from this opinion.           Michael Doud (P55491), attorney for the Plaintiff.           Denice LeVasseur (P32137), attorney for the Defendant.           OPINION           E. LOUIS OGNISANTI, MAGISTRATE (246G) JUDGE.          STATEMENT OF CLAIM:          The Plaintiff by way of Application for Mediation or Hearing, signed by the claimant on December 8, 2016, received by the Agency on December 12, 2016, alleged the following dates of injury: June 30, 2014 and August 28, 2015, claiming the following:
“Plaintiff sustained a serious injury to his cervical spine in the course of his employment. Plaintiff was working on restrictions for less than 100 weeks when he went off of work due to work aggravated bilateral knee problems1. Plaintiff attempted to return to work but was fired after giving notice of attempt to return to work.”
         STIPULATIONS:          The parties stipulated that both were subject to the Act at the time of the alleged injury; the carrier was on the risk; that the Plaintiff was employed by the Defendant at the time of the alleged personal injury; that notice and claim were timely made. Plaintiff was left to his proofs that a personal injury arose out of and in the course of employment; that Plaintiff is disabled as a result of the personal injury; and to any dependents. It was also stipulated that Plaintiff's average weekly wage was $1, 891.62; the value of discontinued fringes is $279.62; fringes discontinued on November 30, 2016; that Plaintiff files his taxes married, joint; that the workers' compensation rate is $805 per week. Plaintiff received short term disability payments in the amount of $600 from July 17, 2015 to August 14, 2015 and from September 18, 2015 to December 25, 2015. Plaintiff also received long term disability payments in the amount of $499.62 per week from December 26, 2015 to March 15, 2016.          WITNESSES TESTIFYING PERSONALLY:          Plaintiff:          Donald Walton, Plaintiff          Defendant:          None          WITNESSES TESTIFYING BY DEPOSITION:          Plaintiff:          Marvin Bleiberg, MD          Defendant:          Terry Weingarden, DO          John Stokes, MA, CRC, CDMS          EXHIBITS:          Plaintiff:          1. Defendant's plant medical records          2. Deposition transcript - Dr. Bleiberg          3. Medical records - Comprehensive Pain Specialist          4. Wage records          5. Letter to Plaintiff regarding seniority termination          6. Job log          Defendant:          A. Deposition transcript - Dr. Weingarden          B. Deposition transcript - Mr. John Stokes          C. Metropolitan Life Insurance records          D. Plaintiff's resume          E. Medical records - Au Gres Family Clinic          F. Medical records - St. Joseph Health System          G. Medical records - Comprehensive Pain Specialists - September 18, 2012          H. Medical records - Dr. Frank Schinco          I. Release signed by Plaintiff regarding settlement          J. Records of CUNA Mutual Group          K. Medical records - Dr. Mark Davis          L. Additional Defendant plant medical records          M. Records of the Au Gres - Sims School District          DISCUSSION          DONALD WALTON, PLAINTIFF          Plaintiff was born on xx/xx/xx and graduated high school in 1975. He served in he army infantry between 1975/1976 to 1981. He suffered no injuries to his cervical area while in the service. He worked with his father in a tool and machine business which involved building specialty tools and machines. He also ran machines, lathes and grinders. He worked there from 1981 to 1983. He did not earn any wages claiming that the money was put back into the business and/or his father was somewhat of a spendthrift. He testified he suffered no neck injuries while he was working in that job.          Between 1983 and 1987 Plaintiff worked as a machine repairman for Expanded Plastics. He was a machine builder and a maintenance person. He did lifting up to 50 to 60 pounds on a daily basis, perhaps 20 to 30 times per day. He earned $16 per hour working 40 to 50 hours per week.          When the company moved to Ohio, Plaintiff then began employment with J Tech Services in 1987 as a machine builder. Plaintiff worked for this company for 20 years until 2007. He earned between $18 and $25 per hour. His job involved travelling all over the country installing automotive machinery. The job was quite physical working with big machines weighing 800 to 900 pounds. Pinch bars were used to move these machines. He used tools such as wrenches, grinders and saws. The work also involved getting into awkward positions. He suffered no neck injures while employed there.          He next worked for Magna Powertrain located in Syracuse, New York. This was a place where he had worked while employed by J Tech. The Magna Company offered him a job. He moved to New York and worked there between 2007 and 2010. He was a machine repairman as well as maintaining equipment. The job did involve lifting and assembling and disassembling parts and machines weighing hundreds of pounds on a daily basis. He earned $25 per hour working 40 to 60 hours per week. He testified that the company was going out of business and therefore he returned to Michigan.          His last employment prior to working for Defendant was for Dow Kokam which was a battery plant. He was one of the first employees who was hired, basically overseeing the building of the plant. He travelled to Korea to inspect parts that were going to be used in the business in Michigan. When the parts were sent to Michigan, he was involved in the installation and monitoring of the machinery. Some repair work was involved. Not much lifting was involved however he did use tools. He did work in some awkward positions but considered the work “moderate.” He earned $54, 000 per year. He suffered no neck injuries when he worked for Dow Kokam.          He began working for Defendant Nexteer on November 12, 2012 as a machine repairman. He was in charge of two large presses which he described as some 30 to 40 feet tall. He also worked on other smaller presses. Work sometimes involved being in the basement where he worked on his knees and in other awkward positions. He did use hand tools, grinders and hammers. He worked on grinders and lathes. Lifting could be up to 100 pounds once or twice a week. The job was very physical and involved a good deal of climbing. Plaintiff was always assigned to plant 4 describing the specific location as “hi-bay.”          Plaintiff operated a cart which was a vehicle with two seats with a trailer behind it into which he placed parts and tools. He experienced over the course of time some neck pain and had some treatment.          On June 30, 2014, Plaintiff was driving his cart leaving a press area when a fork truck hit him head-on. Plaintiff was thrown forward and his face hit the fork truck mast. His cart was thrown back 30 feet. Initially he did not have too much pain. He reported the incident to his supervisor and was taken to plant medical. The security people drove him to the hospital where x-rays were taken, and he was given aspirin. He then returned to the plant.          The next day, he again went to the plant medical department and was treated by plant medical director, Dr. Herrick, with ice therapy. Restrictions were imposed. One of the restrictions was no lifting over 20 pounds. Because of the restrictions, Plaintiff could not do his regular job. For approximately three weeks, Plaintiff simply sat at a desk and did not do anything. He was then moved to another part of the plant working at what he called benchwork as well as preventative maintenance. Both of these jobs involved light work which he described as easy. Plaintiff testified that he did not have too much neck pain prior to the vehicle accident but afterward, he...

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