THOMAS WELKE SS # xxx Plaintiff,
v.
GENERAL MOTORS CORP, SELF-INSURED, Defendant.
No. 2007-531
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.
Trial
was held on September 28 2006 in Flint, Genesee County
Michigan. The trial was continued to 11/8/06 for receipt of
wage information considering the alleged 2001 injury, and to
receive an additional deposition transcript into evidence. On
11/8/06, the record is closed having received stipulations
pertaining to the wages, and having received the deposition
of Dr. Weir taken on 11/1/06.
THE
PLAINTIFF Michael P Doud, P 55491, for Plaintiff.
THE
DEFENDANT George Wyatt, P 25492, for Defendant.
OPINION
MICHAEL T. HARRIS, MAGISTRATE, 199, JUDGE
THE
CLAIM
STIPULATIONS:
1. The parties are subject to the Michigan compensation laws
on the dates of injury alleged, 2/18/04.
2. The defendant was self-insured.
3. Plaintiff was in the employ of defendant on the date of
injury alleged.
4. No prejudice is claimed for lack of any timely, formal
notice.
5. Claim was made according to statute.
6. Plaintiff’s wage was $984.81 and that wage produces
a compensation rate of $582.42.
7. There is no dual employment.
8. The tax status is married, filing joint, with no
dependents.
ISSUES:
1. Whether plaintiff met with personal injury arising out of
and in the course of his employment on or about the date
alleged, 2/18/04.
2. Whether a disability resulted from the alleged injury.
3. Whether a wage loss has been incurred, and if so, the term
and amount of compensation to be paid as a result.
4. Plaintiff’s entitlement to medical expenses and
treatment.
5. Whether any benefits were paid or furnished for which
coordination or offset would be appropriate under Section 354
or 358.
SUMMARY
OF THE EVIDENCE
THOMAS
WELKE, a 61 year old man, said he has claimed his
wife as a dependent on his taxes for all the time they have
been married. She works as a secretary at Saginaw State
University and does get paid for it.
[1]He graduated high school,
attended MSU one year, and then went to work for GM in 1964.
His pre-employment physical was uneventful. His first job was
as a machinist, cutting the pinions for rack and pinion
steering. It required standing on cement floors all day. They
later went to wood platforms.
Plaintiff
went into the military in August 1965 until May 1967. He
served in Vietnam as a helicopter mechanic and went back to
GM in June. He ran the same machines until June 1978.
In 1978
plaintiff was offered an opportunity to go into skilled
trades as a machine repairman. The program was a 6 year
program and he worked with a journeyman until he was able to
do it himself. He also took math and hydraulics and blueprint
reading courses. He also took a physics course and an
industrial safety course for this job.
The
types of machines he was repairing were metal lathes, and
they varied greatly in size and type.
The
repair job involved lots of standing, working on ladders,
some crawling, some squatting and working in awkward
positions and lifting. He had to lift gears, bearings, and
shafts. He had a toolbox that had wheels and he could push it
from machine to machine. He was pushing this on concrete
floors. The job activity was heavy for the most part.
The
first time plaintiff developed a problem with his knees was
in 1979. He was drilling out something and had to get up on
the machine and it clamped down on his foot. It jerked him
off his feet and he experienced pain in his right foot and
knee.. He received treatment at the plant for these problems
and did not miss work.
As
plaintiff continued to work his knees would swell by the end
of the day. He did not complain very often. He got his
journeyman card in 1984 and was sent to a different area,
repairing grinding machines. This area had cement floors and
wood platforms. Usually, when a machine repair call was made,
it involved an oil spill, and plaintiff occasionally slipped
in this oil while doing his job. The activities were
essentially the same as his lathe repair was.
Plaintiff
had lots of overtime, and in fact sometimes worked 12 hours a
day, 7 days a week. These long hours seemed to make his knees
hurt more.
Eventually,
plaintiff sought treatment for his knees outside and inside
the plant. The inside people told him to see his family
doctor and gave him some elastic bands that didn’t
really help. Dr. Whiting was his family doctor and his
records are in evidence. They show the right knee giving out
in 1999, and plaintiff said this happened at work, while
pushing his toolbox or walking to the job. Dr. Whiting took
him off work and told him to use a knee brace and crutches.
There was left knee pain as well as right but the left was
not so bad.
Plaintiff
was referred to Dr. Weir by his family doctor. He gave Dr.
Weir a history of slipping and falling at work. He underwent
a surgery and the knee was a bit better, but still not good.
He returned eventually to work without restrictions. He may
have worked for a while with restrictions first. His job
duties remained the same. Gradually, the knees got a little
worse and a little worse.
In
early 2001, he was getting out of his car in the parking lot,
slipped down, and injured his knees.. After that, he got
worse. He followed up with Dr. Weir and got gradually worse.
He requested a handicap pass in 2002 and got it. In fact, he
probably had one before that, maybe two or three years
earlier.
In
addition to his knees problems he had foot problems too. One
of his feet went out to the right, he said.
As his
knees worsened, he had a surgery in February 2003 by Dr.
Weir. That was the left knee. In April 2003 he returned to
work without restrictions. Had he been assigned restrictions,
there would maybe have been a problem in his coming back to
work.
His
knees kept getting worse and were swollen at the end of the
day. In February 2004 he had a knee replacement by Dr. Weir
and was not allowed to come back to work because of his
restrictions. He also had his left knee replaced in January
2005.
Currently,
plaintiff receives social security disability and his
disability pension with GM.
Plaintiff
says he filled out sickness and accident forms in 2003 and
2004 and on question 9, he answered no that his claim was not
caused by employment. He says he checked no because he
didn’t really understand how this worked, plus he
believed people who told him he couldn’t draw comp
because there was no accident.
Plaintiff
said his evaluation by Dr. Gonte lasted about 5 minutes. He
was not asked for a job description, a history of the injury,
or even whether any of the problems were caused by work
activity.
Plaintiff
tries to stay active in his retirement. He tries to golf once
a week and often uses a cart. He does yard work, and rides a
riding lawn mower. He insulated and dry-walled his garage.
Activities
that cause the knees to worsen include lawn mowing, because
sitting makes his knees sore. Prolonged walking and standing
make his knees worse.
Plaintiff
loved his GM job and didn’t want to leave it. As he
sits here today, he doesn’t think he could do his job
with his restrictions. He was never offered a job by GM
within his restrictions but thinks he could work within them.
Plaintiff
acknowledges receiving S & A and EDB benefits and his
disability retirement.
CROSS:
plaintiff admits there is a separate question on the GM forms
that...