Westphal v. AFL Automotive, 010101MIWC, 2007-528
| Case Date | January 01, 2001 |
| Court | Michigan |
1. The parties were subject to the Michigan Compensation Laws on June, 2004 and March 30, 2005.
2. The defendant employer was insured by Indemnity Insurance Company of North America.
3. Plaintiff was in the employ of defendant on the dates of alleged injury.
4. Notice was given and claim made according to statute.
5. The average weekly wage was $949 in June of 2004 and $883 on March 30, 2005. Her workers’ compensation rate for the June 2004 injury date is $564.17 per week. The value of discontinued fringe benefits was not provided nor was the date when fringe benefits would have been discontinued.
6. There was no dual employment.
7. Plaintiff received benefits listed in §354 or §358 of the Act that which are subject to coordination. Those consisted of Unemployment benefits which she received from April 9, 2005 to October 1, 2005 in the gross amount of $362 per week with the net amount of $311.68 per week.
8. At the time of the injury plaintiff’s tax filing status was married joint with no dependents.
9. Plaintiff was not paid any workers’ compensation benefits.ISSUES:
1. Did plaintiff meet with a personal injury in June 2004 or March 30, 2005?
2. Did a disability arise as a result of the alleged injuries?
3. Whether a wage loss occurred as a result of the disability.
4. Was plaintiff entitled to medical expenses and treatment for her low back?SUMMARY OF EVIDENCE LAY WITNESSES: Plaintiff: Brenda Westphal- plaintiff testified that in the 1980s and early 1990s she had back problems that she related to a tumor treated by a physician specializing in female problems. The tumor was removed and she claims to have had no problems with her back thereafter. At times, prior to June 2004, she would get a little sore when she engaged in a lot of lifting and bending. However, the pain that she had before the tumor was removed was different than what she experienced after June 2004. During plaintiff’s last 10 years of work with the employer/defendant, she had worked as an assembly operator. She had no significant back problems between August of 1994 and June of 2004. Her job would require her to retrieve parts that they ran and keep the machines running. When the boxes were full they would be removed. They would then be put on a dolly for final audit. She claimed there was a lot of lifting and they utilized plastic connector pieces, O-rings and grommets. She estimated that the boxes weighed between 15 and 45 pounds. Once in a while they were very heavy; more than 45 pounds, but that was uncommon. She estimated that they would move more than 25 boxes in a shift. Sometimes the operator had to put boxes away to store them, and in performing that process she would stand on a ladder and then have to push the boxes. The employer did try different shelving machines to try to make it easier physically for the employees. At times she had to work as a floor operator. This was a grinding job and she would pull a shot off the press. She would check the parts to make sure they were okay. She would then utilize boxes that when full weighed 12 to 15 pounds. They were on the floor and each worker had to keep her own area clear. Workers also had to retrieve their own skids. The boxes were stacked four high and three across and they used a hand jack and had to physically push and pull the skids. She would have to do two of these a day. She was using a box lifter in June of 2004 when she was hurt. She had four boxes on the lifter and she started to move it and it hit something on the ground and jerked her to a complete stop. She felt a pop in her lower back and pulled the cart back. She took the boxes off and the pain got worse. She told Linda, a coworker, about her back. Her pain then got better. She was going to tell Dan, her supervisor, but he was not there. Dan was still not there by the time she punched out so she left work without telling him. During this same period of time she had been having some difficulty with her husband. She felt she needed to get home so she went home. She thought it was just likely some type of a muscle strain that would get better. When it did not get better she went to her doctor. She stated he was not too concerned. She was given a restriction slip so that she could be put on light work. Her family physician, Dr. Wendling, ultimately referred her to Dr. Nicholas, who wanted to perform surgery. She eventually was seen by Dr. Fabi who performed surgery shortly after he saw her. She did meet and discuss her injury with Charlotte Tomczak, a company representative. Concerning the meeting with Ms. Tomczak, plaintiff claims that she was taking Vicodin when she talked to Ms. Tomczak but did state that she told Ms. Tomczak that she had been hurt when she was utilizing the box lifter and it came to a sudden stop. She told Ms. Tomczak that most of her pain was in her leg. Plaintiff stated that she did not tell Ms. Tomczak that she did not know what happened to hurt her back. After July 8, 2004 she was helped by a coworker if she had to do much lifting. Also, at that time they had too many temporary workers on the job and she would grab one of them to help her. She states her low back problems continued until she had surgery. Her husband was not working in June of 2004; she was the family breadwinner and had to continue to work. She also had a 32-year-old son who is a paraplegic, and he did not earn anything. She files her taxes joint with her husband and lists her son as a dependent. Her surgery took her leg pain away. She was supposed to undergo physical therapy and rehabilitation but did not do so because she could not afford it. If she sits or stands more than one hour she has to move. She does not think that she could perform a job where she had to lift or climb a ladder. She thinks she would have difficulty lifting things off the floor. Her old job allowed very little time for sitting. Her highest paying job was her last job with the defendant. She went through her prior work history in some detail. She began working in 1969 when she went to work for an A & W Root Beer stand. She then worked in a restaurant, for fruit processing companies, for canneries, as a cook, in housekeeping and then eventually for the defendant, Engineered Plastic Components/Alcoa. On cross-examination, plaintiff indicated that she does laundry for her son. He has hand controls on his vehicle. She did agree that the videotape which we had reviewed is generally accurate about the duties which the assembly operator performed. She disagreed as to the speed of the duties shown or the volume of work which was required versus what was shown on the videotape. When she was first injured, she was under the impression it was something fairly simple and would go away. She indicated that she had so much going on in her life that she had difficulty keeping track of what was going on. She also thinks that she may have had some vacation time which would then also have contributed to the delay in reporting her work-related injury to the employer. She stated that she knows the lifter that she was pushing had to have hit some type of a grommets or some other item on the ground in order to bring it to a quick halt. She stated that she recalls part of the conversation with Ms. Tomczak on July 8...
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