GLEN WIREMAN, JR., SS# XXX-XX- XXX, PLAINTIFF,
v.
SPARTAN ASPHALT, DEFENDANT.
No. 2010-17
Michigan Workers Compensation
State Of Michigan Department Of Energy, Labor & Economic Growth Workers’ Compensation Agency Board Of Magistrates
September 8, 2010
The
social security number and dates of birth have been redacted
from this opinion.
Joel
Alpert (P#27352) for Plaintiff.
Richard Symons (P#43135) for Defendant.
OPINION
CHRISTOPHER P. AMBROSE JUDGE
STATEMENT
OF CLAIM:
Plaintiff
field an Application for Hearing that was received by the
Agency on February 19, 2008. Plaintiff alleged an injury date
of September 17, 1990. He further alleges back injury, right
leg, and head injury, psychiatric and emotional injuries. A
claim was presented for a prescription and medical expenses.
As well, Plaintiff requested attendant care as well as
attorney fees on attendant care and medical benefits. An
amended Application was received by the Agency on March 18,
2008 adding subsequent employers MJR Mechanical and Transit
Mix.
On July
1, 2008, the Agency received a Petition to Recoup filed by
Defendant asking for a credit due to overpayment. Defendant
claims that Plaintiff had been paid during the off season in
the past, and that seasonal employees are entitled to
benefits during the off season.
Finally,
a Form-C Application was received by the Agency on May 12,
2010. This was filed by Defendant to recoup a third party
settlement that Plaintiff had allegedly received as a result
of a settlement arising out of a work related automobile
accident. The employer was requesting credit for all
overpayments in excess of that owed to Plaintiff.
STIPULATIONS:
The
parties stipulated at the time of trial that the employer and
employee were subject to Act on the date of injury alleged
and the Defendant as a self-insured carried the risk. It was
admitted that Plaintiff was in the employ of Defendant at the
time of the alleged personal injury and it was also admitted
that a personal injury arose out of and in the course of
employment. Notice and claim were admitted. A gross average
weekly wage was stipulated to be $767.90 with discontinued
fringe benefits of $154.90 per week. There is no dual
employment. It was admitted that Plaintiff's disability
is due to the alleged personal injury. Plaintiff's filing
status is married filing joint with two dependents, one being
his wife, and the other being Makenzie Wireman date of birth
XXX.
WITNESSES
TESTIFYING PERSONALLY:
Plaintiff:
Gregory
Galbreath
Scott
Mangles
Glen
Wireman, Sr., Plaintiff's father
Glen
Wireman, Jr., Plaintiff
Larry
Arnett, Plaintiff's brother-in-law
Glenna
Arnett, Plaintiff's sister
Makenzie
Wireman, Plaintiff's daughter
Danielle
Lynn Wireman, Plaintiff's wife
Defendant:
Deborah
Farrell
Marlene
VanPatten
EXHIBITS:
Plaintiff:
1. The
deposition of Brett VanTol, Ph.D., taken October 22, 2008.
2. The
deposition of Marcy Schlinger, D.O., taken July 28, 2008.
3. The
deposition of Barbara Feldman, M.A., taken October 7, 2008.
4. The
deposition of Sanford Szirtes.
5. The
deposition of Charles Siergerman, Ph.D., taken June 9, 2009.
6. AAA
benefits verification document.
7.
Subpoenaed records from Dr. Reese.
8.
Medical records from Dr. Ristow.
9.
Medical records from Edward Cook, Ph.D.
10.
Records from Roy Meland, D.O.
11.
Neuropsychological evaluation report.
12.
Records from Oragami Brain Injury Rehabilitation Center.
13.
Records from Paul DeVito, M.D., orthopedic surgeon.
14.
Sparrow Hospital records.
15.
Report from Marcy Schlinger, D.O., dated March 13, 2008.
Defendant:
A. The
deposition of Dr. Greiffenstein taken February 3, 2009.
B. Form
105 (Work History, Work Qualifications & Training
questionnaire).
C.
Records from State of Michigan-Department of Natural
Resources.
DISCUSSION
The
trial in this matter was held on December 2, 2009, May 6,
2010 and May 24, 2010 and the parties were given until June
7, 2010 to submit briefs and supporting case law which both
sides did.
The
testimony of the witnesses will be summarized in the order
that they appeared in Court. Deborah Farrell was a witness
called by Defendant. She is employed by Michigan Paving &
Material and has been an employee there for five years. She
is the human resources director. She testified that she did
not bring personnel records and did not know what
Plaintiff's job was. She has no involvement in
Plaintiff's case other than records based on a subpoena.
She did not know if Plaintiff returned to work after his
injury.
Gregory
Galbreath was called by Plaintiff as a witness. Mr. Galbreath
lives in Charlotte, Michigan and has known Plaintiff for a
number of years. Mr. Galbreath worked with Plaintiff at
Spartan Asphalt for two or three years. Mr. Galbreath was
with Plaintiff when he was injured approximately 20 years
ago. Plaintiff was a laborer working for an asphalt paving
company (Defendant). Mr. Galbreath saw the impact as
Plaintiff was struck by a vehicle. Mr. Galbreath has
continued to be friends with Plaintiff since that time.
Mr.
Galbreath testified that road work is a seasonal job. Each
winter they would cut firewood. They always split the money
50/50. Mr. Galbreath has not done that with Plaintiff since
the injury. Mr. Galbreath testified that since the accident,
Plaintiff’s communication skills are not what they used
to be. As the years have gone by, Plaintiff has not gotten
any better. Mr. Galbreath testified that the woodcutting
business would go from November through April.
Scott
Mangles testified for Plaintiff. He has known Plaintiff since
they were ten years old in elementary school. Mr. Mangles is
still friends with Plaintiff. He has observed changes in
Plaintiff since the injury. For example, Plaintiff is not
able to remember things that the two of them have done in the
past.
Mr.
Mangles has always hunted and fished with Plaintiff. He still
hunts with Plaintiff. Mr. Mangles has to help with getting
ammunition and equipment. According to Mr. Mangles, it is
necessary to use two way radios to hunt so that Plaintiff
does not get lost. Plaintiff stays in the same spots so that
he does not wander. However, Mr. Mangles testified that he
does not have concerns about Plaintiff using a loaded gun.
According to Mr. Mangles, Plaintiff is one of the safest
people either with a gun or behind the wheel of a motor
vehicle. He also testified that Plaintiff's balance is
not good, and he has fallen into a creek while hunting, going
in over his head. Plaintiff is able to load his own gun
however. On cross-examination, Mr. Mangles testified that
Plaintiff did hunt and kill a bear with a bow and arrow.
Additionally, Mr. Mangles testified that on the date of the
Court hearing, Plaintiff drove Mr. Mangles to lunch. Mr.
Mangles gave Plaintiff directions but Plaintiff did the
driving.
Glen
Wireman, Sr., Plaintiff's father, testified on behalf of
the Plaintiff. He testified that Plaintiff attempted to work
elsewhere after his injury such as with a trucking company.
He called his father to tell him he was lost in Ohio.
Plaintiff felt disoriented and agitated. Since 1990, the date
of the injury, Plaintiff has changed. He is forgetful and he
also forgets to eat which has caused him to be underweight.
He also needs to go along with Plaintiff when he drives
somewhere to tell him where to go. According to Mr. Wireman,
Plaintiff played sports and was a C student. Although they
live only a mile apart, Mr. Wireman says he only sees his son
on holidays and occasionally. On cross-examination, Mr.
Wireman testified that Plaintiff did drive to lunch on the
date of the Court hearing, and that he did in fact shoot a
bear.
Larry
Arnett testified on behalf of Plaintiff. He is
Plaintiff's brother-in-law, and is married to
Plaintiff's sister. Mr. Arnett is...
