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Lepo v. Supreme Distributors Company Inc.12/20/2002
UNPUBLISHED
Plaintiff appeals, by leave granted, the WCAC's February 7, 2002 order which, among other things, affirmed the magistrate's denial of plaintiff's claim for benefits relating to an alleged closed head injury sustained while working for defendant Supreme Distributors Company Inc. We vacate the WCAC's order, in part, and remand for further proceedings.
In September 1987, plaintiff was involved in a serious automobile accident. As a result, she suffered from severe headaches, sleeplessness, dizziness, and blurred vision. Plaintiff underwent a full psychological evaluation, and was treated for her symptoms. Plaintiff's symptoms and treatment ended by June 1989. There was no evidence that plaintiff suffered a closed head injury in the 1987 automobile accident.
In September 1994, plaintiff began working for defendant Supreme Distributors as an assistant to a warehouse supervisor. Plaintiff's duties included answering the telephone, filling orders, and data entry.
It is not in dispute that on October 2, 1995, plaintiff fell at work. However, the circumstances surrounding the fall are unclear. According to plaintiff, she got up from her desk and began to walk across the room; the next thing she remembers is sitting in her chair, and being surrounded by co-workers. From the testimony of co-workers it appears as if plaintiff tripped over an open drawer in her desk. This testimony is supported by the fact that plaintiff suffered a serious cut to her shin.
In 1996, plaintiff filed a claim for benefits for injuries to her wrist and leg resulting from the October 1995 fall. The parties entered into a voluntary payment agreement. In March 1999, plaintiff filed the instant, amended, claim for benefits. In this claim, plaintiff sought benefits for a closed head injury allegedly sustained in the October 1995 fall . In regard to the alleged closed head injury, plaintiff concedes that immediately following the October 1995 fall, she began to suffer daily, dull, headaches which got progressively worse. However, plaintiff contends that she initially attributed the headaches to the 1987 automobile accident, as they were similar to the headaches she previously suffered. According to plaintiff, she did not know until early 1999 that she had suffered a closed head injury in the October 1995 fall. Plaintiff did not miss any work as a result of the headaches, or other effects of the alleged closed head injury, at any point prior to her last day of work, October 13, 1996, which was the date defendant Supreme Distributors went out of business.
In late 1998, plaintiff's headaches became severe, and she sought treatment from Dr. Barbara Fisher. In January 1999, Fisher began to suspect that plaintiff had suffered a closed head injury during the October 1995 fall. A "Spect Scan" of plaintiff's brain, conducted in January 1999, indicated that plaintiff had suffered an injury to the frontal lobe. Subsequently, several experts opined that plaintiff is permanently disabled as a result of a closed head injury.
In an April 2000 opinion, the magistrate denied plaintiff's claim for benefits for a closed head injury. The magistrate concluded that plaintiff's claim was procedurally barred by MCL 418.381(1), which requires, among other things, that a claim for benefits be filed within two years from the date of the injury, the date the disability manifests itself, or the last day of employment, whichever is later. The magistrate found that because the symptoms of a closed head injury manifested themselves immediately after the October 1995 fall, the two-year time period began to run from plaintiff's last day of work (October 1996). The magistrate concluded
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