Sheehan v. Perry M. Alexander Construction Company

Upon review of the competent evidence of record with respect to the errors assigned, the Full Commission, upon reconsideration of the evidence, reverses the Opinion and Award of the Deputy Commissioner.

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The Full Commission finds as fact and concludes as matters of law the following which were entered into by the parties at the hearing as

2. On 13 April 1992, an employment relationship existed between plaintiff and Perry Alexander Construction Company, defendant. Defendant was self-insured with PCA Solutions as the servicing agent.

3. The parties agree that plaintiff's average weekly wage may be calculated by reference to the Form 22 wage chart, which was received post-hearing before the Deputy Commissioner.

4. Plaintiff alleges that he was injured on 13 April 1992, while working as an equipment operator and became disabled on 19 May 1992. He seeks entitlement to permanent and total disability benefits and payment of medical expenses to date in an amount of approximately $25,123.

5. Defendant denies that plaintiff was injured during the course and scope of his employment with defendant on 13 April 1992, and asserts that plaintiff's back condition for which he received medical treatment was a pre-existing condition unrelated to his employment. Defendant also contends that plaintiff failed to give timely notice of his alleged injury by accident in violation of N.C. Gen. Stat. § 97-22.

6. The parties submitted a set of medical expenses and records which were marked as Stipulated Exhibit Number 1.

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Based upon the competent evidence of record, the Full Commission rejects the findings of fact found by the Deputy Commissioner and enters the following:

2. Prior to his employment with defendant, plaintiff had a long-standing history of lower back problems, including prior work-related injuries. In 1980, plaintiff was involved in a fork lift accident and suffered a lower back injury. He underwent an L4-5 diskectomy. Plaintiff was involved in another accident in 1982 which caused a reherniation and he underwent a second surgery at L4-5. In 1986 he strained his lower back.

3. Due to his ongoing back problems, plaintiff was examined by Dr. Keith Maxwell of Spine Surgery Associates on 22 June 1989. Dr. Maxwell assessed segmental spine instability at L4-5, degenerative disk disease at L4-5, and status post L4-5 diskectomy times two. Plaintiff continued with conservative treatment in follow-up.

4. An MRI done in April, 1990 showed a large herniated disc. On 20 April 1990, plaintiff underwent another surgery, a left L4-5 microdiskectomy performed by Dr. Maxwell.

5. Post-operatively, by 21 May 1990, plaintiff had significant pain relief, and Dr. Maxwell released him to return to full duty. Plaintiff continued to experience pain, although it did not prevent him from engaging in gainful employment, as evidence by the fact that he began working for defendant in November, 1990, operating a bulldozer.

6. On or about 13 April 1992, plaintiff was operating a bulldozer in the course of his employment with defendant, preparing the Marion project site for construction. Plaintiff claimed that he backed up over a large rock, causing the bulldozer to drop three to four feet. The resulting impact caused a sharp pain in his lower back and right leg. (Tp. 12)

7. Randy Lee Keever, plaintiff's co-worker, testified that there were no large rocks on the Marion project site at the time plaintiff was operating his bulldozer. Plaintiff was scraping topsoil and spreading dirt, and no rocks were unearthed until later in the project when the digging was much deeper. Plaintiff's explanation of the cause of the alleged specific traumatic incident is deemed not credible.

8. Plaintiff claimed to have told one of the pan operators, probably Randy Keever, to report to Jerry Cochran that plaintiff had hurt himself. Thereafter, plaintiff testified that he told Cochran himself of the injury. Plaintiff stated that Mr. Cochran was the grading foreman and in charge of the job. Plaintiff did not work the rest of the day, and Cochran finished the dozing. Plaintiff stated that he also told another co-worker, Tony Keever, of his injury.

9. Randy Keever testified that plaintiff never told him of a back injury. Karen Smyly, personnel manager and bookkeeper for defendant, testified that she never received an injury report regarding plaintiff's alleged incident. Kevin Hensley, a field mechanic for defendant, was on the Marion job site checking the equipment at least once every day while plaintiff was there. He testified that plaintiff never told him he had injured his back while working there. Leroy Peek, superintendent of the job at which plaintiff claimed to have been injured, testified that plaintiff never reported to him that he had been injured. Further, Mr. Peek worked with plaintiff daily at the next job he worked on, and plaintiff never mentioned that he had incurred a back injury on the Marion job. Mr. Peek also testified that had plaintiff injured his back on the job, he knew the procedures for notifying the office of the injury and obtaining medical care.

10. Subsequent to 13 April 1992, plaintiff continued to work for defendant for an additional four to five weeks, and for three of those weeks he worked in excess of forty hours.

11. Plaintiff's claim that he injured his back while operating a bulldozer on 13 April 1992 is not credible.

12. On or about 20 May 1992 plaintiff was terminated from his employment by Mr. Peek when plaintiff demanded a raise and threatened to quit if he did not get one. Plaintiff's statements to the contrary regarding his termination are not credible.

13. Given our finding that plaintiff's claim that he suffered an accidental, work-related injury is not credible, his current condition is due to non-compensable causes.

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Based upon the foregoing stipulations and findings of fact, the undersigned enters the following

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Based upon the foregoing stipulations, findings of fact and conclusions of law, the undersigned enters the following

2. The parties shall divide the costs of this action.

This the ___ day of April, 1999.

S/_____________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ RENEE C. RIGGSBEE COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DCS:jbd

In my view the majority has misread the record. Some of the key "facts" they have found are not sustained by the record and a fair reading of the record would inevitably lead to a conclusion different than reached by the majority. The Deputy Commissioner read the record correctly.

Paragraphs 2 through 5 of the Findings of Fact have no relevance to the conclusion reached by the majority and can only be prejudicial. These facts are relevant only if an injury by accident is found and a medical determination needs to be made as to the consequences of the injury by accident. Assuming an injury by accident, the medical evidence was to the effect that the earlier injuries had healed, the worker was able to work and the injury by accident that is the subject of this case aggravated the earlier injuries and made them disabling.

In paragraph 6 of the Findings of Fact the majority finds, "Plaintiff claimed that he backed up over a large rock, causing the bulldozer to drop three to four feet." The record does not sustain this finding. The Deputy Commissioner made the correct finding, as follows:

On or about April 13, 1992, Plaintiff was operating a bulldozer in the course of his employment with Defendant, preparing a site for construction. The area he was working was rocky and the dozer was bouncy. As he was backing up, the dozer hit a grade change, either going over a large rock or into a depression, and dropped suddenly and steeply, landing hard and giving Plaintiff a jolt. As he was jolted, Plaintiff felt immediate pain in his back and running down his leg. Although bulldozer operation can be expected to be bumpy and rough, this sudden jolt was a significant traumatic incident, which precipitated a sudden onset of back pain, and significantly aggravated Plaintiff's prior back injury.

In paragraph 7 of the Findings of Fact the majority finds, in pertinent part: "Randy Lee Keever, plaintiff's co-worker, testified that there were no large rocks on the Marion project site at the time plaintiff was operating his bulldozer. Plaintiff was scraping topsoil and spreading dirt, and no rocks were unearthed until later in the project when the digging was much deeper."

Mr. Keever was not in a position to testify about the conditions in which plaintiff operated the bulldozer. He was only in a position to talk about conditions with respect to his scraper. He was operating one of three scrapers which were delivering dirt and rock to plaintiff so that they could be shoved into a marshy area and used as fill. He was not in a position to testify as to what the other two scrapers delivered or what dirt or rock conditions the bulldozer was in when his scraper was not near the bulldozer. Plaintiff's testimony, therefore, is only partially refuted by Mr. Keever's testimony and such refutation is extremely weak, as showed in the cross examination of Mr. Keever. Plaintiff's testimony about the ground conditions that led to his injury is otherwise unrefuted. Corroboration is provided by the fact that the muffler on the bulldozer being used had to be replaced on April 15, 1992, two days after the "jarring" episode plaintiff described, and a defense witness admitted that such a "jarring" episode could have required the muffler's replacement. Further corroboration is found in the medical evidence.

In paragraph 8 of the Findings of Fact the majority finds, in pertinent part: "Plaintiff claimed to have told Randy Keever to report to Jerry Cochran that plaintiff had hurt himself."

Plaintiff actually said:

Well, I felt a real sudden sharp pain hit me in my low back and pain going into my right leg. I told — At that time, one of the pan operators came down. I believe it was Randy. He came down. I told him to tell Jerry Cochran, who was the foreman over there at the time — he was the grade foreman — that I'd hurt myself and that I needed him to come over and take over.

Cochran did in fact come over and take over operating the bulldozer. Someone told him to do so and at plaintiff's request. It is also undisputed that Jerry Cochran was the grade foreman on the job. The only dispute is a straw dispute constructed by defendant. Defendant maintains that Cochran was not plaintiff's foreman. Plaintiff never said he was.

All of paragraph 9 of the Findings of Fact is irrelevant. There was no duty on plaintiff to report his injury to any of the persons mentioned there.

A careful and thoughtful reading of the facts requires a different conclusion than that reached by the majority. "The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Doggett v. South Atl. Warehouse Co., 212 N.C. 599,194 S.E. 111 (1937). Although this 1937 case may appear to suffer from old age, it was given new life by our Supreme Court by citation with approval in Adams vs. AVX Corporation, ___ N.C. ___, ___ S.E.2d ___ (12/31/98).

My vote is to affirm the Opinion and Award of the Deputy Commissioner.

This 1st day of July 1999.

S/_____________ THOMAS J. BOLCH COMMISSIONER