Keller v. Shook Builder Supply Co.

The employee injured his back at work while bending over, reaching across a table using a ratchet wrench. The employee felt a "catch" and had difficulty straightening up. Shortly, the employee has severe back and left leg pain. The employee reported his injury to his supervisor, but no injury report was completed. The employee and his wife recall a discussion, (or being told about the discussion) with the supervisor, that worker's compensation would not cover the injury unless the employee went to a company doctor.

Subpoenaed co-employees, Melvin Storey and Steve Sigmon were aware of the employee being injured on May 25, 1999, as was the employee's pastor.

Because of the pain, the employee left work and went to the office of Dr. P.E. Brown where the employee was seen without a prior appointment because of his pain. When the employee left work, two other employees assisted him to the parking lot. The employee's wife brought her vehicle to Dr. Brown's office for the employee to drive, because the employee had difficulty operating the clutch of his vehicle.

The employee has a history of back problems including a 1994 disk surgery by Dr. P.E. Drown. After 1994, the employee had a flare-up in 1996, but had not been treated for his back since August 16, 1996. After Dr. Brown's 1994 surgery, the employee did very well and returned to his heavy work job at Shook Builders.

When Dr. Brown saw the employee on the day of injury, May 25, 1999, the employee had positive straight leg raising test at 45 degrees. Dr. Brown, a board certified orthopaedic surgeon, testified as of May 25, 1999, the employee's condition was substantially changed/worsened from 1994 with left leg pain instead of right leg pain, and severe chronic pain. Dr. Brown recommended conservative treatment.

The employee was seen for a second opinion by Dr. Charles Branch at Baptist Hospital who also did not recommend surgery. The employee has had continuing treatment by Dr. Hans Hansen, a pain specialist, and Dr. Pamela Howard, a neurologist. The employee will need continuing treatment for the foreseeable future, and is not at maximum medical improvement.

Dr. Brown and Dr. Howard testified the employee's chronic pain syndrome or other back conditions were likely worsened by the injury at work in view of the onset of different substantial symptoms at the time of injury then the employee had ever had before.

The employee has been unable to work since May 25, 1999.

While in this case, as most claims, there is some evidence on both sides, the greater weight of evidence supports the Deputy Commissioner's Opinion and Award, including:

a) Testimony of the employee that:

— On Friday, May 25, 1999, he felt the onset of back pain, first in the morning, and then later in the afternoon had pain so severe he had difficulty straightening up after reaching across a table using a wrench. (George Keller T pp. 4-5, A pp. 23; T p. 36, A p. 1).

— He told his supervisor, Ralph Weaver, who wanted him to go to a company doctor the employee did not want to see (Keller T p. 5, A p. 3).

— He had occasional back trouble all his life, and had a 1994 back surgery by Dr. Brown, but had done fairly well thereafter (Keller T pp. 5-8, A pp. 36).

— By the end of the May 25, 1999 workday, his pain was much worse than before that day and he required assistance from co-employee's getting to his car (Keller T pp. 8-12, A pp. 6-10), and had to switch to an automatic transmission vehicle because of pain.

b) Testimony of the employee's spouse that:

— She was present when the injury was discussed with the supervisor, Ralph Weaver, after the employee had emergency treatment with Dr. Brown (Beth Keller T pp. 41-44, A pp. 11-14).

c) Testimony of Wayne White, the employee's pastor, that:

— The employee appeared to be in severe pain when the witness saw him after 5:00 p.m. the day of injury (White T pp. 46-47, A pp. 15-16).

d) Testimony of Melvin Storey, co-employee, that:

— On May 25, 1999, the employee complained of back pain after lifting, and the witness saw him holding his hip and limping (Storey T pp. 51-52, A pp. 17-18).

e) Testimony of Steve Sigmon, a subpoenaed co-employee, that:

— On May 25, 1999, the employee told him he had hurt his back, and he appeared to be in pain (Sigmon T pp. 55-56, A pp. 19-20).

f) Testimony of Ralph Weaver, supervisor, that:

— Until May 25, 1999, the employee was able to do his job (Weaver T pp. 68-69, A pp. 21-22).

— He does not remember the details of the conversation when the employee's wife was present (Weaver T p. 69, A p. 22).

g) Testimony of Dr. P. E. Brown, board certified orthopaedic surgeon, that:

— Before May 25, 1999, the employee had surgery for a herniated disk, after which, except for some flare-ups, he had done relatively well. Before May 25, 1999, the employee had not been seen since August 16, 1996 (Brown D pp. 4-6, A pp. 23-25).

— On May 25, 1999, based on then symptoms, Dr. Brown thought the employee might have a recurrent herniated disk. The employee's symptoms on May 25, 1999 were much worse than when last seen August 16, 1996 (Brown D pp. 6-9, A pp. 25-28).

— His opinion is the employee's multi-level degenerative disk disease, spondylosis, fibrosis and chronic pain syndrome were likely caused or aggravated by the May 25, 1999 incident at work (Brown D pp. 13-16, A pp. 29-32).

— The employee is unlikely to ever be able to return to work after June 25, 1999 (Brown D pp. 16-17, A pp. 32-33).

h) Testimony of Dr. Pamela Russell-Howard that:

— The employee's chronic back and leg pain could have been aggravated by the May 25, 1999 incident at work (Howard D pp. 10-14, A pp. 34-38).

— It would be difficult for the employee to return to work (Howard D p. 14, A p. 38).

— From the employee's history there appears to be a definite change/worsening as of May 25, 1999 when he says he was injured (Howard D p. 17, A p. 17).

In my opinion, under the majority's view of the world, an injured worker can never have a legitimate specific traumatic incident (no matter what corroborative evidence) if the same body part was injured at some distant time in the past, no matter that the body part had long since healed. That is simply not real world.

The Deputy Commissioner's decision was correct. I vote to affirm.

This 16th day of August 2002.

S/_____________ THOMAS J. BOLCH COMMISSIONER

2. The employer-employee relationship existed between defendant-employer and plaintiff at all relevant times herein.

3. Defendant-employer was an approved self-insured for workers' compensation with Key Risk Management Services acting as the servicing agent at all relevant times herein.

4. Plaintiff's average weekly wage will be determined from a Form 22 that is to be provided by defendant-employer.

5. The depositions and medical records of Drs. Paul E. Brown and Pamela Russell-Howard are a part of the evidentiary record in this matter.

6. The issues to be determined from this hearing are as follows:

a) Whether plaintiff sustained an injury by accident while in the course and scope of his employment with defendant-employer?

b) If so, what, if any, benefits is plaintiff entitled to receive under the Workers' Compensation Act?

2. Plaintiff worked for approximately 11 years for defendant-employer as a truss builder which involved heavy lifting on a regular basis of between 50 to 100 pounds or more.

3. Plaintiff testified that on May 25, 1999 he reached across a table with a ratchet to break a pad loose when he experienced a "catch" in his lower back and had difficulty straightening up. Plaintiff did not recall the time of day this happened but he worked most of the day. Plaintiff indicated that he told his supervisor, Ralph Weaver, about the incident. However, Mr. Weaver does not recall plaintiff discussing an injury but that plaintiff had back problems and had a doctor's visit scheduled. Plaintiff testified at the hearing before the Deputy Commissioner that he wanted to go to a doctor of his choice rather than the company doctor and that Mr. Weaver told him that if he did not see the company doctor, it would not be considered workers' compensation. However, according to Mr. Weaver, although it is company policy for injured workers to first see the company doctor, choosing not to see the company doctor would not change the reporting requirements for a workers' compensation claim. Plaintiff was familiar with workers' compensation reporting procedures and had reported previous injuries which were in fact documented by Mr. Weaver.

4. Plaintiff's medical history is significant for back problems including surgery in 1994. In addition, prior to May 25, 1999, plaintiff had been suffering back pain for at least approximately six weeks according to plaintiff, his coworkers and supervisor, as well as his minister. Furthermore, on May 26, 1999 when plaintiff completed an application for short-term disability, plaintiff indicated that he suffered back pain for about 6 weeks. Plaintiff indicated by check marks in two different boxes that his complaints did and did not result from his occupation. Dr. Brown who also completed a portion of the application form indicated that plaintiff's problem was not work related and had been present since mid-April.

5. Dr. Paul E. Brown, who had treated plaintiff for prior back problems including surgery in 1994 and a flare up in August 1996, evaluated plaintiff on May 25, 1999. Plaintiff provided Dr. Brown with a history of back and left leg pain for approximately the last six weeks as indicated by plaintiff on an intake sheet. Plaintiff did not provide a history of any specific incident occurring that day.

6. Dr. Brown diagnosed plaintiff's condition as left leg sciatica and was concerned about a recurrent herniated lumbar disc. Dr. Brown removed plaintiff from work and treated plaintiff conservatively. Dr. Brown did not feel that plaintiff was a surgical candidate but referred plaintiff to Dr. Charles Branch for a second opinion.

7. Plaintiff was evaluated by Dr. Branch on September 29, 1999 at which time plaintiff gave a history of low back and leg pain with numbness and weakness in both legs which symptoms had been present since the first of April 1999. Dr. Branch diagnosed multilevel degenerative disc disease and concurred with Dr. Brown's diagnosis and course of treatment including pain management.

8. Plaintiff was first seen by Dr. Hansen for chronic pain on December 20, 1999 at which time Dr. Hansen indicated the possibility of a work-related injury. However, plaintiff once again did not report a specific injury.

9. On April 21, 2000, Dr. Brown indicated that it was his opinion that plaintiff was totally disabled from all work and had been since he had taken plaintiff out of work on May 25, 1999, and that he did not see plaintiff's condition improving.

10. Thereafter, plaintiff was first seen by Dr. Pamela Russell-Howard, a neurologist, on May 5, 2000 approximately a year after plaintiff's alleged injury. At this time plaintiff reported to Dr. Russell-Howard an injury that occurred at work when he reached out to grab something and had an abrupt onset of back and left leg pain. Dr. Russell-Howard diagnosed plaintiff with chronic pain and felt that he may have arachnoiditis or scarring which occurs after surgery. Although Dr. Russell-Howard was aware of plaintiff's pre-existing back condition including the 1994 surgery, she was unaware that plaintiff had suffered pain for approximately six weeks or more before May 25, 1999.

11. Plaintiff has failed to prove by the greater weight of the evidence that he sustained a specific traumatic incident to his back while in the course and scope of his employment with defendant-employer. Medical evidence, including the testimony of Dr. Brown and Dr. Russell-Howard, supporting that plaintiff's pre-existing back condition was aggravated by or that his current back symptoms or condition was caused by any incident on May 25, 1999 is based on inaccurate assumptions including an inaccurate history of the onset of plaintiff's symptoms.

2. Plaintiff has failed to prove by the greater weight of the medical evidence of record that his current back condition is causally related to any incident at work. N.C.G.S. § 97-2(6).

2. The parties shall bear their own costs.

This the ___ day of April 2002.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/______________ RENE C. RIGGSBEE COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER