MWCC NO. 97 03298-G-1767
WANDA L. JACKSON HALE CLAIMANT
vs.
FLUOR DANIEL CORPORATION
EMPLOYER
AND
CONTINENTAL CASUALTY COMPANY
CARRIER
REPRESENTING CLAIMANT:
Hon. Robert E. O'Dell, Attorney at Law, Pascagoula,
Mississippi
REPRESENTING DEFENDANT:
Hon. Michael J. McElhaney, Jr., Attorney at Law,
Pascagoula, Mississippi
The Commission heard the above styled cause on April 10, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the claimant's "Petition for Review by the Full Commission".
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated February 9, 2000.
Also before the Commission is claimant's "Motion to Allow Additional Evidence" which is hereby denied.
SO ORDERED, this the 12th day of April, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC No. 97 03298-G-1767
WANDA L. JACKSON HALE1 CLAIMANT
vs.
FLUOR DANIEL CORPORATION
EMPLOYER
and
CNA INSURANCE CORPORATION
CARRIER
REPRESENTING THE CLAIMANT:
Robert E. O'Dell, Esquire, Pascagoula, Mississippi
REPRESENTING THE EMPLOYER AND CARRIER:
Michael J. McElhaney, Jr., Esquire, Pascagoula,
Mississippi
The claimant filed her petition on December 22,
1997 alleging an injury and resulting disability to her lower back from
an incident at work on February 3, 1997. The employer and carrier duly
answered denying compensability. A hearing of this claim was held in Pascagoula
on May 25, 1999, after which the record was kept open for the submission
of additional evidence and pending submission of briefs by the parties.
The record was closed on October 27, 1999 after the submission of briefs.
Prior to opening the record the parties were able to stipulate that the claimant's average weekly wage on the date of the alleged injury was $400.00, and to the admission into evidence of General Exhibits 1-29, as set out on the exhibit list made a part hereof.
After the close of testimony at the hearing the
defendants moved for leave to take and submit the deposition testimony
of Dr. Mollie Holtzman, a physician who had treated the claimant, and of
Leon Tingle, a vocational rehabilitation specialist, which motions were
granted. The deposition transcript of Dr. Holtzman was received by the
commission on July 13, 1999 and has been admitted into evidence and duly
marked by the undersigned as Employer/Carrier Exhibit 30. The deposition
transcript of Mr. Tingle was received by the commission on August 25, 1999
and has been admitted into evidence and duly marked by the undersigned
as Employer/Carrier Exhibit 31.
Ms. Hale is a 40 year old resident of Vancleave who completed the ninth grade of school and later obtained her GED. She was hired by Fluor Daniel as a laborer and utility worker on November 1, 1996. At the time of the alleged injury the employer was providing contract labor and other services for Chevron Corporation at Chevron's oil refinery facility in Pascagoula, and on the night in question the claimant was working as a Fluor Daniel employee in the Chevron tool room, in which capacity she checked out tools and equipment as needed to Fluor Daniel and Chevron maintenance workers. Ms. Hale testified her normal duties involved working in the field doing anything from shoveling sulfur out of refinery tanks to cleaning debris from under bridges, but that she had been assigned her first duty in the Chevron tool room on this occasion because Fluor Daniel was performing maintenance operations at the refinery during what is commonly called a "shutdown." The only other person working in the Chevron tool room on the night in question was Betty Wood, a Chevron employee.
The claimant testified she was injured on the evening of Monday, February 3, 1997 while lifting a "come-along"2 off a hook on the wall to give to Mike McGrath, a Fluor Daniel employee. She said this particular come-along was of the one ton variety, so designated by the amount of weight it is able to accommodate and not its own weight, which she guessed to be about 25-30 pounds. She explained that this come-along was hanging on the wall at a height of about four and a half feet, that she had to lean over some tools on the floor to get to it, and that she pulled the come-along off the hooks and turned to walk away from the wall. Under direct examination by her, attorney on the result of this event, she responded as follows:
A. It felt -- I just went (sound effect), you know, when you pick something heavy up. It was a little tight. I didn't think anything of it.
Q. Did you make any noise, say anything?
A. I grunted. I just went (sound effect), you know. You know, the noise when you pick something up.
Q. All right. When did you realize you had hurt yourself.
A. The next night. Well, no. Actually I didn't know I was hurt. I thought it was my appendicitis or something. Betty [Wood] said it was my back.
Q. All right. When did you first experience something that would cause you to believe that you had hurt your back?
A. Well, I started having spasms that [next] night down the front of my leg, and I was just panicked. I thought, you know, I had appendicitis or something. And she [Ms. Wood] said, No, you've hurt your back.
Ms. Hale was also questioned about her horseback
riding activities prior to February 3, 1997.4
She stated the last previous time she had ridden a horse was on a trial
ride with a group of several hundred other people in November of 1996.
She said that although she owned her own horse she did not ride between
that trail ride and February 3 because, at first, she was working a lot
of overtime on the day shift, such that it
was dark before she got home in the evening, and then she was transferred
to the night shift. She said the November trail ride made her sore because
she had not been on a ride like that in a long time and was out of shape,
and that she told "everybody" at work about being sore after that ride.
She conceded she fell off her horse on the November ride, but maintained
she was not injured and did not see a doctor afterwards. The claimant was
not asked by her attorney if she told either Betty Wood or Deborah Coney
on February 3, 1997 that she had fallen or been thrown from a horse during
the previous weekend.
On cross-examination the claimant reiterated
that it was Mike McGrath who came to the tool room window on the night
of her injury and asked her for a one-ton come-along, which she indeed
got for him. She also affirmed that she called Sue McGuire on February
11, that she did not tell anyone at Fluor Daniel she was going to a doctor
prior to first seeing Dr. Cooper, that Dr. Cooper released her to return
to work without restriction on February 12, and that she did not return
to work after being released by Dr. Cooper. She also conceded that it may
have been Friday, February 7 when she first saw Dr. Cooper. The claimant
stated that she was uncomfortable at that time because she did not know
whether Dr. Cooper would report her injury to the employer, even though
she considered her first visit to him a personal visit which she intended
to pay for.
Myles Hale, the claimant's husband since December
of 1997, and also married to her at a time prior to her marriage to Tyrone
Jackson, testified in support of her claim. Although not married to Ms.
Hale at the time, Mr. Hale was on the aforementioned trail ride of November
1996. He said he was told about the claimant falling from her horse, but
he did not witness it and she did not mention anything about it to him
on any of the several later occasions when they spoke during the ride.
Mike McGrath was the first witness called by the defense. Mr. McGrath testified
that he is maintenance mechanic employed by Fluor Daniel to perform maintenance
on Chevron's refinery; that he was working in that capacity during a maintenance
shutdown at the refinery in January and February of 1997; that during this
shutdown he went to the Chevron tool room several times at night to get
tools and equipment; that he knew the claimant from her work in the Chevron
tool room at that time; that, despite the claimant's testimony, there were
no one-ton come-alongs in the Chevron tool room, only ton-and-a-half and
three-ton come-alongs; that he was using three-ton come-alongs and three-ton
chain falls to perform his work during this shutdown; that his normal practice
was to walk into the tool room and get these devices for himself, because
they are too heavy and awkward to be handled by the tool room personnel;
that he did not recall asking the claimant to bring him any come-along
or chain fall during this shutdown; that he always walked in to get these
items himself and always took them back and hung them back on the wall
himself; and that it was Fluor Daniel policy that all injuries were to
be reported to the foreman at the time, which policy was reviewed at regular
meetings with the employee.
On cross-examination Mr. McGrath stated he was
positive it could not have been him that got a one-and-a-half ton come-along
from the claimant during the time in question. He estimated that a one-and-a-half-ton
come-along weighs between 30 to 35 pounds. The claimant's attorney also
asked him about a written statement purportedly made by him on or about
June 19, 1997 (Ex. 21). When presented with the document, McGrath confirmed
that it was indeed his statement as provided to Mike Watson. In this statement
McGrath averred that he had no knowledge of the claimant being injured
in the tool room and any time he went to the tool room to get heavy lifting
devices such as chain falls or come-alongs, he got them for himself. Under
further cross-examination he reiterated that the claimant never gave him
a come-along and that he always walked into the tool room and got what
he needed for himself.
Debbie Coney was called as the next witness for
the defense, and she testified she was employed by Fluor Daniel and had
been on friendly terms with the claimant since the claimant began working
at Fluor Daniel. Ms. Coney stated that she was talking with Ms. Hale in
the bathroom on the night of Monday, February 3, the day the shutdown began,
and the claimant told her she was hurting and bruised from failing off
a horse. Ms. Coney also said the claimant had told her on the previous
Friday that she, the claimant, would be going on a ride that weekend; that
when she saw the claimant on Monday Ms. Hale was walking with a limp; and
that Ms. Hale showed her a bruise on her leg. The witness said she could
remember the date of this conversation because they talked about the ride
the previous Friday, the claimant was off work that weekend, and then that
Monday was the first day of the shutdown. Ms. Coney further testified that,
according to Fluor Daniel policy, all injuries were to be immediately reported
to the foreman.
On cross-examination Ms. Coney stated the claimant
had mentioned that she would be going on the weekend ride with Carey Goff,
another Fluor Daniel employee, and that the claimant always talked about
her horse rides. When presented with a proposition involving the claimant
having been on a ride with Carey Goff in November of 1996, and having fallen
off her horse during that ride, and then being asked if this would cause
her to doubt her recollection about when her alleged conversation with
Ms. Hale occurred, the witness said it would not, because the claimant
always talked about her rides, but this was the one time she said she fell
off her horse.5
The next witness for the defense was Betty Wood,
the Chevron employee who was working with the claimant in the tool room
on the night of February 3, 1997. Ms. Wood testified that February 3 was
the first night the claimant worked in the Chevron tool room, and that
as soon as the claimant came in that night she mentioned "either falling
off the horse or getting thrown by the horse or something, and she was
kind of stove up and sore all over." Ms. Wood said she then told the claimant
to take it easy and not do anything she didn't want to do. She said there
was always plenty of help around, that the men always came in and got whatever
they needed for themselves, so there was no reason to do any heavy work.
She said that to her knowledge the claimant did not get hurt lifting anything
in the tool room, although the claimant did "kind. of give one of those
little groans like when you're picking up something slightly heavier than
what you're used to..." when she was getting a ton-and-a-half come-along
for one of the customers. Ms. Wood said that when the claimant made the
noise while lifting the come-along, she thought it was because the claimant
was sore from the accident with her horse, and that the claimant continued
working in the tool room that night and never told her or indicated in
any way that she had been injured that night. Ms. Wood did not recall who
it was that asked the claimant for the come-along because it was very busy
that night and she was helping another customer
at the time. It was Ms. Wood's recollection that the claimant worked the
next night but not the rest of the week, and she said the claimant never
mentioned anything to her about going to see a doctor. Ms. Wood was not
asked whether she had ever discussed these events with Deborah Coney.
Sue McGuire also testified for the defense. She
identified herself as field coordinator for the Fluor Daniel human resources
department and said she had been working in that capacity for seven years.
She testified that the claimant called her on February 10th or 11th of
1997 saying she had hurt her neck, and that when she asked Ms. Hale how
it happened, the claimant's reply was, "It must be from sleeping or something.
I really don't know." She said the claimant did not at that time indicate
in any way that she had been hurt at work. Ms. McGuire stated that Fluor
Daniel policy requires the reporting of work injuries immediately, but
that she was not aware that Ms. Hale was claiming a work injury until "way
later ... [n]ot in that week." To Ms. McGuire's knowledge, no one had ever
been terminated by Fluor Daniel for reporting a work injury. She said the
claimant was terminated after being absent for three days without calling
in, which was standard policy applicable to all employees. She said that
when she talked to the claimant on February 10 or 11 Ms. Hale was concerned
about her job, so she told her all she had to do was call in and bring
a doctor's release. Ms. McGuire testified that Dr. Cooper's office faxed
a release to the safety department on February 12 which allowed the claimant
to return to full duty, but the claimant did not return or call in through
the 14th, at which point she was terminated according to policy.
Attached as an exhibit to the claimant's deposition (see Ex. 1, p.
64) is a page from a "Daily Record of Events," apparently
maintained by Ms. McGuire, dated February 11, 1997. This document supports
Ms. McGuire's testimony that the claimant called her complaining of a neck
injury un-related to work.
Mike Watson was not deposed or called to testify by either party, but included as a part of the claimant's Fluor Daniel personnel file (Ex. 22) is a page from a "Daily Record, of Events," apparently maintained by Mr. Watson, dated February 21, 1997. This document indicates that the claimant had not mentioned her injury to Mr. Watson prior to this date, nor had she reported it to anyone else.
The deposition testimony of Dr. Kevin Cooper is in evidence (Ex. 5) along with his office records under affidavit (Ex. 11). Dr. Cooper testified the claimant presented to him on February 7, 1997 with a complaint of low back pain, and he responded as follows when asked about the history given him by the claimant:
Dr. Cooper was questioned about the claimant's
coccyx because, over the course of subsequent treatment and examination
by a number of specialists, Ms. Hale's chief complaint came to be centered
on her coccygeal area, and her coccyx was eventually surgically removed
by Dr. Charlton Barnes, an orthopedist. Several of the treating specialists
were deposed for this action, and initially each one was willing to rely
on the claimant's history of having been injured while lifting a come-along
at work in attributing her condition to that event. But when they were
asked whether in their experience a coccygeal injury such a the claimant's
would be more likely to occur in a fall than in a lifting event, the consensus
was that a fall or other trauma would be a more likely cause.6
Upon consideration of the foregoing evidence,
as well as the applicable law, the Administrative Judge finds and concludes
that the claimant has failed to prove by a preponderance of the credible
evidence that she suffered an injury arising out of and in the course of
her employment with Fluor Daniel Corporation on or about February 3, 1997,
and that her claim for benefits must therefore be denied and dismissed.
The claimant's testimony regarding the event
of her injury is not corroborated by any other witness. This alone is not
fatal to her case, because the uncorroborated testimony of a claimant can
be competent evidence to substantiate a claim, as long as it is found to
be credible and trustworthy. Seq Dunn, Mississippi Workers' Compensation,
Section 264, pp. 320-21. And the undisputed testimony
of a claimant generally ought to be accepted as true, so long as it is
not unreasonable within the factual setting of the claim. White v. Superior
Products. Inc., 515 So. 2d 294,
(Miss. 1987). The claimant's problem is that her testimony regarding her
injury is not merely disputed, it is disputed by every other witness who
testified at the hearing except her husband, and he has no personal knowledge
of the events of or surrounding the alleged injury. "Negative testimony
concerning the cause of injury may be substantial evidence upon which a
claim may be denied," White v. Superior, at
297, and the weight of the credible testimony here is substantially negative.
Deborah Coney and Betty Wood, the latter a Chevron
employee, each testified that the claimant, on February 3, 1997, told her
she had fallen or been thrown from as a horse during the immediately preceding
weekend. There is nothing in the record to indicate that these women ever
talked about this incident among themselves or even knew each other, and
the claimant never directly denied making these statements, even when she
was allowed to return to the stand in rebuttal after the defense presented
its case. Furthermore, there was nothing in the demeanor of Ms. Wood or
Ms. Coney while on the stand, nor is there anything else in the record,
to indicate that either of them was an unreliable or untrustworthy witness.
The combined weight of their testimony, without even considering the contradictory
testimony of Sue McGuire and Mike McGarth, is sufficiently damaging to
negate Ms. Hale's claim.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the claim of Wanda Jackson Hale against Fluor Daniel Corporation and CNA Insurance Corporation is hereby denied and dismissed.
SO ORDERED this the 9th day of February,
2000.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. Sometime after filing her petition the claimant married Myles Hale, so she will be referred to throughout as Ms. Hale.
2. Evidently a device involving chains and rachets used to hoist and/or lift heavy pieces of machinery.
3. Subsequently identified during her own testimony as a human resources officer with the employer.
4. The employer's defense of it's denial of the claim is based, at least in part, on prior statements by both Betty Wood and Debbie Coney that the claimant stated on February 3 she had fallen or been thrown from a horse the previous weekend.
5. The deposition of Carey Goff, taken in December of 1997, was admitted as Exhibit 2. Mr. Goff stated he was on the same trail ride as the claimant in November of 1996 and that was the last time he had seen her riding a horse. Mr. Goff was not asked whether the claimant fell from her horse during this ride.
6 See, e.q., the deposition testimony of the aforementioned Dr. Charlton Barnes (Ex. 7 at pp. 13-14) and the deposition testimony of Dr. Terrence Millette, a neurologist (Ex. 8 at pp. 24-25).