MWCC NO. 99-04300-G-5223
LOYAL RICKEY WEST, JR. CLAIMANT
vs.
EUTAW CONSTRUCTION COMPANY
EMPLOYER
AND
ASSOCIATED GENERAL CONTRACTORS OF MISSISSIPPI,
INC.
CARRIER
REPRESENTING CLAIMANT:
Bryan P. Lieb, Esquire, Tupelo, MS
REPRESENTING EMPLOYER/CARRIER:
Steven H. Funderburg, Esquire, Jackson, MS
This matter was heard by the Commission on May 15, 2000 pursuant to the Employer's and Carrier's Petition for Review of Decision of Administrative Judge, and the Employer's and Carrier's Motion for Introduction of Additional Evidence. Via this latter Motion the Employer/Carrier seeks to introduce certain medical records which were admittedly in existence and available prior to the hearing below but were not properly authenticated by medical records affidavit until afterwards. Having reviewed this Motion, we find it lacking the requisite necessity and excuse which would permit the introduction of these records at this stage of the proceedings under our Procedural Rule 9. We therefore deny the Motion for Introduction of Additional Evidence and proceed to address the claims raised by the Employer/Carrier in their Petition for Review.
The outcome determinative claim raised by the
Employer/Carrier is whether the Administrative Judge erred in her
Order dated February 15, 2000 in finding that Loyal Rickey West met his
burden of proving that he suffered a compensable injury while in the employ
of Eutaw Construction Company. In the end, we find that the Administrative
Judge did err in this regard, and we dismiss Mr.
West's claim for benefits accordingly.1
Analytically, we are constrained to observe that a claimant such as Mr. West bears the burden of proving by a preponderance of the credible evidence that he suffered an injury which arose out of and in the course of his employment. The existence of a compensable injury cannot be left to surmise, conjecture or speculation; "recovery in any case must be based on reasonable probabilities and not on mere possibilities." See generally Dunn, Mississippi Workers' Compensation §§264, 265, 267 (3d ed. 1982 & Supp. 1988).
In the case before us, Mr. West claims that he injured his neck on Tuesday, August 25, 1998 while operating a scraper, or dirt mover, for the Employer. According to Mr. West, he hit a large hole while operating this scraper and the resultant motion of the machine as it hit this hole caused him to suffer a whiplash-like injury to his neck.
Mr. West testified that he felt a little pain and weakness in his neck at the end of the day, but he dismissed it as merely the natural consequences of having operated such a heavy piece of equipment all day. In a deposition taken prior to the hearing, Mr. West claimed that he went numb from the chest down. The next morning he noticed his neck and upper body was real stiff. He reported to work nonetheless and claims he informed his supervisor, Steve Minor, of the previous day's accident.
Mr. West says he continued to work the rest of that week even though his condition steadily worsened. In his prior deposition, he admitted to working a full 11 hour shift on August 26, 27 and 28, and a full 8 hour shift on August 29. By Friday or Saturday, he supposedly told Mr. Minor he could no longer operate the scraper because of his neck pain, whereupon he was directed to operate a motor grader instead. Mr. West did not have to work Sunday August 30 and returned to work on Monday August 31, even though he claims his condition was continuing to worsen. He continued to dismiss his symptoms as the flu or residual soreness from having operated the scraper. He worked full 11 hour shifts on August 3 1, September I and September 2. He worked 8 hours on Thursday, September 3 before he left the job site.
By Thursday, September 3, 1998, Mr. West claims he had developed a persistent headache and was in bad pain. On the afternoon of September 3 he got into an exchange of words with another operator and was threatened by this co-worker. This incident, coupled with his pain, is allegedly what led him to leave the job site.
On Friday morning he claims he was unable to get out of bed. Mr. West testified that he phoned Eutaw Construction to advise that he was unable to work that day, and also on the next day when he was likewise unable to work.
On Monday September 7, 1998, for the first time, Mr. West sought medical attention. He was taken to the hospital emergency room in Amory because he claims the entire left side of his body went numb. Mr. West testified that he was asked at the hospital what he had done to injure himself and he stated that he suffered a whiplash injury to his neck while operating a piece of heavy equipment. This notwithstanding, he was released and advised to seek a neurological opinion.
According to Mr. West, on Tuesday September 8 he became light-headed and nearly fainted so he immediately went to see Peggi Seaman, a nurse practitioner in Aberdeen. Mr. West supposedly told Ms. Seaman that he did not know what was causing his problems and asked her for a referral to Dr. Walter Eckman, which she supplied.
After seeing Dr. Eckman, Mr. West stated he was fitted with a neck collar and was subsequently diagnosed with cervical disk injury at three levels which Dr. Eckman surgically repaired on October 15, 1998.
In the interim, after seeing Ms. Seaman, Mr. West sent his wife to Eutaw Construction to pick up his pay check and to advise Steve Minor that he would be back at work the following Monday if he felt better. According to Mr. West, his wife was informed by Steve Minor that Mr. West had been terminated, a fact that Mr. West himself confirmed that following Monday when he confronted Mr. Minor. Mr. West testified that he had been calling in to work everyday during his absence and he was at a loss to understand why he had been fired.
In May 1999 Mr. West secured employment with Parham Construction operating a bull dozer which Mr. West testified was with the approval of Dr. Eckman. According to Mr. West he was unable to do this work because of his injury so he quit. He later secured a part time job with the Monroe County Landfill in November 1999 operating a back hoe, but this job too proved more than he could physically tolerate, so he quit.
In contrast to the story told by Mr. West, Mr. Steve Minor testified that Rickey West never once reported a possible whiplash injury to him, or any other injury for that matter. Mr. Minor learned from other co-workers and from Ms. West that Mr. West had left the job site on September 3 because of an argument he had gotten into with another worker. Even when Mr. West confronted Mr. Minor about his job on the Monday after Labor Day, Mr. West did not say anything about having been absent from work because of a job related injury.
Christie Kirkpatrick, the payroll and human resources manager for Eutaw, testified that the first notice Eutaw had that Mr. West was claiming a work related injury was when they received a copy of a petition to controvert which had been filed on his behalf.2
Medical records from Dr. Eckman reflect that Mr. West was first seen by Dr. Eckman on September 18, 1998 for evaluation of neck pain which began "on approximately September 8, 1998 when he was at work with Eutaw Construction operating a scraper machine which hit a hole and extended his neck suddenly. " Dr. Eckman ultimately performed surgery on Mr. West to address cervical disk problems and released him from care on August 23, 1999. Dr. Eckman also noted that he had treated Mr. West previously for a "fractured C6 with spinal cord contusion" which Mr. West sustained in a motorcycle accident. Current studies undertaken by Dr. Eckman confirmed that Mr. West now had problems at three levels, including C5-6. Importantly, there is no mention in Dr. Eckman's records of any causal connection between the condition Dr. Eckman treated most recently and the accident Mr. West alleged to have occurred at Eutaw; only the history given by Mr. West mentions a work related injury and this history gives dates which are inconsistent with the time line otherwise alleged by Mr. West.
The records from Gilmore Hospital reveal that Mr. West presented himself there on September 7, 1998 complaining of dizziness and pain through the back of his head and arm, and also developing numbness through the left side of his face and left arm. The numbness was reported to have developed within 30 minutes prior to his admission while the other symptoms appeared intermittently over the previous three days.
Mr. West, on or about October 7, 1998, also filed a claim for unemployment compensation benefits with the Mississippi Employment Security Commission. In this application, he stated that he was discharged by Eutaw Construction and he made no mention of a having suffered a work related injury. The Employment Security Commission ultimately found that Mr. West initiated his separation from employment by walking off the job without good cause, and was therefore disqualified from receiving benefits.
In considering the totality of the evidence, we cannot help but have serious questions as to the credibility of the claim made by Mr. West. His story has been contradicted in many material respects by his own actions and by the testimony of other credible witnesses. Mr. West failed to report an injury to anyone at Eutaw Construction and did not give a history of having injured himself at work until he first saw Dr. Eckman. He continued to perform heavy labor long after he allegedly injured himself until he finally left work of his own accord after a confrontation with another worker. He did not even seek medical attention until after he left his employment. In the end, it appears to us that Mr. West's most current neck problems were as likely unrelated to his operation of a scraper at Eutaw as they were related.
This clear failure by Mr. West to shoulder his burden of proof cannot be remedied even by the most liberal interpretation of the Law. The Order of Administrative Judge dated February 15, 2000 is therefore reversed and held for naught, and the present claim of Loyal Rickey West for workers' compensation benefits is denied and dismissed accordingly.
SO ORDERED this the 26th day of May, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Ben Smith
Barney Schoby
Beverly Bolton
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 99 04300-G-5223-B
LOYAL RICKEY WEST, SR. CLAIMANT
vs.
EUTAW CONSTRUCTION COMPANY
EMPLOYER
AND
ASSOCIATED GENERAL CONTRACTORS OF MISSISSIPPI,
INC.
CARRIER
APPEARING FOR THE CLAIMANT:
Bryan P. Lieb, Esquire, Tupelo, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER:
Steven H. Funderburg, Esquire, Jackson, Mississippi
On March 29, 1999, the claimant, Loyal Rickey
West, Sr., filed a petition to controvert alleging that on August 25, 1998,
he received a work-related injury to his neck. The employer and carrier
denied the compensability of the injury and did not pay any workers' compensation
benefits. A hearing was held in the Lowndes County Courthouse in Columbus,
Mississippi, on February 8, 2000.
The parties stipulated as follows:
1. The claimant's average weekly wage on August 25, 1998, was $631.32, as figured from the wage statement submitted into evidence by the employer.
2. If the alleged neck injury of August 25, 1998,
is found compensable, the employer and carrier
will not contest the reasonableness and necessity of the medical treatment
rendered the claimant for his neck problems.
The issues to be resolved by the Administrative Judge are as follows:
1. Whether the claimant received a work-related injury to his neck on August 25, 1998, as alleged in the petition to controvert.
2. If so, the existence/extent of disability resulting
from the injury.
Loyal Rickey West, Sr. is thirty-seven years old and a resident of Aberdeen, Mississippi. He was born June 19, 1962, in Amory, Mississippi. He is married and has two children. He completed the eighth grade in school, barely passing the eighth grade. He testified that he has significant difficulty reading, writing, and doing arithmetic, especially reading and pronouncing big words. He does not read the newspaper; his wife reads classified ads to him. When applying for a job, he asks to take the application with him so she can fill it out for him. He can make change and keep up with money, however. He testified at the hearing -in an articulate fashion, indicating understanding of medical records and other written materials relating to his case.
Mr. West testified that he has done construction work all his life, primarily operating heavy machinery on road construction projects. When he was sixteen years old, he started working on heavy machinery for a construction company. From 1985 until 1987, however, Mr. West was in the upholstery business.
In 1987, Mr. West had a motorcycle accident. He "got run over and broke" his neck. He had a fracture of the C-6 vertebra with spinal cord contusion. Dr. Walter Eckman, neurosurgeon in Tupelo, treated him at the time. Mr. West testified that he was off work about a year and a half but made a full recovery from that neck injury. According to Mr. West, he had no trouble with his neck after his recovery from the neck injury in 1987 and before August 25, 1998. He went to Dr. Eckman for checkups during this time, but Dr. Eckman would advise him simply to take hot showers and try to loosen up his neck muscles.
From about 1993 until 1996, Mr. West worked at Metalloy Foundaries in Tupelo building aluminum intakes for Ford Motor Company. He worked as a core machine operator building the cores of the intakes. He became a lead man after two years, doing different jobs as needed. He was terminated from Metalloy for absenteeism. He said he was sick a lot, but he did not remember the sickness being related to his neck.
Mr. West also worked for Shuler Drilling Company in El Dorado, Arkansas. Mr. West explained that during the winter time he would work on a drilling rig, sometimes in Alabama and sometimes in Lowndes County and other places nearby. Then during spring months he would go back to running the bull dozer on road construction Jobs. There was little road construction work available during the winter months.
Mr. West did construction work for Parham Trucking in Amory. He left Parham Construction to work for Riley Construction in Nettleton, Mr. West had worked for Eutaw Construction once before also, on jobs in West Point and Houston. He quit working there when he was laid off. Answers to. interrogatories indicate he also worked for Magnolia Constructors in Amory and Hill Brothers Construction Company in Falkner.
In July 1998, while Mr. West was working for Parham Trucking, Steve Minor, a friend and superintendent at Eutaw Construction, called him, and he subsequently left Parham Trucking to go back to work for Eutaw Construction. Mr. West operated a back hoe, dozer, and other heavy equipment on a road project.
On Tuesday, August 25, 1998, Mr. West was working on a scraper, a piece of heavy equipment used off the highway, not his usual job. The tires are about ten feet tall, and he was sitting about twelve feet off the ground. The scraper bends in the middle to maneuver over the ground and pulls dirt into the middle of the scraper.
According to Mr. West, he had an accident that day. He was moving dirt from one point to another. He made an abrupt left turn and hit a hole. When the machine hit the hole, the front end went down, and Mr. West experienced a whiplash or shock. He was shaken up but sat for a few minutes to get his bearings again, then went back to work. He felt a tingling sensation from his neck down, but he continued to work. At the end of the day, he felt weak, and he thought it was because he had sat so long on the machine and had such a rough ride on it. He did not tell anyone about the incident. There was no supervisor on the job that day.
The following morning, Mr. West experienced stiffness in the upper part of his body and could not move his neck very well. He said he told his supervisor, Steve Minor, that he had the accident the day before, although Mr. Minor could not recall this. Mr. West said he thought he could keep working, and he finished out the week, working long hours each day. He said, however, that as the week went on the pain became progressively worse to the point of being unbearable.
By the end of the week, on Saturday, August 29, 1998, Mr. West was told to get back on the scraper. After a short time, he complained to his supervisor that operating the machine was hurting him too badly. His supervisor assigned him to another job. He had Sunday off, but on Monday, August 31, 1998, Mr. West had worsening pain. He thought he had the flu, but he began to get worried about the soreness.
On the following Thursday morning, September 3, 1998, Mr. West realized he was hurting badly. His supervisor, Mr. Minor, was gone, and Mr. West had been appointed acting supervisor in his place. That afternoon, Mr. West had words with another employee, and the employee threatened him. Mr. West left the job site. He testified that he was hurting so badly that he left the Job site. The next day, Friday, September 4, 1998, he could not get out of bed and he did not go to work. He notified the employer that he was not coming to work. He called the Eutaw Construction Company's main office to report his absence.
Mr. West did not work Saturday, September 5, 1998. The following Monday was Labor Day, September 7, 1998. That morning he went to the store with his wife to buy breakfast food. While he was eating breakfast, the left side of his body went numb. He thought he had a stroke, and his wife took him to the emergency room in Amory. He had a bad sinus infection at the time and received treatment for that. He told the emergency room physician about his neck, and the doctor advised him to see a neurosurgeon.
The next day, Mr. West went to his regular family practitioner, Peggi Seaman, a nurse practitioner in Aberdeen. Mr. West asked her to refer him to Dr. Eckman, and she did. He saw Dr. Eckman who fitted him with a collar and ordered x-rays. On October 15, 1998, Dr. Eckman performed surgery on his neck.
Mr. West did not work for Eutaw Construction after September 5,1998. He testified learned he was fired from his Job when his wife went to pick up his paycheck and Steve Minor told her Mr. West had been terminated. On September 14, 1998, Mr. West went to the Job site to talk to Steve Minor about his termination. He filed for unemployment benefits in October 1998.
In May 1999, Mr. West hired on with Parham Trucking to do road construction. He thought he was able to go back to work, and he tried working on heavy machinery again--this time a bull dozer. He worked eight to twelve hours a day, weather permitting. He earned $9.00 an hour and worked there for three months. He testified, however, that he found it was too soon for him to go back to work. He was still wearing his neck collar, and he had problems with his neck. He left that job before the project was completed.
In November 1999, Mr. West went to work part-time for Monroe County Land Fill, operating a back hoe two weeks a month. He did not dig dirt but worked under a shed on a concrete floor moving garbage. He said he wanted a part-time job to ease back into the work force. He testified, however, that the constant pounding of the machine caused him too much pain. That was his last job attempt.
Mr. West testified that the neck injury on August 25, 1998, has ended his career as a heavy machine operator. He applied for Social Security Disability Benefits but was turned down. He appealed the decision but then decided he "did not want to go that route."
Wanda Davis West, the claimant's wife, came to the hearing prepared to testify in her husband's behalf The parties stipulated, however, that she would offer testimony that would be cumulative and corroborative of that already offered by the claimant.
Johnny Steven (Steve) Minor testified for the employer and carrier that he no longer works for Eutaw Construction Company. He last worked there as a superintendent in May 1999. In the summer of 1998 he was the superintendent on the Job site where Rickey West worked, the Highway 12 Bypass project in Columbus. He did not remember Mr. West reporting to him that he hurt his neck on the job.
Mr. Minor remembered the day Mr. West left the job on the Thursday before Labor Day. Mr. Minor had gone to the doctor in Amory, and he returned to the Job site about 3 :00 in the afternoon. On his way back to the Job site, Mr. Minor saw Mr. West driving away from the Job site. Mr. West was the lead man and was supposed to be acting as supervisor on the job in Mr. Minor's place. Mr. Minor learned Mr. West and another employee had been in an argument and Mr. West left immediately after that. Mr. West did not call Mr. Minor that night or the next day. Mr. Minor saw him next on Monday, September 14, 1998, a week after Labor Day weekend, when Mr. West came to the job site to ask about his being terminated.
Christie Bowen Kirkpatrick testified for the employer and carrier that she has been head of the payroll and human resources department for Eutaw Construction Company since 1996. She is familiar with Rickey West's personnel file. She said Eutaw Construction Company learned that Mr. West was claiming a work-related injury when the company received the petition to controvert. [The petition to controvert was filed at the Commission on March 29, 1999.] The company filed a B-3 Form, First Report of Injury, after receiving the petition to controvert.
The medical records from Gilmore Memorial Hospital in Amory were received into evidence. The records show that on September 7, 1998, at 9:04 a.m., Rickey West reported to the emergency room. The records show:
The medical records of the North Mississippi Medical Center in Tupelo were received into evidence. These records contain the reports of Mr. West's 1987 neck injury. Dr. Eckman saw Mr. West on October 24, 1987, for an injury to his head suffered in a motorcycle accident. Mr. West complained of neck pain and neurologic dysfunction of the left side affecting his left arm and leg. Dr. Eckman admitted him to the hospital and prescribed a cervical collar. Dr. Eckman discharged him on October 29, 1987, asking him to return to his office in one week for a checkup. Dr. Eckman diagnosed fracture of the C6 vertebra and spinal cord contusion.
The medical records of Dr. Walter W. Eckman, neurosurgeon in Tupelo, were received into evidence. Dr. Eckman initially examined Rickey Weston September 18,1998, for complaints of neck pain. As a history, Dr. Eckman dictated:
Dr. Eckman saw Mr. West again on September 24, 1998, for follow up. The MRI scan showed some abnormality, but Dr. Eckman decided to treat him conservatively, advising him to wear the collar and try to go back to work. Then Dr. Eckman suggested surgery to decompress and fuse three levels of the neck and scheduled the surgery for October 15, 1998. On October 23, 1998, Dr. Eckman advised Mr. West to get increasingly more active and return to see him in five or six weeks.
On November 30, 1998, Mr. West reported problems
with stiffness in his neck and trouble swallowing. Dr. Eckman told him
to return in four months. Dr. Eckman saw him again on August 23, 1999,
for follow up. Dr. Eckman checked his x-rays and found him to have a well
healed fusion. Dr. Eckman released him as having recovered from surgery.
After carefully considering the pleadings, pretrial statements, stipulations about average weekly wage and medical treatment, lay and medical evidence, the demeanor of the witnesses at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. Loyal Rickey West, Sr. received a work-related injury to his neck on August 25, 1998, as alleged in the petition to controvert. His story at the hearing was believable and convincing, and the details were consistent with the medical records, although Dr. Eckman had the date of the accident wrong in his history. The description of the accident on the scraper in Dr. Eckman's notes is the same as what Mr. West testified about. It is not unusual for a claimant to continue working after an accident, thinking that whatever is the physical problem of the moment will subside and eventually go away, particularly a claimant engaged in strenuous physical labor such as what Mr. West has described about the operation of the scraper. No one presented evidence to indicate that Mr. West had injured his neck doing anything else, and apparently he had not had any significant difficulties with his neck after recovering from the 1987 motorcycle injury until August 25, 1998. There are no records from Dr. Eckman to show otherwise.
2. The average weekly wage of the claimant on August 25, 1998, was $631.32, as stipulated by the parties.
3. Because of the work injury, the claimant was temporarily totally disabled from September 5, 1998, until at least August 23, 1999, when Dr. Eckman released him to return to work. There may be a finding later that Mr. West has an additional period of temporary total disability.
4. The employer and carrier shall provide Mr. West with a program of physical therapy or work hardening, according to whatever his treating physician may prescribe, and the services of a vocational rehabilitation counselor in an attempt to rehabilitate Mr. West to reenter the workforce.
5. Until Mr. West has had an opportunity to undergo
physical therapy and vocational rehabilitation efforts, a determination
about permanent occupational disability cannot be made. At this point,
it appears that he has a substantial occupational disability because of
his lack of education and academic skills and his long history of heavy
manual labor in the road construction business, but this likely can be
remedied at least in part by physical therapy and vocational rehabilitation
services which the employer and carrier are to provide. This aspect of
the case has simply not yet been completed because of the threshold hurdle
of compensability.
IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $279.78 per week beginning September 5, 1998, and continuing until at least August 23, 1999, with credit for any wages earned by the claimant during this time;
2. Penalties and interest on all due and unpaid compensation benefits;
3. Provide the services of a vocational rehabilitation counselor; and
4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule, including a program of physical therapy or work hardening, as his treating physician may prescribe.
SO ORDERED, this the 15th day of February, 2000.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. This makes it unnecessary for us to discuss the problematical directive by the Administrative Judge that the Claimant be provided with physical therapy or work hardening even though neither was medically prescribed nor requested, and also that he be given an additional opportunity to build a claim of permanent disability, despite the fact he clearly failed to establish any such case his first time around.
2. The Commission's own records show that the Petition to Controvert was filed with the Commission on March 29, 1999.