MWCC NO. 00 02466-G-7761 & 00 0603 7-G-8445
KAREN PORTER EMPLOYEE
VS
R. B. WALL OIL COMPANY, INC. CARRIER
AND
AMERICAN INTERSTATE INSURANCE COMPANY CARRIER
REPRESENTING CLAIMANT:
Unrepresented
REPRESENTING EMPLOYER AND CARRIER:
Honorable Thomas A. Webb, Attorney at Law, Jackson, Mississippi
FULL COMMISSION ORDER
Having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated June 8, 2001.
SO ORDERED, this the 7th day of November, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
ATTEST:
Jo Ann McDonald
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO. 00 02466-G-7761
AND
MWCC NO. 00 06037-G-8445
KAREN PORTER CLAIMANT
VS
R. B. WALL OIL COMPANY, INC.. DBA BOGUE CHITTO TRUCK STOP EMPLOYER
AND
AMERICAN INTERSTATE INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
Honorable Floyd E. Doolittle, Attorney at Law, Ridgeland, Mississippi
REPRESENTING EMPLOYER AND CARRIER:
Honorable Thomas A. Webb, Attorney at Law, Jackson, Mississippi
ORDER OF ADMINISTRATIVE JUDGE
The claimant filed her petition for benefits on February 29, 2000, alleging a work-related injury to her back on May 15, 1998. The employer and carrier denied this claim. On May 16, 2000, the claimant filed a second petition for benefits alleging a back injury on June 26, 1998. The employer and carrier also denied the second claim. On July 24, 2000, an Order granting the claimant's Motion to Consolidate Claims for purposes of hearing and discovery was entered. A hearing of these matters was held in Brookhaven, Mississippi, on January 24, 2001 after which the record was kept open so that the medical records under affidavit of Dr. J. J. Breeland could be obtained and introduced as an exhibit. After the receipt of that evidence on March 1, 2001, the record was closed.
STIPULATIONS/EVIDENTIARY MATTERS
Prior to the hearing the parties were able to stipulate that the claimant's average weekly wage at the time of the alleged injuries was $250.00, and that General Exhibits 1 - 4, as set out on the Exhibit inventory herein, were admissible as evidence. A patient information sheet from Dr. James N. Sikes' office containing claimant's handwriting and signature was admitted during the hearing as Employer/Carrier Exhibit 5, and the medical records affidavit of Dr. J. J. Breeland, as mentioned above, was marked and admitted as General Exhibit 6 on March 1, 2001.
SUMMARY OF THE RELEVANT EVIDENCE ON COMPENSABILITY
The claimant is a 40-year old resident of Brookhaven who began work for the employer as a cashier in 1997 and was promoted to the position of assistant manager which she held on May 15, 1998, and on June 26, 1998. Ms. Porter testified that as assistant manager for the employer, her duties were to stock coolers, oversee other employees, make grocery orders and clean the storeroom. Ms. Porter stated that lifting was a part of her physical activities. She stated that in May, 1998, she first hurt her back while cleaning up the storeroom and lifting a case of drinks, when, as she turned to her left, she felt a burning sensation in her lower back that went down her right leg. The claimant said that her manager, Suzanne Wallace, was present in the storeroom and that she told Ms. Wallace about the injury. Ms. Porter indicated that she worked the remainder of her shift and did not miss any time from her May, 1998 injury.
Ms. Porter indicated that she suffered her second back injury during the course of her employment "one to two weeks later" in June of 1998, when, while she was again in the storeroom, she tripped over a case of Gatorade, falling back and catching herself against the wall. She testified that she again felt burning in her lower back and reported the second incident to Suzanne Wallace on the same day. Ms. Porter said that she told Ms. Wallace that her back was bothering her and that it was burning, and that she discussed her back complaints with Ms. Wallace off and on every other day,just generally speaking. According to Ms. Porter, she did not lose any time from work after the second episode in June, 1998.
The claimant testified that she next had problems with her back in September. 1998 when she went to.a trade show in Biloxi, Mississippi presented by McLain Southern, but she denied that anything unusual or untoward occurred to her back during the trip to or from Biloxi, or at the trade show. Ms. Porter stated that her back was hurting when Mildred Smith, a manager at another company store, picked her up to travel to Biloxi, and that when she arrived home from the trade show on Wednesday, September 2, 1998, she scheduled an appointment to be seen that afternoon for her back complaints by her family physician, Dr. J. J. Breeland of Brookhaven. She said that after she had scheduled an appointment to see Dr. Breeland, she called Suzanne Wallace to report that she would need to go to a doctor because she was in pain and she could hardly move. Ms. Porter indicated that she advised Suzanne Wallace that her lower back was burning and pain was going down in her right leg.
Ms. Porter indicated that she saw Dr. Breeland on Wednesday, September 2, 1998, for her back complaints, and did not return to work for the employer for approximately two months. Ms. Porter acknowledged that Dr. Breeland referred her to Dr. James Sikes, an orthopaedic surgeon in Brookhaven. She said that when she did return to work as a cashier, she worked for a few days and then quit because she could not do her work. Ms. Porter stated that she told Mark Brown, an assistant manager for the employer, that she was quitting.
On cross-examination, Ms. Porter testified that she initially began working for the employer in June of 1997 as a cashier and was subsequently promoted to assistant manager. She acknowledged that prior to May 15,1998, she had been off work for a week for stress or her nerves. In reference to her claims of May and June, 1998, she acknowledged that she had not filled out any written reports on either of them, and she again acknowledged that nothing out of the ordinary had happened during her trip to and from Biloxi, Mississippi, in early September, 1998. She also acknowledged that between May 15, 1998, and September 2, 1998, she did not miss any time from work and that she had seen Dr. F. Lee Neal, a Brookhaven general practitioner, for her back problem in late June or early July of 1998.
Ms. Porter testified that she called Dr. Breeland, her family physician, and made the appointment to see him on September 2, 1998, when Dr. Neal was unable to see her, and that Dr. Breeland referred her to Dr. James Sikes, an orthopaedic surgeon, who ordered an MRI from which he indicated to her that he did not see anything. Ms. Porter conceded that neither Dr. Breeland nor - Dr. Sikes referred her to Dr. Phillips, and she stated that a friend told her about Dr. Phillips.
The claimant said that the trip to Biloxi in early September was not mandatory but was an opportunity and that although she was having back pain while in Biloxi, she gambled at the Isle of Capri Casino and won approximately $500.00. Ms. Porter acknowledged that after September 2, 1998, she did not return to work for the employer until approximately November 2, 1998. In reference to a copy of a patient information sheet from the office of Dr. James Sikes, Ms. Porter identified her handwriting and signature on the form and explained that she did not answer a question about whether her injury was work-related because she simply overlooked it.
Ms. Porter acknowledged that when she returned to work in early November, 1998, she had a conversation with Mark Brown, the assistant manager, about his refusal to sell a pack of cigarettes to one of her sons because the son may have been under the age of eighteen. Ms. Porter indicated that she was told that her son was underage and he did not have his license with him and the personnel for the employer wanted to card him.
Suzanne Wallace testified on behalf of the employer and carrier. She was the manager of the Bogue Chitto Truck Stop when Karen Porter was employed there as a cashier and subsequently as an assistant manager. Ms. Wallace stated that when the claimant was initially hired as a cashier for the employer, Ms. Porter told her that she had had a back injury, as a result of which, Ms. Porter had been instructed not to do anything to over-exert herself or make her back condition worse, and that she did not have to stock coolers.
Ms. Wallace stated that a retired gentleman named Bill Barton lived behind the store and cleaned the parking lot and stocked coolers and performed minor maintenance until his death on or about July 5, 1998. She denied that Karen Porter had ever specifically reported a work-related lifting type injury to her on May 15, 1998, or that Karen Porter had specifically reported a June 26, 1998 injury related to tripping over a case of Gatorade. Ms. Wallace stated that from her initial employment for the employer, Karen Porter periodically complained about the back condition about which she had initially informed Ms. Wallace at the time she was hired. She indicated that Ms. Porter regularly complained about her back but never indicated that it was related to any incident at work.
Ms. Wallace stated that the claimant's trip to the coast for the McLain Southern trade show was not mandatory but was an opportunity for the claimant; that Ms. Porter was the first assistant manager to have the opportunity to go to the McLain Southern meeting in Biloxi; that she first leamed from Mildred Smith that the claimant was complaining that her back was hurting after the trip, but that Ms. Porter did not relate her back complaints to her employment; and that when Ms. Porter returned to work in early November, 1998, she returned strictly as a cashier because Mark Brown had been promoted to the position of assistant manager.
On cross-examination, Ms. Wallace stated that the claimant did not tell her about any lifting incident or any tripping incident, and she reiterated that when Ms. Porter was initially hired, Karen's back problems were discussed and that her complaints about her back hurting all the time were on going but not related to her employment.
Mark Brown also testified on behalf of the employer and carrier. He stated that he was employed at the Bogue Chitto Truck Stop as a cashier when Karen Porter was the assistant manager, and that during his employment there a retired gentleman named Bill cleaned bathrooms, drained diesel and stocked coolers. Mr. Brown stated that from October, 1997, when he started working at the Bogue Chitto Truck Stop, he would overhear Ms. Porter complaining from time to time about her back hurting or bothering her, but he denied that she had ever complained to him that she had suffered a work-related injury at the Bogue Chitto Truck Stop by lifting Cokes or tripping over Gatorade. Mr. Brown testified that at times he had seen Ms. Porter stocking the cooler, but on those occasions he observed her to remove two or three 20-ounce bottles of Coke at a time rather than lifting an entire case.
Mark Brown testified that after the claimant returned to work in November of 1998, he and she had had a discussion about his refusal to allow one of her sons to purchase cigarettes for her because the son was under 18 years of age. He explained that the law had changed and the employees had stopped allowing minors to pick up cigarettes for their parents. Mr. Brown said that Ms. Porter became aggravated about his refusal to send the cigarettes by her son and was questioning others about whether he was allowing other employees to send their children to purchase cigarettes. He stated that he had written Ms. Porter up and counseled her about her questioning other employees about the cigarette sale issue, at which time she advised him that she was quitting.
Dr. F. Lee Neal's records under affidavit are in evidence as Exhibit 1, and they indicate that he saw the claimant for a complaint of low back pain on June 29, 1998. Handwritten notes from a nurse named Shelton on that date indicate that Ms. Porter told the nurse that herjob involved heavy lifting and that she had fallen "the other day," although her "back was already hurting." Dr. Neal's own handwritten notes from that date indicate that Ms. Porter reported she had "tripped over a case of Gatorade at work and worsened symptoms," and that she had previously experienced back pain, but "since tripping has had radiation of pain." After a physical examination which included a negative straight leg raise, Dr. Neal released the claimant with a prescription for medication. These records indicate that the claimant called Dr. Neal for a renewal of her pain medication on July 6, 1998, but did not actually see Dr. Neal again.
The medical records under affidavit of Dr. J. J. Breeland (Ex. 6) indicate that Ms. Porter was seen on September 2, 1998, for a complaint of back pain of 24-hour duration radiating down her legs. The notation for this date also indicates "no history of injury." The previous entries indicate that Karen Porter had been treated by Dr. Breeland beginning on August 10, 1994 for back complaints resulting from a motor vehicle accident on August 8, 1994. The imaging report from King's Daughters Hospital of Brookhaven, dated September 4, 1998, indicates as follows: "No acute fractures or dislocations are noted. The appearance of the lumbosacral spine is unchanged when compared to the previous study of 1994."
The medical records of Dr. James N. Sikes (Ex. 2) indicate that Ms. Porter was referred to him by Dr. Breeland and that she gave a history of "previous flare-up, but worse over the last seven to ten days." The patient information form signed by the claimant and prepared by her on September 9, 1998, for Dr. Sikes left blank the space relating to the question "Was this an on-the-job injury or a motor vehicle accident?" Furthermore, under responsible party and insurance information, Karen Porter indicated herself as the person responsible for payment and indicated that there was no primary or secondary insurance company. (See Ex. 5).1
The records under affidavit of Dr. Stuart Phillips of the Louisiana
Clinic in New Orleans (Ex. 3) indicate that the claimant first saw
him on October 27, 1998. The initial evaluation report relates this history
from Ms. Porter:
Upon consideration of the relevant evidence and the applicable law, the Administrative Judge finds and concludes that the claimant has failed to meet her burden of proving by a preponderance of the credible evidence that she suffered an accidental injury arising out of and in the course of her employment at R. B. Wall Oil Company, Inc., dba Bogue Chitto Truck Stop on May 15, 1998, June 26, 1998, or any other date.
Ms. Porter acknowledged that although she was an assistant manager at the time of her alleged injuries, she did not fill out an injury report for either alleged incident. Furthermore, when she initially saw Dr. J. J. Breeland, her family physician, on September 2, 1998, she gave him no history of an injury at work or elsewhere as the cause of her low back complaints, which complaints he had documented as beginning with her motor vehicle accident of August, 1994. Additionally. when she was seen on September 9, 1998, by Dr. James N. Sikes, an orthopaedic surgeon to whom she was referred by Dr. Breeland, she did not give a history of any work-related injury to Dr. Sikes as the reason for her low back pain complaints. Although she did give a history to Dr. Neal on June 29, 1998 that would tend to corroborate the June 26 claim, she mentioned nothing to Dr. Neal at that time about the alleged May 15 incident. Claimant's allegations in her petitions to controvert and her testimony are inconsistent with the histories, or lack thereof, given to doctors of her choice that she saw within months of her alleged injuries. See Hudson v. Keystone Seneca Wire Cloth Co., 482 So.2d 226.227 (Miss. 1986).
But even if the foregoing evidence were not enough to defeat these claims, the contradictory testimony given by Suzanne Wallace and Mark Brown would certainiy tip the balance. Even the undisputed testimony of the claimant needs to be reasonable within the factual circumstances of her claim, White v. Superior Products, 515 So.2d 294 (Miss. 1987), so when the claimant's testimony is not only unreasonable within the factual setting, but is also uncorroborated by any other witness, and is furthermore even completely contradicted by every other witness, the Commission is deprived of a rational basis for awarding compensation. Neither Suzanne Wallace nor Mark Brown gave any testimony that in any way supported claimant's story. On the contrary, each of these witnesses gave testimony that was directly contradictory to the claimant's allegations and testimony. Furthermore, both Suzanne Wallace and Mark Brown indicated that they were aware for months prior to May 15. 1998, and June 26, 1998, that Karen Porter had a back condition about which she regularly complained but did not relate to her work for the employer herein.
Because there is almost no credible evidence in the record to corroborate the claimant's version of events, and because her credibility has been called into question by contradictory evidence, her claims can only be denied.
ORDER
IT IS THEREFORE. ORDERED AND ADJUDGED that the claims of Karen Porter against R. B. Wall Oil Company, Inc.. dba Bogue Chitto Truck Stop and American Interstate Insurance Company are hereby denied and dismissed.
SO ORDERED, this the 8th day of June, 2001.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald
1 This form was not included in the records under affidavit
submitted by the claimant.