MWCC NO. 99 09481 -G-7584
BOBBY WHITLOCK CLAIMANT
vs.
CASINO MAGIC
EMPLOYER
AND
GREAT AMERICAN INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
Honorable Lawrence J. Hakim, Attorney at Law,
Batesville, Mississippi
REPRESENTING EMPLOYER/CARRIER:
Honorable William D. Blakeslee, Attorney at Law,
Gulfport, Mississippi
The Commission heard the above styled cause on April 9, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Claimant's "Appeal to the Full Commission" and Claimant's "Amended Appeal to 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 November 16, 2000.
SO ORDERED, this the 20th day of April, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC No. 99 09481-G-7584
BOBBY WHITLOCK CLAIMANT
vs.
CASINO MAGIC EMPLOYER
GREAT AMERICAN INSURANCE COMPANY CARRIER
REPRESENTING THE CLAIMANT:
Lawrence Hakim, Esquire, P. O. Box 1289, Batesville, Mississippi 38606-1289
REPRESENTING THE EMPLOYER-CARRIER:
William D. Blakeslee, Esquire, P. O. Box 10, Gulfport, Mississippi
39502-0010
Claimant alleges that he injured his back in the
course of his employment as a security employee for Casino Magic on July
11, 1999. The employer initially paid claimant disability benefits and
medical benefits but later contested the occurrence of a compensable injury.
The only issue to be resolved is whether claimant sustained a compensable
injury on July 11, 1999.
Claimant's average weekly wage on July 11, 1999
was $304.46.
By agreement of the parties, the only issue litigated
at the evidentiary hearing was whether claimant sustained a compensable
injury on July 11, 1999 as the term "injury" is defined in Section 71-3-3(b).
Claimant is a sixty-four-year-old resident of Slidell, Louisiana. On July 8, 1999, he was hired by Casino Magic as a security employee to work both inside the casino and outside on the casino premises. He worked from 11:00 p.m. to 7:00 a.m.
On July 11, 1999, the third day of claimant's employment with Casino Magic, at approximately 1:30 a.m., his trainer and supervisor, George Dijkjuizen, called him to the parking lot of the casino where a stalled pick-up truck was blocking traffic. Claimant testified that he, Dijkjuizen, and co-trainee Chad Stokes lined up along the back of the truck and pushed it up a slight incline into an empty parking space. Claimant testified that, after walking four or five, steps forward while pushing the truck, his left foot slipped and he felt something "snap, pop or crack" in his back. He experienced immediate pain down his right leg into both hips. He specifically testified that the injury occurred while he was pushing the truck with both hands on the tailgate. Claimant testified that although he pushed the truck another twenty-five or thirty feet to the designated parking space after he hurt his back, he did not push as hard after the injury because of back and leg pain. He also testified that he, Dijkjuizen, and Stokes pushed the truck first to the right and then to the left after the alleged injury occurred.
Claimant further testified that while walking back to the casino he told Dijkjuizen that he had hurt his back. He recalled that Dijkjuizen was walking between him and Stokes when he reported the injury to Dijkjuizen. However Dijkjuizen replied, "Hell, my back and legs hurt every night." Claimant realized that Dijkjuizen did not take his complaint seriously, but he thought it would be futile to report the injury to anyone else: "if I can't get anything from him, how was I going to get anything from anyone else?" Although his pain worsened progressively throughout the day, but he worked until his shift ended at 7:00 a.m. later that morning.
Upon leaving work, claimant drove home to Slidell, Louisiana. However he could not get out of his truck because of back pain when he arrived home. He blew the truck horn and his girlfriend, Rose Stortz, came to the car and helped him out. Once inside his home, he called the employer to report his condition. He testified he talked to either Debbie Downs or Tracy Ladner, and she told him that he needed to return to the casino and complete an accident report. Claimant returned to the casino, but neither Downs nor Ladner was there so he talked to a daytime supervisor who asked him to fill out several forms, including an employer's accident report. The supervisor also referred him to the Urgent Care Center.
Claimant saw a doctor at the Urgent Care Center at 10:00 a.m. the same morning as his injury. The doctor ordered x-rays and recommended he return to the clinic to see Dr. Stribling. Dr. Stribling ordered an MRI which the employer and carrier approved. Dr. Stribling took claimant off work and referred him to neurosurgeon Dr. Terry Smith. Claimant first saw Dr. Smith in July 1999. After an unsuccessful course of conservative treatment, Dr. Smith recommended surgery in August 1999. Claimant testified that the employer would not authorize surgery, although Dr. Smith had not released him to return to work and the employer/carrier continued to pay disability benefits.
Claimant identified the employer's accident report marked Exhibit 3 as one of the forms that he completed when he returned to the casino on the morning of his injury. He denied that he circled "NO" under Part 2 of the accident report when asked if he had reported the injury to the employer. Claimant also identified the patient information sheet that he completed at the Urgent Care Center on July 11, 1999 (see Exhibit 4). He testified that his description of the injury on the patient information sheet is consistent with the employer's accident report marked Exhibit 3 and with his testimony at the evidentiary hearing.
Claimant concluded his testimony on direct examination by stating that, aside from George Dijkjuizen's remark on the night of the injury, no one representing the employer or carrier ever intimated that he had not sustained a compensable injury. He testified that the employer did not contest the occurrence of an injury until after he saw Dr. Smith in October 1999. He also testified that he cannot cut the grass, push a vacuum or "do anything" because of back pain. He therefore requested surgery as recommended by Dr. Smith.
On cross-examination, claimant testified that he pushed the truck approximately fifty yards or one hundred fifty feet "from the start to the stop." He also testified that he had pushed it only four or five steps when his foot slipped, although he admitted that, in his deposition, he "guessed" that his foot had slipped after pushing the truck halfway to the parking space. He explained this discrepancy by testifying that he had also guessed during direct examination when he testified that he had pushed the truck only four or five steps before injuring his back, so "it could have been either."
Claimant also testified on cross-examination that he could hear the conversation between Dijkjuizen and Stokes as they walked back together from the parking lot to the casino. He further testified that he was in so much pain at the end of his shift that he had trouble walking to his truck, and that he even stopped to rest against a tree while walking to his truck because of back and leg pain.
Claimant further testified on cross-examination that he was not sure whether he talked to Downs or Ladner when he called the employer after arriving home on the morning of his injury, but that he was sure he talked to a woman. When confronted with his deposition testimony that he had talked to a man on the telephone, he testified that he first talked to a man in security who then transferred him to a woman.
Claimant also testified that his trainer and supervisor, George Dijkjuizen, had verbally reprimanded him for spilling gambling chips during his brief tenure as an employee of Casino Magic, but that Dijkjuizen had told him not to worry about it that everybody made mistakes in the beginning. He did not recall receiving any other reprimands between the time of the alleged injury and the end of his work shift at 7:00 a.m. on July 11, 1999. He testified he was hurting but not irritated or angry when he left work at 7:00 a.m. on the morning of July 11, 1999.
Upon reviewing the Urgent Care Center record of July 11, 1999 which states that claimant had no history of prior lumbar spine problems, claimant testified that he did not recall whether he had made this statement to Dr. Stribling. Claimant also testified that he had injured his back at Hollywood Casino on February 19, 1997, that the pain he experienced after the 1997 injury was similar to the pain that he experienced on July 11, 1999, but that he did not experience pain after he was hired by Casino Magic. He admitted that Dr. Smith's July 28, 1999 report also did not reference any history of a back injury in 1997 although it did state that his condition had considerably worsened over the past two weeks. He could not recall whether he told Dr. Smith that his pain had begun to radiate into the bilateral posterior hip areas while walking in recent months.
On redirect examination, claimant noted that the August 25, 1999 follow-up note from Dr. Smith marked Exhibit 6 specifically references the occurrence of a work-connected injury.
The parties stipulated that claimant's girlfriend, Rose Stortz, would corroborate his testimony regarding their interaction upon claimant's arriving home and returning to the casino on the morning of July 11, 1999.
George Dijkjuizen, a native of Holland, testified he has worked for the employer as a security officer since April 1993. In July 1999, he trained claimant and Chad Stokes as security officers. Dijkjuizen testified that claimant did not report a work-related injury or complain of back pain on July 11 or 12, 1999. Dijkjuizen also testified that he, Chad Stokes and another employee named Thigpen pushed a stalled truck from a traffic lane into an empty parking space on the employer's premises on July 11, 1999. Dijkjuizen testified that he never saw claimant push the vehicle, although claimant put his hand on one corner--if the vehicle initially. He did recall that, after moving the vehicle approximately ten feet, he turned and saw claimant standing thirty feet away beside a security vehicle. Dijkjuizen also recalled observing claimant as he left the casino that morning at 7:00 a.m. He noted that, as claimant walked in front of him toward his truck, he walked normally and moved faster than most of the other employees. Dijkjuizen further recalled that, after the alleged injury and before the end of claimant's work shift at 7:00 a.m. later the same morning, he reprimanded claimant because he spilled gambling chips and because he left his post to smoke a cigarette.
On cross-examination, Dijkjuizen testified that Chad Stokes was on his left and Thigpen was on his right as they pushed the stalled vehicle into an empty parking space. He testified that claimant was originally standing on the other side of Thigpen. He also testified that he did not know whether or when claimant may have pushed the truck, as he did not notice that claimant was not behind the truck until he had pushed the truck approximately ten feet.
Chad Stokes testified he was hired with the claimant on July 9, 1999. He and claimant worked under George Dijkjuizen's supervision. Stokes testified that the employer later fired him for fraternizing with casino employees on company time and for having a verbal altercation with a country music star. Stokes testified that he did not believe he was justly terminated, but "that's how the cookie crumbles."
Stokes testified that he, George Dijkjuizen and Thigpen pushed a stalled vehicle into an empty parking space of the employer's parking lot on the morning of July 11, 1999. He specifically testified that he had no doubt that claimant did not push the truck at any time, as there was not room for four grown men along the tailgate of the stalled vehicle. He recalled that he was on the left or driver's side of the truck, Dijkjuizen was in the middle, and Thigpen was on the passenger's side of the truck. He also recalled that claimant briefly touched the truck when he came out to observe the stalled vehicle, but that he backed away and stood by the mobile unit when the decision was made to push the vehicle. Stokes also testified that he never heard claimant report an injury after this incident, that he saw claimant walk to his truck the next morning, and that he recalled how quickly claimant walked to his truck -- as though he couldn't wait to get out of the parking lot. Stokes further testified he knew that claimant was scolded twice after the injury. He also observed that claimant was not happy about the reprimands, and that claimant did not make any effort, "to turn himself around and get a different attitude."
The records of neurosurgeon Dr. Terry Smith show he first saw claimant on or about July 28, 1999. Claimant reported that his problems dated to February 1997 when he fell while walking across a waxed floor at work. Dr. Smith also stated that "since then he has had mid lower back pain, and in recent months it has begun going into the bilateral posterior hip areas with walking... Over the past two weeks he has been considerably worse." Dr Smith testified that claimant's MRI showed significant spinal stenosis from L2 through L5. He recommended a laminectomy after a trial of physical therapy to insure that conservative treatment would not improve his condition.
When Dr. Smith next saw claimant on August 18, 1999, he recommended surgical decompression for claimant's spinal stenosis as he had not improved with physical therapy. On August 25, 1999, Dr. Smith noted that he "[could] not see any difference between the old [MRI] and the new one, but this does not mean that his pre-existing condition did not become symptomatic after a recent injury." On October 12, 1999, Dr. Smith stated, after reviewing claimant's medical records from his 1997 injury, that "the symptoms he has now are very similar to the ones he had then. I had previously reviewed the MRI scan side by side, and do not feel that there was any difference." He therefore concluded that claimant's current impairment primarily dated to his 1997 injury with a minor contribution from the July 1999 injury. When claimant last saw Dr. Smith on April 29, 2000, claimant continued to complain of primarily back pain, "but he says that his legs will get numb at night when he is lying in bed." Claimant still requested surgery.
The records of Dr. Joseph Stribling show that claimant was first seen at the Gulf South Urgent Care Center on July 11, 1999. The history sheet on the date of claimant's first office visit shows that he reported having experienced a snap in his lower back while pushing a truck at work between 1:00 and 2:30 that morning. He complained of pain in both hips and numbness in the posterior thighs. There was no history of prior lumbar spine problems. On July 14, 1999, claimant returned to the Urgent Care Center. The July 14, 1999 history sheet notes that claimant, "now reports that he slipped and fell with back injuries in 1997." Dr. Stribling therefore ordered an MRI which was conducted on July 16, 1999. The MRI conducted on July 16,1999 showed that claimant had desiccation of the lumbar disc, primarily from L3-4 through L5-1, and significant spinal stenosis from L2-3 through L4-5, further compounded by posterior protrusion of the disc, ligamentum flavum, and posterior facet joint hypertrophy.
Dr. Stribling last saw claimant on July 18, 1999
for complaints of continued back pain. Dr. Stribling's notes indicate he
discussed the results of the MRI with claimant and advised him that "it
all looks chronic, degenerative with questionable relationship to current
injury."
1. Claimant did not sustain a work-connected injury on July 11, 1999 as the term "injury" is defined in Section 71-3-3(b). In Penrod Drilling Co. v. Ethridge, 487 So.2d 1330, 1333 (Miss. 1986), the Supreme Court quoted V. Dunn, Mississippi Workers' Compensation Section 264 (3rd ed. 1982) in holding as follows:
Although some of the inconsistencies in claimant's testimony alone would not be fatal to his claim for compensation, claimant's proof also lacks probative value because of the absence of corroborating evidence and the existence of contradictory evidence regarding the occurrence of his injury. In particular, claimant's testimony regarding the occurrence of his injury is contradicted by the clear, unequivocal and credible testimony of two of his former co-employees. George Dijkjuizen testified that although claimant put his hand on the back of the vehicle, he never observed claimant push the vehicle. He specifically recalled that after he, Stokes and Thigpen had pushed the truck for ten feet, he observed claimant standing thirty feet away by a security vehicle. Stokes, a fellow employee at the time of the alleged injury, testified that he was sure that claimant did not push the truck. He recalled that claimant briefly touched the truck when he observed the stalled vehicle, but that he backed away and stood by the mobile unit when a decision was made to push the truck. Stokes also testified that there was not enough room for four grown men across the tailgate of the stalled vehicle.
Also, contrary to claimant's testimony, George Dijkjuizen testified that claimant did not report an injury or complain of back injury at any time on July 11 or 12, 1999. Chad Stokes also testified that he did not hear claimant report an injury on July 11, 1999, although claimant testified that he reported the injury to Dijkjuizen in Stoke's presence. Both Dijkjuizen and Stokes further testified, again contrary to claimant's testimony, that they observed claimant walking to his truck with a fast paced gait when he left the premises at 7:00 a.m. later the same morning. Both men also recalled that claimant received two verbal reprimands regarding his job performance after the injury and before he left work at 7:00 a.m. Stokes specifically testified that he did not observe that claimant made any effort "to turn himself around and get a different attitude" after the reprimands.
In evaluating the testimony of Chad Stokes and George Dijkjuizen, this Administrative Judge notes that both men were credible witnesses, and that Chad Stokes' testimony, in particular, does not appear to be biased as he is no longer employed by Casino Magic and, in fact, has been terminated by them.
This Administrative Judge also notes that although claimant returned to the employer to report an injury on the morning of July 11, 1999 and was referred to the Urgent Care Center, his medical records of the same date indicate that he gave no history of prior, significant lumbar problems. Dr. Terry Smith's records on July 28, 1999 also do not reference the occurrence of an injury at Casino Magic in 1997. Although Dr. Smith's July 28, 1999 records state that, "over the last two weeks he has been considerably worse," Dr. Smith also reported that "in recent months [claimant mid-lower back pain] began going into the bilateral posterior hip areas with walking."
This Administrative Judge therefore concludes that a preponderance of the credible evidence indicates that claimant did. not sustain a compensable injury on or about July 11, 1999 as the term "injury" is defined in Section 71-3-3(b).
IT IS THEREFORE ORDERED that claimant's claim for workers' compensation benefits arising out of the alleged injury on July 11, 1999 is hereby denied and dismissed.
SO ORDERED this the 16th day of November, 2000.
DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary