Jack Bell v. Consolidated Personnel/CPC Logistics Inc.

The above-entitled workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties and considered the entire record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated October 26, 2005. The award and decision of Administrative Law Judge Linda J. Wenman is attached hereto solely for reference.

The dispositive issue is whether or not the employee sustained an injury due to an accident arising out of and in the course of employment. Section 287.120.1 RSMo. The administrative law judge concluded that the employee did sustain injury due to an accident arising out of and in the course of his employment. The Commission disagrees with this conclusion and reverses the award.

The instant appeal does not present a novel issue to the Commission. If the facts and evidence presented by the employee are deemed to be credible, trustworthy and persuasive, the administrative law judge or the Commission could find that there was an injury due to an accident arising out of and in the course of employment. On the other hand, if the facts and evidence presented in behalf of the employer are more believable, persuasive, credible and worthy of belief, the administrative law judge or the Commission can find that there was no injury due to an accident arising out of and in the course of employment. Simply stated, which party presented the more credible, believable and trustworthy factual evidence?

The Commission reviews the record, and, where appropriate, it will also determine the credibility of witnesses and the weight of their testimony, resolve any conflicts in the evidence, and reach its own conclusions on factual issues independent of an administrative law judge. *Pavia v. Smitty’s Supermarket*, 118 S.W.3d 228 (Mo. App. S.D. 2003).

The ultimate determination of credibility of witnesses rests with the Commission. The Commission should take into consideration the credibility determinations made by an administrative law judge. However, the Commission is not bound to yield to an administrative law judge’s findings, including those relating to credibility, and the Commission is authorized to reach its own conclusions. The law only requires the Commission to take into consideration the credibility determinations of an administrative law judge and not

give those determinations deference. Kent v. Goodyear Tire and Rubber Co., 147 S.W.3d 865 (Mo. App. W.D. 2004).

A decision made by an administrative law judge in a workers' compensation proceeding does not in any way bind the Commission and in fact, the Commission is free to disregard an administrative law judge's findings of fact. Bell v. General Motors Assembly Div., 742 S.W.2d 225 (Mo. App. E.D. 1987).

Employee was hired by employer in the capacity of a shuttle driver. Employee's job duties entailed driving motor vehicles from the St. Louis Ford Motor Company staging area to a designated shipping area/parking area for eventual transportation of the vehicles to various points of destination. Employee's work hours were 6:00 p.m. to 2:30 a.m.

Employee's version of the alleged accident at trial was: He began work at 4:00 p.m. on December 1, 2003; at approximately 8:00 p.m., after driving a vehicle from the staging area to the shipping area, employee injured his back while exiting the vehicle; his left foot slipped and employee described a fall between the front seat of the vehicle and the dashboard; there were no witnesses; employee felt the injury was insignificant; he did not report the injury that evening or the next day; and he finished his work shift at 2:30 a.m.

The following morning, December 2, 2003, employee was in pain and felt like there was a "knife in the middle of my back"; employee telephoned the office of his personal physician, Dr. Boyd, and Dr. Boyd was able to "work him in" that very day; part of the treatment rendered by Dr. Boyd on December 2, 2003, consisted of lumbar spine x-rays and excusing employee from work for approximately one week commencing December 1, 2003; employee indicated to Dr. Boyd that he was hurt at work and that employee felt great prior to going to work December 1, 2003.

Subsequently, when Dr. Boyd had an opportunity to review the lumbar spine x-rays, and note some possible abnormalities and/or pathology, employee reported an injury to the employer by forwarding a fax to the employer December 3, 2003; the facilities operations manager of the employer, Tom Moore, received the fax transmission reporting the alleged injury to the employer, and followed up with the employee via a telephone conversation which the employee taped; the telephone conversation occurred after Dr. Boyd had suggested to the employee that he may have sustained a compression fracture of the lumbar spine.

Upon being notified of the injury, employee was sent to Dr. Raskas and subsequently Dr. Chabot, as these two physicians were the selected authorized treaters of the employer; employer also arranged for a nurse case manager, Ms. Kay Hall, to monitor the employee's case/injury; and employee received workers' compensation benefits through approximately November 24, 2004, at which time benefits were ceased and terminated by the employer, based upon its investigation of the alleged accident.

The evidence proffered by the employer revealed several inconsistencies and conflicting accounts when compared and contrasted with the evidence proffered in behalf of the employee.

The employee's time records/work manifest record of December 1, 2003, reveal employee clocked in for work at 5:56 p.m. and left work 2:30 a.m., the following morning, December 2, 2003, which is in contrast with his inexplicable testimony that he began work at 4:00 p.m.

Prior to reporting to work on December 1, 2003, employee telephoned the office of his personal physician, Dr. Boyd, informing Dr. Boyd that he believed he had pulled a muscle and his left lower back was hurting badly; and he requested Dr. Boyd to prescribe a pain medication; in response to the telephone call initiated by the employee on December 1, 2003, Dr. Boyd prescribed a prescription for lortab, which is composed of

acetaminophen (Tylenol) and hydrocodone, a narcotic medication that is prescribed for pain; on December 1, 2003, the office of Dr. Boyd telephoned the prescription into a pharmacy in Godfrey, Illinois, where the employee resides, and the pharmacy in Godfrey, Illinois, filled the prescription for hydrocodone as prescribed by Dr. Boyd at 3:56 p.m. on December 1, 2003, which was approximately two hours before the employee reported for work, although employee testified at the trial that he reported to work at 4:00 p.m.

Employee during cross-examination at trial, testified that he felt "great" when he reported to work December 1, 2003; that the only problem he had experienced with his low back was fatigue and that his back was fine as far as he knew when he reported to work December 1, 2003; these answers contradicting his testimony on direct examination that he needed pain pills from Dr. Boyd prior to going to work on December 1, 2003, because of a back ache or his hips, bones and joints were aching.

The employer further elicited during cross-examination that when employee's deposition was taken October 2004, employee indicated that in addition to feeling "great" upon arriving to work on December 1, 2003, no doctor had ever given him a prescription for back pain before his alleged accident occurring December 1, 2003.

Employee further admitted on cross-examination that he worked his entire scheduled shift until 2:30 a.m. without reporting any type of injury to his supervisor or his co-workers although he had ample opportunity to do so; and employee admitted that no one witnessed the alleged accident resulting in his alleged injury.

The employee did not report an injury on December 1, 2003 or on December 2, 2003, even though he did not work December 2, 2003, and could have contacted his supervisor, Tom Moore, or left a message for Mr. Moore on either his office phone or cell phone.

Employee did see Dr. Boyd on Tuesday, December 2, 2003, but the appointment had been scheduled prior to reporting to work December 1, 2003, and the appointment was not obtained after he awakened on December 2, 2003, as he testified at the hearing; and the office of Dr. Boyd did not "work him in" as he testified on direct examination.

Dr. Boyd's handwritten and dictated treatment records dated December 2, 2003, are absent any history of a work injury or onset of severe symptoms that morning, as employee described in his direct testimony; directly to the contrary, Dr. Boyd's handwritten treatment record of December 2, 2003, gives the following history: "low back-pain x [?/?] weeks after working on cars".

In addition to the handwritten note, Dr. Boyd dictated a note on December 2, 2003; the dictated note of Dr. Boyd indicates the employee pulled his back out about a week or so previously when he was pulling some kind of part out of a car, although Dr. Boyd wasn't sure about the details; at the hearing, the employee and Tom Moore both testified that the employee did not work on cars or pull parts out of cars in the course of his employment, and the employee admitted that he maintained and performed minor repairs on all of his family vehicles.

On December 2, 2003, Dr. Boyd determined that due to the employee reporting symptoms occurring about a week previously, employee was to be off work for a week beginning December 1, 2003; Dr. Boyd had not been told that the employee worked the preceding day, December 1, 2003; Dr. Boyd was not told the employee was injured at work; and there was no description of a work accident given Dr. Boyd on December 2, 2003.

On December 3, 2003, at approximately 1:00 p.m., the employee reported a work injury to his employer via a fax message. The employer assigned a nurse case manager, Ms. Kay Hall, to monitor the injury. Ms. Hall telephoned the employee on December 5, 2003, and the employee described the alleged accident to Ms.

Hall as he had to Tom Moore; employee also indicated to Ms. Hall that he had no back problems before the accident occurring December 1, 2003. These events occurred subsequent to employee being informed by Dr. Boyd that he may have possibly sustained a lumbar compression fracture.

Ms. Hall and the employer arranged for the employee to be seen and treated by Dr. Raskas; when the employee initially saw Dr. Raskas on December 19, 2003, the employee described the alleged work injury; he also told Dr. Raskas that he had no past history of back problems; employee told Dr. Raskas on December 19, 2003, that he experienced immediate onset of severe back pain at the time of the injury; these histories were inconsistent with his direct testimony at trial and prior conversations with Dr. Boyd.

On December 2, 2003, Dr. Boyd ordered a lumbar spine x-ray; the radiologist reported osteopenia, as well as an L-2 compression fracture and L-3 minor compression fracture which were new compared to the employee's July 10, 2001, lumbar spine x-ray, but still age indeterminate; the radiologist, in fact, recommended further evaluation with an MRI.

The recommended MRI was performed December 5, 2003; along with numerous degenerative findings, the radiolo