David Green v. MODOT

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-056661

Employee: David M. Green

Employer: MODOT

Insurer: Self-Insured

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. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 26, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued July 26, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 9^{\text {th }} \qquad$ day of February 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: David M. Green

Injury No.: 09-056661

Dependents: N/A

Employer: MODOT

Insurer: Authorized self-insurer

Hearing Date: May 20, 2010

Checked by: MSS/lh

1. Are any benefits awarded herein? No
2. Was the alleged injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of alleged accident or onset of occupational disease: July 23, 2009
5. State location where alleged accident occurred or occupational disease was contracted: Henry County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did alleged accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured? Yes
11. Describe work employee was allegedly doing and how alleged accident occurred or occupational disease contracted: Allegedly lifting heavy road sign
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: allegedly injured low back
14. Nature and extent of any permanent disability? 0

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: David M. Green

1. Compensation paid to date for temporary disability: $\ 0.00
2. Value necessary medical aid paid to date by employer/insurer? \$1,020.58
3. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
4. Employee's average weekly wages: $\mathrm{n} / \mathrm{a}
5. Weekly compensation rate: \mathrm{n} / \mathrm{a}$
6. Method wage computation: by stipulation.

1. Amount of compensable payable:

Medical paid............................................................................\$1,020.58

1. Second Injury Fund liability: N/A

Total: $\ 1,020.58

The parties convened for hardship hearing on May 20, 2010. At that time, the Court received the testimony of claimant David M. Green. The deposition of witness of Paul Valadez was received in evidence as were treatment records from the OHS CompCare Group, Dr. Jeffrey Scott, and Rehabilitation Specialists. In addition, the Court received a narrative report from Dr. Prem Parmar. The Court was asked to determine whether the employee met with accidental injury, whether he is entitled to medical treatment to cure and relieve the effects of said alleged injury, whether he is entitled to past temporary total compensation from August 20, 2009, through March 20, 2010, and whether he is entitled to temporary partial compensation since March $20^{\text {th }}$. Lastly, the Court was asked to determine the appropriate rate of compensation, if necessary.

Claimant David Green testified that on July 23, 2009, he was employed by the Missouri Department of Transportation (MODOT) as a road maintenance crew member. His job duties on that date took him to Henry County, Missouri, where he and a co-worker, Paul Valadez, were in the process of performing maintenance on various highway signs. Shortly before noon, he and Mr. Valadez were in the process of securing additional bracing for a particular sign which was attached to two legs. This process required one worker to lift the sign while the other worker attached the additional bracing. Claimant testified that this called for considerable exertion on his part and that as he was attempting to lift the sign, he felt a sudden onset of pain in his lower back, shooting into his right hip. He testified that he immediately stopped what he was doing, walked away from the sign momentarily, and mentioned the onset of pain to Mr. Valadez. Following the lunch break, the two continued working together through the rest of the day, and claimant stated that he again mentioned his back pain to Mr. Valadez several times that afternoon. When the two returned to their MODOT office to conclude the workday, claimant acknowledged that he was approached by one of his supervisors to discuss certain job performance issues. Claimant did not attempt to report his injury to the supervisor at that time. Instead, claimant stated he decided to wait and see whether his condition would improve over the three-day weekend. (Claimant's normal work week was Monday through Thursday.)

When his complaints did not improve, claimant testified that he reported to work the following Monday morning and formally reported his injury to a supervisor. He was referred to the OHS Group on July 28, 2009. Treatment records from that date describe subjective complaints of lower back pain radiating into the left hip. Mr. Green was provided with

conservative treatment in the form of physical therapy. Therapy records also describe complaints of low back and left hip pain. On his own, claimant was examined by his personal physician, Dr. Jeffrey Scott, on July 30, 2009. Records from that appointment contain the history that claimant "denies any known injury." At trial, Mr. Green stated that he had provided this history so that alternate insurance could be accessed. Nevertheless, when re-examined by Dr. Scott on August 21, he provided the history of on-the-job injury with referral to a workers' compensation physician. The final entry from Dr. Scott, under the date September 22, 2009, describes left elbow pain with no reference to any ongoing back complaints.

Claimant worked light duty until August 20 when he was terminated for inaccuracies in his application for employment which were discovered following his alleged injury. Claimant testified that he does have a preexisting history of upper back and neck complaints and that he had failed to reveal this information at the time his employment questionnaire was completed. Following his termination, Mr. Green stated that he did apply for unemployment compensation but was disqualified from the same. He is continuing to look for work. He is also a college student carrying approximately nine hours per semester in pursuit of a degree that will qualify him for coaching high school athletics. He testified that he did volunteer as an assistant high school football coach last fall. At trial, claimant initially described ongoing lower back pain radiating into his right hip. Under further questioning, he states that he does occasionally notice discomfort in the left hip as well, but he appeared to mention this almost as an afterthought. Since March, he has assisted his wife in the operation of a daycare center and estimates that he has devoted approximately 10 hours per week to this activity.

Witness Paul Valadez testified by deposition because he was scheduled to be on vacation and out of the state on the date of the hearing. He describing working with Mr. Green on the date in question, but repeatedly stated throughout his deposition that he had no recollection of Mr. Green ever mentioning or indicating back pain or injury during the course of the day. He authored a hand-written note on July 28, 2009, which also denied any knowledge of the reported injury. He testified that he and Mr. Green had returned to the MODOT office in Lee's Summit at the conclusion of the work day. He estimated they have ridden together in a MODOT truck for approximately two hours and that at no time did Mr. Green mention back pain or injury. Mr. Valadez stated that the following Tuesday, July 28, he observed the claimant demonstrating quarterback techniques while holding a football which the MODOT employees are sometimes allowed to handle during lunch breaks. He described Mr. Green as mimicking the movements of a quarterback in the passing pocket, demonstrating how a quarterback would set up to pass and avoid tackles. Mr. Valadez made a mental note of the activity because, by that point, he was aware that the employee was alleging a back injury and that "if someone claimed they hurt their back, I just don't see how you could be doing this."

The claimant has the burden of proving all essential elements of his claim. Thorsen vs. Sach's Electric Company, 52 S.W.3d 611 (W.D. Mo. 2001). The fact that the employer may have initially volunteered benefits is of no significance. Trammel vs. S\&K Industries, 784 S.W.2d 209 (W.D. 1989).

On the threshold issue of accident, a careful review of the evidence leaves this Court unpersuaded. For one, the actual reporting of the injury took place on the day following a reprimand from his supervisor. Claimant testified that his injury occurred shortly before the

noon lunch break. At trial, he testified in detail about his discomfort during his lunch hour and the fact that it would have been readily apparent to his co-workers that he was in pain. Treatment records generated just five days later, however, describe an onset at 2:30 p.m. Claimant did not deny providing that information, so in a period of just five days, he appears to have forgotten the lunch time discomfort that he then emphasized later on.

At trial, claimant emphasized radiating pain into the right hip. The actual treatment records exclusively describe pain on the left side and even claimant's medical expert, Dr. Parmar, appears to prioritize left-sided complaints over the right. Mr. Green's complaints, in other words, do not match his treatment records or his own doctor's narrative report.

Upon initiating treatment with his personal physician, Dr. Scott, claimant admittedly provided what he claims to be a false history of no known injury. The justification for doing this was his intention to submit the medical billing to an alternate carrier. Inexplicably, he provided Dr. Scott with a history of on-the-job injury at his next appointment three weeks later and, in effect, abandoned this reasoning. His only eye witness fails to support his version of events. Mr. Valadez's deposition contains 36 pages of cross-examination. He did not waiver under repeated questioning and although at times he did couch his answers in terms not "recalling" any mention of injury, he also stated that he did not believe any such comments had been made. He reduced his version of events to writing less than a week after the alleged injury, well before the passage of time figured to affect his memory. Overall, the Court construes his testimony to be a denial that any injury was witnessed or discussed as alleged by the claimant.

The Court also finds it implausible that someone could be an assistant football coach, even on a volunteer basis, and be temporarily totally disabled from working due to a back injury. To a lesser extent, the same can be said of employment in a daycare facility.

The record therefore contains numerous inconsistencies as to when the claimant first mentioned his injury, and the complaints attributed to the same. He has admittedly provided false information to at least one health care provider. The only eyewitness is convinced nothing unusual took place. By September 2009, when claimant saw his personal physician, the back complaints were not mentioned. Subsequent activity levels would not suggest a condition of total or partial disability. In general, the Court is left with doubts as to what, if anything, transpired. That, standing alone, is an indication that the burden of proof has not been met and, on that basis, Sachs has not been satisfied. For the reason that the claimant has

not sufficiently proven his case, no compensation is awarded. The other issues raised at trial need not be addressed.

Date: $\qquad Made by: \qquad$

Mark S. Siedlik

Administrative Law Judge

Division of Workers' Compensation

This award is dated, attested to and transmitted to the parties this $\qquad day of \qquad$ , 2010, by:

Naomi Pearson

Division of Workers' Compensation