JB Pounds v. Gilster-Mary Lee Corporation

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 10-073936

Employee: JB Pounds

Employer: Gilster-Mary Lee Corporation

Insurer: Self-Insured

Additional Party: Brain \& Neurospine Clinic of Missouri, LLC

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Employee alleges he suffered an injury by accident in the course of performing his duties for employer. The administrative law judge denied the claim, finding employee's testimony regarding the accident to lack persuasive force in light of the numerous alternative histories and inconsistencies contained in the medical treatment records. We have carefully reviewed employee's testimony in conjunction with the medical treatment record, and we share the administrative law judge's concern. While some ambiguity or discrepancy in medical histories is understandable, and "[t]here is no requirement that the medical records report employment as the source of injury," Daly v. Powell Distrib., Inc., 328 S.W.3d 254, 259 (Mo. App. 2010), there are simply so many unexplained inconsistencies here that we ultimately agree with the administrative law judge that employee has failed to meet his burden of proving he suffered an accident at work.

Having denied the claim on the issue of accident, there is no need to address the other issues, as they are moot, although we would defer to the administrative law judge's credibility determinations as to the issue of notice.

Finally, we note that employer is not liable for employee's past medical bills not merely because they weren't authorized, but because employee has failed to prove that they were incurred for treatment of a work-related injury.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Gary L. Robbins, issued January 8, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of August 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No.
2. Was the 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 accident or onset of occupational disease? Alleged to be January 15, 2010.
5. State location where accident occurred or occupational disease contracted: Perry 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? No.
8. Did 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 by above insurer? Yes.

On September 9, 2013, the employee, JB Pounds, appeared in person and with his attorney, Mark A. Cordes for a hearing for a final award. At the request of the parties the record was reopened and finally closed on October 7, 2013. The employer-insurer, Gilster-Mary Lee Corporation ("Gilster") was represented at the hearing by their attorney, David M. Remley. Jason Comstock appeared and represented Brain and NeuroSpine Clinic, L.L.C /Regional Brain \& Spine ("Brain and NeuroSpine Clinic"). At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Gilster was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self insured employer.
2. On January 15, 2010, JB Pounds was an employee of Gilster and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage is $\ 347.12, resulting in a compensation rate of $\ 231.41 for all purposes.
5. The employer-insurer paid $\ 0 in medical aid.
6. The employer-insurer paid $\ 0 in temporary disability benefits.
7. The employee has no claim for mileage.
8. The employee has no claim for future medical care.
9. The employee has no claim for permanent total disability.

1. Accident.
2. Notice.
3. Medical Causation.
4. Past Medical Bills.
5. Direct Medical Fee Dispute.
6. Medical Lien.
7. Temporary Total Disability.
8. Permanent Partial Disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

A. Medical report and Curriculum Vitae of Dwight I. Woiteshek, M.D.

B. Medical records from Southeast Missouri Hospital.

C. Medical records of Kevin A. Vaught, M.D.

D. Medical records of Terry L. Cleaver, M.D.

E. Records from St. Francis Medical Center.

F. Medical records of Richard J. Tipton, D.O.

G. Billing records of Brain and NeuroSpine Clinic.

H. Claim forms of Brain and NeuroSpine Clinic.

I. Medical bills of Terry L. Cleaver, M.D.

J. Medical bills from St. Francis Medical Center.

K. Medical bills from Southeast Missouri Hospital Physicians.

L. Medicaid lien.

Employer-Insurer Exhibits:

1. Brain and Neurospine Clinic patient questionnaire dated February 8, 2010.
2. Brain and NeuroSpine Clinic Neurologic Evaluation dated February 9, 2010.
3. Curriculum Vitae of Kevin A. Vaught, M.D.
4. Deposition of Kevin A. Vaught, M.D.
5. Medical record from Southeast Missouri Hospital ER.
6. IME intake questionnaire of Dwight I. Woiteshek, M.D.
7. Deposition of Dwight I. Woiteshek, M.D. taken April 24, 2013.

Brain and NeuroSpine Clinic Exhibits:

I. Medical bills.

The employee, JB Pounds, Charles Martin, Jerry Scott and Tara Morgan all personally testified at trial. All other evidence was received in the form of written records, medical records or deposition testimony.

Mr. Pounds is sixty years old and completed the eleventh grade. He indicated that he cannot read and write very well. He testified that he is now presently working and is drawing social security disability.

Mr. Pounds testified that he had worked in the box plant for Gilster. He indicated that he worked there for about one year before the alleged accident. Mr. Pound's primary job duties in the box plant involved keeping materials flowing to the various machines in the plant. He used a forklift daily to perform those tasks.

Mr. Pounds testified that on January 15, 2010, he was on duty working in the box plant. He stated that he had picked up some boxes that had fallen. He indicated that he was in the process of getting back on his forklift when he was injured. He indicated that as he was getting on the forklift he fell backwards hitting his buttocks and head on the floor. In so doing, he testified that

he had his left foot in a step on the side of the forklift and was stepping up about twelve inches. He grabbed a handle attached to the forklift with his left hand. At trial he testified that when he grabbed the handle his hand slipped and that is what caused his fall. On cross examination Mr. Pounds testified that he is sure of this information and never told anyone any different information.

He testified that when he fell, he felt immediate pain in his low back. He indicated that he lay on the floor for five to six minutes before he got up. He said that another employee witnessed the fall, smiled at him but did not provide any assistance. No co-employee was called to verify this information. Mr. Pounds said that he got up to go to the bathroom and saw Charlie Martin who is his lead man. Mr. Pounds testified that he told Mr. Martin that he fell and Mr. Martin smiled and said that, "shit happens-everyone falls". Mr. Pounds testified that Mr. Martin did not offer to give any assistance, did not offer to send him to the doctor or fill out any reports. The evidence is that Mr. Pounds did not ask to be sent to a doctor. Mr. Pounds testified that he finished working his shift and went home. Mr. Pounds testified that when he went home he could hardly drive as his left leg and back were hurting so badly. He indicated that he took Tylenol and "ironed" his left leg using a cloth.

The employee returned to work the following day and worked his entire shift. He testified that on that second day he reported the accident to his shift supervisor, Jerry Scott. Mr. Scott is a superior to Mr. Martin. Mr. Pounds testified that he told Mr. Scott that he fell and that when he told Mr. Scott of his fall, Mr. Scott just smiled and gestured. He testified that once again no action was taken. Mr. Scott did not offer to send Mr. Pounds to the doctor nor fill out any forms. Mr. Pounds testified that he worked his full shifts for several days but did not finish out his shifts that week. He said that he thought "it would go away". He said that he took two weeks off thinking he would get better.

Finally, on February 2, 2010, Mr. Pounds went to the ER at Southeast Missouri Hospital. From there he was referred to Dr. Vaught of Brain and NeuroSpine Clinic. Mr. Pounds indicated that he was given a shot and pain pills at the hospital. He received an MRI evaluation. Dr. Vaught diagnosed a herniated disc at L5-S1. Dr. Vaught performed surgery to remove the disc fragment on February 12, 2010.

On cross examination, Mr. Pounds was presented with several exhibits that addressed discrepancies between his testimony and the information contained in the records. While there were challenges by Mr. Pounds as to the accuracy and source of some of the information contained in the medical records/histories, all of the records were admitted into evidence without objection.

Regarding Employer-Insurer Exhibit 1 - February 8, 2010 report of Brain and