STATE BOARD OF WORKERS' COMPENSATION Heritage Tower, Suite 200, 18 9th Street Columbus, Georgia (706)

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1 Trial Heritage Tower, Suite 200, 18 9th Street Columbus, Georgia (706) STATEMENT OF CASE The employee requested a hearing in the above referenced claim for a determination of all OCGA 34-9 issues. Specifically the employee alleges she fell at work and injured her shoulder and neck which required surgical intervention resulting in disability. She is seeking the payment of temporary total disability benefits, authorization for medical treatment with Dr. Goldman, a neurosurgeon, and assessed attorney s fees and late penalties. The employer/insurer contend that the employee is not suffering from any disability causally connected to any accident at work. The employer/insurer allege that if the employee suffers any disability, it is not related to any accident with the employer in this claim. Based upon a consideration of all the evidence presented, I find the employee has failed to prove by a preponderance of competent and credible evidence that she suffers any disability causally connected to her on the job accident with the employer in this claim. I therefore conclude the employee is not entitled to the requested benefits under Georgia s Workers Compensation Act. FINDINGS OF FACT AND CONCLUSIONS OF LAW Based upon a consideration of all the evidence presented, I make the following findings of fact and conclusions of law: 1. Venue in this claim is in Talbot County, Georgia. The employer is subject to Georgia s Workers Compensation Act and has workers compensation insurance as a qualified self insurer. On September 27, 2011, the employee was in the general employment of the employer earning an average weekly wage of $ The employee suffered an accident arising out of and in the course of her employment on September 27, 2011 and provided notice of this accident to the employer within the statutory time provisions promulgated in OCGA The parties stipulated to the facts in this paragraph. Based upon the foregoing stipulations, I find the Georgia State Board of Workers Compensation has jurisdiction to determine all OCGA 34-9 issues. At issue for determination is whether the employee suffers any disability causally connected to her on the job accident. 2. The employee worked as a delivery driver for a propane gas company. Her job duties required her to drive the propane gas truck to the homes of various propane users, pull the hose from the truck and fill up the propane tank at each customer s residence. She testified that she delivered propane to approximately 19 to 29 customers per day. While working as a propane delivery driver, the employee simultaneously was employed as a school bus driver for the local school system. She would drive the bus every morning, then report to work at the propane company and make deliveries. She would then

2 leave work for the propane company in the middle of the afternoon, drive the school bus and when finished transporting students, she would return to her job duties for the propane company, making her final deliveries for the day. 3. The employee alleged that on September 27, 2011, while she was filling a propane tank at a customer s residence, her foot slipped on a steep hill, the hose stopped which yanked her body and she felt a pop in her upper body and her right shoulder began hurting. She did not fall down the embankment. This accident was totally unwitnessed. The employee then reported for work that same afternoon to her job as a school bus driver. After returning home that evening, the employee telephoned her supervisor to report she had hurt herself delivering propane that day and was going to the urgent care facility to see if she had suffered a fracture of her arm. An x-ray ruled out any arm fracture and she was given a work restriction of no use of her right arm. She continued working for the employer and testified that she used her left arm to perform her job of filling propane tanks. After complaining of ongoing left arm pain, she was directed to seek medical attention with Dr. Donati, an orthopedic surgeon with the Hughston Clinic. The employer/self insurer accepted this claim on a medicals only basis. On her first visit to Dr. Donati s office on December 14, 2011, the employee registered complaints of headache, right shoulder/arm pain and neck pain. She also reported tingling and numbness in her right upper extremity. According to the medical records of Dr. Donati, the employee stated she injured herself at work while carrying a hose that suddenly stopped, and it pulled her and jerked her backwards. Dr. Donati provided conservative treatment, to include a cortisone injection in her shoulder and physical therapy. The EMG study which he ordered rendered normal results for the employee s neck and right arm. An MRI study of the employee s neck was taken on February 1, 2012 which, according to Dr. Donati, show degenerative disk disease at C5-6 and a small disk protrusion on the left side,yet as Dr Donati pointed out, all of the patient s pain complaints were on the right side of her neck, not the left. Dr. Donati was of the opinion that the findings on the MRI did not corroborate with the side of the employee s neck where she was registering complaints of pain. He did note that she had a significant, non work related tempomandibular joint problem with her jaw which oftentimes results in neck pain, headaches and shoulder pain. Dr. Donati testified that a high percentage of middle-aged people have degenerative disks and small herniations or small protrusions. He did not recommend any surgery and released the employee to regular duty work with a 0% PPD rating on February 3, His notes of that date read in part: essentially normal MRI of her shoulder and her cervical spine. Nerve tests were completely normal as well. I cannot find a musculoskeletal cause for her problem but she is at maximum medical improvement with no permanent impairment and may resume her regular duty job. The employee continued working as a school bus driver after February 3, The employee was terminated on January 12, 2012, for reasons I find were totally unrelated to her on the job accident. According to the credible testimony of the vice president of the family owned propane gas company, he told the employee months earlier that she needed to decide whether she was going to work for the school system as a school bus driver or work for the propane company as a delivery driver but she could not do both. He asked her to give her up job as a school bus driver so that she could be available to deliver gas when he needed her to do so. The employee refused to give up her employment as a school bus driver and continued working for the school system. The vice president further credibly testified that the employee did not keep an accurate accounting in her route book. He testified that the employee on one occasion had failed to reel in the hose before driving off, dragging it and destroying a street sign. On another occasion, she failed to remove the nozzle from a propane tank and drove off, pulling off the valve to the tank. His biggest complaint with the employee that resulted in her termination was the fact that she was leaving her job with the propane company in the afternoons to drive the school bus, losing two to three hours every day when she should have been on duty at the propane company. He was not able to dispatch the employee to deliver gas while she was driving the school bus. He stated he needed the employee to be available to deliver gas when he needed her to do so, and her job as a school bus driver interfered with her full time job with the propane company. When the

3 employee refused to give up her job as a school bus driver, the vice president had no other option but to terminate her. Upon her termination by the employer, the employee continued to drive the school bus for the school system up until May, Upon Dr. Donati releasing the employee to regular duty work, the employee sought medical treatment with her family physician for her complaints of shoulder and neck pain. Her family physician referred her to Dr. Goldman, a neurosurgeon. The employee first saw Dr. Goldman on April 12, 2012, seven months after her work accident. His notes of that visit reflect the employee to be suffering from numbness and tingling in a right C8 pattern. Dr. Goldman s notes,as to when the employee s cervical pain began, reflect began after a fall 9/2011. The employee testified at the hearing that she did not suffer a fall, but that the hose jerked her as she was carrying it down a steep hill. Dr. Goldman s records do state under the heading of past history of any serious injuries -- pulling hose at work and she jerked September Upon a careful and close reading of Dr. Goldman s notes, there is noticeably absent any opinion by Dr. Goldman that the employee s current neck problems are related to the incident with the hose or to any work related injury. His notes clearly show the employee provided her health insurance as the payor for her visit. In reading the MRI taken in February, 2012, Dr. Goldman was of the opinion that the employee suffered a C5-6 herniated disk which touches cord. Dr. Donati testified in his deposition that he, upon reading that same MRI, did not see any cord compression caused by the small protrusion at C5-6. At the employee s first visit to Dr. Goldman, he recommended and scheduled the employee to undergo an anterior cervical discectomy and fusion at C5-6. The employee continued performing her job as a school bus driver until she underwent surgery on May 4, The employee s group health insurance carrier paid for the expenses for surgery and medical treatment with Dr. Goldman. 6. Dr. Goldman released the employee to return to work full duty as of July, 2012 stating she could work 5 days a week for 8 hours per day. He did opine in his deposition that the employee as of July, 2012 could drive a school bus for two hours each morning and two hours each afternoon. He further testified that he was unaware, when he saw the employee in his office, that Dr. Donati had found a normal MRI, normal nerve study and had recommended no surgery. Dr. Goldman did testify in his deposition that it was possible the employee had done something between leaving her employment with the employer in this claim in January, 2012, and seeing him in April, 2012, that necessitated the employee s neck surgery. Dr. Goldman testified that at the time he saw the employee he was unaware of the fact that the employee was driving a school bus and had done so while simultaneously working as a driver for the propane company. He went on to testify in part if something did happen between when he [Dr. Donati] saw her and when I saw her, it could have been a result of her driving the school bus or a number of other things. (T-27) When Dr. Goldman was questioned as to whether the employee told him she hurt herself while working as a propane truck driver, he answered Well, when I first saw her she said that her symptoms began after a fall on 9/20/11. So that s what I knew. (T-27) I find from a careful review of Dr. Goldman s medical records and his deposition that he was completely unaware he was treating the employee for a work related injury. I further find Dr. Goldman did not render any opinion either in his medical records or his deposition that would connect the employee s need for neck surgery to any on the job accident. 7. The issue for determination by the Board is whether the incident in which the employee s body jerked while she was pulling a hose down a hill to fill a propane tank aggravated her degenerative disc disease and resulted in her having to undergo neck surgery. The burden of proof in this case is on the employee to establish an injury arising out of and in the course of the employee s employment and that disability resulted from the injury. see King v. Liberty Mutual Insurance Company, 126 Ga. App. 550, 191 S. E. 2d 346 (1972). Dr. Donati diagnosed the employee has having a small disc protrusion without any significant cord compression when he saw the employee in December, He clearly stated in his deposition that he saw no nerve root compression on the MRI. Contrary to this opinion, Dr. Goldman

4 read the same MRI when the employee saw him in April, 2012, and the MRI together with findings of increased reflex symptoms ( emphasis supplied) convinced Dr. Goldman that the employee needed to undergo a cervical discectomy and fusion. Dr. Donati testified he saw no increased reflex symptoms when he saw the employee in December, The employee continued working as a school bus driver after last seeing Dr. Donati in February, 2012, up until her surgery in May, 2012, so I find that her cervical problems did not interfere with her ability to operate the school bus prior to her surgery. Both Dr. Goldman and Dr. Donati did opine that it was possible over the next three months between the last time the employee saw Dr. Donati and when the surgery was performed, that her job as a bus driver could have aggravated the employee s degenerative disc disease so that surgery was necessary. Dr. Donati testified that he is a panel physician for the school system and takes care of lots of bus drivers. He stated school bus drivers have lots of shoulder problems, lots of arm problems resulting from opening and closing the school bus door throughout their route. I do note the employee is right hand dominant and would be using her right arm to operate the mechanism to open and close the school bus door along her route. She continued to drive the school bus for three months after her termination by the employer before seeing Dr. Goldman. 8. Under Georgia s Worker s Compensation statute an injury shall include the aggravation of a preexisting condition by accident arising out of and in the course of employment. OCGA (4). The question of whether a claimant s employment aggravated, accelerated or combined with a pre existing condition to produce the disability is a question of fact rather than a question of law. See Atlanta Transit Co. v. Knight, 92 Ga. App 469, 88 S. E. 2d 738 (l955) I find from a consideration of all the evidence presented that the employee has failed to prove by a preponderance of competent and credible evidence that the incident in which her body jerked when she pulled on the hose to the propane truck resulted in her neck surgery and subsequent disability. The employee in any workers compensation action bears the burden of demonstrating a causal connection between the work accident and the disability alleged by a preponderance of the credible and competent evidence. Dasher v. City of Valdosta, 217 Ga. App. 351,457 S.E. 2d 259(1995). I find it is just as likely, if not more so, that her school bus driving job was the cause of the aggravation of her degenerative condition in her neck. She was terminated by the employer in January, 2012, but continued performing her job as a school bus driver. She last saw Dr. Donati in February, 2012, and at that time he saw no surgical problem, no cord compression and no myelopathy. The employee continued her full time job as a school bus driver. She then saw Dr. Goldman in April At the time she saw Dr. Goldman she had cord compression, myelopathy and increased reflex problems giving rise to Dr. Goldman s opinion that she needed neck surgery. 9. The employer/self insurer accepted the incident in which the employee alleged to have injured herself in an unwitnessed accident when the propane gas hose she was pulling jerked her arm and neck. The employer/selfinsurer provided medical treatment for what Dr. Donati diagnosed as a strain/sprain of the employee s shoulder. The employee was terminated from her job delivering propane gas for reasons wholly unrelated to her work accident and continued performing her full time job of school bus driver. She then sought medical treatment for ongoing shoulder and neck pain with Dr. Goldman who performed neck surgery. The employee has not returned to any employment following her neck surgery despite the fact Dr. Goldman is of the opinion she could return to work full duty as of July, I find the employee has failed to prove by a preponderance of competent and credible evidence that her present disability is causally connected to her on the job incident with the employer in this claim.. Having found the employee has failed to prove by a preponderance of competent and credible evidence that her neck surgery and subsequent disability is causally connected to her September 27, 2011, incident at work, I therefore conclude the employee is not entitled to benefits under Georgia s Workers Compensation Act.

5 AWARD Based upon the foregoing findings of fact and conclusions of law applicable thereto, the claim of the employee for temporary total disability benefits is hereby denied. The employee s request for authorization for medical treatment with Dr. Goldman is hereby denied. The employee s request for assessed attorneys fees and penalties is hereby denied. IT IS SO ORDERED, this the 21st day of March, This order is electronically signed and approved. Tasca Hagler ADMINISTRATIVE LAW JUDGE

6 Appeal 270 Peachtree Street, N.W. Atlanta, GA This appeal by the Employee is before the Appellate Division for review of the award of Judge Hagler, dated March 21, No cross-appeal was filed, and this matter was orally argued before the Appellate Division on June 6, After a review of the record as a whole, the Appellate Division now adopts the findings of fact, conclusions of law, and award of Judge Hagler as its own. FINDINGS OF FACT AND CONCLUSIONS OF LAW After a review of the record as a whole, we find that the administrative law judge was, in this case, in the best position to determine the credibility and weight of the evidence in the record. See Johnson v. Weyerhaeuser Company, 231 Ga. App. 627, 499 S.E.2d 916 (1998); Metro Interiors, Inc. v. Cox, 218 Ga. App. 396, 461 S.E.2d 570 (1995); Coats & Clark, Inc. v. Thompson, 166 Ga. App. 669, 305 S.E.2d 415 (1983). Consequently, as to the enumerations of error presented by the Employee, we find no error with the administrative law judge s award. Therefore, the findings of the administrative law judge in this matter are hereby accepted by the Appellate Division, as such findings are supported by a preponderance of competent and credible evidence contained within the record on review. See O.C.G.A (a). The Appellate Division adopts the conclusions of law of the administrative law judge, as such conclusions reflect an appropriate application of the Act to the findings of fact. AWARD Based upon the foregoing, the Appellate Division adopts the Award section of Judge Hagler s award, dated March 21, 2013, as its own. IT IS SO ORDERED, this the 29th day of July, Concurring: Judge Elizabeth D. Gobeil and Judge Harrill L. Dawkins. :lo This order is electronically signed and approved. Frank R. McKay/s. PRESIDING JUDGE APPELLATE DIVISION

STATE BOARD OF WORKERS' COMPENSATION Heritage Tower, Suite 200, 18 9th Street Columbus, Georgia 31901 (706) 649-7372 www.sbwc.georgia.

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