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

Transcription

1 Trial Heritage Tower, Suite 200, 18 9th Street Columbus, Georgia (706) STATEMENT OF CASE The employee requested a hearing in the above referenced case for a determination of all OCGA 34-9 issues. Specifically, the employee alleges he was moving ballasts filled with wet stand and felt a pop in his back. The employee alleges he is currently totally disabled from working as a result of his on the job injury. He is seeking the payment of temporary partial disability benefits from October 4, 2010 through May 22, 2011, alleging his hours were reduced after his work injury. He is also seeking the payment of temporary total disability benefits from May 23, 2011 and continuing. He is also seeking authorization for medical treatment with a physician of his own choosing and assessed attorney s fees. The employer/insurer raise as a bar to the receipt of income benefits by the employee, the defense established in Georgia Electric Co. vs. Rycroft, 259 Ga. 155, 378 S. E. 2d 111 (l989) alleging the employee knowingly and willfully made a false representation of his physical condition on his post job offer questionnaire, the employer relied upon the false representation which was a substantial factor in hiring the employee and that there is a causal connection between the false representation and the employee s alleged back injury. The employer /insurer further allege the employee did not suffer any on the job accident while in their employment. Based upon a consideration of all the evidence presented, I find the employee knowingly and willfully made a false representation as to his physical condition, that the employer relied upon the false representation which I find was a substantial factor in the hiring of the employee and find there to be a causal connection between the false representation and the employee s injury. I further find the employee has failed to prove by a preponderance of competent and credible evidence that he suffered an on the job injury while in the employment of the employer in this claim. I therefore conclude the employee is not entitled to benefits under Georgia s Worker s Compensation Act. FINDINGS OF FACT AND CONCLUSIONS OF LAW Based upon a careful consideration of all the evidence presented, I make the following findings of fact and conclusions of law: 1. Venue in this claim is Muscogee County, Georgia. The employer is subject to Georgia s Workers Compensation Act and has workers compensation insurance with Insurer. On October 4, 2010, the employee was in the general employment of the employer, earning an average weekly wage of $ per week. The employer received notice of an alleged on the job injury 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 State Board of Workers Compensation has jurisdiction to determine all OCGA 34-9 issues. At issue for determination by the Board is whether the employee suffered an accident arising out of and in the course of his employment. A further issue for

2 determination is whether the employer/insurer has carried the burden of proving a Rycroft defense to bar the receipt of income benefits. 2. The employee worked as a traffic control supervisor for the employer s road construction company. As part of his job duties he was required to direct traffic traveling through the road construction area, design and implement detours where needed, order signage, and place barrels and cones where needed to insure the flow of traffic through the road construction. The employee testified that while he was working for another company, he was contacted by the employer in this claim to come work for him. At that time, the employee admitted his current job was coming to an end. The employee admitted that he did receive a packet of documents to complete prior to his beginning work for the employer and in this packet of documents was a health questionnaire. On that questionnaire the employee was asked whether he was currently receiving treatment of any kind from a doctor and he answered no. However, the medical evidence shows that the employee had treated with Dr. Ross twice in the previous three weeks before coming to work for the employer for complaints of lower back and left leg pain. The employee was asked whether he had any medical treatment in the last six months to which he answered no. The medical evidence shows that the employee, just four days earlier, had seen Dr. Ross for complaints of worsening lower back and leg pain. The employee was asked whether he was taking any medication at present to which he answered no. However the medical records in evidence show the employee was prescribed Celebrex on August 11, 2012, specifically for complaints of lower back and radicular pain. The employee admitted at the hearing that he did not tell the employer before he was hired that he was seeing Dr. Ross for complaints of lower back and radicular pain or that he had been prescribed Celebrex for this pain. In reviewing the medical records of Dr. Ross dated August 11, 2010, just four days before the employee began working for the employer, the records clearly state: back is worse with radiculopathy in the right leg now---asking for referral but will have to wait a few weeks because of change in insurance. 3. As to why he answered no to questions about receiving medical treatment, the employee explained that he went to see Dr. Ross to become established as a new patient, not for treatment of back pain. He testified he had not seen a doctor in recent years, needed to become established with a primary care physician and saw Dr. Ross with the sole intent of establishing himself as a new patient. I find this explanation to be feeble at best. The employee had only worked for his previous employer for less than a year and admitted he had no health insurance with that employer. The employee saw Dr. Ross for back pain on August 11, 2010, before completing the health questionnaire for the employer in this claim. At that appointment, the employee requested a referral to a specialist because of his worsening lower back and radicular complaints. The employee asked Dr. Ross to delay the referral until the employee was hired by the employer so that his health insurance would cover the medical expenses. Just four days after asking Dr. Ross for a referral to a back specialist, the employee denied on the health questionnaire that he was treating with any physician, that he was taking any medications or that he had any condition that might make performance of his job difficult. The employee attempted to explain his misrepresentations on the questionnaire by testifying at the hearing that although he had seen a doctor twice in three weeks for worsening lower back and radicular pain, obtained medication expressly prescribed to treat those conditions and been referred to a specialist, he did not consider this treatment. The employee also testified at this deposition that he had no problems with his back prior to the alleged date of accident on October 4, The employee twice testified at his deposition that he had sought no medical treatment for his back for the 6 years prior to the alleged date of accident. Upon a careful review of the medical records I find the employee knowingly and willfully made a false statement to the employer about his physical condition. While the employee alleges he had a telephone interview with the employer, the President of the company testified he had a face to face interview with the employee. What both agree upon is that there was no mention at all by the employee to the employer of any ongoing back pain on the post job offer medical questionnaire.

3 4. The employee began work for the employer in this claim on August 15, In less than two months from his first day of work, the employee alleges he suffered an on the job accident. He alleges that while lifting a ballast filled with wet sand, he felt a pop in his back. This was a totally unwitnessed accident. He testified after going home that day, he could not get out of bed the next morning and reported his accident to the safety director. The safety director testified that the employee reported to him the following day of the alleged incident that he had injured his back while picking up a ballast filled with wet sand. The safety director drove to the job site to inspect the ballasts and could find none of them filled with either wet sand or water. The safety director brought an actual ballast to the hearing and stated it weighed 5.6 pounds. He further testified that nothing is ever placed inside the ballasts. The owner of the company also corroborated the testimony that no wet sand is ever put inside the ballasts. 5. After the employee reported his on the job accident, he received medical treatment from Dr. Sherrer, a panel physician. The employer/insurer accepted this claim on a medicals only basis. The medical records of Dr. Sherrer dated October 4, 2010 show a diagnosis of lumbosacral strain with severe spasm with radiation of pain into the right leg. The employee continued working for the employer. Dr. Sherrer prescribed a course of physical therapy, anti-inflammatory medication and placed the employee on a light duty work status. While the employee was on light duty, a new traffic control supervisor took the employee s position and became the employee s boss. The employee was transferred to the night shift as part of his light duty work. No doubt there is less traffic at night than there is during the day traveling through the construction area. From the employee s testimony, this transfer to the night shift seemed to anger him. He testified that he used to be in charge of personnel but was no longer, and that the new supervisor did not provide him the help he needed. Sometime later in December, 2011, Dr. Sherrer ordered an MRI which showed a herniated disc at L5 with nerve impingement. Twenty years prior to this alleged work injury, the employee had a workers compensation claim for a back injury and underwent back surgery at L4. 6. After providing conservative treatment for the employee s ongoing complaints of back pain, Dr. Sherrer referred the employee to Dr. Pahl, a spine surgeon. Dr. Pahl rendered an opinion on March 4, 2011 that the employee was born with a congenital stenosis problem of his spine.. He is of the opinion the employee does not have a surgical problem. Dr. Pahl is of the opinion the employee can work a 10 hour day/ 5 days a week with lifting limitations of 10 pounds and no bending, kneeling or squatting. Upon referral by Dr. Sherrer to Dr. Chang, the employee underwent a series of epidural injections with Dr. Chang. On May 24, 2011, the employee went to the emergency room of a local hospital for a shot of morphine and saw Dr. Sherrer two days later. Dr. Sherrer, based upon the employee s subjective complaints of back pain took the employee out of work. Because the employee was not working, the employer took the company truck that the employee was allowed to use. This too seemed to further anger the employee. The owner of the business testified that he had to have the truck at the work site, not parked in the employee s driveway. On June 14, 2011, Dr. Sherrer changed the employee s work status from one of no work to light duty. The employee did not report for work. 7. While the employee was out of work, he and his wife visited a night club on March 3, 2012, where the employee was involved in a bar brawl with Mr. G. The testimony of the events leading up to the bar brawl vary widely between the employee and Mr. G. The employee testified that Mr. G., whom the employee did not recognize, called out the employee s name in the bar. The employee approached Mr. G. and shook his hand.according to the employee, once he learned Mr. G. had been a co worker with him, the employee got up and walked away. The employee stated Mr. G. followed him in the bar and began to question the employee about his case. It was never explained how Mr. G. knew of the employee s case, since the employee had been out of for over a year. The employee stated he walked away from Mr. G.. According to the employee, Mr. G. then found the employee s fiancé in the bar and got nose to nose with her in a hostile manner. Again, it was never explained why Mr. G. would have hostility toward the employee s fiancé. According to the employee, he pulled Mr. G. away from the

4 fiancé and the brawl ensued between the two. The employee explained his attack of Mr. G. was because he felt as if Mr. G. was about to do physical harm to my fiancé. Again, no explanation was given as to why Mr. G. would want to harm the employee s fiancé. 8. Mr. G. credibly testified he is an equipment operator for the employer and knew nothing about the employee having any workers compensation case against the employer. According to Mr. G., the employee came into the bar, recognized Mr. G. as a co-worker and sat down beside him. The employee then asked Mr. G. if he was still employed with the employer in this claim. Upon Mr. G. confirming he was still employed by Mr. A., the employee stated that Mr. A. was buying his beer, paying his power bill and everything.(t110) When Mr. G. asked the employee how that was possible, the employee answered that he had a workers comp claim because of his back. (T 110). According to Mr. G. the employee continued to brag as how he took an early retirement. (T110). Mr. G. then asked the employee did you really get that messed up as if you couldn t work for the rest of your life? (T110). According to the testimony of Mr. G., the employee replied Hell no. That SOB tried to make me work 60 to 70 hours a week, so I will sit on my butt at the house and he will pay me. (T110). Mr. G. then expressed the fact, in an admittedly rude manner, that he thought the employee was wrong to do that. Immediately, the employee picked Mr. G. up off his feet, body slammed him to the floor and began punching him in the head before other patrons pulled the employee off Mr. G. Both parties took warrants out for each other. On the day of the criminal case, the employee asked Mr. G. outside the courtroom to drop the charges and both did so. Mr. G. stated he procured the security camera footage from the bar that would prove his innocence. 9. Mr. A., the owner of the company, testified that he, as the employer, relied upon the false representations made by the employee as to the condition of his back on the health questionnaire and that the answers given by the employee were a substantial factor in hiring the employee. Mr. A. credibly testified that he would not have hired the employee if the employee had revealed on the questionnaire that he was treating with a physician for worsening back pain and was taking medication for back pain. I find this reliance by the employer on the health questionnaire answers given by the employee was a substantial factor in the hiring of the employee. I find from a consideration of all the evidence given that there is a causal connection between the false representation made by the employee as to his back condition and the employee s current claim of a back injury. I find the employee s back pain existed and was worsening prior to the employee completing the health questionnaire as evidenced by the medical records of Dr. Ross. The employee had no health insurance with his former employer to procure treatment for his back pain. He had been contacted by Mr. A. for possible employment with the employer in this claim who provides health insurance to their employees. Knowing he was going to soon work for the employer, the employee then saw Dr. Ross for his worsening back pain. He declined to see the referral suggested by Dr. Ross until he could secure his job with the employer in this claim. This is clearly noted in the medical records of Dr. Ross who prescribed medication for the employee s back pain until the employee could get insurance to cover the expenses of a referral to a spine specialist. 10. Under Rycroft, an employee s claim for workers compensation benefits is barred where an employer/insurer can establish the following: (1) the employee knowingly and willfully made a false representation as to a physical condition, (2) the employer relied upon the employee s false representation and that employer s reliance was substantial factor in the employer s hiring of the employee; and (3) there was a causal connection between the condition falsely represented and the current injury. I find from a consideration of all the evidence presented that the employer/insurer has carried their burden of proving the employee s claim for benefits under the Act is barred by the holding in General Electric vs. Rycroft,. 259 Ga. 155, 378 S. E. 2d 111 (l989) I find the employee knowingly and willfully made a false representation as to his physical condition by falsely answering questions on the medical questionnaire which addressed prior medical treatment and current medications. I find according to the evidence adduced through the credible testimony of Mr. A. that the employer relied

5 upon the false representation which I find was a substantial factor in the hiring of the employee. I further find there to be a causal connection between the false representation and the employee s injury. Georgia Electric Co. v. Rycroft, 259 Ga. 155, 378 S. E. 2d 111 (l989). I therefore conclude the employee is barred from the receipt of benefits under Georgia s Workers Compensation Act. 11. Notwithstanding the Rycroft defense which bars the employee s receipt of benefits under the Act, I further find the employee has failed to prove by a preponderance of competent and credible evidence that he injured his back while working for the employer in this claim. An employee seeking benefits under the Act has the burden of proving an accident with injury that arose out of and in the course of the employee s work for the employer from whom benefits are sought. O.C.G.A (4). See Scandrett v. Talmadge Farms, 174 Ga. App. 547, 330 S. E. 2d 772 (1985). The standard of proof is by a preponderance of the credible evidence. See Maloney v. Gordon County Farms, 265 Ga. 825, 462 S. E. 2d 606 (1995). I find the employee had worsening back pain at the time he went to work for the employer but had no insurance to pay for treatment. I find he deliberately withheld this information from the employer. The incident in which the employee alleges he was injured at work was completely unwitnessed. The employee testified he was injured when lifting a ballast of wet sand, yet all other employees who testified denied that wet sand is ever placed in the ballasts. In observing the ballast in the courtroom, it appears to me to be almost impossible to put wet sand in the small opening. The employee received medical treatment from a panel physician, Dr. Sherrer. Once Dr. Sherrer placed the employee on a light duty work status, the employee lost his supervisory position which seemed to anger him. Further, the employee was given the night shift as a light duty position which he did not like. Also, while he was out of work, he lost the use of the company truck which was needed at the work site and this appeared to further anger the employee. The medical evidence shows the employee was capable of performing light duty work,yet the employee failed to return to work where light duty work was provided for him. The employee, by proof of the medical evidence, had worsening back pain before he began work for the employer and intentionally and willfully falsified his answers on the medical questionnaire. The employee contends he is so disabled he cannot work, yet he engaged in a bar fight which I find from a consideration of all the evidence, seems to point to him as the aggressor. He admitted that he posted on his Facebook page that he got the best of Mr. G. in the bar fight. He admitted that he did post something on his Facebook page that he was available to perform HVAC work although he tried to diminish his involvement by testifying at the hearing that his cousin did the work. I find the employee to be totally lacking in credibility. The credibility of a witness is to be determined by the finder of fact. See Harris v. State, 155 Ga. App. 530 (1980). I find the employee has failed to prove by a preponderance of competent and credible evidence that suffered any on the job accident with the employer in this claim. I therefore conclude the employee is not entitled to benefits under Georgia s Workers Compensation Act. AWARD Wherefore, based upon the foregoing findings of fact and conclusions of law applicable thereto, the claim of the employee for benefits under Georgia s Workers Compensation Act is hereby denied. IT IS SO ORDERED, this the 06th day of April, This order is electronically signed and approved. Tasca Hagler DMINISTRATIVE 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 April 6, No cross-appeal was filed, and this matter was orally argued before the Appellate Division on June 18, 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 April 6, 2013, as its own. IT IS SO ORDERED, this the 31st 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