THOMAS KEANE, Employee/Appellant, v. LAMETTI & SONS, INC., and CNA/TRANSPORTATION INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 14, 2005

 

No. WC04-324

 

HEADNOTES

 

CREDITS & OFFSETS - BAD FAITH; CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including lay testimony, employment records, and the employee=s medical records provide substantial support for the finding that the employee did not sustain a work-related injury as alleged and that he received benefits in bad faith.

 

Affirmed.

 

Determined by:  Stofferahn, J., Rykken, J., and Pederson, J.

Arbitrator:  Joan G. Hallock

 

Attorneys:  Michael D. Miller, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for the Appellant.  Jeffrey A. Magnus, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondent.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the arbitrator=s findings that he did not establish the occurrence of a work injury and that he received benefits in bad faith.  We affirm.

 

BACKGROUND

 

The employee, Thomas Keane, is a member of the Pile Drivers and Dock Builders union in St. Paul, Minnesota.  In early March 2004, the union dispatched him to work on a job for the employer, Lametti & Sons, installing a shear fence at the Pig=s Eye Bridge on the Mississippi River.

 

On April 5, 2004, the employee called in to work reporting he needed to get his back checked and would be late to work.   He went to the  emergency room at Methodist Hospital, where he told the doctor that his hip hurt and his leg felt Afunny@ on the anterior and lateral aspect of his left thigh.  He attributed the symptoms to a fall two weeks before.  X-rays were ordered of the employee=s spine, left hip and pelvis, but the employee left before they were taken.  Work records indicate the employee reported to his job with the employer at lunchtime and worked four hours installing timbers.

 

On April 6, 2004, the employer=s time records show that the employee worked 1.5 hours loading casings and 7.5 hours at dock repair.  On April 7, 2004, he worked 9.5 hours installing timbers.

 

According to the testimony of two of the employee=s co-workers, his foreman, and his supervisor, the crew was driving pilings on April 8, 2004.  James Hoffmann, the crew=s crane operator, testified that during the morning he noticed that the employee was standing awkwardly with his hand on his back and he helped the employee off the barge.  The employee told him he had hurt his back but that the injury had not occurred at work.  Crew foreman Jack Lanhart testified that he saw Mr. Hoffmann helping the employee off the barge, went to find out what was wrong, and that the employee told him his symptoms were not work related.  Dale Rother, the supervisor on the job, testified that he saw crane operator Hoffmann and another of the employee=s co-workers, Andy Stone, helping the employee off the barge that day.  However, the employee was able to return to work after resting for a short time.  Time sheets show that the employee worked 7.5 hours installing piling and 1.5 hours at other duties on that day.

 

On April 10, 2004, the employee went to the emergency room at Methodist Hospital at 1:35 P.M. complaining of back and left hip pain.  He reported that he had slipped and fallen two weeks before on a frosty sidewalk, landing on his left hip.  He was given morphine and referred to see an internal medicine specialist.

 

The employee was seen at the Park Nicollet Clinic on April 18, 2004 for left lower extremity pain.  He stated that the onset of his symptoms happened when he Asuddenly  . . . slipped one day last winter.@  An MRI was scheduled.

 

On April 22, 2004, the employee went to Dr. Michael Douglas complaining of left lower extremity pain originating in his buttocks and going to mid thigh.  He reported that he had noted these symptoms after he  slipped and sustained an injury to the left hip. Dr. Douglas noted that the employee=s symptoms were in a dermatomal pattern consistent with an L4-5 disc herniation.  He urged the employee to follow up with the MRI which had already been scheduled.  The MRI, performed on April 30, 2004, showed a large paramedian herniation at L4-5 with herniated disc material contacting and displacing the left L5 nerve root.  Shortly after the employee learned he had a herniated disc, he contacted the employer asking to be placed in layoff status. He did not indicate at that time that his condition was due to a work injury.

 

On May 3, 2004, the employee was seen by Dr. Michael McCue at Neurosurgical Associates, Ltd. for a neurosurgical consultation.  The employee told Dr. McCue that his pain initially started as a cramp in the anterior thigh, and Abecame excruciated one day while he was working.@  Dr. McCue recommended that the employee undergo a left L4-5 hemilaminectomy and microdiscectomy.  The surgery was performed on the following day, May 4, 2004.

 

According to the testimony of his supervisor, Dale Rother, the employee contacted the employer on May 5, 2004, and asked to be given a leave of absence rather than a layoff.  Some time within a couple of days after the May 4, 2004, surgery, the employee learned he would not qualify for disability wage loss benefits through the union because he did not have enough hours in.  On May 10, 2004, the employee notified the employer in a phone call that his injury was work-related.  On May 18, 2004, the employee completed an incident report for the employer alleging that he had sustained a back injury on A4/8/04?@ at about 8:00 a.m.  He described the injury as follows: AWe had been driving 85' creosote pile involving heavy rigging, ie: placing & securing p/d leads, hammer and loading pile into >follower= with Peavey tool.  I think I injured my back while loading pile into hammer and leads.@  He stated that the injury was witnessed by Andy Stone, Jim Hoffmann, and Jack Lanhart, and that his supervisor, Dale Rother, also had known of the injury within an hour of its occurrence.

 

The employer and insurer initially paid various benefits for the period between May 4, 2004, and August 12, 2004, but subsequently disputed the employee=s claim of a work-related injury.

 

On June 3, 2004, the employee saw Dr. McCue in follow up for his back surgery.  He now described his pain as beginning around April 8, 2004, when he was helping to straighten a very heavy pylon at work and  noted an onset of such significant back pain that Ahe needed to be carried off the barge that he was working on.@  Based on this history, Dr. McCue opined that the employee=s back Awas most likely aggravated by his work setting.@  Dr. McCue restricted the employee to lifting no more than 20 pounds over the next month and to avoid bending, twisting, and turning.  On September 3, 2004, the employee again saw Dr. McCue, who did not anticipate the employee would ever be able to return to heavy labor.

 

The employee underwent a Dispute Resolution Examination with Dr. William G. Akins on September 4, 2004.^[1]  Dr. Akins also reviewed the employee=s medical records and offered the opinion that the employee=s back injury had certainly occurred before his emergency room visit on April 5, 2004.

 

Pursuant to the rules and regulations of the Union Construction Crafts Workers= Program, a hearing was held before Arbitrator Joan Hallock on October 26, 2004.  By the date of the hearing, the employee had changed his position as to the date of his work injury, contending that the injury must have occurred while driving pilings on April 1, 2004, rather than on April 8, 2004.  The employer and insurer offered evidence to show that no pile driving was done on or near that date.  Arbitrator Hallock found that the employee=s testimony as to the work injury was not credible.  She determined that the employee did not establish an injury at work as a substantial contributing cause of his back problems.  She further found that the employee had not received the benefits paid to him in good faith. The employee appeals.

 

DECISION

 

1. Primary Liability

 

Employee argues in his brief that time records on which the employer=s witnesses relied in denying that piles were driven on April 1 were unreliable, so that the arbitrator=s findings were based on testimony without adequate foundation.  Specifically, the employee contends that the unreliability of the time records is shown by calculation of the number of piles driven.  The employee compares testimony as to the total number of piles driven on the job with the totals reached by adding the number of piles shown or reasonably estimated to have been driven on each of the days when pile driving was shown in the records in evidence.  The employee contends that there is a discrepancy between the numbers which shows that piles must have been driven on some of the days where the records do not so indicate. The employee argues that piles may have been driven on April 1, 2004, consistent with his testimony of a work injury on that date.

 

The employer and insurer assert that this logic is fallacious since the parties did not introduce time records for all of the dates on which the crew worked at the job site, particularly dates in March prior to the dates of the employee=s claimed injury.  They point out that it could reasonably be assumed that piles driven during that month would account for the alleged discrepancy.  We agree.   Key evidence on this point also includes the testimony of the crane operator, James Hoffman, who had kept a personal log book for thirty years in which he recorded the work performed each day. Mr. Hoffman=s testimony, based on his log book, was that no pile driving was done on April 1. Even if we were to disregard the evidence and assume that piles were in fact driven on April 1, a reasonable finder of fact could still have found the employee=s testimony of an injury less than credible, given his persistent description of a non-work Aslip and fall@ incident in the medical records.

 

The employee asserts that he intentionally lied to his doctors about the cause of his symptoms at first and contends that he has a longstanding history of attributing symptoms to nonexistent slip and fall accidents in order to avoid having to answer questions about the history of an injury so as to proceed more quickly to treatment.  He argues that the arbitrator should have accepted his testimony which explained his initial statements attributing the injury to a non-work slip and fall as consistent with this pattern.  This argument goes to the arbitrator=s determination of witness credibility, a matter which we have repeatedly noted will not be disturbed by this court in the absence of clear error.

 

The employee described a very specific work injury and attributed it to a very specific date, but the testimony of his co-workers, the employer=s time records, and a personal log of job site activities kept by the crane operator all contradicted his claim that the circumstances he described could have happened on that date.  Viewing the record as a whole, we conclude that the judge=s finding that the employee had not sustained the work injury he alleged is amply supported by the evidence, and affirm.

 

2. Bad Faith Receipt of Benefits

 

According to the employee, his appeal from the finding of bad faith receipt of benefits rises or falls on Athe accuracy of the finding that the Employee could not have injured his back while pile driving on April 1 because the crew was not engaged in that activity . . . @  Appellant=s brief at 15. We have affirmed that finding.   In addition, the sequence of events provides sufficient evidence to support an inference of bad faith.  The employee himself admits that he first gave a nonwork cause for his symptoms to medical providers and that he later intentionally changed this story to allege a work injury under very specific factual circumstances. The evidence allowed the inference that the employee=s change of story was in bad faith and was designed to obtain benefits to which the employee was not actually entitled.  We therefore affirm.