STATE BOARD OF WORKERS' COMPENSATION 601 BROAD STREET SE GAINESVILLE, GEORGIA STATEMENT OF THE CASE

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1 Trial STATE BOARD OF WORKERS' COMPENSATION 601 BROAD STREET SE GAINESVILLE, GEORGIA STATEMENT OF THE CASE The employee filed a claim for temporary total disability and medical care for her right wrist condition which she claims to have injured on June 20, 2014 when she fell at work also injuring her left knee. The employee is also seeking payment of past medical bills relative to the wrist injury. This is an all issues claim which the employer/insurer disputes although they have not filed a controvert. The parties were able to stipulate to being subject to the Act; proper jurisdiction and venue; notice as to the left knee which is an accepted body part; there was employment on the date of the alleged accident; there was an accident on June 20, 2014 involving the left knee; there was insurance coverage on the alleged date of accident. The parties do not agree the employee s right wrist was injured in the fall on June 20, Based upon the stipulations of the parties, consideration of all the admissible evidence, and having observed the witnesses at the trial of the case, I find as fact and conclude as matters of law the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The employee testified she lives in Ellijay, Georgia with her fiancé, BMc, and was living with BMc at the time of her alleged injury. She testified she worked for Employer s restaurant as a cook. She said she begins work at 5:00 a.m. and has worked at the restaurant for five (5) years. She testified her immediate supervisor is RW and the managers of the the restaurant are MT and JG. The employee testified that on the date of the alleged injury she arrived at work at 4:30 a.m. and proceeded to clean the deep fryers. She said she had to drain the grease from the fryers and carry it out to the grease pit for disposal. She testified the grease pit was located next to the dumpster in the parking lot. The employee further testified she was carrying one bucket of grease in her left hand. She said her right hand was a little bit sore so she was carrying the bucket in her left hand when she stepped in a hole in the pavement, falling and hitting her left knee. She said she broke her fall with her right hand. She testified her pants were torn on her left knee and she thought at the time her knee was the major injury although she said her right hand was scratched and scarred up because she caught herself with her right palm. (T-11, 12, 15) 2. The employee further testified that at the time of the accident, no one else had yet arrived at the restaurant but that while she was looking at her knee, JG, the manager arrived on the premises. The employee said she told JG she fell in the parking lot and JG took her to the office and applied ointment and a bandage to her knee. She said JG did not treat her wrist. She testified she continued to work and wobbled around on her knee all day. She also said the more she used her wrist the more it hurt. She said she worked nine (9) hours that day which was June 20, She said she went straight home after work and BMc, her fiancé, applied an ice pack to her knee and she propped it up. She also said BMc was in a position to observe her wrist. The employee testified the next

2 morning her knee was swollen and she called ET to tell her she could not come to work that day and ET called her back and told her to go to the hospital to have her knee checked out. She testified she went to Piedmont Hospital where she was treated for her left knee and high blood pressure. She received no treatment for her right wrist. She further testified the more she used her wrist the worse it got. She said a knot appeared on her wrist and she went back to the doctor and saw Dr. Nguhen who thought her wrist was broken. She testified her right wrist was x-rayed by Dr. Flint and then she went to Dr. Akmal because he was cheaper. She further testified she never had any problems with her arm until after her fall at the Employer s restaurant. The employee testified her arm is somewhat crooked now. (T-16-19, 20, 23, 25) I observed the employee s wrist which was apparently swollen right at the joint with the hand. (T-27) The employee continued to testify the knot on her wrist got bigger and she got worse the longer she worked. She also testified she told management she thought her wrist was broken and related the injury to her fall in the parking lot. She said she was never offered treatment for her wrist and the employer/insurer never paid her hospital bills for her accepted knee injury. She said she can only use her fingers of her right hand a little bit and wants to treat with Dr. Frank Joseph. She testified she was never shown a panel of physicians. She further testified her knee is mostly better and is not keeping her from working. She said she would like to return to work at the Employer s restaurant. (T-28-31) 5. On cross-examination, the employee admitted she did not tell anyone at work about her wrist on the date of accident. She also agreed the medical records at North Georgia Medical Center in Ellijay, Georgia do not mention a wrist injury. The employee was shown her medical records from Dr. Nguyen from June 23, 2014 and agreed she was treated for a knee injury and blood pressure and that there was no mention of a wrist problem until September 30, The employee also agreed she first treated for her wrist with Dr. Akmal on October 7, 2014 after an x-ray on October 2, 2014 and that this was the first medical record for treatment of the right wrist. (T-36-40) 6. The employee agreed she treated with Dr. Nguyen on August 26, 2014 for blood pressure but did not treat for her wrist and that it was not until September 30, 2014 that Dr. Nguyen diagnosed her wrist problem. Employee s counsel interjected that exhibit C-4-1 related the employee s wrist to her work injury. Actually, I find a correct reading of this exhibit reflects the physician who read the imaging related her current problem to a previous injury and did not specify when that previous injury may have occurred. (T-41, 42) (C-4-1) 7. The employee agreed she was arrested in 2007 for violation of the controlled substances act for methamphetamine use. She testified she received a ten year sentence for that conviction. (T-43-45) 8. The employee was asked if she went to the Bahamas, drank too much, and hurt her wrist trying to climb a coconut tree. The employee denied hurting her wrist at that time but did admit falling out of a coconut tree. She said the trip was a couple of years ago in 2013 or 2014 and she had no problems when she returned to work. Then she said it had been several years since she went to the Bahamas. (T-45, 46, 47)

3 9. The employee admitted that although she was clear she hurt her wrist in the parking lot of the Employer s restaurant when she fell and hurt her knee she did not tell any of her co-workers, managers, or medical providers at that time. (T-48, 49) 10. BMc, who had been sequestered during the employee s testimony, testified he has known the employee for over seven (7) years and they lived together as common law man and wife. BMc testified he is self-employed as an optician but is semi-retired. He further testified he was living with the employee at the time of her injury at the Employer s restaurant and sleeping in the same room together. He further testified that on June 19, 2014 when he and the employee retired for the evening the employee was having no medical issues. He said that shortly after daylight on June 20, 2014 the employee came home from work to change her blue jeans. He said one of her legs had been skinned and she had a bandage on it. He testified she told him she fell at the Employer s restaurant. He further testified that the employee s palm was scratched up and he asked her about the scratches and the employee told him she broke her fall with that palm. BMc then stated the employee returned to work and finished her shift. BMc also testified the employee s wrist was normal the first day or two after the fall but after that she started having an issue with a bump rising on her right hand and pain. He said he told her if it hurts too much then find another job. (T-51-56) 11. BMc continued to testify that in the weeks before the fall at work the employee was not having any problems or issues with her right wrist. He said there was no crookedness prior to the work accident and it was after the bump appeared that they started taking her to the doctor to have it looked at. He further testified the employee could use her hand and carry stuff prior to the fall at the restaurant and now she can t use her hand. (T-56) 12. On cross-examination, BMc was asked how badly the employee hurt her wrist when she fell out of a tree in the islands. BMc replied she did not hurt her wrist, just her butt. (T-57) 13. JG testified the employee worked for her in the kitchen of the Employer s restaurant. JG is no longer employed by the restaurant. She further testified she resigned and/or retired. She said she was the manager and supervised the staff including the employee. She said she, JG, worked the front of the store and a co-worker, MT, worked in the back of the store. JG also testified she did not witness the employee s fall on June 20, 2014 but saw the employee in the office being doctored by MT. The manager, JG, testified the employee did not complain of any problems other than her knee and that MT offered the employee medical treatment but the employee declined. JG was shown exhibit D-8 which was a physician s panel and was asked if she had seen the panel at the restaurant. She responded she did not think so. JG continued to testify that when somebody has an injury and asks for medical they call Edna, or RW. She said she had no idea what the employee may have told the other workers in the back of the store. She also testified that the employee was a truthful person. (T-63, 64, 65, 67, 69, 70) 14. MT testified she is employed as the kitchen manager at the restaurant owned by the Employer. She stated she was at the store when the employee fell. She also testified that when the employee came in from outside she had

4 a skinned knee. She said the employee did not complain of problems with her wrist. MT testified the panel of physicians is posted on the wall with other employee information by the ice cream tank. She testified the employee refused an offer to go to the hospital and that she, MT, bandaged her knee. MT further testified that being the kitchen manager she worked with the employee from the date of injury through the last day the employee worked. MT admitted the employee complained of her wrist hurting but never connected it to her fall in the parking lot and that the employee didn t know the reason for her wrist hurting. MT knew about the employee s fall from a tree in the Bahamas but did not know what she hurt when she fell but the employee did not say she hurt her wrist from the fall in the Bahamas. MT also testified the employee did not go home and change her clothes after her fall on June 20, MT agreed on cross-examination that the employee was a good employee and tells the truth and does not lie to her. MT also agreed that before the fall at work the employee just worked normal. MT admitted that at the time of the fall and over July, August, and September the employee said her wrist was hurting. MT agreed that the employee complained about her wrist hurting. MT agreed she saw the employee coming to work with a wrist splint and saw her working with it. MT also agreed that she complained more than usual. (T-71-78) 15. RW testified he is the owner of the restaurant and is familiar with the employee and her knee injury. He said she never complained to him that her wrist injury was due to her fall at work. RW testified the employee went on vacation one time and was talking about falling out of a tree and when she came back she was talking about her wrist hurting. RW further testified the employee never complained of a wrist injury on June 20, He also testified that when the employee did not return to work on October 16, 2014 he took her off the schedule. He did agree that he could put her back on the schedule if he wanted to. RW testified he was in and out of the restaurant and did not work every day. He said he has worked with the employee for the last five (5) years and she has been a good employee. RW admitted he saw nothing out of the ordinary with the employee s use of her hand during the months before her work injury. RW continued to testify that he agreed it was a fair statement that from June, 2014 through October, 2014 the employee could use her hand less and less. When asked if the employee became more and more limited in her use of her right wrist, RW just answered the employee did her duty and completed all her duties she had to do. RW did not directly answer the question. (T-79-84) 16. The employee first received medical care for her on the job injury on June 21, 2014 at North Georgia Medical Center where she was treated for knee abrasion and sprain and high blood pressure. She was not treated for her wrist. (C-1-4) 17. The employee s wrist was x-rayed on October 2, 2014 and showed wrist mal-alignment attributed to a previous scaphoid fracture and/or untreated scapholunate dissociation. The report also stated the condition was likely related to a previous injury. (C-4-1) 18. The employee s first medical treatment which diagnoses her wrist is on September 30, 2014 when she was seen by Dr. Nguyen and there is a note on E/I 2, p. 12 which states, wrist swollen and tender at (unreadable) bone area. (E/I 2, p. 12) 19. On October 7, 2014 the employee treated with Dr. Akmal who took a history that included a statement by the employee that she denies any known injury to the wrist, but went to the ER four (4) months ago because she fell

5 in the parking lot after she tripped at restaurant and skinned her left knee, but that it is much better. The employee told Dr. Akmal that her wrist has been getting bigger for six (6) months with constant pain and gets worse with using it a lot. She said nothing really makes it better except an arm brace which helped some. She told him she flips hamburgers for the last five (5) years. (C-2-1) 20. The employee was returned to full duty on October 16, 2014 according to a release signed by a staff member of the doctor s office named Julie E.; however, Dr. Akmal did not sign the release. In fact, on October 28, 2014 Dr. Akmal removed the employee completely from work until she is cleared by orthopedics. He signed this work restriction on a prescription pad. This restriction was in place shortly after the employee ceased working at the restaurant. (C-2-6) (C-2-7) 21. The facts in this case make this a difficult decision. Usually, in an all issues case, immediate treatment of a related injury is strong evidence that the work accident did indeed cause the injury. However, some injuries do not instantly manifest themselves and thus do not precipitate immediate medical treatment. The employee fell in the employer s parking lot injuring her knee which was scraped and bleeding. The employee claims she broke her fall with her right palm as she fell. This is a logical reaction when falling. The fall was unwitnessed and we only have the employee s testimony to rely upon on this issue. The employee s veracity is called into question by her previous felony conviction. However, all of her co-workers including the owner of the restaurant where she worked testified that she is a good employee and is truthful. I find this testimony outweighs the seven (7) year old felony conviction and during the hearing I found her to be a credible witness. Therefore, I will not rule out the possibility she indeed injured her wrist while breaking her fall on June 20, The employee also told her physician that her wrist has been hurting for six (6) months which would pre-date the fall at work. She also told the same physician during the same visit that her swelling and pain have progressed over this six (6) month period while extended use of her hand made the pain and swelling worse. The employee also testified that she carried the grease bucket in her left hand to the grease pit because her right hand was sore. However; I note that she continued to work from June 20, 2014 continuing through the summer and into the fall performing her normal duties according to RW, the owner. The employee s direct supervisor, MT, testified that prior to the fall in the parking lot, the employee appeared to work normally. She also agreed that after the fall and over the course of the months of July, August, and September the employee complained more than usual of pain in her wrist and wore a brace. Although the employee apparently never directly related her wrist complaints to her work accident, both her supervisors as well as the owner of the business observed her progressively getting worse but also apparently did not investigate the origin of her complaints. I did not find this employee to be a particularly sophisticated individual and therefore am not surprised by the fact that she delayed treatment for her wrist and was unsure of the origin of the injury since it was asymptomatic at the time of her fall and only progressively became worse over time. There was evidence presented of a fall from a coconut tree in the Bahama s which the defense speculated was the probable cause of the wrist fracture. This would coincide with the six (6) month window of pain reported by the employee to her physician except MT specifically remembered the employee did not relate any wrist problems to her circumstance in the Bahamas or the Virgin Islands as suggested by BMc, her fiancé. Regardless of when the wrist was broken, it is clear from the evidence that prior to the employee s June 20, 2014 accident at work, she was observed by her supervisor and other employees as working normally without wrist problems. It was only during the summer months into the fall of 2014 that the employee continued to work her full duty job as a cook and continued to carry out the old grease while working with a wrist brace,

6 23. I find that although I am unable to definitively pinpoint the actual date of the breaking of the employee s wrist, I do find that it is not necessary that I make such a finding. It is clear to me from the evidence the employee at the very least continuously aggravated her wrist condition, regardless of its origin, when she continued to work full duty until October 16, 2014 when the employee failed to return to work. I find the full duty work release was not signed by her treating physician and was therefore not valid which is supported by the complete removal of the employee from the work force on October 26, 2014 by Dr. Akmal, the employee s treating physician. 24. I find the employee s wrist injury to be a compensable injury under O.C.G.A (4) and therefore order the employer/insurer to pay all medical expenses, both past and present, as they are related to the employee s wrist condition. The employee is also entitled to TTD income benefits from October 16, 2014, the employee s last date of work for the employer/insurer together with late payment penalties. 25. I find the employer/insurer s defense of this claim to have been reasonable particularly considering the lack of medical evidence over a period of four (4) months. The facts which convinced me that the injury was a continuing aggravation were not elicited until the hearing. Brigmond v. Springhill Homes of Georgia, 180 Ga. App Rule 221 (d) states, to controvert in whole or in part the right to income benefits or other compensation, use forms WC-1 or WC-3. Failure to file forms WC-1 or WC-3 before the 21 st day after knowledge of the injury or death may subject the employer/insurer to an assessment of penalties or attorney s fees. O.C.G.A (b) (2) reads, If any provision of Code Section , without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code Section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer. I find the employer/insurer failed to controvert this claim and are in violation of the provisions of Rule 221 (d) and therefore award the employee s attorney a quantum meruit assessed fee of $3, Although the evidence shows there was a valid panel of physicians, the employer/insurer denied the employee s claim for benefits and therefore lost control of the medical in this case. Therefore, the employee may choose her own physician to treat her compensable wrist injury. AWARD 1. The employee s request for medical treatment and indemnity benefits for her right wrist is GRANTED. Temporary total disability benefits shall be payable from October 16, 2014 and continuing not to exceed 400 weeks, or until terminated by operation of law or further order of the board. The employee is also entitled late payment penalties on all unpaid income benefits.

7 The employee s request for assessed fees under O.C.G.A (b) (1) is DENIED The employee s request for assessed fees under O.C.G.A (b) (2) is GRANTED in the amount of $3, The employee may choose her own physician to repair her wrist. IT IS SO ORDERED, this the 21st day of September, STATE BOARD OF WORKERS' COMPENSATION This order is electronically signed and approved. Warren Massey ADMINISTRATIVE LAW JUDGE