DAVID R. EZELL CLAIMANT
v.
T.L. WALLACE CONSTRUCTION, INC. EMPLOYER
And
LIBERTY MUTUAL FIRE INSURANCE COMPANY CARRIER
MWCC No. 190 3940-P-9975
Mississippi Workers Compensation Decisions
Mississippi Workers Compensation Commission
March 4, 2020
Representing the Claimant: Taylor R. Brinkley, Esquire.
Representing the Employer/Carrier: Jared H. Hawkins, Esquire.
AMENDED
ORDER OF THE ADMINISTRATIVE JUDGE
CINDY
P. WILSON, ADMINISTRATIVE JUDGE.
The
Claimant, David R. Ezell, filed a petition to controvert
alleging that on April 18, 2019, he suffered injuries to his
back while working in the course and scope of his employment.
The Employer/Carrier denied compensability. A hearing as to
the issue of compensability was held on October 25,2019, at
the Mississippi Workers' Compensation Commission in
Jackson, Mississippi, and the parties submitted supporting
briefs on November 15, 2019.
ISSUES
The
sole issue to be decided by this Administrative Judge is
whether the Claimant sustained a compensable work-related
injury on or about the date alleged in the Petition to
Controvert.
EXHIBITS
General
Exhibit 1: Pre-accident medical records/Hattiesburg Clinic
General
Exhibit 2: Post-accident medical records/Hattiesburg Clinic
General
Exhibit 3: Post-accident medical records/Southern Bone &
Joint-Dr. Lee
General
Exhibit 4: Post-accident medical records/Farmer's Med
Shoppe
General
Exhibit 5: Post-accident medical records/Work Well Clinic
General
Exhibit 6: Deposition of Claimant
General
Exhibit 7: Deposition of Jason Cook
General
Exhibit 8: Deposition of Ray Harper
General
Exhibit 9: Resume of Claimant
General
Exhibit 10: Statement of Claimant dated April 2, 2019
General
Exhibit 11: Claimant employment application dated February 6,
2019
General
Exhibit 12: Claimant's wage & employment information
Claimant
Exhibit 13: Termination letter dated April 26, 2019
Claimant
Exhibit 14: Employer's Notice of Controversion dated May
14, 2019
Employer/Carrier
Exhibit 15: Recorded statement of Claimant Identification:
Pictures & surveillance video
Employer/Carrier
Exhibit 16: Two written statements by Ray Harper
Employer/Carrier
Exhibit 17: Written statements by Jason Cook
General
Exhibit 18: Affidavit of Stephanie Hanley dated October 24,
2019
RELEVANT
EVIDENCE
Mr.
David Ezell testified on his own behalf. He is a 58 year
old resident of Hattiesburg, Mississippi. Mr. Ezell's
work history includes 28 years of law enforcement experience
with the FBI, local law enforcement and various inter-country
agencies. His experience includes numerous hours of training,
mentoring, and management.
Claimant
worked for the Employer as a "cell phone tower
climber" (the towers ranged from 250-500 feet in
height), and he was responsible for rigging the tower(s).
This included taking ropes to the top of the tower and
transporting catheads (motor that pulls equipment up and down
the tower), etc. Once rigged, he climbed the tower with a
co-worker and took parts off (stripping off the metal and
replacing it with plastic) in order to allow better
reception.
On
April 18, 2019, Claimant injured his lower back while working
on a cell phone tower in Alabama. He was rigging the tower
(pulling the ropes and the cathead up the tower), when he
bent over to plug in the cathead to the back of the trailer
hitch and experienced a sharp pain in his lower back which
made him fall to his knees. (A cathead is an electric winch
through which the load line is fed to hoist equipment and
material up the tower. This is mounted either to the tower
itself or to the rear of a truck with the appropriate
hitch/receptor). Claimant testified that his co-worker Ray
Harper was at the top of the tower and his other co-worker
Jason Cook was on the ground with him. He told Jason Cook
that he hurt his back. Claimant completed the cathead hookup
and then reached to pick up a bag on ropes when he felt an
"electric bolt/shock" go through his back causing
him to fall to his knees again. He then went up a ladder to
take supplies and started to experience issues with
incontinence. He went next door to a restaurant to clean up
and returned to the job site. He called Ray Harper on his
cell phone to inform him that he was having problems with his
back, and that he needed to sit down. He said he stayed in
the truck for at least four (4) hours. Claimant testified he
did not know the exact time of the injury, but knew it was
around 10:30, 11:00 or 12. Once Ray and Jason's shifts
were completed, both men came down the tower (around 4:30),
Mr. Ezell advised Ray that he had injured his back.
Claimant
traveled to and from the job site with his co-worker Jason
Cook, and they shared hotel rooms when they traveled away
from home. The following day was a rain-out which prevented
them from working, so he and Jason drove back to Mississippi.
Claimant testified that he informed Jason of his injury on
the trip home, and informed Ray (prior to leaving Alabama)
that he needed to see a doctor as soon as he got home. When
Claimant returned home, he was seen by a nurse practitioner
and was given a referral to see Dr. Lee.
Claimant
testified that he underwent back surgery in 2012 and fully
recovered from same. Further, he had no additional problems
other than normal aches and pains until the date of his
work-related injury. Claimant also testified that he
underwent and passed a pre-employment physical and a drug
test prior to being hired by the Employer.
On that
Saturday, April 20,2019, Claimant sent Mr. Jerry Kilpatrick a
detailed statement of the injury; as well as a status update
following his doctor's appointment. Claimant was
scheduled to return to Alabama on Sunday, April 21, 2019, to
complete the job but was unable to return due to his injury.
On Monday, April 22, 2019, Claimant was seen by Nurse
Practitioner Gatwood who was advised that they do not accept
workers' compensation claims. Upon Claimant's
request, Ms. Gatwood referred her to Dr. Lee. On April 23,
2019, Claimant had an appointment with WorkWell Clinic but
did not attend the appointment because the office was about
to close.
On
April 26,2019, Claimant attended an appointment at WorkWell
Clinic and was advised to provide a urinalysis for a drug
screen. Claimant agreed to this request, and the test result
rendered a negative result. Claimant was then asked to submit
a hair follicle for a drug test and the Claimant refused same
as he had already undergone and passed the urinalysis/drug
test. When Claimant refused, he was told he could not see a
doctor.1 On April 26, 2019, Claimant received an
e-mail from Ms. Donna Prejean advising him that he was
terminated due to refusal to undergo a drug test as required
by the Employer.2
On
cross examination Claimant testified that he has had one (1)
surgery on his back, one (1) on his neck, and pain
injections. However, these surgeries and pain injections were
not listed on Claimant's pre-employment medical
examination.3 Claimant testified that on the date of
injury, his job was to "rig up the tower" (take the
ropes to the top of the tower, set up the cathead, etc). He
said the cathead is set up near the beginning of the shift,
but is not always hooked up immediately upon arrival. He
testified that he can't remember the exact time of his
injury, but in his recorded statement, he testified that he
injured himself around lunchtime.4 Claimant continued to assert
that he injured his back while hooking up the cathead and
again when he lifted the rope bag. However, he is not sure
why the additional back injury which he suffered while
lifting the rope bag was not mentioned in the recorded
statement.5 Claimant asserts that he was not trying to
withhold any information, noting that he informed both Jason
Cook and Ray Harper of his back injury on that day, but
can't remember the exact time of the injury.
Claimant
testified on redirect examination that he still needs an MRI
and EMG in order to determine the extent of his injury, but
the Employer/Carrier have not approved his medical treatment.
Ms.
Donna Prejean testified for the Employer/Carrier. She is
the human resources manager, handles new hires, and handles
workers' compensation claims. She learned of the...
