Andrus v. Homer Wainwright Logging Co.

JOHNSON, J. This is an appeal by the employer from the order of the Workers’ Compensation Board (Board) finding that claimant suffered a compensable injury on July 21, 1976. The issue is whether claimant’s back condition was an aggravation of a previous injury, or a second injury. Claimant suffered an industrial back injury on May 5, 1967. The claim was initially closed in 1971. Claimant, however, continued to experience pain in the low back and leg regions and an aggravation claim was filed. On June 28, 1973, a stipulation order was entered giving claimant a permanent partial disability award of 70%. Since that time, claimant has held a variety of jobs, some of which involved heavy manual labor. Since his 1967 injury, his medical history has been marked by continuing complaints of leg, arm and back pain, and headaches. He has consistently taken pain medication. Claimant began work with the employer/petitioner, a logging contractor, on July 20, 1976 as a rigging slinger (choker setter). The next day he fell down into a pile of spruce boughs. There is a direct conflict in the testimony as to whether this incident constituted an industrial accident causing injury. Claimant testified that he fell 6 or 7 feet, that for a few seconds he experienced severe pain, and that during that evening his condition substantially deteriorated. He further testified that although he suffers the same symptoms as he had before July 21, 1976, they are now worse. His testimony was corroborated by his wife. A fellow employee testified that "[claimant] kind of tripped more or less, and rolled over * * * got up and walked over towards us * * * laughing and more embarrassed than anything * * *.” The employee estimated that the distance of claimant’s fall could not have been more than two or three feet. Claimant continued to work the day of the accident and the next day. He then quit. According to the [328] employer, his expressed reason for quitting was blisters on his feet. The employer, whose testimony was corroborated by his wife, testified that sometime later claimant informed him that it was not fair that the employer be held liable because claimant had not been injured while working on that job. On July 23, 1976, claimant called his doctor, an orthopedist who had been treating claimant since his 1967 injury, complaining that his feet were swollen and that he was having increased pain. On August 6, 1976, claimant saw his doctor. According to claimant’s testimony, he advised the doctor in some detail concerning his latest accident. From his examination, the doctor diagnosed "severe, recurrent low back strain,” and claimant was hospitalized from August 7 through August 18, 1976. The hospital records indicate only that claimant experienced recurrent lumbosacral pain due to an accident which occurred nine years ago. There is no mention in the hospital history of any new traumatic incident. Claimant’s doctor’s report states in pertinent part: "I next saw him on August 6, 1976. He tried to go back to work in the woods to do rigging. He lasted three days. He developed severe pain down his legs and arms. The days he worked in the woods were July 19 to July 21, 1976. He hurt severely without new injury. He was working for a Mr. Wainwright at Bay City. "As he reports to me on August 6,1976, he states that he hurts severely in his low back and legs. # tf: * * "It is my impression that this man has severe, recurrent low back strain. "I have admitted him to St. Vincent Hospital for conservative treatment. I ask that his claim be reopened for compensation and medical care on an aggravation basis.” (Emphasis supplied.) The referee, whose opinion was adopted by the Board, found claimant to be credible, and thus by implication found that the other witnesses were not credible. The referee explains away the apparent [329] conflict between the doctor’s report and claimant’s testimony as a mistake by the doctor. It would be equally plausible to conclude that either claimant did not tell the doctor about his fall on July 21 because he did not consider it an injury, or the doctor was aware of the incident but did not feel it had any medical significance with respect to plaintiff’s condition. The doctor, who had been plaintiff’s treating physician for nine years, was not called as a witness. The burden of proof was upon claimant to show that there was a new injury and he failed to carry that burden. Reversed.