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Johnson v. PAM Transport, Inc.

Court of Appeals of Arkansas, Division IV

October 4, 2017

RICHARD G. JOHNSON APPELLANT
v.
PAM TRANSPORT, INC., AND ZURICH AMERICAN INSURANCE COMPANY APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G408922]

          McKinnon Law Firm, by: David L. Schneider, for appellant.

          Mayton, Newkirk & Jones, by: David C. Jones, for appellee P.A.M. Transport, Inc..

          LARRY D. VAUGHT, Judge.

         Richard G. Johnson appeals the Arkansas Workers' Compensation Commission's (Commission) opinion entered on October 12, 2016, denying compensability of his claim. On appeal, Johnson argues that the Commission failed to adequately consider the medical records that identify objective findings supporting his compensable injuries and that the Commission's conclusions about his credibility are not supported by the record and should not act as a bar to benefits. We affirm.

         At the hearing before the administrative law judge (ALJ), Johnson testified that after successful careers as a plaintiff's trial lawyer[1] and a businessman, [2] he decided "truck driving might be fun." He applied for work at PAM Transport, Inc. (PAM Transport), in January 2014 and was later hired. Johnson said that on June 15, 2014, he was asleep in the cabin of his truck when his codriver suddenly stopped, causing Johnson to be thrown from the cabin into the dashboard and windshield. He stated that he immediately reported the incident to PAM Transport via an electronic computer system in the truck. Although he testified that he was severely injured because of the incident-suffering injuries to his neck, back, left shoulder, left elbow, head, and hip-he reported to PAM Transport that he suffered only "minor cuts, scrapes, and bruises" and that he did not need medical attention. He explained that he did not understand the extent of his injuries at that time because he had suffered a concussion as a result of the incident. Johnson said that he continued driving the truck as scheduled, traveling to New York and then to Ohio. He got a ride home to Pennsylvania with his codriver. Johnson continued to work at PAM Transport until August 15, 2014.

         On July 7, 2014, Johnson sought treatment from his chiropractor, Dr. Eric Segal.[3] At this visit, Johnson complained of neck and low-back pain that he claimed had been caused by the June 15 incident. Johnson testified that PAM Transport sent him to Dr. John Metcalf on August 27, 2014. After the examination, Dr. Metcalf concluded that Johnson suffered from "chronic cervical/trapezius pain (unknown etiology)" and that his "[s]ubjective complaints seem to outweigh objective findings." Dr. Metcalf further stated that "there are some questions concerning the extent of the patient's complaints . . . . When questioned why he was using a cane, he stated he was using it for fun." Dr. Metcalf opined that Johnson could return to full-duty work.

         Johnson testified that he was having trouble walking, he could not hold things, he could not get out of bed, and he was disabled. He testified that he tried to return to Dr. Metcalf for treatment, but his office would not return his call. Therefore, Johnson sought treatment from several other providers, including Dr. Segal, Dr. Robert Liss (orthopedic), Dr. Betty Liu (physical medicine and rehabilitation), and Dr. David Lesondak (integrative medicine). Johnson testified that Dr. Lesondak's treatment, after about a year and a half, greatly improved his condition and that he was "pretty well back to normal now."

         Johnson stated that before the incident giving rise to this claim he was in very good condition and that he had passed a physical to get his commercial driver's license. But he admitted that in the past, he had suffered from headaches and minor neck problems; he had seizures; and he had been hit in the head by a car door and he hit his head after he slipped and fell on ice. He said that as part of his PAM Transport application process, he was required to complete a form regarding his past medical history and that he was truthful in filling out the form. On the document, he was asked whether he had had any illness or injury in the past five years, to which he answered yes and explained that he had intestinal issues; he denied having had head injuries, seizures, spinal injury or disease, and chronic low-back pain. He said that he answered the way he did because he thought the form wanted to know about his current situation.

         Kathy Snodgrass, PAM Transport's fleet manager, testified that on July 12, 2014, approximately a month after Johnson's incident in the truck and five days after Johnson had been treated by Dr. Segal, she contacted him concerning his ninety-day evaluation. Johnson advised Snodgrass that he had been injured as a result of the incident but that he was okay. He told Snodgrass that he was very happy with PAM Transport and that it took very good care of him. Snodgrass said that Johnson did not mention that he had received treatment from Dr. Segal five days prior.

         Leatrice Wallace, PAM Transport's occupations-injury manager, testified that Johnson contacted her on August 20, 2014, and reported that he had sustained injuries because of the June 15, 2014 incident. Wallace arranged for Johnson to see Dr. Metcalf on August 27, 2014. Wallace testified that PAM Transport controverted Johnson's claim after she reviewed Dr. Metcalf's report that identified no objective findings in support of new injuries and that returned Johnson to work at full duty.

         Janice Brown, the medical-compliance manager at PAM Transport, testified that Johnson took the Department of Transportation (DOT) medical examination on January 29, 2014. She stated that the form asks for medical information going back five years and that applicants are required to provide truthful information. She said that on that the paperwork, Johnson failed to disclose his history of seizures, his prior head injuries, or his chronic neck and low-back issues. Brown stated that she believed that Johnson provided false information on the examination and that had PAM Transport had known of his prior medical history, it would not have allowed him to drive a truck. Based on this evidence, PAM Transport raised the Shippers defense.[4]

         In a written opinion filed on February 17, 2016, the ALJ reviewed the testimony and the medical evidence and concluded that Johnson "failed to meet his burden of proving by a preponderance of the evidence that he suffered compensable injuries on June 15, 2014." The ALJ found that Johnson's testimony relating his complaints to the June 15, 2014 incident lacked credibility because (1) he advised Snodgrass less than a month after the incident that he was okay and that he was impressed with the way PAM Transport handled the situation; (2) he continued to work for PAM Transport until August 15, 2014, and did not request medical treatment from PAM Transport until August 24, 2014; (3) he had a history of chronic neck and back complaints dating back to 2011, along with a history of recurrent severe headaches/migraines dating back to 2010, and he failed to list his complete medical history on the DOT examination; and (4) he was a very educated, sophisticated individual who should have been aware of the questions being asked on the DOT document. The ALJ further found that if Johnson had been credible, he failed to offer medical evidence supported by objective findings establishing an injury. The ALJ found that the only objective findings after June 15 were the same objective findings that existed before June 15.

         Johnson appealed the ALJ decision to the Commission. The Commission affirmed and adopted the ...


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