http://www.caseygilson.com/images/cg-logo.gif

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

JMJ Plumbing v. Cudihy, (11/30/2012)

The State Board's Denial of Workers' Compensation Based on Employee's Failure to Prove Compensable Injury Upheld on Appeal

Cudihy worked for JMJ as a plumber. On September 2, 2008, while performing a digging task on the job, Cudihy felt a sharp pain in his back that radiated to his leg. He took a break for a few minutes, then went back to work. Cudihy did not report the injury to his employer, and continued to perform his regular work duties.

After work, Cudihy went to "Physician's Immediate Med" for treatment. He told the treating physician he had developed back pain over the weekend and experienced pain while digging that morning. He was diagnosed with muscle spasms and prescribed muscle relaxers. He sought further treatment in January 2009 and was diagnosed with low back pain. He went to a chiropractor in March 2009, where he was diagnosed with muscle spasms. In May and June 2009, he saw an orthopedist, who diagnosed him with possible disk herniation. On June 3, 2009, the orthopedist recommended that Cudihy be placed on light duty work and that he might need surgery.

On June 25, 2009, Cudihy first reported the injury to JMJ, which placed him on light duty work full-time.  Cudihy continued to work at JMJ on light duty until August 2009, when he was terminated for reasons unrelated to his injury.

Cudihy subsequently applied for workers' compensation benefits, alleging a June 25, 2009 injury date.  JMJ controverted the claim but, after a hearing, an ALJ awarded Cudihy disability income and medical benefits.  The ALJ found, among other things, that Cudihy had sustained a work-related injury to his back on September 2, 2008 and, citing the "new accident" theory (regarding a gradual worsening of condition) found that he had sustained a work-related injury on June 25, 2009.

The State Board vacated the ALJ's award and denied Cudihy's claim. The Board found the preponderance of the evidence did not support the ALJ's finding that Cudihy had sustained a new accident on June 25, 2009 related to his work. The Board found Cudihy had not established or reported the occurrence of an initial work injury, making the theory of a fictional new injury (on June 25, 2009) inapplicable; and, no disability manifested on the designated new accident date of June 25, 2009, inasmuch as that date did not represent the date Cudihy's condition had worsened as a result of his work activities to the point he could no longer perform his job. The Board noted Cudihy had continued working beyond that date (June 25) and he had acknowledged that he was capable of working as a plumber at the time he was terminated. The Board also found that no September 2, 2008 injury was compensable because: (a) Cudihy did not establish that he sustained a work injury on September 2, 2008; and (b) Cudihy did not give adequate notice of a work injury to JMJ.

The Board found he failed to show he sustained a new accident on June 25, 2009. The Board cited, among other things, evidence that:  Cudihy had injured his back during the weekend preceding September 2, 2008; when seeking medical treatment on September 2, 2008, he did not indicate that he was injured on the job, even when specifically asked. He admitted he had not sustained any injury on June 25, 2009. He did not become unable to work on June 25, 2009, as he  continued working until August 12, 2009, when he was fired for unrelated reasons. By his own admission, at the time of his termination he was physically capable of continuing to perform his job. He worked as a plumber after his termination, and his work activity did not worsen his condition. There was also evidence Cudihy suffered no injury on the job after September 2, 2008, that his symptoms were the same on September 2, 2008 as they were at the time of the administrative hearing, and that all of his pain was attributable to the September 2, 2008 accident.

For accidental injury to be compensable under the Workers' Compensation Act, the injury must … occur in the course of the employment … [and] arise out of the employment.  Whether an injury arose out of and in the course of employment is an issue of fact. 

The Appellate Court noted the Board's findings, when supported by any evidence, are conclusive and binding. Because some evidence supported the Board's findings that Cudihy had failed to prove that he was injured on the job and that he continued to perform his job duties until he was forced to stop work due to a gradual worsening of his condition, defeated his workers' compensation claim. The Board's Decision was upheld on appeal.