This is how Pike Electric treats injured lineman

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VIRGINIA: 08/25/98
IN THE WORKERS’ COMPENSATION COMMISSION



Affirmed by the Court of Appeals in


Record No. 2193-98-3 (February 23, 1999)(unpublished)


DANNY D. MULLINS, Claimant
Opinion by the
FULL COMMISSION
v. VWC File No. 183-35-97


FLOYD S. PIKE ELECTRICAL CONTRACTORS, INC., Employer
LIBERTY MUTUAL INSURANCE COMPANY, Insurer


Paul Phipps, Esquire
Lee & Phipps, P.C.
Post Office Drawer 4030
Wise, Virginia 24293
For the Claimant.

Deborah W. Dobbins, Esquire
Gilmer, Sadler, Ingram,
Sutherland & Hutton, L.L.P.
Post Office Box 878
Pulaski, Virginia 24301
For the Defendants.


REVIEW on the record by Commissioner Diamond, Commissioner Tarr, and Commissioner Dudley at Richmond, Virginia.


The claimant requests review of the deputy commissioner’s November 18, 1997, Opinion terminating his benefits. In his Opinion the deputy commissioner thoroughly recited the salient facts, which we adopt, except as otherwise or additionally set forth herein.
The record reflects that the claimant injured his back, hip, and legs in an accident on June 3, 1996. The injury was accepted as compensable and on April 23, 1997, the claimant was awarded temporary total benefits beginning December 16, 1996. The claimant was initially seen by Dr. Klock in early December 1996. At that time x-rays were taken and an MRI ordered for December 20, 1996. On December 26, 1996, Dr. Klock examined the claimant and reviewed the MRI results with him. Dr. Klock noted "L1,L2 disc degeneration with broad base annular bulge and a small right paracentral L4,L5 annual and /or disc bulge." Dr. Klock restricted the claimant to lifting up to fifteen pounds. The claimant was also to avoid repetitive bending, twisting, stooping, and sitting or standing for more than thirty minutes without a change of position. Dr. Klock also referred the claimant to physical therapy and to Abingdon Orthopedics, where the claimant was seen by Dr. McKain.
Dr. McKain examined the claimant on January 14, 1997, and noted little objective abnormality on the clinical evaluation. He noted that the claimant's x-rays showed some minimal early lipping of the L1-2 intervertebral disc; however, he did not comment on the MRI results. Dr. McKain prescribed another course of physical therapy. The claimant attended this second course of physical therapy from March 10, 1997, though April 2, 1997. On April 4, 1997, the physical therapist wrote in a progress report to Dr. McKain that the claimant's "reported high pain rating does not correspond with observed behavior and movement patterns during treatment sessions."
Dr. McKain examined the claimant again on April 7, 1997. The claimant reported that he felt worse after starting physical therapy than before. Dr. McKain reported he could find "no objective abnormality to explain on an ortho/neurologic basis Mr. Mullins [sic] continuing pain complaints . . . . I have no explanation for this, his pain, nor explanation for the etiology of such. It is my opinion that from a medical standpoint he can return to work." The claimant testified in his deposition that Dr. McKain attempted to refer him either for a second opinion or a functional capacity evaluation, but was unable to secure approval after contacting the insurer. On April 9, 1997, the employer/insurer filed an Application to terminate benefits based on the April 7, 1997, report of Dr. McKain.
On June 6, 1997, the claimant's deposition was taken, during which he was examined concerning a job description of a "Class A Lineman." The claimant had seen this document only for approximately ten minutes before the deposition. He explained that he did not agree with all of the description. Specifically, he testified that while the job description disclosed that a Class A Lineman would reach overhead between one and five percent of his or her shift, the claimant estimated he spent at least fifty percent of his time reaching overhead. The claimant also disputed many of the statements on the description as being inaccurate, given the demands of the particular job. For example, the description allocates six to twenty-five percent of the employee's time being spent "pushing and pulling." The claimant testified that, depending on the job, he spent between twenty-five and forty percent of his time pushing and pulling. Finally, when asked whether he thought he could perform his pre-injury job, the claimant responded "no." He explained, "I don't think I could put a belt around me and climb poles. I don't think I could even get up on a bucket truck to get in the bucket."
At the June 18, 1997, hearing on the employer/insurer's Application, it was raised before the deputy commissioner that the employer/insurer had failed to pay benefits under the Award through the date of filing. Accordingly, the deputy commissioner dismissed the Application in a letter Opinion dated June 25, 1997.
The employer/insurer then filed a second Application on July 8, 1997, making the same allegation that the claimant had been released to pre-injury work on April 9, 1997, in accordance with Dr. McKain's April 7, 1997, report. Attached to the Application was a work release from Dr. McKain and a copy of a job description of the duties of a Class A Lineman. This release, attached to the bottom of a letter from the insurer to Dr. McKain dated April 18, 1997, was signed by Dr. McKain on April 22, 1997 and acknowledged that “I have reviewed the attached job description and believe that Danny Mullins is able to return to full duty work as described.” Dr. McKain never discussed the job description with the claimant.
The claimant was then treated by Dr. Hines, a neurosurgeon. On July 10, 1997, Dr. Hines examined the claimant and noted that the claimant's job of "climbing poles and carrying a tool belt weighing up to 24 pounds . . . certainly adds insult to injury." Dr. Hines indicates he reviewed the MRI scan and noticed a small paracentral disc at the 4-5 level "toward the right," as well as some "desiccation particularly at the last two interspaces." Dr. Hines prescribed another MRI before commencing any epidural steroid injections.
Following the second MRI, Dr. Hines examined the claimant on July 15, 1997. He stated that he was "convinced that [the claimant] has mechanical back pain secondary to discogenic difficulty." He reported that the MRI showed degenerative changes "at the lower two segments." He also noted that the "herniation" at the L4-5 level was "not quite as prominent" as in December 1996. The radiologist reviewing the MRI results recognized a "moderate central bulge at the L4-5 level," though not a "discrete disc herniation."
Dr. Hines referred the claimant to Dr. Williams for epidural steroid injections, which he underwent on two occasions, along with a round of trigger point injections, on July 25, August 6, and August 20, 1997. The record from Dr. Williams noted that "[w]hether all of this pain is discogenic in nature, possibly facet related or strictly myofascial is not completely clear." Dr. Williams then suggested a course of treatment involving anesthetizing the facet points as well as additional radiology "as we have seen moderately unimpressive MRI's to be more apparent when studied further."

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On October 7, 1997, the deputy commissioner conducted a hearing on the second Application at which he noted the claimant's defenses to the Application and received the claimant's June 6, 1997, deposition, upon the employer/insurer's motion, into the record. On this evidence, along with the medical evidence, the deputy commissioner, in a November 18, 1997, Opinion, found that the claimant was able to return to pre-injury work on April 9, 1997, "based on Dr. McKain's unchallenged opinion." He terminated the claimant's benefits effective July 9, 1997, the date for which compensation was last paid. The claimant takes exception to this decision.
To prevail on its Application, the employer/insurer must prove that the claimant "is fully able to perform the duties of his pre-injury employment." The Fingles Co. v. Tatterson, 22 Va. App. 638, 639, 472 S.E.2d 646, 647 (1996). The claimant argues that the deputy commissioner erred in deciding the employer/insurer had met its burden in that he considered only the medical evidence as of April 7, 1997, the date the employer/insurer alleged in its Application that Dr. McKain released the claimant to work. In the November 18, 1997, Opinion, the deputy commissioner concluded that the medical reports of Drs. Hines and Williams, which were based on examinations of the claimant conducted at least three months after April 7, 1997, did not "address the specific issue pending." We do not agree with this analysis. It is clear that the claimant suffered from chronic lower back pain relating to the June 3, 1996, occupational injury. On July 15, 1997, Dr. Hines indicated in his report to the claimant's disability insurance carrier that he considered the claimant's condition of degenerative disc disease, as shown by MRIs conducted in 1996 and 1997, to be "chronic." Dr. Hines' examinations of the claimant in July 1997 and Dr. Williams' examinations of the claimant in July and August 1997 reveal pain secondary to and treatment for disc problems at the L4-5 level. The claimant's initial treating physician, Dr. Klock, also noted problems at the same location. The observations are based chiefly on the MRIs performed in December 1996 and July 1997. Dr. Hines' July 15, 1997, report to the claimant's disability insurance carrier noted that the results of the two MRIs, as far as L4-5 are concerned, were the "same."
Dr. McKain, however, reports on April 7, 1997, that he could find no objective abnormalities based on his two examinations of the claimant. It is unclear, however, whether he even reviewed the claimant's December 1996 MRI, upon which Dr. Klock based his opinion, before April 7, 1997. Dr. McKain was also in possession of the April 2, 1997, physical therapy report, in which the therapist reported inconsistency between the claimant's reported pain and his observed behavior. Dr. Hines, on the other hand, was "convinced" that the claimant was suffering from chronic lower back pain. The employer/insurer argue that the medical reports of Drs. Hines and Williams were not related to the claimant's condition on April 7, 1997, and that these reports do not concern the claimant's original injury by accident of June 3, 1996. We are not persuaded by this argument. We find that the claimant's treatment by Drs. Klock, McKain, Hines, Williams and Osborne all concern the claimant's problems with his lower back precipitated by the June 3, 1996, accident.
The employer/insurer also argue that the claimant was released by Dr. McKain to perform his job of a Class A Lineman. Dr. McKain apparently based his April 22, 1997, opinion that the claimant was able to perform the Class A Lineman duties at least in part on the April 2, 1997, physical therapist's progress report. As noted above, however, the claimant has suffered from chronic back pain during the entire period in question. Moreover, Dr. McKain's understanding of the job description was inaccurate. The claimant's uncontradicted testimony is that his performance of the Class A Lineman's job differed from the job description in several key respects. Moreover, the job description "averages" the varied duties that a Class A Lineman might perform. Where the claimant falls on this average was not known to Dr. McKain when he expressed his opinion. Accordingly, we find that the employer/insurer has failed to show that the claimant is able fully to perform the requirements of his pre-injury employment. Our finding is supported by the claimant's own testimony that he did not believe he would be able to even climb into a "bucket truck," much less climb a pole while wearing a twenty-five pound tool belt. See Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985) ("Johnson's lay testimony is further evidence in support of the Commission's decision that she was unable to return to her pre-injury employment.")
Therefore, the November 18, 1997, Opinion is REVERSED. Payment of compensation under the open Award of April 23, 1997, is hereby REINSTATED effective July 10, 1997, the date after which compensation was last paid.
Accrued compensation shall be paid in a lump sum with the carrier directed to deduct $1,000.00 to be paid directly to Paul Phipps, Esquire, for legal services rendered the claimant.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days.



c: Danny D. Mullins
Post Office Box 3911
Wise, Virginia 24293

Floyd S. Pike Electrical Contractors, Inc.
Post Office Box 868
Mount Airy, North Carolina 27030

Liberty Mutual Insurance Company
Post Office Box 85198
Richmond, Virginia 23261

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COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Willis


FLOYD S. PIKE ELECTRICAL CONTRACTORS, INC.
AND LIBERTY MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2193-98-3 PER CURIAM
FEBRUARY 23, 1999
DANNY D. MULLINS



FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION



(Deborah W. Dobbins; Gilmer, Sadler, Ingram, Sutherland & Hutton, on brief), for appellants.



(Paul L. Phipps; Lee & Phipps, on brief), for appellee.


Floyd S. Pike Electrical Contractors, Inc. and its insurer (hereinafter referred to as "employer") contend that the Workers' Compensation Commission ("commission") erred in finding that it failed to prove that Danny D. Mullins ("claimant") was capable of fully performing the duties of his pre-injury employment as of April 7, 1997. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. See Rule 5A:27.
"General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). The commission's findings are binding and conclusive upon us, unless we can say as a matter of law that employer proved that claimant was fully able to perform the duties of his pre-injury employment. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission ruled that claimant's medical treatment by Drs. Dave G. Klock, Carey W. McKain, Robert S. Hines, Jr., and W.T. Williams was causally related to his problems with his lower back precipitated by the June 3, 1996 compensable accident. In so ruling and in denying employer's application, the commission found as follows:


It is clear that the claimant suffered from chronic lower back pain relating to his June 3, 1996, occupational injury. On July 15, 1997, Dr. Hines indicated in his report to the claimant's disability insurance carrier that he considered the claimant's condition of degenerative disc disease, as shown by MRIs conducted in 1996 and 1997, to be "chronic." Dr. Hines' examinations of the claimant in July 1997 and Dr. Williams' examinations of the claimant in July and August 1997 reveal pain secondary to and treatment for disc problems at the L4-5 level. The claimant's initial treating physician, Dr. Klock, also noted problems at the same location. The observations are based chiefly on the MRIs performed in December 1996 and July 1997. Dr. Hines' July 15, 1997, report to the claimant's disability insurance carrier noted that the results of the two MRIs, as far as L4-5 are concerned, were the "same."

* * * * * * *



. . . Dr. McKain apparently based his April 22, 1997, opinion that the claimant was able to perform the Class A Lineman duties at least in part on the April 2, 1997, physical therapist's progress report. As noted above, however, the claimant has suffered from chronic back pain during the entire period in question. Moreover, Dr. McKain's understanding of the job description was inaccurate. The claimant's uncontradicted testimony is that his performance of the Class A Lineman's job differed from the job description in several key respects. Moreover, the job description "averages" the varied duties that a Class A Lineman might perform. Where the claimant falls on this average was not known to Dr. McKain when he expressed his opinion. . . . Our finding is supported by the claimant's own testimony that he did not believe he would be able to even climb into a "bucket truck," much less climb a pole while wearing a twenty-five pound tool belt.
The commission articulated legitimate reasons for giving little probative weight to Dr. McKain's opinions and to his approval of the job description. In light of claimant's uncontradicted testimony regarding the inaccuracy of the job description submitted to Dr. McKain, the medical records of Drs. Hines and Williams, and Dr. Hines' opinion that claimant was unable to return to his pre-injury employment, the commission was entitled to conclude that Dr. McKain's medical reports and opinions did not constitute sufficient evidence to prove that claimant was capable of carrying out all of the duties of his pre-injury work. "Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and


weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
Because the medical evidence was subject to the commission's factual determination, we cannot find as a matter of law that the evidence proved that as of April 7, 1997, claimant was capable of returning to his pre-injury employment. Accordingly, we affirm the commission's decision.
Affirmed.

[timber hitch]

yep your right

[LINCRW]

Why pick on Pike for this type treatment? This type stuff goes on everywhere........... I know a lot of folks don't like Pike, but really, this is the type of stuff that goes on every day in the area of disability management. Not isolated to the electric industry either.

[Bull Dog]

Keep it up Top Grove I respect your passion for exposing these Rats. There is injustice everywhere but Puke gets the Trophy.

[thrasher]

Speaking as one who has gone over to the Darkside (Management) the company has no say or choices once a case is declared workman's compensation. At that point it is all the insurance company and the Doctor's paperwork. The only time the company has any say is when it's an off the job injury and whether the company will offer light duty or a position change. I have had two workman comp cases since I joined management and the sum total of my invlvement was I recieved an e-mail telling me employee X was on leave from a job related injury (which I knew from the injury report) and then sometime later an e-mail from the insurance company that employee X would return to work on such and such a date. When I asked about his progress during the time off I was told it was none of my business and that HIPPA laws prevented them from relaying any info other than dates out of work and/or work restrictions when he returns to work.

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On April 9, 1997, the employer/insurer filed an Application to terminate benefits based on the April 7, 1997, report of Dr. McKain.

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Posts: 904
Joined: 30-October 06
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QUOTE (639trbl @ Aug 17 2008, 01:14 PM)

This is the Truth.....I'd go to work with Pike under these conditions and these conditions only..........

I was dead broke...

living on the streets in a cardboard box........

eating out of a dumpster behind McDonalds..........

on my last leg..............

and it was the only place I could get a job as a lineman..............

And this is coming from 38 years experience in the trade as a lineman, not some fresh outta school grunt/wanna be lineman!!!!!


Nuf said!!!!!


Pike is a huge company. Seems like everytime I turn around, they are buying up other companys. What this tells me is that they are trying to eliminate their competition in whatever way they can. There is really not anything wrong with that, but, usually, Pike does seem to replace the former employees of the bought out company on a regular basis. When folks start finding out how good they had it before the company buy out, they are going to start talking and complaining......and Pike is not a company that will have any of that. It took me 6 months to realize that I didn't need to be there.

One example...........your former company issues out curved sleeves and bell cuff gloves. Pike buys your comapny. Now, you have to comply with Pikes standards which are straight sleeves and straight gloves. They confiscated any and all curved sleeves and bell cuff gloves and told us that this is what we will wear from that point on. They called it the "Eric Pike Approved" PPE. The FR smock that they issued was another joke. I don't know about now, but back then they issued out this funny looking little FR vest. No FR longsleeve shirts like everyone else was used to. You could pretty much wear a t-shirt under your vest if that is what you wanted to do, but have that vest on. It sure didn't help a guy that I know when he got into a 19.9kv phase to ground flash. They might have changed things now, but I'm not sure.

The other example was going on an ice storm with them. After a few days, the temps got a little warmer, so, instead of sleet and ice, it was raining hard that day. We were told that everyone was going to Walmart and Tractor Supply to get rain gear. Fine, I thought. Found out that we were to pay for the rain gear ourselves. When I mentioned that I thought that rain gear might be considered PPE in this particualr situation, I was told that if I wanted to work, I would supply myself with what I needed to do the job. Yeah, I see it like this, I need rubber blankets and line hose to do my job, but I sure as hell ain't gonna go buying my own blankets and hose! I guess what really put the iceing on the cake was finding out that we were not getting per-diem. We were to eat at the caterer, supplied by the hosting utility. If we wanted something different, your on you own......don't even bother turning in a receipt. Going to Oklahoma and coming back.......if you were hungry at lunch time or supper time, you pay for it yourself......don't bother turning in a receipt. The rooms were furnished by the hosting utility. So, it seems that Pike did not spend a dime on that storm. Everything was pretty much furnished by the hosting utility. Even the fuel was furnished by a utility fuel truck every night. So, they made a shitload of money on our manhour costs and whatever they charged for the equipment on this storm, didn't pay for a ****in thing as far as fuel, food, and hotels went, and then wanted us to pay for our own rain gear? F**K THAT!!

There is other stuff, but I won't go into that. If you do decide to go there, ask about their apprenticeship. Supposedly, they dropped the apprenticeship program to help pay for this huge airplane that they recently bought. That don't sit right with me, but thank God I'm not putting up with that anymore. And I hate like hell to see the younger guys get drawn in to that kind of bullshit. Whatever you decide, just be careful and watch your back.

[west coast hand]

they are rats just like why would anyone go on a storm for straight time. talked to a guy that worked for pike on the last ice storm i went on they have to work 40 hours on straight time then they get time and a half and they were staying in tents and eating mre's here we are in holiday inn eating steak getting all double time why do people stick up for pike they are a shitty company that does not care about any of there hands. It because people let them treat them that way whatever just not for me. No money shitty conditions and NO TRAINING sound like a great place to work......and you wonder why we call you RATS