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Fielding v. Firestone Bulding Products5/17/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Appellant Jerry Fielding appeals from a decision of the Workers' Compensation Commission finding that he failed to prove by a preponderance of the evidence that he suffered a compensable back or neck injury while employed by appellee, Firestone Building Products. On appeal, appellant argues that the Commission's conclusion that he did not suffer a compensable injury is not supported by substantial evidence or the record as a whole.
Appellant worked for appellee as a slitter operator. His job entailed cutting up six inch rolls of rubber by use of a machine. The machine was set up with bars, and when the bars became full, appellant would take the bars off and reload them on the machine. On May 4, 1998, appellant testified that as he was lifting a bar to place it on the machine, he felt a catch in his back. He testified that he felt pain in his upper back or lower neck between the shoulders, and that he informed his supervisor about the injury shortly after the injury had occurred. He testified that "about the time of the accident, my supervisor was walking down the isle , and I told him I just felt a catch or something in my back. My supervisor was Joe Brewer. It was loud and noisy in the area where we were working, and I really don't think that he [Brewer] heard everything I said, all of it because he said, `well, if you've got to go, go.'" Appellant testified that he left work around 7:00 p.m. or 7:30 p.m. He testified that although appellee's records did not show that he actually worked on May 4, 1998, he remembered that he worked on that particular date because he had previously asked for time off a week before the incident to help plan his daughter's wedding. He testified that when he did not receive an answer from Mr. Brewer on whether he could be off work, he decided to work on May 4. He stated that he also worked on May 4 because he had spoken with his co-worker, Tim Allen, on that date about selling a car to Allen. Appellant testified that on the day following the incident, Allen picked up the car. He stated that at that time, he informed Allen that he had pulled a muscle or had a catch in his back, but told Allen that he "did not know what he had done." He testified that on May 5, 1998, he couldn't remember if he or his housekeeper called appellee and notified appellee of the injury. Appellant also admitted that in a video taken on August 21 and 22, 1998, by an investigator paid by appellee, he was shown taking off his shirt, getting on and off his tractor, and "stepping up" to look inside his truck engine. Appellant testified, however, that these activities lasted 30 minutes each and that he had to move slow in doing the activities.
Betty Guidey, appellant's housekeeper, testified that she remembered appellant coming home on May 4, 1998, and indicating that he had "pulled something in his back" and was suffering from pain between his right shoulder and arm. She testified that she took appellant to see Dr. Chris Primeaux on that day. On May 5, 1998, Guidey testified that she spoke with Joe Brewer and informed him that she had taken appellant to the doctor and that "appellant was still hurting so bad." She stated that Brewer told her to keep in touch and to let him know of appellant's progress. Guidey testified that appellant was not released to return to work after he was seen by Dr. Primeaux and that every week thereafter, she called Mr. Brewer, Danny Glass, or Charles Cooper about Dr. Primeaux's reports on appellant's condition. She testified that before May 4, 1998, appellant only complained of his back being sore, but never complained of arm pain or numbness or severe sharp pain in his neck. Tim Allen testified that
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