I must respectfully dissent from the majority decision to reverse the Deputy Commissioner's Opinion and Award and would vote to affirm based on plaintiff's lack of credibility. The testimony of the lay witnesses, the medical documentation and testimony do not support plaintiff's claim as credible that his back injury was the result of a compensable work-related injury by accident on December 19, 2002.
Although plaintiff and his wife claimed that they had reported plaintiff's back injury to defendant-employer their testimony was contradicted by the other lay witnesses. Further, even though plaintiff sought medical treatment on December 20, 2002 for a viral infection, he did not report any work-place injury or back injury occurring on December 19, 2002. There is no reference in the medical notes to any work-place injury or back injury having occurred on December 19, 2002.
It was not until December 23, 2002, when plaintiff returned to Family Medical Care that he complained of low back pain and vertigo. Ms. Carol Phelps' notes reflect that plaintiff reported his back pain having begun that morning. The medical records of Dennis Czuchra, P.A. from this date indicate that plaintiff's chest symptoms from his viral infection had improved, but that he was experiencing low back pain. Although plaintiff testified that he reported to P.A. Czuchra that he had injured his back lifting an air conditioning unit, there is no reference to any work-place injury in the medical records from December 23, 2002.
The first notation that plaintiff had injured his back while lifting an air-conditioner at work is from a visit on December 26, 2002 to Family Medical Care. Plaintiff returned to Family Medical Care on December 30, 2002. Plaintiff was given a note by P.A. Czuchra which reflects that plaintiff had reported that he hurt his back while lifting an air conditioner. Regarding this form, plaintiff testified that P.A. Czuchra completed it on his own because he believed that plaintiff could not return to work. However, the form makes no reference to plaintiff's ability or inability to return to work and P.A. Czuchra's testified that in fact, plaintiff asked him to complete the form and that he wrote what plaintiff requested that he write.
Therefore, the Opinion and Award of the Deputy Commissioner should be affirmed and plaintiff's claim should be denied.
S/_______________ DIANNE C. SELLERS COMMISSIONER