Truck Driver's 'Rolling Over' Comment During Treatment Sinks Claim

Buffalo, NY (WorkersCompensation.com) – Although a truck driver for a shipping company had surgery after experiencing back pain at work, remarks he made to a physician assistant undid his claim.

In Matter of Moore v. U.S. Xpress Inc., No. 532233 (N.Y. Sup. Ct. App. Div. 01/06/22), the court zeroed in on the driver’s reporting in a medical appointment that he first experienced pain after rolling over in bed one night to conclude that his injury was not work-related.

Sharp Pain, Surgery

The truck driver experienced his back injury when he was “about to exit” the truck assigned to him in the course of his vehicle maintenance responsibilities. He later underwent emergency surgery to his thoracic spine due to the symptoms he experienced on the job that day.

Previously, the driver felt a “sharp pain” in his back as he turned his body while lowering a heavy box from above his head as he unloaded his truck. However, the pain subsided, and he continued to manually unload the truck and did not report the incident. About 10 days later, the driver experienced pain at night, but indicated that the pain “went away for the most part.”

Following his injury when he was attempting to leave the truck, the driver did not return to work.

The company and its carrier controverted the claim, raising the issue of causation. After multiple hearings, a Workers’ Compensation Law Judge disallowed the claim. The Workers’ Compensation Board affirmed, concluding that the driver’s injury did not arise out of and in the course of his employment.

The driver appealed to court.

Physician Assistant’s Notes

In New York, as in other states, an injury is compensable only where it arises out of and in the course of the employment.

The court agreed with the previous rulings that the driver’s injury was not compensable.

The court explained that the medical notes of the physician assistant who first treated the driver’s back pain noted that his pain had started when he “rolled over in bed” and indicated that the driver denied any work injuries. The notes from a follow-up appointment indicated that the driver reported that his pan had “totally resolved” and that he felt “ok to resume work as [a] truck driver.”

Additionally, the driver’s neurosurgeon reported that the surgery was necessitated by an abscess that was caused by an infection rather than trauma.

Although the driver argued that he should have been able to call the physician assistant as a witness, the court disagreed.

“The physician assistant's medical notes pertaining to his limited treatment of claimant were already filed with the Board and indicate no relationship between [driver’s] back injury and his employment,” the court wrote. “[The driver] failed to specify what additional information he expected to elicit on the issue of causation.”

The court upheld the denial of the driver’s application for benefits.

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