Frazier v. United Pacific Insurance

JOSEPH, C. J.

Claimant seeks review of a Workers’ Compensation Board order that reversed the referee’s order holding an injury compensable. On de novo review, former ORS 656.298, we affirm.

Claimant testified that, in April, 1985, while employed as a shim packer on the swing shift, she pulled a wire from an overhead guide pipe to wrap around a bundle and the pipe, which weighed seven pounds, fell. She said that it struck her on the head, arm and hand. That occurred 15 minutes before her lunch break. She said that she went outside, vomited and returned to an adjacent work station for a few minutes but did not work. She went home during her lunch break and never returned to work. A co-worker, working nearby, heard the pipe hit the floor, turned, saw the pipe on the floor and claimant with her hand on her head and then heard her say, “Ouch.” Claimant’s supervisor heard about the accident within minutes of its occurrence and talked to claimant at the work station. She testified that, as she approached the station, unobserved by claimant, she noticed claimant rubbing her head. Claimant told her that she had been hit on the head but that she was “okay,” and declined any assistance. Claimant told her mother about the accident when she got home. Her mother testified that she had looked drawn and pale then.

Claimant claims to have suffered nausea, dizziness and headaches. Four days after the accident, she sought medical advice. Dr. Byerly, her family physician, found no objective signs of injury but, and only on the basis of the symptoms related by claimant, diagnosed a contusion of the head and cervical vertebrae. Dr. Serbu, a neurosurgeon, examined claimant in June. He also found no objective signs of any injury. Employer denied her claim, and she requested a hearing.

The referee determined that claimant was not a reliable witness:

“Her testimony attempts to place the pipe in a specific location that, by her admission, she did not pay any attention to prior to the time it fell. Her testimony regarding placement and method of attachment amounts to nothing more than a guess. Claimant’s testimony is inconsistent with the remainder of her testimony concerning where she had to reach to pull the wire down. She had no opportunity to observe it after it had been replaced, until the day of the hearing.”

Nonetheless, the referee reasoned that “[j]ust because she is not reliable does not mean she is not credible.” He then concluded that her testimony regarding the mechanics of the pipe’s attachment to the ceiling was irrelevant, because there was no doubt that the pipe fell. He declined to accept the testimony of the plant manager that, given the location of the pipe, it could not possibly have hit claimant, because he concluded that the measurements which the manager made were unreliable. The referee held that claimant had met her burden of proving compensability by a preponderance of the evidence.

The precise basis for the Board’s reversal is not clear, but it was, at least in part, the lack of objective medical evidence of any injury. Claimant repeatedly complained to her mother of headaches, dizziness and nausea after the supposed accident. Byerly found no cuts, bumps or other objective findings; neither did Serbu. There is, in fact, nothing in the record except claimant’s testimony that she suffered any injury whatsoever. Furthermore, although there is evidence that the pipe fell to the floor, the evidence that claimant was hit is, to say the best of it, in equipoise.

It is worth noting that, contrary to what the dissent says, claimant did not even say so much as “ouch” until after the pipe had fallen to the floor and the co-worker had turned around and had seen the pipe on the floor. Claimant and her co-worker laughed about the incident; she told her supervisor that she was all right; and she did not report any physical symptoms of injury before leaving the mill during the lunch hour. The foreman’s drawing of the workplace area, including measurements, and the testimony about attempts to re-create the accident make it very unlikely that anything happened in the way that claimant described it. The absence of any objective medical evidence of an injury, taken with the extremely weak evidence that claimant was hit by the pipe, persuades us that she has not proved entitlement to compensation.

Affirmed.