CLAIM NO. F009933
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 4, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAURA McKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE MICHAEL MAYTON, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed July 27, 2001. The Administrative Law Judge found that the claimant proved that he sustained a work-related injury while employed by the respondents. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Linus Lesley Brown, Jr., age 35, began working as a master technician for Superior Pontiac Cadillac Isuzu in about December, 1998. The parties stipulated that the employee-employer-carrier relationship existed on June 1, 2000. The claimant testified that he sustained an accidental injury while trying to get out of a vehicle:
Q. And tell me what happened in June.
A. In June, I’m not sure of the date. I was bringing a vehicle into the shop, I parked it in the bay between two I-beams that are part of my lift. . . . So I was trying to, you know, get out of the vehicle without banging the door against the metals and chipping the paint. And as I did so, it was not — there wasn’t a lot of room, and as I did so, I slipped on the wet floor. My feet started going up in the air, and I tried to catch with my left foot, and then my other foot and kind of backpeddling, I would say, and then I twisted my back and caught myself on the vehicle. And at that time, I went to Dean, waited for him to get off the telephone and told him I’d hurt my back. . . .
Q. What did you instantly feel?
A. I felt a very bad — what I thought was a muscle strain in my lower back. It hurt pretty bad. Bad enough for me to go home.
The claimant testified that he immediately notified Dean Rollins, his supervisor, that he had twisted his back, and that he needed to go home. The claimant testified that he returned to work the next day. The respondents’ attorney queried Mr. Rollins:
Q. In June of 2000, did Mr. Rollins — I mean, did Mr. Brown ever relate to you any type of an on-the-job injury in June of 2000?
A. No.
Q. You’ve set (sic) in here and heard him testify today about the incident he claimed occurred when he slipped and didn’t quite fall while you were in the office. And you’ve heard him testify about coming in and telling you that day that he had slipped and hurt his back.
A. Yes.
Q. Did that conversation occur in —
A. No.
Q. June of 2000. At any other time out there before August the 21st of 2000, had he ever related to you anything about a work-related incident at work?
A. Work-related, no.
The claimant testified that he had scheduled a vacation and cruise for June 17, 2000. “I hurt myself two or three weeks before vacation,” he testified. “I looked forward to the vacation as being kind of a resting period for my back so when I got back to work, I would be all rested up, and that muscle ache — what I assumed was a muscle ache, I want to say would be dissipated or totally gone.” The claimant testified that he did not think he had to fill out any worker’s compensation paperwork because he had previously injured his eye on the job and did not have to file a claim then.
Brad Edge testified that he observed the claimant experiencing acute back pain before the claimant’s June 2000 vacation. The claimant told Mr. Edge, “That he had gotten out of a vehicle at work and slipped.” Norma Jean Wallace also corroborated the claimant’s testimony.
The claimant testified that he had to perform extra work duties after returning from vacation because another employee had quit. The claimant testified that after his left leg began “dragging” and he began experiencing “butt muscle” pain, he presented to Dr. Stephen W. Whitelaw. The claimant saw Dr. Whitelaw on August 15, 2000. The claimant complained to Dr. Whitelaw of “back problems” which began “three weeks ago.” The claimant did not check a line beside “On the job injury”; instead, the claimant indicated that he was “Unsure” of the cause. The claimant testified that he was actually referring to his legs and buttocks when he wrote “three weeks ago.” The claimant also testified that he was not sure his condition was work related until presenting to Dr. Raben. In addition, the claimant testified that he was unsure he could check the “work related” box without prior permission from his supervisor. Dr. Cyril A. Raben reported on August 21, 2000:
This 33 year old presents to me today with these complaints beginning some 2-3 weeks ago; however, he has been having lower back problems for some 2-3 months. He can recall one time at the onset of the back pain an incident where he had slipped on a wet surface at work. He works for Superior Cadillac-Pontiac. He had to take off a couple of days from work for that. He would notice that if he would rest his back with exacerbation of the pain that it would seem to improve; however, the leg pain is not improved. Dr. Whitelaw has seen him and obtained an MRI scan that shows a large disc herniation. . . . He is currently off work due to his spine problem. Job requirements are heavy lifting of over 60 lb with frequent bending and stooping. . . . MRI scan shows a large disc herniation at L5/S1 with a large disc bulge at L4/5, as well. This is on the left side for both. . . .
ASSESSMENT: Lumbar disc herniation at two levels.
PLAN: I would like to get him set up for a hemilaminotomy/discectomy on the left side at L5/S1 and L4/5. I went through with Larry the option of conservative therapy versus operative intervention. He wants to press ahead and do the thing that perhaps will give him a chance at getting back to work the quickest. I would like to set him up for preoperative teaching for surgical intervention; however, he is also exploring the option of this perhaps being a workmen’s compensation injury. I mentioned to him that the slip and fall that he had sustained could have caused a torque or rip in the annulus and perhaps extruded this disc herniation. We will make sure that he has medication for pain and spasm.
The respondents’ attorney queried Dean Rollins:
Q. During that period of time between June and August 21 when he did come in and tell you that he was claiming to have been hurt at work, did he ever during that period of time relate to you anything about a work-related instance?
A. No.
Dr. Raben noted on October 9, 2000 that the claimant had not been working. (In fact, the claimant was terminated in October 2000.) Dr. Raben reported on November 11, 2000:
I have MRI scan dated 11-8-2000 showing what appear to be changes at L5/S1 with what appears to be granulation or scar tissue and perhaps a residual left paracentral focal disc herniation at L5-S1 centered more to the left than right. He does have T-two weighted image dessication of these bottom two levels. . . .
I think within a reasonable degree of medical certainty that the back was one of the primary injuries that he had sustained with his on-the-job injury. I think that he will probably come to fruition with a two-level fusion with this; however, at present, we are going to give this a little tincture of time. He is six months out from his original injury and almost two months out now from the decompressive surgery for nerve root pain only. I would like to give this another three to six months before we consider his second option, a fusion. Should he continue to have this type of pain, most certainly, he will require a two-level fusion. . . . With all of these changes and with all these findings, he will within a reasonable degree of medical certainty be off work for the next year or better. I have encouraged him now to start going to the Jones Center and swimming and doing aggressive hydrotherapy, water aerobics and swimming as well as a weight-training program.
Mr. Brown claimed entitlement to workers’ compensation. The claimant contended that he had sustained a compensable back injury in June 2000. The claimant contended that he had been rendered “temporarily disabled” from August 15, 2000 to a date yet to be determined. The respondents controverted the claim, contending that the claimant did not sustain a compensable injury while employed by them. Meanwhile, on February 8, 2001, Dr. Raben performed an “anterior lumbar interbody fusion at L4/5 and L5/S1 and a posterolateral lumbar fusion at L4/5 and L5/S1 with Wiltse instrumentation and an iliac crest bone graft.”
Dr. Raben reported on April 16, 2001:
X-ray evaluation shows excellent position of the bone grafts and hardware. Exam today shows that he is doing really exceptionally well. I want to go ahead with continuing his therapeutics on his own. We will write him a prescription for a gym membership. He is doing exceptionally well. We will give him a prescription for a TENS unit. He may need medication refills, as well.
After a hearing before the Commission, the Administrative Law Judge found that the claimant proved by a preponderance of the evidence that he sustained a compensable work-related injury “in early June 2000.” The Administrative Law Judge awarded reasonable and necessary medical treatment, in addition to temporary total disability compensation from August 17, 2000 until a date to be determined. The respondents appeal to the Full Commission.
II. ADJUDICATION
A claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that the injury caused physical harm to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death.Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. §11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. §11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
In the present matter, the claimant contends that he sustained an accidental injury as the result of a specific workplace incident occurring in June, 2000. The Full Commission affirms the Administrative Law Judge’s finding that the claimant did sustain a compensable injury as the result of a specific incident occurring in June 2000, which injury was established by objective medical findings. The Dissenting Opinion
agrees that there are objective medical findings, but contends that the claimant has a “longstanding history of back problems.” Nevertheless, Dr. Raben did not attribute the claimant’s lumbar disc herniation to any prior history of back problems. Dr. Raben expressly opined that the claimant’s need for surgery was due to the workplace accident.
The Dissenting Opinion also contends that the claimant was not a credible witness. The Dissenting Opinion points out that the claimant was unsure of the date of his accidental injury. Yet, the claimant’s claim is not defeated merely because he could not identify a precise date of the specific incident. See, Edens v. Superior Marble Glass, 346 Ark. 487, ___ S.W.3d ___ (2001). We are also not persuaded by the DissentingOpinion’s assertion that the claimant was able to perform full work duty without seeking medical attention until August 15, 2000. The claimant testified that he did not complete his shift and went home when he was injured in June, 2000. The claimant worked with pain until he was able to take a vacation on or about June 17, 2000. After the claimant returned from vacation and began performing extra work duties, he then sought medical attention for his accidental injury which occurred in June 2000.
The Dissenting Opinion also points to testimony from the claimant’s supervisor, where the supervisor alleged that the claimant never reported an accidental injury to him. The Dissenting Opinion also discusses in detail the first medical report following the accidental injury, which report indicates that the claimant was unsure of the etiology of his complaints, and that the claimant declined to check a line beside “On the job injury.”
Nevertheless, it is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given his testimony. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). We are not required to believe or disbelieve the testimony of any witness.Green v. Jacuzzi Brothers, 269 Ark. 733, 600 S.W.2d 448 (Ark.App. 1980). The Commission may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Univ. ofArk. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).
In the present matter the Administrative Law Judge found the claimant to be a credible witness, despite the supervisor’s assertion that the claimant did not immediately report the specific incident. The claimant credibly testified that he felt an instant pain in his lower back while twisting to get out of a vehicle in June 2000. The pain was sufficient that the claimant could not finish his shift that day. The claimant credibly testified that he did not submit any workers’ compensation forms that time, because he had sustained a previous compensable injury which the respondents accepted as compensable, and the claimant had not been required to file a claim at that time. Notably, two corroborating witnesses testified that the claimant was suffering from acute back pain following the June 2000 workplace specific incident.
The Full Commission recognizes that the claimant reported to his first treating physician that he was “unsure” of the etiology of his back pain. However, the claimant testified that he was unsure that he could report a work-related injury without prior permission from his supervisor. We find the claimant’s testimony in this regard to be credible, especially given the confusion about whether the claimant needed to file a claim after his previous admitted work injury. In any event, after the claimant presented to Dr. Raben in August 2000, Dr. Raben reported a work-related injury occurring two to three months earlier, which report corroborates the claimant’s testimony. Dr. Raben performed objective diagnostic testing and reported lumbar disc herniations at two levels. Dr. Raben ultimately performed surgery on the claimant’s low back.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained a compensable work-related injury in June 2000 while employed by the respondents. We find that the claimant proved entitlement to reasonable and necessary medical treatment, including all treatment received from Dr. Raben. The Full Commission finds that the claimant proved entitlement to temporary total disability compensation from August 17, 2000 until a date to be determined. The Full Commission therefore affirms the opinion of the Administrative Law Judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I must respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury in June of 2000. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
I do not dispute the fact that the claimant presented objective medical findings of a back problem. However, my review of the evidence indicates that the claimant has a longstanding history of back problems. The evidence shows that the claimant not only suffered a back injury while working for a construction company when he was younger, but he also had two separate motor vehicle accidents, one of which resulted in several thousand dollars worth of chiropractic treatment.
The credibility of the claimant is also suspect. The majority finds that the claimant is a credible witness. The Administrative Law Judge also found that the claimant was a credible witness. However, the findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983), Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. KearneyCo., 48 Ark. App. 227, 894 S.W.2d 603 (1995); Jordan v. Tyson Foods,Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
In my opinion, the claimant is far from a credible witness. First, the claimant was completely unsure of the date of the alleged incident. The claimant was certain that it did not occur on a Friday because he returned to work the following day. In fact, the claimant continued to work until he went on vacation on June 17, 2000. Upon his return from vacation, the claimant’s responsibilities increased significantly, due to the departure of a co-employee. The claimant’s hours increased dramatically during the remainder of June, all of July, and through the first part of August. The claimant began receiving treatment for his back in mid-August. The evidence shows that the claimant was able to perform his job duties, as well as performing mechanic work on his own outside his job, without any medical treatment whatsoever until August 15, 2001.
Second, the claimant testified that when he first sought medical treatment on August 15, 2000, he was seeking treatment for his left leg and not his back. The claimant did not associate his leg problems with his back. However, the claimant was seeking treatment for leg pains, yet went to a chiropractor.
Further, the history the claimant gave to the chiropractor during his August 15, 2000, visit indicated that he was seeking treatment for his back pain and not leg pain as the claimant alleged. The history that the claimant completed prior to seeing the chiropractor indicated that he was unsure of the etiology of his symptoms. The chiropractic questionnaire the claimant completed requested the source of the claimant’s back problems. The claimant was given four choices: (1) Auto accident; (2) On-the-job injury; (3) Unsure; and, (4) Other. The claimant indicated on the questionnaire that he was “unsure” as to the cause of the back pain.
Third, the claimant indicated that the back pain started two to three weeks prior to his August 15, 2000, visit with the chiropractor. Significantly, this is well after the claimant gives as the alleged date of an injury. The claimant testified that the back pain that he had was the most severe pain he had ever experienced. However, the claimant was able to work from the time of the alleged incident in June of 2000 through August 15, 2000, with a significant increase in his hours due to the leaving of a co-employee.
Fourth, it is of note that the respondents provided the testimony of the claimant’s supervisor, who fails to recall any conversation with the claimant stating that the claimant had injured himself on the job sometime in June of 2000. Mr. Rollins adamantly denied any type of conversation about a work incident taking place in June of 2000, or for that matter, any type of work-related back injury of any kind prior to August 21, 2000.
Fifth, the claimant’s pay was based upon the amount of work the claimant was able to complete. The suggestion was made that the claimant’s hours increased during June, July and August because of his back injury and it taking longer for him to complete a task. However, the claimant’s pay was based upon a base rate and he was paid more for the number of jobs that he was able to complete. The evidence shows that the claimant was not only able to work, he was able to work extremely hard, since his hours and earnings increased significantly following the departure of a co-employee.
In short, the claimant’s testimony is contradicted by other testimony, his own actions, circumstantial evidence, and most especially, the testimony of Mr. Rollins, his supervisor. Therefore, I find that the claimant has failed to meet his burden of proof that he sustained a compensable injury in June of 2000. Accordingly, I must respectfully dissent from the majority opinion awarding benefits.
_______________________________ JOE E. YATES, Commissioner