CLAIM NO. E417847
RAYMOND D. BERRY, EMPLOYEE, CLAIMANT v. TOWNSENDS OF ARKANSAS, INC., SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 28, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by D. KEITH RUTLEDGE, Attorney at Law, Batesville, Arkansas.
Respondent represented by RICHARD A. LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed August 3, 1995 wherein he found that the claimant failed to prove by a preponderance of the evidence a compensable injury to his low back arising out of and in the course of his employment. Our de novo review shows that the claimant failed to meet his burden of proof.
[3] The claimant has worked for respondent employer for approximately six years. The claimant contends that on October 7, 1994 he stepped down from a platform, twisted, slipped, and ultimately fell to the floor striking his left side on the floor. After this alleged fall the claimant took his seven minute break but did not report the alleged injury during his break. After the conclusion of the break, the claimant advised a co-worker, Mr. Claude C. Algood, Jr., that his back was hurting. Mr. Algood advised the claimant to report his problem to the nurse. After being advised to report his problem, the claimant did go to the nurses’ station and was given medication. There is conflicting evidence of whether the claimant actually reported a job-related injury. The claimant alleges that he reported a slip and fall injury, however, the nurse did not complete an incident report and only recalls the claimant stating his back was hurting more than normal.
[4] The claimant maintains that he fell to the floor, however, out of a plant filled with employees, the claimant was unable to produce one witness who actually observed the fall. Charles Algood testified on behalf of the claimant, yet he did not see the claimant fall. Mr. Algood was approximately three to five feet from the claimant when the claimant allegedly fell. Mr. Algood was only able to corroborate the claimant’s statement that the claimant stated his back was hurting that evening. The claimant also called Rosalyn Skinner, the USDA inspector to testify. Ms. Skinner was also within three to five feet of the claimant at the time of the alleged fall. Like Mr. Algood, Ms. Skinner did not observe the fall. Ms. Skinner testified that she did hear the claimant make a noise described as an “uhm” and she asked him what happened. The claimant told Ms. Skinner that he hurt his back, however she did not see the claimant fall nor did she see the claimant lying on the floor. Interestingly, Ms. Skinner testified that she could hear the claimant say “uhm,” however Ms. Skinner did not state that she heard a noise one would associate with someone falling.
[5] Of most significance is the emergency room record from the claimant’s first visit following the alleged incident. The record makes no mention of a slip and fall accident at work. Moreover, the record indicates that the claimant started having left low back pain approximately three weeks prior to the visit. The record indicates that the pain has increased in intensity. The emergency room record is clearly contrary to the testimony of the claimant. However, the record is consistent with the testimony of the plant nurse. Patty Jackson, the plant nurse, testified that the claimant did not report an accident or injury occurring at work. Ms. Jackson specifically asked the claimant if he had done anything unusual to his back and he simply stated that he had stepped down from his stand and his back was really hurting that night. The claimant did not report a slip and fall accident to the plant nurse.
[6] In concluding that the claimant has failed to meet his burden of proof that his back problems are causally related to his employment, we note that the claimant has made numerous inconsistent and false statements regarding the onset of his back pain and his history of back problems. The claimant denied previous back pain but the chiropractor records show that the claimant received treatment from 1985 through 1989 on various occasions for problems which included back pain. Additionally, the claimant has denied any problems with his back associated with the activities in moving his place of residence. However, the claimant’s wife admitted that she had previously indicated that the process of moving may have had an effect on her husband’s back. Due to the claimant’s inconsistent statements regarding his previous back injury, his alleged fall which was not witnessed by anyone although there were several people within three to five feet of the claimant, and the lack of history given to the plant nurse and the emergency room physicians regarding a slip and fall accident at work, we find that the claimant’s testimony lacks credibility.
[7] Consequently, we find that the claimant failed to prove by a preponderance of the evidence that his back problems are causally related to his employment with respondent employer. Therefore, we affirm the decision of the Administrative Law Judge and this claim is hereby denied and dismissed.
[8] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[9] Commissioner Humphrey dissents.
