BRT v. LEVI STRAUSS CO., 1995 AWCC 8

CLAIM NO. E203268

ANNIE BRT, EMPLOYEE, CLAIMANT v. LEVI STRAUSS CO., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 11, 1995

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE CONRAD ODOM, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE GARY WEEKS, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on March 3, 1994. In that opinion and order, the administrative law judge found that the claimant failed to prove that she was entitled to any permanent disability compensation. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to any permanent disability compensation. Therefore, we find that the administrative law judge’s decision must be affirmed.

[3] The claimant sustained an admittedly compensable low back injury on February 7, 1992. She worked in the packing department, and she was lifting and prying lids that go on the boxes in which she packed jeans when she experienced a pain in her low back. She described this pain as feeling like a pulled muscle. This occurred late in the day, and she completed her shift. However, the pain worsened at home over the night, and she reported to the plant nurses’ station the following morning. The plant nurse treated her with heat. However, when the pain persisted, the nurse referred her to Dr. Larry Weeks, a chiropractor.

[4] Dr. Weeks first examined the claimant on February 11, 1992. His examination revealed some positive findings, and x-rays taken on that date showed discogenic spondylosis at L5, posterior facet arthrosis with mild sacroiliac joint osteoarthritis, and posterior shift of weightbearing. However, the x-rays did not show any fractures or other abnormalities. Dr. Weeks’ records indicate that the claimant advised him that she had experienced back pain for several weeks but that the pain had become worse in the past few days. In addition, Dr. Weeks continually indicated that the injury was of “insidious onset.” The claimant denied experiencing any back pain before February 7, 1992, and she denied telling Dr. Weeks that she had experienced pain for several weeks prior to that date.

[5] Dr. Weeks diagnosed a sprain/strain of the lumbar spine and facet syndrome, and he released the claimant to return to restricted duty work. He continued to treat her through March 9, 1992. He released her to return to her regular duties at that time. The claimant testified that Dr. Weeks imposed restrictions on her activities when he released her. However, his report to the respondent employer does not indicate that he imposed any restrictions whatsoever, although a space is provided on the report for restrictions to be listed. Dr. Weeks’ March 9, 1992, report also contains the following statements:

Ms. Brt said she was without pain and had driven to Siloam Springs over the weekend without pain. She was ready to return to work. Her comments coincided with my physical findings.

[6] Nevertheless, the claimant again denied telling Dr. Weeks that she was without pain. She admitted telling him that she had driven to Siloam Springs, but she testified that she told him that she had to stop and walk due to low back pain. In this regard, Ms. Rae Suthered, the ergonomics health and safety coordinator for the respondent employer, testified that the claimant told her that she had driven to Siloam Springs and back without pain.

[7] The claimant returned to work after she was released by Dr. Weeks, and she continued to work for the respondent employer through April of 1993. In addition to her employment with the respondent employer, she also worked part-time for a laundry from approximately November of 1992 until she terminated her employment with the respondent employer, and she began working for the laundry full time when she terminated her employment with the respondent employer. She testified that her duties at the laundry included doing laundry, ironing, and giving change, and she testified that these duties were less physically strenuous than her duties with the respondent employer.

[8] Despite this level of activity, she testified that she experienced low back pain continually from the time of the February 7, 1992, injury. In this regard, she testified that she has experienced low back pain whenever she sits for any length of time since the occurrence of the injury. She also testified that she reported to the plant nurses’ station at least one to two times each week during the approximately 60 weeks that she continued to work for the respondent employer. However, Ms. Suthered testified that the nurse maintains records which reflect every time an employee reports to the nurses’ station, and she testified that she reviewed the records that the nurse maintains which reflect every time an employee reports to the nurses’ station for the period extending from September of 1992 through April of 1993, and she testified that there were no entries indicating that the claimant had ever reported to the nurses’ station. In addition, she testified that she would have been informed if the claimant had reported to the nurses’ station prior to September of 1992, and she did not recall any such reports.

[9] The claimant concedes that she did not otherwise seek any medical treatment for her alleged continued problems until June 22, 1993. At that time, she returned to complaining of low back pain which she related to the February 7, 1992, incident. Due to the persistence of the pain described by the claimant, Dr. Weeks referred her to Dr. David Davis, a neurosurgeon. Dr. Davis’ August 4, 1993, report related a history of low back pain which had been present on a daily basis since the occurrence of the February 7, 1992, injury. Dr. Davis’ neurological examination was essentially normal. However, he made the following comments:

The patient could flex forward fully at the waist so that the low back was at about 90 degrees from vertical. She showed me that this resulted in pain at about the lumbosacral junction extending across the midline bilaterally. Extension to about 30 degrees result in similar pain. Straight-leg raising at 90 degrees on the left resulted in pain at the base of the hip, also present with abduction of the leg. Straight-leg-raising caused no pain on the right.

[10] Dr. Davis concluded that her low back pain was compatible with a musculoskeletal etiology. However, regarding the relationship of these problems to her compensable injury, he noted that the claimant’s complaints of tingling in her left hip “does not temporally relate to her on-the-job accident. . . .” In addition, he made the following comments:

Musculoskeletal low back pain of abrupt onset is reasonably termed lumbar strain. Ninety percent of patients with lumbar strain will have spontaneous resolution over about three months, so it is unusual that her pain is persisting.

[11] He also opined that there were no objective abnormalities identified. Nevertheless, he assigned a 5% permanent physical impairment rating due to the claimant’s complaints of pain at the lumbosacral junction with lumbar range of motion.

[12] This Commission has a statutory duty to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704
(c)(2) (1987); see, Gencorp Polymer Products v. Landers,36 Ark. App. 190, 820 S.W.2d 475 (1991). In determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence, we must weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704
(c)(4) (1987); Wade v. Mr. C. Cavenaugh’s, 198 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). In this regard, the claimant has the burden of proving by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Consequently, the claimant must establish a causal relationship between the employment and the disabling condition. Lybrand v. Arkansas Oak FlooringCompany, 266 Ark. 946, 588 S.W.2d 449 (1979); Bates, supra.

[13] In the present claim, we find that a preponderance of the evidence establishes that the claimant sustained a temporary injury which completely resolved, and we find that her subsequent problems are not causally related to the February 7, 1992, compensable injury. In this regard, the medical evidence indicates that the February 7, 1992, injury was relatively minor, and her primary complaint involved pain when she sat for any substantial period of time. However, the preponderance of the evidence is not consistent with her assertion that she continued to experience problems continually after she was released to return to work on March 9, 1992. Although she denied telling Dr. Weeks that she was pain free and that she had driven to Siloam Springs without experiencing any pain, Ms. Suthered also testified that the claimant told her the same thing. Likewise, the testimony of Ms. Suthered is contrary to the claimant’s assertion that she reported to the nurses’ station on numerous occasions after she returned to work.

[14] In short, the preponderance of the evidence indicates that the claimant reported being pain free to Dr. Weeks and to Ms. Suthered in March of 1992, and the preponderance of the evidence indicates that she did not subsequently complain of any pain nor seek any treatment until June of 1993. Furthermore, she did not complain of any problems even though she worked at two jobs during much of this time which both involved substantial physical activity. Notably, the only significant medical findings have indicated degenerative changes. Moreover, Dr. Davis indicated that most patients with injuries such as that sustained by the claimant completely resolve in approximately three months. Therefore, we find that the preponderance of the evidence indicates that the injury sustained by the claimant was temporary in nature and that she completely recovered from the February 7, 1992, injury, and we find that she failed to establish by a preponderance of the evidence that her current problems are causally related to her compensable injury. Consequently, we find that she failed to establish by a preponderance of the evidence that she sustained any permanent physical impairment or permanent disability as a result of the February 7, 1992, injury.

[15] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to any compensation for a permanent physical impairment or that she is otherwise entitled to any compensation for a permanent disability. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed. This claim is denied and dismissed.

[16] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[17] Commissioner Humphrey dissents.