BRIETZ v. HYTROL CONVEYOR CO, INC., 1997 AWCC 259

CLAIM NO. E602023

CHARLES BRIETZ, EMPLOYEE, CLAIMANT v. HYTROL CONVEYOR CO, INC., EMPLOYER, RESPONDENT and SEDGWICK JAMES OR ARKANSAS, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 10, 1997

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

Claimant represented by PHILLIPS WELLS, Attorney at Law, Jonesboro, Arkansas.

Respondent represented by RICHARD 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 20, 1996 finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury identifiable by time and place of occurrence. Based upon our de novo
review of the record, we find that the decision of the Administrative Law Judge should be affirmed.

[3] The claimant is employed by the respondent as a lathe operator and part-time forklift driver. The claimant testified that on November 7, 1995, he was operating a forklift when he heard a shout behind him. The claimant stated that he turned his head quickly and felt a slight discomfort in his neck. The claimant worked the remainder of his shift and he did not complete an injury report. Allen Jones, the claimant’s team leader, questioned the claimant about how he was positioning his head. The claimant told Mr. Jones that he had hurt his neck but thought it would be fine.

[4] The claimant testified that he had difficulty getting out of bed the next morning. He related that he called his supervisor Tony Thomas to tell him that he had injured himself at work the day before and that he was unable to come to work. The claimant sought treatment from Dr. Ken Carpenter on November 9, 1995. The claimant returned to work and continued to have pain in his shoulder, neck area, and arm. The claimant was eventually referred to Dr. Kenneth Tonymon, a neurosurgeon, who diagnosed the claimant with a herniated nucleus pulposus at C5-6. Dr. Tonymon performed an anterior cervical discectomy and fusion on the claimant on February 12, 1996.

[5] Mr. Jones testified that he was the claimant’s team leader and that the claimant mentioned to him that he had hurt his neck. He stated that the claimant told him that it felt like he had a crick and that it would be fine. Mr. Jones also testified that he was the person whom the claimant would report an injury to and that he would have had the claimant complete an injury report if the claimant had reported an on-the-job injury to him.

[6] Mr. Thomas testified that he was the claimant’s supervisor and that the claimant did not call him on November 8, 1995, and report an injury to him as the claimant had testified. Mr. Thomas stated that if the claimant had reported an injury he would have talked to Mr. Jones and started an investigation immediately. Mr. Thomas additionally testified that he first learned that the claimant was alleging an on-the-job injury on December 1, 1995, when he came into his office with Mr. Jones. Mr. Thomas further testified that when he questioned the claimant about the alleged incident that caused his injury, the claimant did not know what happened or when. Therefore, Mr. Thomas put a question mark on the part of the accident report that asked for the cause.

[7] The claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence. Therefore, the claimant must satisfy the following requirements contained within Ark. Code Ann. § 11-9-102 (Repl. 1996):

(1) “Compensable injury” means: An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102 (5)(A)(i) (Repl. 1996).
(2) A compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102 (16). Ark. Code Ann. § 11-9-102 (5)(D) (Repl. 1996). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102 (16)(A)(i) (Repl. 1996).
(3) For injuries falling within the definition of compensable injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102 (5)(E)(i) (Repl. 1996).

[8] If the claimant fails to establish by a preponderance of the credible evidence any of the requirements for establishing the compensability of the injury he fails to establish the compensability of the claim, and compensation must be denied. We find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury that is identifiable by time and place of occurrence.

[9] The medical evidence clearly does not support a finding that the claimant sustained a compensable injury on November 7, 1995. The medical evidence reveals that the claimant had sought treatment for problems with his neck and shoulder as early as April 1995. Dr. Carpenter’s office notes on April 25, 1995, state that the claimant strained his left shoulder at home and was tender over the trapezius muscle area. The claimant again sought treatment from Dr. Carpenter on July 24, 1995 for a stiff neck with pain and discomfort in the right trapezius muscle area. Again, the claimant stated to Dr. Carpenter that he strained it working at home. The claimant sought treatment from Dr. Carpenter on November 9, 1995 for right shoulder pain. The claimant testified that he gave Dr. Carpenter a history of the alleged forklift incident. However, Dr. Carpenter’s office notes of that date fail to mention the alleged incident being the cause of the claimant’s right shoulder pain. Moreover, Dr. Carpenter’s notes fail to mention the alleged incident at all.

[10] The testimony of the Mr. Jones and Mr. Thomas also does not support the claimant’s contention that he sustained a compensable injury. When Mr. Jones questioned the claimant about holding his head funny, the claimant merely stated that he had a crick in his neck and that he would be fine. The claimant failed to mention the forklift incident. In addition, when the claimant reported the alleged injury to Mr. Thomas, he told Mr. Thomas that he did not know what happened.

[11] The claimant’s credibility is also questionable. 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). 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. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). The claimant testified that he called Mr. Thomas the morning after the alleged incident to tell him that he was not coming into work because he hurt himself. However, Mr. Thomas testified that the claimant never called him.

[12] The medical evidence coupled with the testimony of Mr. Jones and Mr. Thomas do not support a finding that the claimant sustained a compensable injury. Therefore, after conducting a de novo review of the record, and for the reasons discussed herein, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury identifiable by time and place of occurrence. Accordingly, we affirm the decision of the Administrative Law Judge. This claim is hereby denied and dismissed.

[13] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[14] Commissioner Humphrey dissents.