CLAIM NO. F200442
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 1, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE KRISTOFER E. RICHARDSON, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by HONORABLE J. R. WILDMAN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge’s opinion filed August 20, 2002. The Administrative Law Judge found that the claimant proved she sustained accidental injuries on November 6, 2001 and November 18, 2001. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.
I. HISTORY
The claimant, age 38, testified that other than treatment for her back at age 14, she had no previous history of a low back condition. The record shows, however, that the claimant was diagnosed with “lumbar strain” on September 27, 2001.
The claimant testified that she was working for the respondent-employer on November 6, 2001:
Q. Would you describe what happened?
A. I had to take several pallets of freight and put it away. I had one pallet of freight that wouldn’t go out. I had to take it to the trailers in the back, and I was also to pull other freight that would go on the floor. And there was a gentleman that was supposed to go with me, and he did on the first pallet. He brought one in. The second pallet, he never came back. And I ended up pulling that pallet in. And at that time, when I was pulling the pallet, the muscles in my back had pulled. But when I got inside, I just continued to work until I seen my manager and I spoke to him and told him about it.
The claimant testified that she reported the specific incident to Mitchell Van Gelder. Mr. Van Gelder, assistant manager for Wal-Mart Store No. 128, testified:
Q. Do you remember having a conversation with Ms. Batson somewhere around November the 6th of 2001?
A. Possibly.
Q. Okay. Do you remember Ms. Batson coming up to you and having a conversation, anything about her pulling in some pallets?
A. Yes. . . . I had sent Jennifer and Perry out to one of our containers at Christmas time. We have containers that we keep freight on. And I had asked them to pull some merchandise inside. And apparently, whenever she got back inside, she had told me, I think, that Perry had left her out there and that she’d had to pull the pallet in by herself.
Q. Okay. Did, what did Ms. Batson tell you about injuring her lower back?
A. I don’t recall that she told me anything about her hurting her lower back. . . .
Q. Do you recall ever filling out any kind of workers’ compensation paperwork with Ms. Batson?
A. We filled some out earlier, I’m not sure about the time frame, but she had injured her shoulder.
Q. Okay. Do you remember, recall ever filling out any kind of workers’ compensation paperwork for her low back?
A. No, I do not.
The claimant testified that she had previously scheduled an appointment with Dr. William R. Hurst for migraine headaches she had been having. The record indicates that the claimant presented to Dr. Hurst for a Lower Back Pain Visit on November 6, 2001:
Pt today for persistent lower back pain, and states has gone on for months.
The claimant was assessed with “Lumbar sprain/strain, lumbar region.” The claimant agreed on cross-examination that she filed the November 6, 2001 visit with her private health insurance, although the claimant also testified she told Dr. Hurst her back injury was work related.
Deborah West, personnel manager for the respondent-employer, testified that she conversed with the claimant on November 7, 2001:
A. On the date, she brought a doctor’s note in from her family doctor saying that she needed to work light duty. At the time, I said, well, you haven’t, what did you do to hurt your back. And she said, I don’t remember a specific incident, I’ve just been working so hard with the department manager gone that I think it’s just stress and strain. . . . We did not have to provide a light duty job for her, so I told her that we, you know, we didn’t have a job that she could do, so she could just take off until her light duty was up.
Q. All right. What did Ms. Batson say about how she injured her back?
A. At that time she said she wasn’t real sure about a specific incident, that she thought it, might have been pulling a pallet off, from outside off of a truck, in from a truck that was outside. . . .
Q. Did she say anything about hurting it on November the 2nd of 2001?
A. When we talked at that time, she said that she thought that must have been it, that she had to, she was outside taking freight off a truck, had to pull a pallet in. And she thought that must have been the time she hurt her back. . . .
Q. Did she say anything about hurting it on November the 6th?
A. No. Her doctor’s note was from November the 6th. She had been to the doctor the day before.
Ms. West testified, “I told her that if it was a workers’ comp injury, we would have to provide a light duty job for her. But since she hadn’t filled out a workers’ comp. claim, that if it wasn’t workers’ comp related, we did not have to provide one for her.”
The claimant testified that she was again injured on November 18, 2001:
Q. And would you describe what happened then?
A. I, they needed help on the registers, so they had called me up front. I was working on the register, and a customer had handed me a 23 pound frozen turkey over the keyboard. And when I reached to grab the turkey to keep her from dropping it on her, when I grabbed hold of it, it just, the whole left side from about the middle of the back all the way down into my leg pulled so severely that it knocked the wind out of me. I could not catch my breath.
The claimant testified that this pain was “severe” and worse than the alleged November 6 incident. The claimant testified that she reported the injury to a customer service manager, who took her off the line.
The claimant again presented to Dr. Hurst on November 20, 2001:
patient states she was lifting a palate (sic) of freight on 11/6 and states ever since then she has had lumbar pain.
Dr. Hurst’s impression continued to be “lumbar sprain/strain, lumbar region.”
The claimant requested medical leave on November 20, 2001. Dr. Hurst indicated that the claimant was under his care for lumbar strain, and that continuous leave was required beginning November 20, 2001.
Ms. West, the personnel manager, testified that she again spoke with the claimant on November 20, 2001:
A. At that time, I asked her did she want to file a workers’ comp. claim. And she said that she, she asked me what would happen if she did. I said, what we would do is we would make an appointment with the company doctor. We would send you to him, and then go from there, whatever he determined. And I asked her, did she want to fill out a workers’ comp. claim. And she said, no, because she did not want to go to the company doctor. She wanted to continue seeing her doctor.
A CT of the lumbar spine was taken on November 21, 2001, with the following conclusion:
Broad-based disc herniation at L3-4, midline and left, with lateral recess stenosis on the left and some narrowing of the foramen. Central canal stenosis also. L4-5 central canal stenosis, bilateral lateral recess stenosis, no focal component. L5-S1 focal hard disc in the midline.
The record includes the following note from Matthews Clinic dated November 30, 2001:
Wanting to know if Dr. Hurst would say her back prob. was work related, so she can use workman’s comp.
An MRI of the lumbar spine was taken on December 11, 2001, with the following conclusion:
1. Mild to moderate spinal stenoses at levels L3-L5, secondary to central HNP at L3-L4 and broadbased posterior disc bulging at L4-L5 with short bony pedicles at both levels.
2. Small central HNP at L5-S1 which appears to touch the descending S1 nerve roots bilaterally.
3. Degenerative disc desiccation and vertebral endplate disease most marked at L4-L5.
Deborah West testified that she again spoke with the claimant around Christmas 2001:
A. I believe she came in at that time and brought another doctor’s note extending her leave from work. At that time, she told me she had an appointment with a neurosurgeon on January 21st in Little Rock. But she told me that she didn’t know how she was going to pay for it, that she had lost her medical coverage because she hadn’t paid her premiums while she was off. At that time, I said, Jennifer, you still have the option of filing a workers’ comp claim if you want to. She asked me again, what happens if I file a workers’ comp claim. I told her that we file the claim, we make an appointment with the company doctor, and then we proceed from that point. And she said, but I don’t want to go to the company doctor, I want to continue seeing my doctor, I think he’s helping me and that’s who I want to see. At that time, I told her she had a choice to fill out the workers’ comp claim or continue seeing her doctor.
The claimant was seen at a neurosurgery clinic on March 14, 2002. The claimant complained of a “work injury (lifting)” which occurred on November 18, 2001.
Ms. Batson claimed entitlement to worker’s compensation. The claimant contended that she sustained an accidental injury as the result of a specific incident occurring on November 6, 2001. The claimant contended that she re-injured her back as the result of a specific incident occurring on November 18, 2001. The claimant contended entitlement to reasonably necessary medical treatment and temporary total disability compensation.
The respondents contended that the claimant could not prove she sustained a compensable injury.
After a hearing before the Commission, the Administrative Law Judge found that the claimant proved she sustained “specific incident back injuries on November 6, 2001 and November 18, 2001.” The Administrative Law Judge awarded several periods of temporary total disability compensation. The respondents appeal to the Full Commission.
II. ADJUDICATION
The claimant contends that she sustained compensable injuries on November 6, 2001 and November 18, 2001. The claimant has the burden of proving her claim by a preponderance of the evidence. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). “Compensable injury” is defined by Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(A):
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, 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[.]
After our de novo review of the entire record, and without giving either party the benefit of the doubt, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on either November 6, 2001 or November 18, 2001. The determination of witnesses’ credibility and the weight to be given their testimony are matters exclusively within the province of the Commission. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5
(2000). An Administrative Law Judge’s findings on credibility issues do not bind the Full Commission. Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).
In the present matter, the Full Commission finds that the claimant was not a credible witness. The claimant denied a previous history of back trouble, other than treatment at age 14, but the record shows a diagnosis of lumbar strain well before the alleged November 2001 incidents. The claimant testified that she felt the muscles in her back pull while lifting a pallet on November 6, 2001. However, the claimant’s manager credibly testified that although he knew the claimant had been working with pallets, he could not recall the claimant reporting an injury to him. We note that the claimant had sustained a previous work-related shoulder injury, at which time she filed the proper worker’s compensation paperwork. The claimant did not do so in the instant matter.
The claimant kept a previously-scheduled appointment with Dr. Hurst on November 6, 2001. The claimant reported “persistent” lower back pain which had been going on “for months.” The claimant did not report an employment-related incident on her first doctor’s visit after the alleged injury. The claimant testified that she told Dr. Hurst at that time about the alleged incident, but the record does not support the claimant’s testimony. The claimant spoke with the personnel manager on November 7, 2001, but the claimant could not recall a specific incident. The claimant did discuss another potential pallet incident, but this allegedly occurred on November 2, 2001, a Friday. The claimant contends a November 6, 2001 injury. The personnel manager, Ms. West, explicitly testified that the claimant did not report a November 6, 2001 injury. We note that the claimant refused to submit a claim for worker’s compensation at that time.
The claimant testified that she sustained another accidental injury on November 18, 2001. After lifting a heavy turkey, the claimant testified, she felt such a severe pull that it took her breath away. She returned to Dr. Hurst on November 20, 2001, and reported for the first time to the physician that she had been injured on November 6, 2001, one of the alleged pallet incidents. Dr. Hurst continued to assess “lumbar strain.” Ms. West again gave the claimant a chance to file a claim for worker’s compensation, but the claimant declined to do so. It was noted on November 30, 2001 in Dr. Hurst’s office, “Wanting to know if Dr. Hurst would say her back prob. was work related, so she can use workman’s comp.”
The preponderance of evidence therefore shows that the claimant failed to prove an accidental injury arising out of and in the course of her employment which required medical services or resulted in disability. Even if the claimant had proven that she sustained a compensable injury as defined by Ark. Code Ann. § 11-9-102(4)(A)(i), which we do not find, the provisions of Ark. Code Ann. § 11-9-102(4)(D) and following require that a compensable injury must be established by medical evidence supported by objective findings. We are unable to find from a preponderance of evidence that the claimant sustained a compensable injury established by objective medical findings. A CT of the lumbar spine taken in November 2001 showed a broad-based herniation at L3-4, stenosis at L4-5, and “focal hard disc” at L5-S1. A lumbar MRI taken in December 2001 showed multilevel spinal stenoses, small central HNP at L5-S1 which appeared to touch the descending S1 nerve roots bilaterally, and disc desiccation and endplate disease most marked at L4-L5. The record does not indicate that the conclusions from the CT in November 2001 and MRI in December 2001 were causally related to an accidental injury. These findings could be related to the claimant’s preexisting lumbar strain, first diagnosed in September 2001. The preponderance of evidence does not show that the claimant sustained a lumbar disc injury arising out of and in the course of her employment.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove that she sustained compensable injuries on November 6, 2001 or November 18, 2001. We therefore reverse the opinion of the Administrative Law Judge, and this claim is denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner.
I respectfully dissent from the majority opinion which reverses the Administrative Law Judge’s award of benefits. Upon my de novo review of the record, I find that claimant provided consistent and accurate information regarding injuries she sustained on November 6, 2001 and November 18, 2001. Accordingly, I find that the Administrative Law Judge’s opinion should be affirmed on respondent’s appeal.
The majority opinion’s holding that claimant failed to prove a compensable specific incident injury is contrary to the facts of this case. In dismissing claimant’s testimony as being “not credible,” the majority opinion cites a number of “factors,” such as medical records evidencing back problems subsequent to claimant’s admitted treatment at age 14; claimant’s “refusal” to submit a workers’ compensation claim; and a plain lack of causal connection between claimant’s injury and her work.
Notably, the majority opinion finds that claimant was untruthful in denying back problems, outside of her childhood experience that has since been resolved. Contrarily, claimant specifically testified that she did
experience back pains immediately prior to the November 2001 incidents and attributed those pains to the strain of unduly stressful working conditions, as noted in the Administrative Law Judge’s opinion awarding benefits. Claimant testified that she was expected (and performed) a larger than usual amount of work during the time of her injuries due to worker absences and that she initially believed her low back pain to be associated with these extra duties.
The majority opinion correctly notes that a September 27, 2001 diagnosis of lumbar strain is contained within claimant’s medical records, but this does not (as the majority opinion contends), amount to an “untruth” on claimant’s part and certainly is not inconsistent with claimant’s testimony that she had experienced low back strain related to her excessive work load prior to November 6, 2001. In support of this position, I submit that claimant’s “lumbar strain” follow-up report of October 16, 2001 makes absolutely no mention of low back pain and, in contrast, names ear pain, head congestion and tiredness as claimant’s chief complaints. It would seem that if claimant had actually sustained a low back injury on September 27, 2001, Dr. Hurst’s follow-up medical records (created and dictated less than one month later) would have contained some documentary support of this, as 19 days hardly appears long enough for such a serious condition to have corrected itself. Instead, Dr. Hurst’s medical report reveals no such information leading to my assessment that claimant did not complain of low back pain at that time because she simply was not experiencing it as evidenced by Dr. Hurst’s report. In fact, the next mention of any back pain was on November 6, 2001, the day of claimant’s initial low back injury.
Claimant testified that on November 6, 2001 she injured her low back while pulling (unassisted) a pallet of freight and that she felt immediate discomfort, “Just like a muscle pulling. Kinda like a cramp, when you get a cramp in a muscle. It just pulled and it was very painful at the moment.” (Record, p. 8). She stated that she reported the incident to Mitch Van Gelder, her manager, shortly after the occurrence.
I think it was within, within an hour after the incident. I had come back in and I didn’t see him anymore. I was short on time, and I knew I needed to get my freight put away before I went home, so I continued to work until I spotted him. And then, we had a conversation of what took place, how the other gentleman left me out there and that day, while I was pulling the pallet back, that I had hurt my back. And he wanted, he needed the key back for the storage shed, so I gave him back his key. Someone came up and started talking to him, and then he told me he would talk to the other person, and then he walked away. (Record, p. 9).
As earlier noted and discussed, claimant testified that she had experienced back pain “a couple of weeks beforehand,” but described that pain as, “. . . more like overworked, tired muscles, that kind of thing.”Id.
Claimant used a previously scheduled appointment with Dr. William Hurst, her family physician, for that afternoon to receive treatment for her low back injury. Dr. Hurst, who was treating claimant for migraines associated with her May of 2001 compensable neck injury, noted on November 6, 2001, that claimant’s low back pain had persisted for “weeks” and placed claimant on light duty for five days. Respondent refused claimant light-duty work, but did allow her to remain off work without benefits during the five-day period.
Claimant described her next injury as occurring on November 18, 2001 while she was working on a register.
I, they needed help on the registers, so they had called me up front. I was working on the register, and a customer had handed me a 23 pound frozen turkey over the keyboard. And when I reached to grab the turkey to keep her from dropping it on her, when I grabbed hold of it, it just, the whole left side from about the middle of the back all the way down into my leg pulled so severely that it knocked the wind out of me. I could not catch my breath.
* * *
I had never felt that kind of pain before. Never. That was really severe. I mean, that was worse than the November 6th incident.
* * *
It took me a minute to catch my breath enough to reach over and turn my light on to call for a CSM [customer service manager]. I had to speak with the customer to calm her down `cause she was concerned about me. When the CSM came over, when he showed up, I told him that I had re-injured my back and I needed to be taken off the register. And he said that he would see what he could do and he would be right back. (Record, p. 12-13).
After leaving her register, claimant rested in the break room where she informed two additional managers of her injury, one of whom merely shrugged off her complaint.
Claimant admits that respondent offered her workers’ compensation forms to complete, but stated that she told them that she preferred to treat with her own physician (having treated with the company physician for her earlier neck complaint). Instead of informing claimant of her right to a one-time change physician, respondent simply told claimant to let them know when she was ready to fill out the paperwork.
Mr. Gelder, assistant manager and safety team sponsor, stated that he speaks to thousands of people during the course of his work and testified that he could neither confirm nor deny that claimant reported her injury to him on November 6, 2001. However, he did admit that claimant informed him that another employee had left her to pull pallets alone on that date.
Deborah West, personnel manager, admitted to speaking with claimant on November 7, 2001 about her low back injury, and stated that claimant brought a physician’s notice for light duty. She then informed claimant that respondent was not required to provide light duty for a nonwork-related injury, but allowed her to take off work until the five days had expired. Ms. West further stated that upon questioning claimant on causation, claimant stated that her injury might have been caused while, “pulling a pallet off, from the outside of a truck, in from a truck that was outside.” (Record, p. 30). The majority opinion contends that claimant offered respondent three dates of injury: November 2, 6, and 18, all of 2001, and asserts that claimant may have injured her low back on November 2, 2001.
The majority opinion relies on the following questionable testimony by Ms. West to show that claimant provided inconsistent dates of injury:
Did she tell you when she might have done that [pulling the pallet]?
At the time she brought the note in, she said she had hurt her back a few days before, but she was trying to work with her injury, that she didn’t want to have anything done about it, she was trying to work with it.
All right. Did she say anything about hurting it on November the 2nd of 2001?
When we talked at that time, she said that she thought that must have been it, that she had to, she was outside taking freight off a truck, had to pull a pallet in. And she thought that must have been the time she hurt her back.
Did she say anything about hurting it the day before?
No.
Which would have been the November the 6th. (Record, p. 30).
However, I find no evidence to support Ms. West’s controverted testimony that claimant ever reported or attributed her low back injury to November 2, 2001. In fact, Ms. West testimony, in my opinion, confirms claimant’s description of exactly how she was injured on November 6, 2001 by lifting pallets by herself. I simply do not believe Ms. West’s testimony that claimant provided her with a November 2, 2001 date of injury. Considering the fact that Ms. West admittedly was not forthcoming with information she should have provided claimant regarding workers’ compensation benefits, I have serious questions as to her integrity and I cannot, in good conscience, find her to be a credible witness. Ms. West gave the following testimony on cross examination:
Your main problem with this whole situation was that you needed this workers’ compensation paperwork filled out and you couldn’t get it filled out because she never made a decision; is that right?
Basically.
* * *
All right. And each of these time that you mentioned, the 7th, the 20th, and around Christmas, each time she sought your advice on what would happen if she filled out this paperwork?
Right.
So she wanted to get the full idea of what would happen to her when she filled out the paperwork?
Uh-huh.
On the 7th, did you explain to her that under workers’ comp. she would have the right to request a change of physician?
No, I didn’t.
On the 20th, did you explain to her that she would have the right to request a change of physician?
No, I didn’t
But you knew all along that her main problem was she wanted to go to the doctor who had been treating her; is that right?
I assumed that, yes.
Didn’t she tell you that?
Yes.
And also, on Christmas, she sought your advice on what would happen and you did not explain to her that she would have the right to requests a change of physician; is that right?
Right. (record, p. 33).
Ms. West admittedly refused to inform claimant of her rights and further testified that on November 20, 2001 she gave claimant the option of either filing out a workers’ compensation claim form or continuing to see her current physician after claimant again expressed concerns with treating with the company physician. On at least three separate occasions, claimant requested information about continuing to see her current physician if she filed for workers’ compensation benefits. And o all three occasions, Ms. West testified that she failed to inform claimant of her right to a one-time change of physician, despite the fact that she was well aware of this possibility. I decline to speculate as to why Ms. West intentionally withheld information from claimant that she knew full well would address claimant’s concerns and likely enable claimant to treat with her current physician should her injury be compensable under workers’ compensation. Nevertheless, the majority opinion finds Ms. West to be a credible witness.
Ms. West further testified that claimant never informed her of the pallet incident, but admitted that on November 6, 2001, claimant did say she had been working harder because the department manager was absent from work. Ms. West then stated that it was not until November 20, 2001 that claimant told her about the pallet incident and also about the turkey incident. Ms. West still did not make a report nor did she make a doctor’s appointment for claimant.
Dr. Hurst reported on November 20, 2001, “patient states she was lifting a palate (sic) of freight on 11/6 and states ever since the she has had lumbar pain. [S]tates she was lifting frozen turkey last Sunday and then the pain in her back on the L side was giving problems again.” A CT scan performed the next day revealed a “broad-based disc herniation at L3-4, midline and left, with lateral recess stenosis on the left and some narrowing of the foramen. Central canal stenosis also.”
Claimant also received an MRI on December 12, 2001 which revealed, “(1) mild to moderate spinal stenoses at levels L3-L5, secondary to central HNP at L3-L4 and broadbased posterior disc bulging at L4-L5 with short bony pedicles at both levels; (2) small central HNP at L5-S1 which appears to touch the descending S1 nerve roots bilaterally; and (3) degenerative disc disiccation and vertebral endplate disease most marked at L4-L5.”
Claimant has consistently and credibly attributed her low back injury with her work on November 6 and 18 of 2001. Respondent presented no evidence to the contrary nor any evidence to cast even a shadow of a doubt upon whether claimant injured her back at work on those dates.
It has long been recognized that a causal relationship may be established between an employment-related incident and a subsequent physical injury upon a showing that the injury manifested itself within a reasonable period of time following the incident, is logically attributable to the incident, and there is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., 234 Ark. 104, 357 S.W.2d 263 (1962).
If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the Commission’s refusal to make an award. Id. But, if the disability does not manifest itself until many months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and the disability, the issue becomes one of fact upon which the Commission’s conclusion is controlling. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962). See Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001).
In my view, claimant has proved by a preponderance of the evidence that she sustained a compensable injury and that she is entitled to the benefits awarded by the Administrative Law Judge who actually heard this case and was in the best position to examine the demeanor of these witness while presenting their testimony.
For the foregoing reasons, I must respectfully dissent from the majority opinion to reverse claimant’s benefit award.
_______________________________ SHELBY W. TURNER, Commissioner