CLAIM NO. E704888
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Respondents appeal an opinion and order filed by the Administrative Law Judge on November 19, 1997. In that opinion and order, the Administrative Law Judge found that claimant sustained an injury identifiable by time and place of occurrence. Accordingly, medical benefits were awarded in addition to temporary total disability benefits at the rate of $272.00 per week from February 19, 1997, and continuing until claimant returned to work for respondent. Based upon our de novo review of the entire record, we find that claimant has met his burden of proof. Therefore, the decision of the Administrative Law Judge must be affirmed. [3] On January 2, or 3, 1997, claimant was assigned to assist a co-worker, W.D. Barnes, with the repair of some equipment. It was necessary for the men to remove the rollers, which weighed approximately fifty pounds each. Claimant testified that one of the rollers was broken, and it fell. Claimant was attempting to keep the other roller level; however, the weight of the roller pulled him down and he injured his lower back. Claimant testified that he immediately felt a burning sensation in his back. Before the end of his shift, claimant reported the injury to his supervisor, Clifford Ledbetter. A notation of the injury was made but an incident report was not completed. [4] Claimant testified that he did not immediately request medical treatment because he believed the injury to be minor. He stated that he took over-the-counter medication following this incident, which eased the pain. Claimant testified that when he awoke on February 16, 1997, he experienced pain radiating into his left leg. He also had difficulty ambulating on this date. When claimant’s symptoms did not improve, he called Mr. Ledbetter at home on February 19, 1997, and requested medical treatment. Claimant was advised to report to the emergency room of St. Joseph’s Regional Health Center, where he was met by Ledbetter. It is claimant’s testimony that following the incident in January of 1997, he complained to co-workers regarding his back injury. [5] According to the emergency room records for February 19, 1997, claimant provided a history of a work-related injury occurring on January 2, 1997, as he was pulling a roller. Claimant was prescribed medication, advised to obtain follow-up treatment with Dr. Robert Kleinhenz, and discharged. Moreover, claimant was advised to perform no lifting for one week. Dr. Kleinhenz’s office note for March 3, 1997, indicates that claimant attributed his problems to a work-related injury on January 2, 1997. Apparently, claimant had difficulty returning to work, and his activities were further restricted. Additionally, Dr. Kleinhenz prescribed physical therapy for claimant. [6] Dr. Kleinhenz noted on March 24, 1997, that respondent employer would not approve the course of physical therapy he prescribed. On that date, he wrote to respondent employer and indicated that claimant needed physical therapy for the treatment of his injury. He informed the employer that he suspected a bulging disc. Again on April 2, 1997, Dr. Kleinhenz wrote to respondent employer and explained the need for physical therapy. On April 30, 1997, Dr. Kleinhenz wrote still another letter expressing his frustration regarding respondent employer’s lack of a timely response. The correspondence of Dr. Kleinhenz suggests that he attributed claimant’s problems to his work-related injury. [7] Claimant subsequently consulted his family physician, Dr. Queen. Following a MRI, claimant was referred to Dr. Allan Gocio, a neurosurgeon. The MRI revealed an abnormality initially believed to be consistent with an “arachnoid cyst”, which was effacing the thecal sac. Indeed, Dr. Gocio opined on May 13, 1997, that claimant’s symptoms were probably attributable to an arachnoid cyst. He scheduled a lumbar laminectomy for May 16, 1997. Dr. Gocio’s initial impression proved incorrect as evidenced by the operative report dated May 16, 1997, which indicates that disc material was removed from the L3-4 interspace, and that subsequent material removed from the nerve root axilla was a mass of granulation tissue with a central core that appeared to be extruded disc material. Moreover, Dr. Gocio’s May 19, 1997, discharge report specifically identifies the epidural mass as an extruded disc fragment that had migrated down from the L3-4 disc space. Finally, the pathology report dated May 16, 1997, confirmed the conclusion that claimant’s symptoms were caused by disc material rather than a cyst. [8] Clifford Ledbetter testified that claimant did, in fact, report a back injury on January 2, 1997. He stated that claimant declined an offer of medical treatment. Ledbetter also testified that on Friday, January 10, 1997, claimant complained that he was having difficulty performing his job. Based on claimant’s complaints, Ledbetter re-assigned claimant on January 10th. He testified that if claimant’s condition failed to improve, he would schedule a doctor’s appointment for him. However, he heard nothing further from claimant until February 19th. Ledbetter acknowledged that claimant attributed his back pain to the lifting incident. [9] Other witnesses for claimant included co-workers Audon Barron, Arthur Wilson, Michael Lambert, and Lynn Smith. These men corroborated claimant’s testimony regarding his complaints of pain at work. Although the dissent seems to suggest that the corroborating testimony of these witnesses should be accorded little weight because they could not recall the dates on which the claimant relayed back complaints at work, we note that there is no suggestion in the record that the claimant was experiencing back problems at work prior to the January 2, 1997, incident. In addition, the record indicates that the claimant last attended work on February 12, 1997. On that basis, we find that the testimony of these witnesses is highly corroborative of the claimant’s assertion that he experienced ongoing back problems at work during the relevant period at issue in this case. [10] Respondents offered the testimony of W.D. Barnes. Barnes testified that he was unaware that claimant injured himself on January 2, 1997. Moreover, he stated that he did not observe claimant experiencing any physical problems following that date. He stated that the only occasion he worked with claimant was on January 2, 1997. Barnes testified that claimant’s supervisor informed him of the injury at a later date. We would point out that claimant’s reporting obligation was to his superiors, and he complied with this requirement by reporting his back injury to Clifford Ledbetter, his supervisor, on January 2, 1997, the date the injury occurred. He was not obliged to inform any other co-worker of the incident or of subsequent back problems, and we accord little significance to Barnes’ testimony when weighed against the testimony of the claimant, Barron, Wilson, Lambert, and Smith. [11] Respondents also offered the testimony of claimant’s girlfriend, Tammy Outler. As the Administrative Law Judge points out in his opinion, it appears that respondents were attempting to establish the existence of an independent intervening cause by eliciting testimony from Tammy Outler that she and the claimant had purchased fishing licenses; however, Outler’s testimony failed to accomplish this and was of little probative force. [12] This case is controlled by Act 796. Claimant contends that he sustained an injury as the result of a specific incident which is identifiable by time and place of occurrence. Therefore, claimant must establish the requirements of Ark. Code Ann. § 11-9-102 (5) (A) (i) (Repl. 1996). An injury is not compensable unless each statutory element is satisfied. Jerry D. Reed v. ConAgra Frozen Foods, Full Commission Opinion filed February 2, 1995 (E317744). [13] We find that claimant sustained a specific incident identifiable by time and place of occurrence, which arose out of and during the course of his employment. While there is some question with respect to whether the incident occurred on January 2 or 3, 1997, it is undisputed that claimant informed his supervisor of an injury to his back which occurred as he was attempting to remove a roller. Moreover, claimant reported the incident on the date of its occurrence. While respondents suggest the occurrence of an independent intervening cause, no evidence is offered to support this theory. Respondents simply point out that claimant had missed several days of work prior to the time his symptoms increased. [14] We further find that the injury has been established by medical evidence supported by objective findings in the form of an epidural mass consisting of an extruded disc fragment. Thus, claimant has also demonstrated the presence of internal physical harm to his body. It is noted that respondents seem to suggest that the “objective findings” requirement is applicable to the time of and circumstances surrounding the injury. In their reply brief, respondents state: “In his response, Claimant Randy L. Bailey (“Bailey”) focuses on the fact that his medical records indicate January 2, 1997 as the date of his alleged work-related injury — the same day that he reported a very slight injury to his supervisor at Weyerhaeuser. This fact, alone, does not constitute sufficient medical evidence supported by objective findings as required by Ark. Code Ann. § 11-9-102 (5) (A) (i).” However, in Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), the Arkansas Court of Appeals stated that the “objective findings” requirement applies to the existence of the injury. The Court of Appeals specifically declined the invitation to hold that claimant must offer objective medical evidence “to show the circumstances under which the injury was sustained and the precise time of the injury’s occurrence.” [15] Lastly, it is clear that claimant has demonstrated that as a result of his back injury, he required medical services and suffered a period of disability. When claimant obtained emergency room treatment on February 19, 1997, he stated that his complaints were attributable to the work-related roller incident. When he saw Dr. Kleinhenz on March 3, 1997, he provided the same history, attributing his complaints to the employment incident. The report prepared by Dr. Kleinhenz revealed that claimant had been doing fairly well until about 2 1/2 weeks prior to the March 3, 1997, visit when he woke up and experienced pain while walking. Ultimately, claimant was referred to Dr. Gocio and surgical intervention was required. [16] Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within his healing period; and (2) totally incapacitated from earning wages. Arkansas Highway Transportation Department v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for the healing of the injury, which continues until claimant’s condition is as far restored as the permanent nature of the injury will allow. Nix v. WilsonWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is no additional treatment that will improve claimant’s condition, the healing period has ended. Id. This question is one of fact for the Commission to resolve. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). [17] Claimant was able to work until February 19, 1997, when he sought emergency room treatment. Although claimant was released to return to light duty involving no strenuous activity, it appears from the record that he was unable to tolerate the work he was assigned to perform. Therefore, we find that claimant was disabled from February 19, 1997, until he returned to work for the employer following surgery. At the hearing, claimant was unable to supply his date of return. [18] Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant sustained a compensable injury on or about January 2, 1997, and is entitled to related medical benefits and temporary total disability benefits from February 19, 1997, until he returned to work for respondent employer. The decision of the Administrative Law Judge is affirmed. 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, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996). [19] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[20] Commissioner Wilson dissents. [21] DISSENTING OPINION[22] I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on January 2, 1997. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof. Accordingly, I would reverse the decision of the Administrative Law Judge. [23] On January 2, 1997, the claimant was assisting another employee taking rollers off a conveyor belt and placing them in a cart. The claimant contends that he hurt his back while removing the rollers. W.D. Barnes, whom the claimant was assisting, testified that he did not notice the claimant having any trouble removing the rollers and the claimant never complained to him about hurting his back. The claimant reported to Clifford Ledbetter, his immediate supervisor, that he may have hurt his back. The claimant appeared not to be too concerned about it and turned down Mr. Ledbetter’s offer to get him medical treatment. On Friday, January 10th, the claimant indicated to Mr. Ledbetter that he was concerned about doing his job that night because his back was bothering him. Mr. Ledbetter transferred the claimant to a less strenuous assignment and told him to notify him if he was continuing to have problems so that he could make a doctor’s appointment for him. The claimant returned to his regular job duties on January 13th without any complaints. [24] The claimant continued to perform his job duties until February 19, 1997 when he called Mr. Ledbetter at home and told him his back was bothering him. It is of note, that the claimant volunteered and performed overtime duty during this time period. The claimant took vacation days on February 13th and February 14th. February 15th and February 16th were his scheduled days off. The claimant testified that on February 16th he awoke with pain in his left leg. The claimant claimed that his pain increased on Monday, February 17th, forcing him to call in sick. However, the claimant did not seek medical attention and, indeed, just called the respondent employer’s guard and told him that he was sick. The claimant failed to mention he was having problems with his back. On February 18th, claimant again called in sick to the guard without mentioning any injury. Further, on February 18th, the claimant and his girlfriend, Tammy Outler, traveled to Bismark, Arkansas, to visit the claimant’s parents. The claimant and Ms. Outler purchased fishing licenses at that time. It was the next day that the claimant called Mr. Ledbetter at home and requested to see a doctor. The claimant ultimately underwent surgery for problems associated with his back. [25] In my opinion, the evidence simply does not support a finding that the claimant sustained a compensable injury on January 2, 1997. The claimant continued to work during that period until February 19, 1997. He did not miss any work and he performed his regular job duties. In addition, he requested overtime work. The claimant mentioned the alleged injury to his supervisor and was placed for one night in a different department because of the pain. However, the claimant failed to request medical attention at all during this time period. It was not until the claimant had been off work for six days that he began to experience pain that sent him to the emergency room. During this time period, the claimant’s girlfriend, Ms. Outler, was also off work. I would note that she called in sick the same days the claimant called in sick. The claimant went to his parents’ house in Bismark, Arkansas; however, he complained that his pain was on the scale of a six to seven out of ten. In addition, he purchased a fishing license at that time. [26] The claimant offered the testimony of many co-workers that testified that the claimant complained of back pain early in 1997. However, their testimony is inconsistent. Arthur Wilson thought that the claimant hurt himself at work but could not specifically remember the claimant complaining of pain in January 1997. Mike Lambert stated that he was guessing on the date of the claimant’s complaints and was not sure. Lynn Smith thought that the claim occurred in March of 1997. Audon Berron could not say when the claimant’s complaints occurred, he thought it might be after January 1997. Clearly, this testimony does not provide enough evidence of a causal connection between the claimant’s alleged work injury in January of 1997 and his February complaints. [27] It is also of important note that the claimant called in sick on February 17th and 18th which was two days prior to the claimant seeking treatment from the emergency room. The claimant left a message and spoke to the respondent’s guard. However, the claimant failed to mention that he was having problems with his back. He said that he was merely sick. The claimant had been counseled about his absenteeism. All of these things call into question the claimant’s credibility. A claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson WorldHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). [28] It is also of interest to note that the claimant’s girlfriend, Ms. Outler, called in sick at the same time. This calls into question the credibility of Ms. Outler. She had been counseled several times by her employer for excessive absenteeism. However, she called in sick on February 17th and February 18th in order to be with the claimant. I simply find that her testimony is not believable. 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). [29] Therefore, after considering all of the evidence and weighing the evidence impartially without giving the benefit of the doubt to either party, I find that the claimant has failed to meet his burden of proof. Therefore, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury on January 2, 1997. Accordingly, I respectfully dissent from the majority opinion. [30] MIKE WILSON, Commissioner